HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Saturday, March 12, 2005

Elder Siblings

A new study from Norway confirms what most of the elder-born children in the world already know, birth order matters.  Reuters reports that the study demonstrates,

“It is the birth order and not necessarily the size of the family that is important,” said economics professor Kjell Salvanes of the Norwegian School of Economics and Business Administration. “It is better if you are the first born.” Salvanes and two colleagues from the University of California, Los Angeles based their study on census data of Norwegians born between 1912 and 1975.

. . . .

They found that younger siblings tend to get less schooling than their elders and then end up with lower pay on average and were more likely to be in part-time work, Salvanes said. The findings were likely to hold true in other countries, he said.

The complete findings from the study will appear in the Quarterly Journal of Economics, a Harvard publication, in May.  To my own lovely and talented little sister, I can only beg her forgiveness for hogging the educational opportunities.  [bm]

March 12, 2005 | Permalink

Hospice Choices

Hospiceblog, an excellent resource for hospice issues, has been running an informative series of articles this week concerning how to select a hospice.   Of course, I would hope that no one ever has to make such a choice for a loved one, but if one does, the articles provide advice and as well as understanding concerning the difficult decision. [bm]

March 12, 2005 | Permalink

Friday, March 11, 2005

Upcoming Genetics Conference

On April 8, 2005, those of you in Boston or interested in the topic of genetic disaiblity should consider attending the upcoming conference entitled, "Genetic Disability:  DNA Profiling of Embryos and Fetuses.  This conference is sponsored by the American Society of Law, Medicine & Ethics and Boston University School of Law and School of Public Health.  The conference will examine "examine the possible goals of embryo and fetus screening and testing, the meaning of the term "disability" as used by those seeking and providing the screening and testing, the effect of the screening and testing on society, and the legal and public policy options available to influence or channel embryo and fetus screening for 'disability.'" An agenda and list of the terrific speakers, as well as registration information, can be found here.  It looks like an absolutely wonderful conference.  [bm]

March 11, 2005 | Permalink

Thursday, March 10, 2005

Schiavo Watch: Day 4,317

Legal developments in the Terri Schiavo case continue to percolate along.  Here are some of the most recent events (culled from an AP report today (courtesy of FindLaw) and the excellent timeline maintained by Steven Haidar and Kathy Cerminara):

  • On Thursday, the trial judge in the case (Greer, J.) denied the request of the Department of Children & Family Resources on Wednesday to intervene in the case, as well as the Department's request to stay the removal of Terri Schiavo's feeding tube for up to 60 days while the department investigates allegations of abuse and neglect. (AP, courtesy of CNN.)  Without further stays, the feeding tube that has kept Terri Schiavo alive will be removed on March 18.
  • On Wednesday, a new bill (H. 701) cleared the House Health Care Regulation Commitee by a 7-4 vote and continued to make its way to a full House vote.  The bill would require doctors to provide nutrition and hydration to any incompetent patient who does not have an advance directive.   The text of Committee Substitute No. 1 (which is the version that was passed by the Committee yesterday) is here.  A companion bill, S.B. 2128, has been filed in the Senate but all the action so far is in the Florida House.
  • Today Fla. 2005 H. 701 was added to the Judiciary Committee's agenda.  It also has to go through the Florida Health & Families Council before it gets to a floor vote in the House.  Bill updates are here.
  • March 8, U.S. Rep. Dave Weldon, M.D. (R.-Fla.) introduced H.R. 1151, entitled "The Incapactitated Persons' Legal Protection Act," which would allow a federal court to entertain a habeas petition to review the Schiavo controversy.  His remarks in the Congressional Record are at pp. H993-H994.  (His previous floor remarks, on March 3, are at p. H972 of the Congressional Record.) The GPO print of the bill is still not available, nor has it been posted to Weldon's web page, although there is a news release about the bill.
  • March 7: bioethicists (most of them leaders in the Florida Bioethics Network), filed an invited analysis of H.701 in which they unanimously concluded that the Florida bill

    • Would impose impossible burdens on physicians and patient surrogates, proxies and guardians.

    • Would establish insurmountable barriers to Floridians’ exercise of uncontroversial rights to refuse burdensome medical treatment.

    • Misjudges the medical nature of artificial nutrition and hydration and the ethical issues involved in withholding and withdrawing such interventions.
    • Misunderstands the nature and importance of disability in end-of-life care.
  • Nova law prof Kathy Cerminara's legal analysis of the bill is here.  Prof. Cerminara is  a signatory to the bioethicists' report, and her legal analysis is to the same effect as their report: "H701 is an attempt to deprive a segment of Florida’s citizens of their constitutional rights to bodily integrity and self-determination merely because they have not memorialized their wishes in writing."


March 10, 2005 | Permalink

Oregon Releases Its 7th Annual Report on PAS

AP reports (courtesy of FindLaw) that Oregon's Department of Human Services today released its 7th annual report on the use of its Death With Dignity Act.  As in the past, the report is an invaluable resource for supporters and opponents of PAS alike.

Some of the highlights (from the Summary):

  • In 2004, 40 physicians wrote a total of 60 prescriptions for lethal doses of medication, the first decrease in the annual total of prescriptions written since PAS became legal in Oregon. In 1998, 24 prescriptions were written, followed by 33 in 1999, 39 in 2000, 44 in 2001, 58 in 2002, 68 in 2003, and 60 in 2004.
  • Thirty-five of the 2004 prescription recipients died after ingesting the medication. Of the 25 recipients who did not ingest the prescribed medication in 2004, 13 died from their illnesses, and 12 were alive on December 31, 2004. In addition, two patients who received prescriptions during 2003 died in 2004, after ingesting their medication, giving a total of 37 PAS deaths during 2004.
  • Although five fewer patients ingested lethal medication in 2004 compared to 2003, the trend has been upward since legalization. In 1998, 16 Oregonians used PAS, followed by 27 in 1999, 27 in 2000, 21 in 2001, 38 in 2002, 42 in 2003, and 37 in 2004.
  • Paralleling the upward trend in the number of deaths are the ratios of PAS deaths to total deaths: in 1998 there were 5.5 PAS deaths per every 10,000 total deaths, followed by 9.2 in 1999, 9.1 in 2000, 7.0 in 2001, 12.2 in 2002, 13.6 in 2003, and an estimated 12/10,000 in 2004.
  • Compared to all Oregon decedents, PAS participants in 2004 were more likely to have malignant neoplasms (78%), to be younger (median age 64 years), and to have more formal education (51% had at least a baccalaureate degree). 
  • During the past seven years, the 208 patients who took lethal medications differed in several ways from the 64,706 Oregonians dying from the same underlying diseases. Rates of participation in PAS decreased with age, but were higher among those who were divorced or never married, those with more years of formal education, and those with amyotrophic lateral sclerosis, HIV/AIDS, or malignant neoplasms.
  • Physicians indicated that patient requests for lethal medications stemmed from multiple concerns with nine in 10 patients having at least three concerns. The most frequently mentioned end-of-life concerns during 2004 were: a decreasing ability to participate in activities that made life enjoyable, loss of autonomy, and a loss of dignity.
  • During 2004, 25 patients (68%) used pentobarbital as their lethal medication and 12 patients (32%) used secobarbital.  Complications were reported for three patients during 2004; all involved regurgitation and none involved seizures. One-half of patients became unconscious within five minutes of ingestion of the lethal medication and died within 25 minutes. The range of time from ingestion to death was five minutes to 31 hours. In no case were Emergency Medical Services called.
  • Although the number of Oregonians ingesting legally prescribed lethal medications has trended upward since 1998, the overall number of terminally ill patients using PAS has remained small, with about one of every 800 deaths among Oregonians in 2004 resulting from physician-assisted suicide.

Here's the Report's take on the Supreme Court litigation surrounding the Death With Dignity Act:

Although physician-assisted suicide has been legal in Oregon for seven years, it remains highly controversial. On November 6, 2001, U.S. Attorney General John Ashcroft issued a new interpretation of the Controlled Substances Act, which would prohibit doctors from prescribing controlled substances for use in physician-assisted suicide. All patients receiving medication under the Death with Dignity Act have used barbiturates, which are controlled substances and, therefore, would be prohibited by this ruling for use in PAS. In response to a lawsuit filed by the State of Oregon on November 20, 2001, a U.S. district court issued a temporary restraining order against Ashcroft’s ruling pending a new hearing. On April 17, 2002, U.S. District Court Judge Robert Jones upheld the Death with Dignity Act. On September 23, 2002, Attorney General Ashcroft filed an appeal, asking the Ninth U.S. Circuit Court of Appeals to overturn the District Court’s ruling, which was subsequently denied on May 26, 2004 by a three-judge panel.  On July 13, 2004, Ashcroft filed an appeal requesting that the Court rehear his previous motion with an 11-judge panel; on August 13, 2004, the request was denied. On November 9, 2004, Ashcroft asked the U.S. Supreme Court to review the Ninth Circuit Court’s decision and on February 22, 2005, the court agreed to hear the appeal.  Arguments will be held during the Supreme Court's next term, beginning in October 2005. At this time, Oregon's law remains in effect.

The Supreme Court's docket page for the case (No. 04-623) is here[tm]

March 10, 2005 | Permalink

New Article by Michael Perlin

Michael_perlin_2_1 Professor Michael Perlin of New York Law School has written a new article entitled, "'Salvation' or a 'Lethal Dose'? Attitudes and Advocacy in Right to Refuse Treatment Cases," which is available in the 2005 Journal of Forensic Psychology Practice, Vol. 4, No. 4, pp. 51-70.   (yes, I know I have linked to his articles before - he is quite the prolific writer).  Professor Perlin is a leader in the area of mental health law and his insights are thoughtful and nuanced.  The abstract follows:

There has been surprisingly little literature about two of the most important issues that affect the way the right of institutionalized psychiatric patients to refuse medication is implemented in an institutional setting: the attitudes of the parties concerned (patients and staff), and the adequacy of counsel that is made available to patients seeking to invoke their constitutional right to refuse. The lack of literature on these issues reflects, I believe, a deeper issue: the extent to which we, as a society, trivialize what is at stake in the right to refuse treatment litigation and trivialize the personhood of those in institutions subject to such medications.

If appellate courts enter broad orders in right to refuse cases without thinking about the operationalization of these orders in subsequent individual cases (or if only perfunctory assignment of disinterested counsel is made), the initial order becomes little more than a pretext. And if other appellate courts close their eyes to the level of inadequacy of counsel, this willful blindness simply adds one extra layer of pretextuality to the process.

We also need to consider some other underlying social issues. The common wisdom is clear here. Drugs serve two major purposes of social control: they cure dangerousness, and they are the only assurance that some deinstitutionalized patients can remain free in community settings. Both of these assumptions are reflected in the case law that has developed in individual involuntary civil commitment cases (in which a judge's perception of the likelihood that an individual will self-medicate becomes the critical variable in case dispositions); they are also reflected in the public discourse that is heard in classrooms, hospital corridors, and courtrooms.

Neither of these assumptions has any basis in science or in law. Yet, without counsel to serve as a brake - to ask questions, to challenge assumptions, to identify faux "ordinary common sense" to point out the dangerous pitfalls of heuristic thinking - these assumptions will continue to dominate and control the disposition of individual right to refuse treatment cases.

Again, counsel's significance increases even more drastically here in the context of the improper presumption of incompetency indulged in by many trial judges. Without vigorous, independent counsel, it is doubtful that challenges to this improper presumption would ever be launched. This is especially problematic in light of the fact that the equation of incompetency to mental illness does appear consonant with ordinary common sense. Counsel's role is especially important in areas of the law where ordinary common sense is so dissonant with empirical fact. If there is any expectation that these issues be considered thoughtfully and critically, it is essential that the issue of counsel presence and adequacy be moved to center stage.

The full article is available here.[bm]

March 10, 2005 | Permalink

Medical Experts in the Terri Schiavo Case

Majikthise's blog contains an examination of the 17 affidavits filed by medical experts for Terri's parents in the Terri Schiavo case.    She notes the deficiencies in some of the "medical credentials" and also points out that many of the affidavits fail to address her level of brain damage.  It is an interesting read.  She also links to another blog, Alas, a Blog, which provides some further critique of the experts.  [bm

March 10, 2005 | Permalink

Euthanasia and Infants

Today's New York Times has a story about a Dutch proposal, called the  Groningen protocol, that would permit physicians in the Netherlands to end the lives of "babies born into lives of grievous suffering." The two doctors who support the protocal, Drs.Eduard Verhagen and Pieter J. J. Sauer, have written an article in the New England Journal of Medicine to explain their guidelines and reasoning.  The Times reports the doctors and their opponents as saying,

"We are convinced that life-ending measures can be acceptable in these cases under very strict conditions," the authors wrote. Those conditions include the full and informed consent of the parents, the agreement of a team of physicians, and a subsequent review of each case by "an outside legal body" to determine whether the decision was justified and all procedures had been followed.

Stephen Drake, a research analyst at Not Dead Yet, an organization based in the United States that views euthanasia and assisted suicide as threats to people with disabilities, said "there's nothing surprising about the medical profession wanting to formalize and legitimize practices that have wide acceptance in the medical community worldwide," and added, "Obviously, we're against that." The Groningen protocol, he said, is based on "singling out infants based on somebody else's assessment of their quality of life."

This proposal is quite obviously controversial.  I do believe it is healthy, however, to discuss what doctors are already doing in these cases so that everyone can gain a better understanding of some of the difficult moral and medical decisions that are made when babies are born into a short life of extreme suffering.  Also, this proposal may start a debate about some additions to the medical school curriculum - perhaps a class to help future physicians understand the lives of those with severe disabilities so that decisions about an infant;s quality of life can be made (with parents and others) on a more informed basis.[bm

March 10, 2005 | Permalink

National Tort Reform? Not If Texas is Any Indication

Law professors Bernard Black (Texas), Charles Silver (Texas), David Hyman (Illinois), and William Sage (Columbia) write in their op-ed piece in this morning's New York Times that there is no evidence that a crisis in states' tort systems is driving the increases in med-mal premiums.  They summarize the results of their review of all closed claims in Texas between 1988 and 2002 (the year before Texas' legislature enacted sweeping tort reform measures):

Large claims (with payouts of at least $25,000 in 1988 dollars) were roughly constant in frequency.

The percentage of claims with payments of more than $1 million remained steady at about 6 percent of all large claims.

The number of total paid claims per 100 practicing physicians per year fell to fewer than five in 2002 from greater than six in 1990-92.

Mean and median payouts per large paid claim were roughly constant.

Jury verdicts in favor of plaintiffs showed no trend over time.

The total cost of large malpractice claims was both stable and a small fraction (less than 1 percent) of total health care expenditures in Texas.

In short, as far as medical malpractice cases are concerned, for 15 years the Texas tort system has been remarkably stable.

Comparable studies of claims in Florida and Missouri lead to consistent results.  The authors conclude:

Malpractice premiums have risen sharply in Texas and many other states. But, at least in Texas, the sharp spikes in insurance prices reflect forces operating outside the tort system.

The medical malpractice system has many problems, but a crisis in claims, payouts and jury verdicts is not among them. Thus, the federal "solution" that Mr. Bush proposes is both overbroad and directed at the wrong problem.


March 10, 2005 | Permalink

Wednesday, March 9, 2005

Hospital Infection Reporting Laws

Today's issue of the CDC's weekly public health law newsletter (a fabulous resource, by the way) has a brief discussion and link to a March 1 article in the Atlanta Journal-Constitution (free registration required) on mandatory reporting of hospital infection.  Four states have such laws (Florida, Illinois, Missouri, and Pennsylvania) and another 20 are considering them.  The article also reported that "[a] federal advisory panel on Monday issued guidelines for states to use in shaping the laws. But the group stopped short of endorsing such reporting, saying there is no proof it reduces infections." The guidelines can be found here and the CDC press release is here. [tm]

March 9, 2005 | Permalink

Computerized Medical Records - Not the Cure for All Ills

The New York Times reports today on recent studies that call into the question the new push for computerized medical records as a means to decreasing medical errors.  The new studies were published in the Journal of the American Association (free article).  The Times reports,

One paper, based on a lengthy study at a large teaching hospital, found 22 ways that a computer system for physicians could increase the risk of medication errors. Most of these problems, the authors said, were created by poorly designed software that too often ignored how doctors and nurses actually work in a hospital setting.

The likelihood of errors was increased, the paper stated, because information on patients' medications was scattered in different places in the computer system. To find a single patient's medications, the researchers found, a doctor might have to browse through up to 20 screens of information.

Among the potential causes of errors they listed were patient names' being grouped together confusingly in tiny print, drug dosages that seem arbitrary and computer crashes.


March 9, 2005 | Permalink

Tuesday, March 8, 2005

Pennsylvania Law Gives Parents New Powers Over Kids' Mental Health Care

Monday's Pittsburgh Post-Gazette featured an article about a Pennsylvania law (eff. Jan. 22) that "gives parents more authority to direct their teenage children into inpatient mental health care":

The law allows parents and legal guardians to consent to inpatient treatment recommended by a doctor for children ages 14 to 17, even if the teenagers disagree.

For children in that age group, the law also:

    • Grants parents and guardians, if they consent to a child's treatment, a limited right to release the child's medical records to mental health professionals. The right to release records was formerly reserved to the teenager.
    • Allows teenagers to protest inpatient care approved by a parent or guardian by requesting a court hearing.

Pennsylvania's Act 147 of 2004 is here.  The Juvenile Law Center's summary is here. [tm]

March 8, 2005 | Permalink

Teenagers and Hormones

The Guardian has an interesting article on puberty and the role of hormones.   According to recent research, you cannot blame all the woes of your teenage years on hormones - it is much more complicated and involves a number of environmental as well (no real surprise there).  The article is interesting and attempts to explain why teenagers engage in some bizarre and dangerous behaviors.  The article states,

Teenagers get a rush from intensity, excitement and arousal. Loud music, big dippers, horror movies? That's where you'll find teenagers. In some teens this thrill-seeking and quest for novelty is subtle and easily managed. In others, the reaction is more severe and can become out of control. This is reflected in the statistics for teenager deaths, three quarters of which result from accident or misadventure.

It is tempting - indeed it has always been assumed - that such behaviours are entirely hormone-driven. After all, aren't teenagers hormones on wheels? From all that I have said so far, it seems logical. But links between hormone levels and poor behaviour in teenagers are either weak, or non-existent.

Nevertheless, if the number one risk factor for homicide is maleness (as it is) and the second is youth, and given that boys have loads of testosterone, and girls don't (or certainly not nearly as much), surely this must put testosterone in the dock as the cause of aggressive adolescent behaviour?

Actually not. First, there is no consistent relationship between normal circulating testosterone levels and violence in teenagers. In fact, there is a rather better correlation between high testosterone levels and levels of popularity and respect from peers. One hypothesis is that teenage boys pick up cues from the environment and use them to determine "normal" behaviour. This is illustrated by recent work from the MRC unit at the Institute of Psychiatry which shows that it is not testosterone levels that determine your waywardness as a teenager, but basically, the people you hang with. Keep the company of bad boys, and you will take your behaviour cue from them. Hang out with sober sorts and your behaviour will be like theirs. As we all remember, being split up from your best mate is a peril of adolescence. "They're a bad influence on you" is the general gist of parental or teacher wisdom on this one. Oh dear. The ignominy of the Institute of Psychiatry proving Miss Mansergh, year nine form teacher, right.

Deprivation may be a more important determinant of teenage violence. The theory - and there is a wealth of literature on this subject - is that if low-status males are to avoid the road to genetic nothingness (the words of neuroscientist Steven Pinker), they may have to adopt aggressive, high-risk strategies. If you've got nothing, you have nothing to lose through your behaviour. Certainly, in humans, both violence and risk-taking behaviour show a pronounced social gradient, being least in the highest social classes and most in the lowest ones. This is surely not what you would expect if testosterone were the only driver of violence.

Such research may have a positive impact on rehabilitation and re-direction strategies for youthful offenders.  It should be interesting to follow the development of such findings.  [bm]

March 8, 2005 | Permalink

CBO Releases Revised Medicare Estimates

On March 4, the Congressional Budget Office sent a letter to Rep. Joe Barton, chair of the House Committee on Energy and Commerce and attached "revised . . . estimates of spending for Medicare, including the new Part D prescription drug program."  The letter (and revised estimates) have now been released (click here).  The estimate adds $54 billion more to the price tag of Part during its first 10 years and is part of a $70 billion increase in the CBO's estimate for Medicare expenditures, which is in turn a significant contributor to what the CBO says will be $200-billion-plus deficits for the next ten years if all of the Bush Administration's proposals for spending and taxes are enacted into law.  (Cleveland Plain Dealer[tm]

March 8, 2005 | Permalink

Monday, March 7, 2005

Biotech & IP Conference at Stanford Law School

TITLE: "Biotechnology & Intellectual Property: Current Controversies"

DATE AND TIME:  Friday, March 11, 2005, 8:45 a.m. to 5:00 p.m.

LOCATION:  Stanford Law School, Room 290, Crown Quadrangle, 559 Nathan Abbott Way, Stanford, CA 94305

BACKGROUND:  Patent protection is crucial to the biotechnology industry, but too much or the wrong kind of protection can hinder progress. Federal circuit courts have recently been grappling with application of patent law to biotechnology. A group of expert lawyers, judges, and scholars will convene for this one-day conference to discuss emerging legal issues in biotech patent law. This series of panel discussions will provide excellent background on the latest developments in this emerging area of law. Panelists include:

       - John H. Barton, George E. Obsorne Professor of Law, Emeritus, Stanford Law School; visiting scholar at National Institutes of Health (NIH), Department of Clinical Bioethics

       - Robert P. Blackburn, Vice President and Chief Patent Counsel, Chiron Corp, and Distinguished Scholar, Berkeley Center for Law and Technology, University of California, Berkeley, School of Law (Boalt Hall)

       - Mildred Cho, Senior Research Scholar & Associate Director, Stanford Center for Biomedical Ethics, Stanford University

       - Richard A. Epstein, James Parker Hall Distinguished Service Professor of Law, University of Chicago Law School

       - Hank Greely, Dean F. and Kate Edelman Johnson Professor of Law; Director, Stanford Center for Law and the Biosciences, Stanford Law School

       - Sean Johnston, Vice President, Intellectual Property and Assistant Secretary, Genentech, Inc.

       - Robert Cook-Deegan, Director, Center for Geonome Ethics, Law and Policy, Institute for Geonome Sciences and Policy, Duke University

       - Katharine Ku, Director, Office of Technology Licensing, Stanford University

       - Mark A. Lemley, William H. Neukom Professor of Law; Director, Program in Law, Science & Technology, Stanford Law School; Of Counsel, Keker & Van Nest LLP

       - Hon. Ronald M. Whyte, Judge, U.S. District Court for the Northern District of California

       For more information, please email or call Roland Vogl at 650/723-8532. General registration is available at


March 7, 2005 | Permalink

Bioethics Conference

On Monday, March 14, 2005, Cumberland School of Law's Center for Bioetchnology, Law and Ethics and the Cumberland Law Review are hosting "Does the Field of Bioethics Provide Answers or Expertise?  An Expoloration of Secular and Religious Bioethics Methodologies."  The speakers are terrific and include Professors Janet Dolgin, Jack Nelson, Larry Palmer, Lois Shepherd and David Smolin.    They will be discussin Alternative Reproductive Ttechnologies, Death and Dying and the Terri Schiavo case, and Children as Research Subjects - Grimes v. Kennedy Krieger Institute.  It looks like a great conference!  [bm]

March 7, 2005 | Permalink

Infection Rates

As we are all well-aware, hospitals have a problem with infection rates.  Fortunately, a dialog has been started to help hospitals talk more openly about some of their problems and potential solutions.  An article by Jennifer Gordon of Business First of Louisville reports that Consumers Union, the publishers of Consumer Reports, has begun a nationwide effort to require hospitals to report infection rates to the public.   Consumers Union has created a website to help spread the word about its efforts  So far, four states have enacted law requiring such reporting, and another 28 states have bills pending in the legislature.   The article further reports on the Centers for Disease Control and Prevention's efforts in this arena as well.  It states,

On Monday, the U.S. Centers for Disease Control and Prevention's Healthcare Infection Control Practices Advisory Committee (HICPAC) released recommendations for policymakers about how to track hospital-acquired infection rates. The recommendations call for policymakers to:

    • use established public health surveillance methods when designing reporting systems;
    • create a multidisciplinary advisory panel to monitor the development of the reporting system;
    • phase in measures to allow time for facilities to adapt;
    • provide confidential feedback to health care providers.

"The goal of mandatory reporting is to provide consumers with information they can use to make informed health care choices," Dr. Denise Cardo, director of CDC's Division of Healthcare Quality Promotion, said in a news release. "We don't know yet if public reporting will reduce the number of infections, but we do support collecting information that can lead to improvements in patient safety."

The article continues with an overview of some of the benefits seen from reporting requirements while also examining some of the concerns various hospital administrators have concerning this reporting project.  Thanks for Jim Tomaszewski for this article.  [bm]

March 7, 2005 | Permalink

Sunday, March 6, 2005

Medical Malpractice - Unintended Consequences

Professor Catherine M. Sharkey, Columbia Law School, has written an interesting and extremely informative article entitled "Unintended Consequnces of Medical Malpractice Damages Caps" to be published in the New York University Law Review this May.  It might be a helpful read for those in Washington considering a national damage cap.

The abstract is below:

Previous empirical studies have examined various aspects of medical malpractice damages caps, focusing primarily upon their overall effect in reducing insurance premium rates and plaintiffs' recoveries, and other effects such as physicians' geographic choice of where to practice. Experimental studies have focused attention upon the possible "anchoring" effect of caps, which might inadvertently increase award amounts. This Article is the first to explore an unintended crossover effect that may be dampening the intended effects of caps.

This Article posits that, where noneconomic damages are limited by caps, plaintiffs' attorneys will more vigorously pursue, and juries will award, larger economic damages, which are often unbounded. Implicit in such a crossover effect is the malleability of various components of medical malpractice damages, which often are considered categorically distinct, particularly in the tort reform context. This Article challenges this conventional wisdom.

My original empirical analysis, using a comprehensive data set of jury verdicts from 1992, 1996, and 2001, in counties located in 22 states, collected by the National Center for State Courts, concludes that the imposition of caps on noneconomic damages has no statistically significant effect on overall compensatory damages in medical malpractice jury trial verdicts or final judgments. This result is consistent with the crossover theory. Given the promulgation of noneconomic damages caps, the crossover effect may also partially explain the recently documented trend of rising economic (as opposed to noneconomic) damages in medical malpractice cases.

You can find the full article here. [bm]

March 6, 2005 | Permalink

Surviving Assisted Suicde

A terminally ill Oregon man who tried to end his life with a fatal dose of drugs prescribed legally under Oregon's assisted-suicide law awoke three days later.  Mr. David Prueitt, who had lung cancer, lived for two more weeks before dying of natural causes.   There have been several other cases of complications with doctor-assisted suicides.  In this case, the state Department of Human Services will turn the case over to either the Board of Medical Examiners or State Board of Pharmacy to discover whether where it was the procedure or the drugs were at fault.  [bm]

March 6, 2005 | Permalink