HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Saturday, July 23, 2005

Electronic Medical Records

Dr. Edgar Allen weighs in  electronic medical records at the Heath Care Renewal blog.  He has some concerns about the push toward electronic medical records.  He states,

I implore physicians and other providers to educate themselves about health information technologies. We all must ensure that we have first access to the data we collect; that we retain a high degree of control over these data. The risk is that we become glorified data entry personnel for third parties (to a greater extent than we already are) and hence, actually diminish our already slipping grip on practicing medicine. I am a big advocate of information technology. However, if physicians approach EMR adoption passively (or passively aggressively) they risk getting run over by this horse that is clearly out of the barn.

The blog posts some further data on some efficiency (or lack thereof) aspects of electronic medical records here.  [bm]

July 23, 2005 | Permalink | TrackBack (0)

Friday, July 22, 2005

Porn and Pandas

According to the BBC, a Chinese project to encourage captive pandas to mate is working.  The article discusses the new technique,

Hua Mei, who was born in the US but moved to China in February, was shown the videos as preparation for a series of "blind dates", the China Daily said.

The female was shown the videos because experts feared she had little knowledge of mating after living in captivity.

Pandas rarely breed in captivity and are endangered in the wild.

Thanks to Majikthise for a link to the article.  You knew that some porn had to have some value (just not the stuff that has been hidden in Grand Theft Auto).  Happy Friday!  [bm]

July 22, 2005 | Permalink | TrackBack (0)

Obesity - Good for the Economy

Slate has an amusing look at whether obesity is actually good for the American economy.  [bm]

July 22, 2005 | Permalink | TrackBack (0)

Thursday, July 21, 2005

Electronic Medical Records

The New York Times reports on a new Medicare plan to help increase the transfer of medical records into electronic form.  The Times reports,

With electronic files, patient records are not stuck on pieces of paper in endless files, but are on a screen at the touch of a key. The computers alert doctors to do medical tests and avert errors by warning when they write a prescription for the wrong drug or the wrong dose. Patients can often see their own files and even make their own appointments, online, from their homes.

But most doctors have balked. The systems cost tens of thousands of dollars, and doctors worry that the companies selling them and providing support will go out of business. Many use computers to file health insurance claims, but only 20 percent to 25 percent of the nation's 650,000 licensed doctors outside the military and the Department of Veterans Affairs are using electronic patient records.

Now, however, Medicare, which says the lack of electronic records is one of the biggest impediments to improving health care, has decided to step in. In an unprecedented move, it said it planned to announce that it would give doctors - free of charge - software to computerize their medical practices. An office with five doctors could save more than $100,000 by choosing the Medicare software rather than buying software from a private company, officials say.

The program begins next month, and the software is a version of a well-proven electronic health record system, called Vista, that has been used for two decades by hospitals, doctors and clinics with the Department of Veterans Affairs. Medicare will also provide a list of companies that have been trained to install and maintain the system.

Sounds like an interesting idea to me.  [bm]

July 21, 2005 | Permalink | TrackBack (0)

Commencement Ceremony Congratulations

Congratulations to the recent graduate students receiving their Master's Degree in Health Law from the Shepard Broad Law Center at Nova Southeastern University (NSU).   According to the school's press release,

Twenty-five students from nine states and the Bahamas traveled to Fort Lauderdale to celebrate their completion of the rigorous online two-year program designed to educate non-lawyer health care professionals about health-related legal issues. The program is taught almost entirely over the Internet with the exception of two residential sessions held on campus annually in July. Designed for working professionals, the M.H.L. program is geared to meet the needs of full-time practitioners, administrators, military              personnel, nurses, risk managers, and leaders in the health care               industry.

The Shepard Broad Law Center offers an innovative 21st century curriculum for today’s talented student. In addition to the online Master's Degree in Health Law, the school offers a solid foundation in traditional legal subjects and a pioneering clinical program that sets it apart from other law schools. Students may enroll in either a full-time day or part-time evening J.D. program. The Shepard Broad Law Center is ABA-approved, and offers a wide variety of international and         comparative learning opportunities including courses, clinical             opportunities, and law programs abroad.


July 21, 2005 | Permalink | TrackBack (0)

Wednesday, July 20, 2005

Catholic and Jewish Bioethics Perspectives Explored

The July 14 on-line edition of the Catholic Sentinel (the "Oldest Catholic Newspaper on the West Coast") has an interesting piece about the remarks of Rabbi Daniel Sinclair, a visiting professor of biomedical law at the Jesuits' Fordham University Law School and a teacher at Hebrew University in Jerusalem, and Father John Tuohey, director of Providence Center for Health Care Ethics.  Topics included in the brief article: life-support for patients in a persistent vegetative state, the doctrine of double effect, the distinction between withholding and withdrawing treatment, and physician-assisted suicide. [tm]

July 20, 2005 | Permalink | TrackBack (0)

NGA reaches consensus on Medicaid

After six months of negotiations, the National Governor's Association, with the support of all 50 governors, has reached a consensus on Medicaid changes.  According to the LA Times, the governors' Medicaid plan would allow states to demand co-payments from the poor, the disabled, and women and children, as well as add tools to prevent seniors from giving relatives assets in order to qualify for Medicaid-funded long term care.  Their plan will give states the ability to experiment with more effective ways to deliver health care and control its cost. 

The governors are also discussing the new Medicare changes which, according to Democrat Governor of Virginia Mark R. Warner, would unfairly force states to pay part of the new prescription drug benefit, costing states hundreds of millions of dollars. They focused on the small portion of the new prescription drug policy that would affect people who are poor enough to qualify for Medicaid and old enough to qualify for Medicare.  Under the new Medicare law, the federal government nominally takes over responsibility for this group and requires states to continue to pay the overwhelming majority of the bill for their drugs by sending cash to Washington.  Many governors said this would require states to pay more than before, and they argue that the federal government should pay the costs of this group, which are significantly higher per person than for the rest of the Medicaid population. According to the AP,  Texas Governor Rick Perry vetoed the entire $444 million his state was supposed to send to the federal government to pay for drug benefits for the next two years.  Other states are contemplating lawsuits and other possible options.   

The overall goal of building group consensus is to reduce growth of Medicaid by $10 billion over the next five years. The governors discussed methods to contain costs, including giving patients greater understanding of their actual treatment costs and creating a catastrophic coverage plan.  Henry Simmons, president of the National Coalition on Health Care, said that "the rising costs are not only making health care more expensive, they are also hurting the states' economies and putting U.S. businesses at a competitive disadvantage with foreign firms." 

Lindley Bain contributed mightily to this post.  [tm]

July 20, 2005 | Permalink | TrackBack (0)

Judge John Roberts

President Bush nominated Judge John Roberts to replace Justice O'Connor last night.   The New York Times provides some background here and further analysis by Llinda Greenhouse here.  According to the Times,

Instead, word came shortly before 8 p.m. that Mr. Bush's choice was Judge Roberts, 50, a summa cum laude graduate of Harvard College, former managing editor of the Harvard Law Review and clerk to William H. Rehnquist, who was then an associate justice on the Supreme Court. Since 2003, Judge Roberts has served on the United States Court of Appeals for the District of Columbia Circuit, to which he was confirmed by unanimous consent of the Senate.

Mr. Bush has made no secret of his desire to impose a more conservative stamp on the Supreme Court, and he apparently named Mr. Roberts with confidence that he would help him do so.

Almost instantly, the conservative and liberal interest groups that have spent years preparing for a Supreme Court vacancy swung into action.

The conservative Progress for America called Judge Roberts a "terrific nominee," while Naral Pro-Choice America denounced him as an "unsuitable choice," and a "divisive nominee with a record of seeking to impose a political agenda on the courts."

But significantly, Senator Harry Reid of Nevada, the Democratic leader of the body that will determine Judge Roberts's fate, was much more subdued, hewing to the Democrats' stated strategy of demanding a thorough vetting of any nominee by describing Judge Roberts as "someone with suitable legal credentials," whose record must now be examined "to determine if he has a demonstrated commitment to the core American values of freedom, equality and fairness."

In his campaign for the presidency five years ago, Mr. Bush pledged to appoint judges like Justices Antonin Scalia and Clarence Thomas, staunch conservatives with well-established judicial philosophies.

While Judge Roberts has impeccable Republican credentials and a record of service in the Reagan and first Bush administrations dating to 1981, his paper trail of opinions is comparatively thin, and he is not seen as a "movement conservative."

There is much more information on the web about Judge Roberts.  Here is some information from the Washington Post, Judicial Selection, Slate (scroll down a bit and SCOTUSblog.  For a liberal critique, see the Alliance for Justice overview here and for some conservative views, see Volokh.   [bm]

July 20, 2005 | Permalink | TrackBack (0)

Clinton's Health Care Plan

A blast to the past, what happened to that plan - well - I am sure we have had our own thoughts on this topic as well as read many commentaries.  Here is a recent commentary from Matthew Holt writing on Ezra Klein's blog.  He has many terrific links in the piece and provides some interesting insights.  Here is a brief section,

If you want to go back and spend a few minutes wallowing in the era of trial balloons and secret task forces, there's a very interesting time line of the whole process on the NPR website, as well as a briefer information over at the Clinton Health Plan Wikipedia site. It seems like there was a moment when it could have succeeded, and indeed there may well have been. What has been missing from the whole discussion over multiple blogs over the last couple of months has been the understanding that there's a real world outside Washington and that sometimes (but not too often) what's going on there has an impact inside the beltway.

The debate over health care had been building for quite a while by the time of the 1992 election even though it wasn't a big factor in the Clinton victory. Harris Wofford had won a Senate seat in 1991 in Pennsylvania with some slogan about the right of every American to go to a doctor. And the debate was being picked up amongst the SCLM elite, with the NY times having several articles about it. In fact my only ever mention on the front (or any other page) of the NY Times (as the third banana author of a piece on Japanese health care) came in very late 1992. That was one of many tiny indications that the discussion about what was wrong with American health care which had been brewing in academia for some time, was starting to come to the notice of the politicos.

So why was that debate becoming politically important? The answer was recession and middle-class insecurity. The recession of 1991-2 was brief but deep and somewhat local (centered around Los Angeles -- remember "Falling Down"?)....and it was the first time that a significant number of white collar workers were asked to pay towards their health benefits. It was also the second time that heath care costs rapidly went up much faster than economic growth (the first time was in the Reagan recession of the early 1980s) which woke up employers, and it was the first time that Americans were being put into managed care plans by their employers. But by far the most important factor was the fear that no job meant no health insurance.  And even though the recession in fact was over by the end of the election season, the carry-over effect of the "no job = no health care" fear went on into 1993.

Clinton was not elected to change the health care system -- the slogan was "It's the economy, stupid!". But rational wonk that he was, when he started to look at the economy and the rate of growth of the health care sector, he realized that he had found the biggest problem, and he set out to fix it. But he wasn't really a wonk about health care, and neither was Hillary. So after the election they decided that they had to study the problem first and then come up with a solution. As a more recent opportunist politician would say, Beeg mistake!


July 20, 2005 | Permalink | TrackBack (0)

Tuesday, July 19, 2005

Prayers for your Health

The Washington Post discusses a recent study that appears to throw into doubt whether prayers for an individual's return to health may act as a form of medical healing.  According to the article,

Praying for sick strangers does not improve their prospects of recovering, according to a large, carefully designed study that casts doubt on the widely held belief that being prayed for can help a person heal.

The study of more than 700 heart patients, one of the most ambitious attempts to test the medicinal power of prayer, showed that those who had people praying for them from a distance, and without their knowledge, were no less likely to suffer a major complication, end up back in the hospital or die.

* * * *

Surveys have shown that millions of Americans routinely pray when they are ill or when someone they know is. A growing body of evidence has found that religious people tend to be healthier than average, and that people who pray when they are ill are likely to fare better than those who do not. Many researchers think religious belief and practice can help people by providing social support and fostering positive emotions, which may produce beneficial responses by the body.

But the idea that praying for someone else -- even when he or she is unaware of it -- can affect a person's health has been much more controversial. Several studies have purported to show that such prayer is beneficial, but they have been criticized as deeply flawed. The debate prompted a spate of new studies aimed at avoiding those shortcomings, including the new study, which is the first to test prayer at multiple centers.

I always thought that prayers for others were nice, but I wasn't clear that they could have any actual medical effect.   Anyway, I hope that a study will be forthcoming which discusses the harm, or lack of harm, that occurs when a person fails to answer one of those chain e-mail letters.[bm]

July 19, 2005 | Permalink | TrackBack (0)

Supreme Court Nominee To Be Named Tonight

Yahoo News and other sources are reporting that the President will announce his choice to replace Justice O'Connor this evening in a primetime speech at 9pm tonight.  From Yahoo news, it is still uncertain who will be selected:

One list that circulated was top-heavy with the names of women. Judge Edith Clement of the U.S. Court of Appeals in New Orleans was among them. Another female candidate thought to have been under consideration was Edith Hollan Jones, who also serves on the 5th U.S. Circuit Court of Appeals in New Orleans.

Bush said he had considered "a variety of people, people from different walks of life."

On Capitol Hill, it was anyone's guess.

ThinkProgress has a new Supreme Court website with updates. 


July 19, 2005 | Permalink | TrackBack (0)

FDA Chairman Approved

Today's New York Times reports that Dr. Lester Crawford, the acting head of the Food and Drug Administration, has received final senate approval and is now officially the head of that agency.  His confirmation had been delayed by controversy surrounding the contraceptive device, Plan B, as well as rumors about an affair with a colleague.  The only remaining concern was voiced by Senator Grassley.  According to the Times, 

The only hitch in the vote, which was hastily arranged and quickly completed, came when Senator Charles E. Grassley, the Iowa Republican who is chairman of the Finance Committee, rose to criticize Dr. Crawford, who has been serving as acting commissioner.

Mr. Grassley, who has used his committee's wide powers to investigate the F.D.A. over the past 18 months, has become a vocal critic of the agency's ability to assure the safety of the nation's drug supply.

"It is becoming more and more obvious to me that F.D.A. is plagued by structural, personnel, cultural and scientific problems," Mr. Grassley said. "Those problems should be equally obvious to Dr. Crawford, but under the leadership of Dr. Crawford the F.D.A. appears to be in a state of denial."

Mr. Enzi responded that Dr. Crawford has not had full authority to deal with the challenges confronting the agency. Among them have been the withdrawals of several drugs from the market and controversies over whether the agency had acted quickly enough to inform consumers about dangers involving popular medicines like the pain pill Vioxx and antidepressants like Zoloft.


July 19, 2005 | Permalink | TrackBack (0)

Government Argues for Increased Damages in Tobacco Trial

Wasn't it just a few weeks ago that the Justice Department lowered their request for damages against tobacco companies from $280 billion to $10 billion.  Well, now it has changed its tune a bit - at least to the extent that they plan to appeal the ruling that apparently led to the lowering of their damage request..  From today's New York Times,

The Justice Department on Monday asked the Supreme Court for the legal authority once again to seek $280 billion in damages from the tobacco industry in a lawsuit that has become a growing political liability for the Bush administration.


Even though the trial judge in the case has not yet issued a final ruling, the Justice Department asked the Supreme Court to intervene by overturning an appellate ruling in February that limited the damages it could seek.

The department said that the February decision, if allowed to stand, would hurt the government's ability to bring similar racketeering cases against businesses and industries and that it would have "enormous consequences for the American public."

The decision to appeal was another shift for the government in the six-year-old case. At the close of a nine-month trial, Justice Department lawyers stunned a federal courtroom last month by cutting the amount of damages they were seeking to $10 billion from $130 billion.

Senior Justice Department officials said they had little choice but to reduce their demands, in light of the adverse decision in February by the circuit court for the District of Columbia.

But internal Justice Department documents showed that the decision drew fierce objections from the career lawyers on the tobacco team, who said it was legally groundless, would be seen as politically driven and would undermine the department's position in possible settlement discussions with the tobacco industry. Several members of the trial team threatened to quit over the decision, officials said.

Health advocates and Democrats in Congress also objected to the decision to reduce the requested damages, prompting the Justice Department to open an ethics inquiry, still under way, into charges of political interference.

It must be fun to work at the Justice Department right now.  [bm]

July 19, 2005 | Permalink | TrackBack (0)

Monday, July 18, 2005

Education Law Conference

For those of you interested in Education Law, the 12th Annual Education Law Conference is scheduled for July 25-28, 2005 in Portland, Maine.  What a great way to beat the heat and learn some important law.   The topics covered include, No Child Left Behind, the new IDEA, testing, bullying, suicide, school safety, charters, religion, and other up-to-the minute issues of concern. PLUS special strands on Autism, the Civic Mission of Schools, and the Educational Pipeline from Preschool to Professional School. Featured speakers include Maine Governor John Baldacci; Playwright Bill Mastrosimone presenting his powerful play on teen suicide; ECS Vice President Dr. Charles Coble on Bending the Trends: What Leaders Can Do to Drive Up Student Achievement; USDOE OSEP Acting Director Dr. Troy Justesen; ECS President Dr. Piedad Robertson; VCU Dean Bill Bosher; USDOE, Assistant Secretary Dr. Susan Sclafani, McGeorge School of Law Dean Elizabeth Rindskopf Parker. Special events include the lobster bake on Peaks Island on Monday, Blackboard Bench & Bar reception at the Portland Museum of Art on Tuesday and Authors' Reception at Preti Flaherty on Wednesday. More information, or Professor Sarah Redfield at 


July 18, 2005 | Permalink | TrackBack (0)

Medicaid Fraud in New York

Today's article on Medicaid fraud is the culmination of a year's worth of FOIA requests for data, stakeouts, and computer analyses by The New York Times.  The article doesn't attempt to estimate the cost to the program (except to say it is "billions" per year, but repeats past estimates that 10% of payments may bethe result of fraud and abuse and up to 40% may go for claims that are "questionable."  New York's annual Medicaid budget, at $44.5 billion, "is by far the most expensive and most generous in the nation. It spends far more . . . than that of any other state, even California, whose Medicaid program covers about 55 percent more people. New York's Medicaid budget is larger than most states' entire budgets, and it spends nearly twice the national average - roughly $10,600, more than any other state - on each of its 4.2 million recipients, one in every five New Yorkers."

Some examples:

  • In September 2003, [a dentist] charged Medicaid roughly $725,000 for 9,500 individual dental procedures, many of them expensive and complicated, such as filling cavities that had rotted away much of the tooth. On a single day that month, she billed for 991 procedures, or more than 100 an hour in a typical workday.
  • An overweight woman who did not have AIDS obtained a prescription for a synthetic growth hormone intended to treat wasting syndrome, which she did not have.  The drug cost $6,400 per month and is highly sought after by body-builders. The physician who prescribed the drug is No. 1 in the state for such scripts, outpacing prominent AIDS specialists with large practices: "From 2000 to 2003, [he] prescribed 12 percent of all the Serostim purchased by New York Medicaid, costing the program $11.5 million, according to the Times analysis of Medicaid billings."
  • Despite extensive public transportation, taxis, and car services to transport patients to medical appointments, New York paid $316 million in 2003 for ambulettes, which typically charge $25-31 each way. "The largest chunk of the $316 million spent on transportation went to some 450 ambulette services, about a fifth of which are clustered in Brooklyn. And much of that spending appears to be entirely unnecessary:"

That was clear on a recent afternoon in southern Brooklyn, when an elderly woman strolled out of a doctor's office and clambered into the front seat of a van owned by M. J. Trans Corporation, a medical transport company that billed Medicaid for more than $2 million last year. After a 25-minute ride across the borough, she got out in front of her apartment, again without help, and walked inside.

The van is called an ambulette, and Medicaid is supposed to pay for it only when a patient cannot walk without help or requires a wheelchair. In fact, the state refers to the service as an "invalid coach." But on three days spent following M. J. vans over several months, a Times reporter found that almost all of the company's passengers walked easily, without assistance. The pattern was repeated as recently as last month.

  • "School officials around the state have enrolled tens of thousands of low-income students in speech therapy without the required evaluation, garnering more than $1 billion in questionable Medicaid payments for their districts. One Buffalo school official sent 4,434 students into speech therapy in a single day without talking to them or reviewing their records, according to federal investigators."
  • "Among the biggest beneficiaries of the Medicaid program have been executives of the state's nursing homes and clinics, many of whom earn substantial salaries and profits from the program.  According to records obtained from the Health Department under the Freedom of Information Law, 70 executives of nursing homes and clinics personally made more than $500,000 in 2002, the last year for which figures are available. Twenty-five executives made more than $1 million."  In addition to unconscionably high salaries, some of the nursining home and clinic executives are also participating in fraudulent billing schemes to further enrich themselves and their businesses.  One example:

In 2002, the two owners of the AllCity Family Healthcare clinics in Brooklyn collected a total of $1.4 million in salaries, according to state records. Last year, the company was forced to return $6 million to the state, and one of its owners, Rossia Pokh, pleaded guilty to grand larceny in a case brought by the attorney general.  At the AllCity clinics, it turns out, thousands upon thousands of the Medicaid claims were fraudulent.

The article alludes to inadequate policing of claims and other practices, despite a doubling of the fraud enforcement budget in recent years, and offers an explanation for it:

The lax regulation of the program did not come about by chance. Doctors, hospitals, health care unions and drug companies have long resisted attempts to increase the policing of Medicaid. The pharmaceutical industry, which has spent millions of dollars annually on political contributions and lobbying in Albany, has defeated several attempts to limit the drugs covered by Medicaid; other states have saved hundreds of millions of dollars annually with such restrictions.

CMS has a good Medicaid Fraud Statutes Web Site with links to all states' anti-fraud laws. [tm]

July 18, 2005 | Permalink | TrackBack (0)

Recent Article of Note

From the Social Science Research Network's "Health Law & Policy" file:

The Two Faces of Managed Care Regulation & Policymaking
Stanford Law & Policy Review, Vol. 16, p. 234, 2005
Robert Rich and Christopher T. Erb
University of Illinois College of Law and University of Illinois at Urbana-Champaign

ABSTRACT: This paper focuses on the development of managed care policy in the United States since 1985. It empirically examines the development of statutes, legislation, regulations, and federal and state court decisions which relate to managed care organizations and managed care policies. The paper begins with an analysis of managed care theory as it relates to the delivery of health care services in the United States. It then goes on to ask the question: is this a good theory? We then look at federal and state policy initiatives in the executive, legislative, and judicial branches of government. The paper argues that government cannot make up its mind whether it wants to support or constrain the implementation of managed care theory and its further development. We document initiatives which serve as facilitators and barriers to the implementation of managed care theory; taken together, these legal and policy initiatives represent the "two faces of managed care". The consequence of the two faces is that it is not clear whether managed care organizations have been successful.


July 18, 2005 | Permalink | TrackBack (0)

Recuiting for a Chair in Bioethics

From the July 1 Kansas City Business Journal:

The Francis Family Foundation has given $3 million to the Center for Practical Bioethics to honor the late John B. Francis and his contributions to the center.

The gift creates an endowment at the Greater Kansas City Community Foundation to establish the John B. Francis Chair in Bioethics at the center with the goal to advance the practical application of ethics in medicine, science and related fields, the center said in a written release Friday.

Recruitment for the new chair will start immediately, center President and CEO Myra Christopher said in the release. . . .

The holder of the John B. Francis Chair in Bioethics will conduct research, teach, publish, engage in public outreach and consult with policymakers on medical ethics issues, the center said.

The Center for Practical Bioethics was founded in 1984.


July 18, 2005 | Permalink | TrackBack (0)

Medical Malpractice and Quality of Care

DhymanSilversgDavid Hyman, Professor, University of Illinois College of Law  and Charles Silver, Professor and Roy W. and Eugenia C. McDonald Endowed Chair at the University of Texas School of Law, have co-authored a new article entitled,"The Poor State of Health Care Quality in the U.S.: Is Malpractice Liability Part of the Problem or Part of the Solution?"  The article is forthcoming in the Cornell Law Review. 

The abstract states,

The belief that malpractice lawsuits impede efforts to improve health care quality by encouraging providers to hide mistakes is the conventional wisdom among patient safety advocates and scholars. It also provides the normative basis for efforts currently proceeding at the state and federal levels to curtail medical malpractice exposure. Groups pressing for tort reform, including the American Medical Association, contend that when doctors and other providers are insulated from liability, patients will be better protected from harm.

This article canvasses the evidence bearing on the connection between malpractice exposure and health care quality. Some of this evidence, such as the Harvard Medical Practice Study, shows that the quality of health care improves as the risk of being sued rises; none of it shows that malpractice lawsuits cause the quality of health care to decline. The widely held belief that fear of malpractice liability impedes efforts to improve the reliability of health care delivery systems is unfounded.

The central causes of the high error rates that persist in the health care sector appear to be providers' defective incentives and professional norms. Providers lose money when quality improves, and their norms discourage the creation of non-punitive working environments in which efforts to improve quality can flourish. The business case for quality is missing, and providers' attitudes are antithetical to quality improvement. The tort system's major deficiency is its failure to subject providers to sufficient economic pressure to overcome these impediments. The cause of this shortcoming is the rarity with which injured patients assert legal claims.

Looks like more great summer reading!  [bm]

July 18, 2005 | Permalink | TrackBack (0)

Sunday, July 17, 2005

Newborn EMATLA Screening Case from Wisconsin Supreme Court

On July 13, the Supreme Court of Wisconsin issued its opinion in Preston v. Meriter Hosp., Inc., No. 2003AP1376.  Here is the court's recitation of the facts:

[Shannon] Preston arrived at Meriter Hospital in Madison on November 9, 1999, at 5:33 p.m.  She was 23-and-2/7ths weeks pregnant and had leaked amniotic fluid for a number of days.  At the time of her hospitalization, Preston was unemployed and on Medical Assistance.

Preston was admitted to the hospital and taken to the birthing center.  There, physicians performed an ultrasound to evaluate the unborn child's condition.  At 3:55 a.m. the following morning, Preston gave birth to a son whom she named Bridon Michael Johnson.  The child weighed 700 grams.  The hospital staff made no attempt to prolong the baby's life, and Bridon died two-and-a-half hours later.

Among other things, the trial court heard "that Meriter physicians had determined, based on the prebirth ultrasound, that Bridon's lungs were so underdeveloped that he would likely die shortly after being born.  The court was told health care personnel made observations of Bridon shortly after his birth and assigned Bridon an Apgar score of one."

The EMTALA issue addressed by the court is whether Shannon and Bridon had "come[] to the emergency department" within the meaning of that phrase in EMTALA.  The court said yes:

[W]e conclude that the proper interpretation of "comes to the emergency department" in this case imposes a duty upon a hospital to provide a medical screening examination to a newborn who (1) presents to the emergency room of the hospital or (2) is born in the birthing center of the hospital and otherwise meets the conditions set forth in 42 C.F.R. § 489.24(b) (1999). . . .  The duty to provide a medical screening examination should not depend upon the hospital room——be it the emergency room, the birthing center, or an operating room——into which a baby is born.

Because plaintiffs' EMTALA "duty to screen" claim had been dismissed (after she had told the trial court that hers was a "duty to stabilize" claim only), the court remanded for further proceedings.It will be interesting to see whether the Wisconsin courts decided, á la In re Baby K (WestLaw; requires subscription), that there's no futility exception to EMTALA and that neonatalogists must screen and stabilize a premature newborn with an Apgar score of 1. [tm]

July 17, 2005 | Permalink | TrackBack (0)

And Another Health Law Opening

Job Title:
Health Law Research Faculty
Law Center
Department URL:
Institution: University of Houston
Application Deadline: Open Until Filled
Position Start Date: September 1st, 2005
Job Categories: Research Professor
Academic Field(s): Healthcare Law
URL For Job:
Detailed Job Description:
The University of Houston Law Center's Health Law & Policy Institute invites applications for a research faculty position beginning immediately and running through August 31, 2005.

Applicants should hold the J.D. degree, have an excellent academic record, and have educational or practical experience with health law and policy. An additional advanced degree, such as an M.P.H. or Ph.D., in a health policy-related field or economics is preferred but not required. Previous experience with grant writing and/or empirical research methodology is preferred but not required.

The faculty rank (assistant, associate or full professor) will depend on the applicant's experience and publication record. The salary will depend on qualifications within an approximate range of $50,000 - $52,000. Research faculty members work on externally-funded research projects under the supervision of the Institute Directors and have the opportunity to teach a Law Center course.
Research faculty positions are not tenure track positions and time in rank does not apply toward tenure. Reappointment through August 2006 is possible, but is contingent on performance and the continued availability of external funding.

The Law Center's Health Law & Policy Institute is recognized as one of the leading health law programs in the United States.

The program offers over twenty health law courses per year to J.D. and LL.M. students; students also may participate in interdisciplinary studies with local universities leading to the M.P.H., M.D., or Ph.D. (Medical Humanities) degrees. Courses are taught by tenure track faculty members, distinguished visiting faculty members, and adjunct faculty drawn from one of the most sophisticated health law bars in the United States.

The health law program engages in a significant program of externally sponsored research; the research program currently supports three full time research faculty.

Houston offers many opportunities for the successful candidate to engage in interdisciplinary projects. The Texas Medical Center is the largest medical center in the United States, with over forty different member institutions. For more information about the Law Center's health law program, see:

The University of Houston is a comprehensive research and doctoral granting public institution, situated on a beautiful 550-acre campus. The University's diverse student population exceeds 32,500 with over 900 ranked faculty.
For more information about the University, see: The University of Houston Law Center has 55 full-time faculty and enrolls over 1000 J.D. and over 100 LL.M. students.
EEO / AA Policy:
The University of Houston is an Equal Opportunity/Affirmative Action employer. Minorities, women, veterans, and persons with disabilities are encouraged to apply.

Contact Information

(send resume to if no instructions are given above)

Contact: April F. Moreno, Program Director
Health Law & Policy Institute
University of Houston
100 Law Center
Houston, TX 77204-6060
  Please reference in your cover letter when applying for or inquiring about this job announcement.
Phone Number: (713) 743-2101
Fax Number: (713) 743-2117

July 17, 2005 | Permalink | TrackBack (0)