HealthLawProf Blog

Editor: Katharine Van Tassel
Creighton University School of Law

Saturday, October 15, 2005

Eddy Curry Update: Genetics in the Workplace

As noted earlier in this space, basketballer Eddy Curry is undergoing testing to rule out a potentially lethal heart condition.  His former team, the Chicago Bulls,  insisted on a genetic rule-out, which Curry refused, and he was traded to the N.Y. Knicks. Today's New York Times has an update in today's sports section.  These paragraphs nicely summarize the issue for the Knicks:

As Eddy Curry takes the court for the first time this weekend wearing a Knicks uniform, basketball fans and executives will be holding their breath wondering whether his heart will skip a beat again.

The Knicks hope Curry is the long-awaited solution at center - nothing more, and nothing less.

But in the two weeks since the Knicks and Chicago Bulls orchestrated the trade that brought him to New York, Curry has been larger than sports - a 6-foot-11, 285-pound test case in ethics pushing legal, medical and athletic boundaries with the questions that his irregular heartbeat in March prompted.

The ethical onus now rests with the Knicks. How will they monitor his health for the next six years of his contract, a $60 million commitment that is still uninsured by the league's insurance carrier because of Curry's previous heart problems?

The Knicks and the NBA both declined to force the issue of genetic testing, absent any clinical indication of a heart ailment.  The Times' Liz Robbins also notes:

Curry's situation underscores the developing showdown between employers and employees over privacy. This week, I.B.M. adopted a policy that prohibited the use of genetic testing in hiring or determining eligibility of employees for its health care or benefit plans. Genetics policy specialists and privacy-rights groups said I.B.M.'s pledge appeared to be the first such move by a major corporation.

The Times story about IBM's announcement is here.  IBM's announcement is here, and its Chief Privacy Officer's blog commentary is here.   

Robbins also puts the Curry situation into a federal focus:

"We are all walking around with several dozen DNA glitches that place us at risk for something," Francis Collins, director of the National Human Genome Research Institute at the National Institute of Health, said in an interview last week.

"If you want to move into a world of testing where the jobs for which we we're well-qualified are otherwise unavailable to us, we need to take action."

There is no federal law protecting employees' genetic privacy. This year, the Senate passed a genetic nondiscrimination bill by a vote of 98 to 0 [S. 306, introduced by Sen. Olympia Snowe, R-Me.] and the House is considering similar legislation [H. 1227, introduced by Rep. Judy Biggert, R-Ill.].


October 15, 2005 | Permalink | TrackBack (0)

Fun Website

If you don't like Walmart, you may like this brief cartoon from JibJab
Thanks to Americablog. [bm]

October 15, 2005 | Permalink | TrackBack (0)

Friday, October 14, 2005

Forensic: What does it really mean?

Dr. Doug Mossman, a forensic psychiatrist, points us to this new article in the October 15 edition of the Lancet for a fun read.  He states,

The October 15 issue of The Lancet contains a short, informative history of how the word "forensic" has been used. Noting that "few terms connected with applied science and medicine have undergone so drastic a process of ‘linguistic drift,’" author Michael J. Clark traces the word’s uses from its earliest applications (involving medical evidence) through today’s most common usages, where "forensic evidence" typically refers to analyzing "trace evidence left at crime scenes." You can find the article through The Lancet’s website:


October 14, 2005 | Permalink | TrackBack (0)

Job Talk Information

PrawfsBlawg has a terrific post on the top ten job talk titles to AVOID.  He lists the following,

10.  Time Travel and Originalism: Using Technology to Learn What the Founders Really Meant

9.  The Right to Bear Arms Should Include Surface-to-Air Missiles

8.  The Law and Economics of Negligence: What I Learned in 1L Torts

7.  The Sex Life of Law Students: My Three-Year Empirical Study

6. Does Anybody Really Know What Time It Is?  A Deontological Approach to Epistemological Failure

5.  The Law & Economics of Law & Order

4.  La Cosa Blogstra: Why is a Criminal Conspiracy under 18 U.S.C. Sec. 371

3.  Barking Up the (Wrong) Poisonous Tree: Is Tainted Evidence Admissible If It Would Have Been Found By Dogs?

2.  Parsing Rule 10b-5: Thoughts from Das Kapital

1.  In re Random Corp. Class Action Litigation: Illuminating Points I Made in My Brief

The blog has other helpful tips so if you are planning on entering the teaching market, you might want to check it out.  [bm]

October 14, 2005 | Permalink | TrackBack (0)

Thursday, October 13, 2005

Bias in Fertility Treatment

The Associated Press reports on a California appeals court case concerning a women who sued her doctors after they allegedly refused to inseminate her because she is gay.

Benitez, 33, sued the doctors and their small practice in Vista in 2001, claiming their actions violated California's anti-discrimination laws.

Benitez was eventually treated elsewhere and gave birth to a boy who is now 3 years old.

In her suit, Benitez claims that Brody told her in 1999 that her religious beliefs prevented her from helping a homosexual conceive a child by artificial insemination, but that other physicians at the practice would be able to help her.

The next year, Benitez said, she was told that both Brody and Fenton were unable to help her because they did not feel comfortable with her sexual orientation.

The doctors contend they denied treatment because Benitez and her registered domestic partner of 15 years were not married. But Benitez's attorneys say she was denied because of her sexual orientation, not her marital status.

The case appears to be the first in the country in which a gay or lesbian patient was allowed to sue doctors over charges that treatment was denied based on sexual orientation, said Benitez's attorney, Jennifer Pizer of the Lambda Legal Defense and Education Fund.


October 13, 2005 | Permalink | TrackBack (0)

Patient Perspective on Billing

The New York Times continues today with its series on the patient issues in health care.  This issue focuses on the confusing and complex billing system.  Here is a brief excerpt,

Walk into any drugstore, and the next few minutes of your life are fairly predictable. After considering the choices, you make your purchases and head for the cashier. Seconds after the transaction, you are handed a receipt that reports to the penny what you paid for each product, along with its brand, its size, and the date, time and location of the purchase. But become a patient, and you enter a world of paperwork so surreal that it belongs in one of Kafka's tales of the triumph of faceless bureaucracies. And although some insurers and hospitals are trying to streamline and simplify bills, the efforts have been piecemeal.

Medical paperwork is a world of co-payments and co-insurers, deductibles, exclusions and contracted fees. Nothing is as it seems: patients receive statements that often do not reflect what is actually owed; telephone calls to customer service agents are at best time-consuming and at worst fruitless. The explanations of benefits that insurers send out - known as E.O.B.'s - are filled with unintelligible codes.

The system is so impenetrable that it mystifies even the most knowledgeable.

"I'm the president's senior adviser on health information technology, and when I get an E.O.B. for my 4-year-old's care, I can't figure out what happened, or what I'm supposed to do," said Dr. David Brailer, National Coordinator for Health Information Technology, whose office is in the Department of Health and Human Services. "I can't figure out what care it was related to or who did what."

Dr. Blackford Middleton, a professor at Harvard Medical School with special training in health services research, said he did not fare much better than Dr. Brailer.

"I understand the words of diagnoses and procedures," he said. "But codes? No. Or how things are paid or not paid? I don't understand that."

Dr. Brailer said he often used an analogy to describe the current state of medical billing.

"Suppose you walk into a restaurant," he said, "and you don't get a menu, you don't get any choice of what food you'll eat, they don't tell you what it is when they're serving it to you, they don't tell you what it's going to cost."

"Then, weeks or months later, you get a bill that tells you all the food you ate and the drinks you had, some of which you remember and some you don't, and although you get the bill, you still can't figure out what you really owe," Dr. Brailer said.


October 13, 2005 | Permalink | TrackBack (0)

Wednesday, October 12, 2005

New Tax Proposals: Limiting the Employer-Provided Health Care Deduction

Yikes!  The New York Times reports that the President's tax advisory commission has been considering how to improve our tax system.  Yesterday they sent strong signals that it "would recommend limits in the popular tax deductions for mortgage interest and employer-provided health insurance."  The Times states,

In the case of employer-paid health insurance, the main proposal the panel discussed would limit tax-free premium payments to the average cost of the premium the government pays for federal workers. That is now about $11,000 a year for family coverage.

Under the current law, employers can deduct every penny they pay for health insurance for their workers, and the workers are not taxed on this benefit. The panel did not agree on whether the employers or employees would be taxed if a ceiling were imposed, but as a practical matter, there would probably be no difference.

The proposal the panel discussed would allow taxpayers whose employers did not provide health insurance to deduct the amount of the premiums they paid for themselves.

The main proponent of the health insurance proposal, Timothy J. Muris, a former chairman of the Federal Trade Commission and a law professor at George Mason University, said limitless tax-free health insurance premiums encouraged workers to demand and companies to offer overly generous insurance and resulted in increased health costs.

Mr. Muris said he did not know how much revenue his plan would raise. The Congressional Budget Office calculated this year that a limit of $3,720 in tax-exempt premiums for an individual and $8,640 for a family policy would raise $706 billion over 10 years.


October 12, 2005 | Permalink | TrackBack (0)

Dr. Frist Facing Serious Trouble

According to the Associated Press, Senate Majority Leader Bill Frist earned tens of thousands of dollars from stock in HCA Inc., his family-founded hospital chain largely controlled by his brother.  The AP reports,

The Tennessee Republican, whose sale this summer of HCA Inc. stock is under federal investigation, has long maintained he could own HCA shares and still vote on health care legislation without a conflict because he had placed the stock in blind trusts approved by the Senate.

However, ethics experts say a partnership arrangement shown in documents obtained by The Associated Press raises serious doubts about whether the senator truly avoided a conflict.

In that case, the HCA stock was accumulated by a family investment partnership started by the senator's late parents and later overseen by his brother, Thomas Frist. The brother served as president of the partnership's management company and as a top officer of HCA. Sen. Frist holds no position with the company.  . . . .

Kathleen Clark, a government ethics expert at the Washington University in St. Louis School of Law, said she doesn't believe the Senate trusts or the Tennessee trust insulated Frist from a conflict because the senator or his brother were advised of transactions and could influence decisions.

"What I find most appalling is the Senate calls it a qualified blind trust when it's not blind," Clark said. "Since the Senate says it's OK, the Senate has made it a political question. It's up to the voter. But there's no doubt it's a conflict of interest."

TalkLeft has some further information and thoughts. [bm]

October 12, 2005 | Permalink | TrackBack (0)

Tuesday, October 11, 2005

Almost Important News from the Supreme Court

As reported by Mark Stancil, whose highly entertaining and informative "SCt Today" newsletter is sent from his perch in Baker and Botts' D.C. office, the Supreme Court "CVSG'd" two FEHBA cases today.  (For those of you who are addicted to plain English, the Court's order list included two cases that involve the Federal Employees Health Benefits Act, in which the Court Called for the Views of the Solicitor General.)  The Court's order list is here (PDF).  Here is Stancil's summary:

Cruz v. Blue Cross and Blue Shield of Illinois (04-1657) – The decision to call for the SG’s views in this case no doubt stemmed in part from a desire to see if the SG could possibly draft shorter questions presented.  Petitioner’s verbose iteration follows:  (1) Should the Federal Employees Health Benefits Act’s jurisdictional provision (5 U.S.C. § 8912), which expressly limits federal court jurisdiction to claims brought against the United States, be expanded by creating federal common law, as the Seventh Circuit did here, to include claims brought by a private carrier against its insureds, when doing so directly conflicts with four circuit court decisions and cannot be reconciled with this court’s precedent?  (2) Does FEHBA’s preemption provision (5 U.S.C. §8902(m)(1)), which states, in relevant part, that contract terms relating to “coverage or benefits (including payments with respect to benefits) . . . preempt any State or local law . . . which relates to health insurance or plans,” apply here, as the Seventh Circuit held, to create federal question jurisdiction, when the plan contract terms relating to “coverage or benefits” were not at issue, no state or local laws relating to health insurance or plans were at issue, and the  Seventh Circuit’s decision directly conflicts with a Second Circuit decision and this court’s preemption jurisprudence.  (3) Should federal common law be created and applied pursuant to FEHBA to resolve a dispute between private parties involving an insurance carrier’s reimbursement claim against insured’s personal injury recovery, when a state court action was already proceeding on the issue, Congress omitted any such right of action in FEHBA, the document relied on was prepared and issued by private carrier, and the Seventh Circuit’s decision creating such law directly conflicts with a Second Circuit decision, which held that FEHBA-carrier’s reimbursement claim brought against insured’s third-party recovery did not warrant creating federal common law?

Empire Healthchoice Assurance v. McVeigh (05-200) seems to raise similar issues, albeit much more succinctly: Does federal question jurisdiction exist over a suit by a federal government contractor to enforce, on behalf of the United States, a provision in a health benefits plan for federal employees that is part of a government contract established pursuant to the Federal Employees Health Benefits Act?

I don't know in what percentage of CVSG cases the Court eventually grants cert., but it *has* to be higher than in the mine run of cases that don't elicit even this much attention from the Court.  I guess these are two to watch if you're a FEHBA fan.  [tm] 

October 11, 2005 | Permalink | TrackBack (0)

Improving the Drug Development Process

Recently SSRN posted an article by three individuals at MIT concerning how the Food and Drug Administration operates.  The article is entitled, "Opportunities for Improving the Drug Development Process:  Results from a Survey of Industry and the FDA."   The authors are:  ERNST R. BERNDT, Massachusetts Institute of Technology (MIT),  Sloan School of Management National Bureau of Economic Research (NBER) and ADRIAN GOTTSCHALK, Massachusetts Institute of Technology (MIT) Sloan School of Management,  and MATTHEW W. STROBECK, Massachusetts Institute of Technology (MIT).

The abstract follows:

In the United States, the Food and Drug Administration (FDA) agency is responsible for regulating the safety and efficacy of biopharmaceutical drug products. Furthermore, the FDA is tasked with speeding new medical innovations to market. These two missions create an inherent tension within the agency and between the agency and key stakeholders. Oftentimes, communications and interactions between regulated companies and the FDA suffer. The focus of this research is on the interactions between the FDA and the biopharmaceutical companies that perform drug R&D. To assess the current issues and state of communication and interaction between the FDA and industry, we carried out a survey of industry leadership in R&D and regulatory positions as well as senior leadership at the FDA who have responsibility for drug evaluation and oversight. Based on forty-nine industry and eight FDA interviews we conducted, we found that industry seeks additional structured and informal interactions with the FDA, especially during Phase II of development. Overall, industry placed greater value on additional communication than did the FDA. Furthermore, industry interviewees indicated that they were willing to pay PDUFA-like fees during clinical development to ensure that the FDA could hire additional, well-qualified staff to assist with protocol reviews and decision-making. Based on our survey and discussions, we uncovered several thematic opportunities to improve interactions between the FDA and industry and to reduce clinical development times: 1) develop metrics and goals at the FDA for clinical development times in exchange for PDUFA like fees; 2) establish an oversight board consisting of industry, agency officials, and premier external scientists (possibly at NIH or CDC) to evaluate and audit retrospectively completed and terminated drug projects; and 3) construct a knowledge database that can simultaneously protect proprietary data while allowing sponsor companies to understand safety issues and problems of previously developed/failed drug programs. While profound scientific and medical challenges face the FDA and industry, the first step to reducing development times and associated costs and facilitating innovation is to provide an efficient regulatory process that reduces unnecessary uncertainty and delays due to lack of communication and interaction. Document: Available from the SSRN Electronic Paper Collection: [bm]

October 11, 2005 | Permalink | TrackBack (0)

Adverse Selection

Ezra Klein's blog has a great discussion by Neil concerning adverse selection in the private insurance market.  He states,

So how do we stop an adverse selection death spiral? Insurers try to ask you some questions before you sign up, so they can price people appropriately, but this usually isn’t enough to overcome the differences in information. Because you actually lived through your life, you’ll still know more about your own health situation than a company that made you fill out a form. So you’ll use your extra knowledge against the insurer. This leads to smaller spirals, but they’re bad news nonetheless, and you have to be pretty risk-averse before you'll even buy this kind of insurance.

One thing we can do is push more healthy people into the system. This is why it’s cheaper for employers to provide health insurance than for the private market to do so. Insurance companies know that when they deal with an employer, they’ll be getting a reasonably good selection of healthy people, so they’ll give the employer a better price. Your employer probably doesn’t offer you the option of taking a cash payment instead of health coverage. If you could get that kind of deal, the per person cost of health insurance would go up a lot for your employer, because they'd be buying only for an adverse set of clients.

Pushing more people into the system is basically what we universal coverage fans want to do. If the government covers everyone, everyone can have the security of insurance without having to pay the insane prices at the top of the adverse selection death spiral. Sure, this means that healthy people might not be able to take on some risk for a good deal. And if a large percentage of the American population took wild gambling pleasure in the idea of going without health insurance to save money, maybe that’d give us an argument against universal coverage. But nobody actually thinks about health insurance that way. So even if some healthy people are stuck with a mildly bad deal, the aggregate population is better off due to everyone having security.

For those of you who liked this, and want to see a badass young wonk doing something cool, watch Matt Yglesias point out how adverse selection afflicts the annuity market and bedevils Social Security Privatization schemes.


October 11, 2005 | Permalink | TrackBack (0)

Monday, October 10, 2005

OIG: Fraud & Abuse Safe Harbor for IT a Top Priority

According to AIS' Government News of the Week,  "CMS and the HHS Office of Inspector General (OIG) are now crafting exceptions to the Stark and anti-kickback statutes for health information technology (HIT) so that hospitals and physicians can share interoperable electronic health records (EHR) without running afoul of fraud-and-abuse laws, Inspector General Dan Levinson said [on] Sept. 26 at the annual Fraud and Compliance Forum co-sponsored by the American Health Lawyers Assn. and the Health Care Compliance Assn. in Baltimore."

The other three top OIG priorities:

  • Medicaid fraud
  • Compliance tools and guidances
  • New developments from the Medicare Prescription Drug, Improvement and Modernization Act of 2003 (MMA)


October 10, 2005 | Permalink | TrackBack (0)

Access to Physicians' Services and the Cost of Med-Mal Coverage.

An article from the Oct. 10 issue of Archives of Internal Medicine:

Availability of Physician Services in Florida, Revisited: The Effect of the Professional Liability Insurance Market on Access to Health Care
Robert G. Brooks, MD; Nir Menachemi, PhD, MPH; Art Clawson, MS; Les Beitsch, MD, JD; Arch Intern Med. 2005;165:2136-2141:

Background:  Access to care remains a key part of improving health care outcomes in the United States. Recent reports have suggested that the number of physicians able to meet the demands for access to care may be decreasing.

Methods:  We surveyed physicians practicing in rural and urban/suburban areas of Florida in 2004 to determine whether changes were occurring in health care service delivery. Secondary outcomes assessed included changes in professional liability insurance and their possible effects on changes in service delivery.

Results:  Overall, 727 (54.4%) of responding physicians stated that the delivery of services had been decreased or eliminated in the previous year. The most commonly eliminated services were nursing home coverage (42.1%), vaginal deliveries (29.1%), cesarean deliveries (26.0%), emergency department coverage (22.8%), and mental health services (21.2%). Surgical specialists (70.2%) and general surgeons (68.5%) were the groups with the highest number of decreased or eliminated services, but this trend was broad, with 63.6% of obstetrician/gynecologists and 60.2% of family medicine physicians also decreasing or eliminating services. Decreases in services seem to be related to changes in professional liability insurance premiums when assessed by both percentage of change and total premium increases for physicians. Rural and urban/suburban physicians did not differ significantly in these assessments.

Conclusion:  The findings suggest that physicians across Florida have continued to decrease or eliminate important health services and that these decreases seem to be related to the difficulty of finding or paying for professional liability insurance.


October 10, 2005 | Permalink | TrackBack (0)

George Annas on the Flu Preparations

Effect Measure has posted the George Annas editorial from the Boston Globe concerning President Bush's response to the possibility of a flu pandemic.  Professor Annas is the Edward R. Utley Professor of Health Law and Chairman of Health Law Department at the Boston University School of Public Health.  In this editorial, Professor Annas details his concern with the President's military quarantine policy to protect us from the flu,

First, historically mass quarantines of healthy people who may have been exposed to a pathogen have never worked to control a pandemic, and have almost always done more harm than good because they usually involve vicious discrimination against classes of people (like immigrants or Asians) who are seen as ''diseased" and dangerous.

Second, the notion that ruthless quarantine was responsible for preventing a SARS pandemic is a public health myth. SARS appeared in more than 30 countries; they all reacted differently (some used forced quarantine successfully, others voluntary quarantine, and others no quarantine at all), and all ''succeeded." Quarantine is no magic bullet.

Third, quarantine and isolation are often falsely equated, but the former involves people who are well, the latter people who are sick. Sick people should be treated, but we don't need the military to force treatment. Even in extremes like the anthrax attacks, people seek out and demand treatment. Sending soldiers to quarantine large numbers of people will most likely create panic, and cause people to flee (and spread disease), as it did in China where a rumor during the SARS epidemic that Beijing would be quarantined led to 250,000 people fleeing the city that night.

I hope an advisor to the President will share this with him.  Thanks again to Effect Measure!! [bm]

October 10, 2005 | Permalink | TrackBack (0)

Heallth Care Post-Katrina

Kevin Drum of the Washington Monthly links to this excellent LA Times article discussing life for Mr.  Emanual Wilson after Katrina.  While his other needs are being met, unfortunately he cannot obtain the necessary chemotherapy.  Trom the LA Times article,

Like most of those whose lives were upended by Hurricane Katrina, 52-year-old school bus driver Emanuel Wilson can thank the federal government for the fact that he has money to pay rent. He's also been given food stamps to make sure he can buy groceries. And if he had young children, the government would almost certainly be helping them get back to school.

But what Wilson needs is chemotherapy, and that is something the government seems unable to help him with. Wilson was being treated with monthly chemo injections for his intestinal cancer before the hurricane.

He has been denied assistance largely because, before the storm, he had what the government says it wants every American to have: health insurance.

The New Orleans man's plight illustrates one of the most perplexing twists in the still-faltering federal effort to help Gulf Coast hurricane victims: a seemingly inconsistent approach to victims' healthcare needs that appears to punish those who had taken the most responsibility for their own care.

Under the present rules for Katrina victims, if you are destitute, the government will pay your medical bills. Ditto if you are severely disabled or have children. But if you're an adult who had a job that included health benefits and you lost that job because of the storm, the government can't seem to help.

Kevin Drum responds to the article stating,

. . . the best and most fundamental reason for national healthcare is that nobody should have to fear that what's happened to Wilson might happen to them. They shouldn't have to worry that if their company changes healthcare providers they'll lose benefits they once had or be unable to continue seeing their current doctor. They shouldn't have to worry that if they get laid off they'll lose their coverage entirely. They shouldn't have to worry that when they take a new job, they — or their kids — won't be covered for a preexisting condition.

I agree! [bm]

October 10, 2005 | Permalink | TrackBack (0)

Sunday, October 9, 2005

Bird Flu Found in Europe

Reuters reports that a strain of bird flu has been discovered in Turkey.  They state,

. . . . 2,000 turkeys had died of the disease on a farm in Balikesir province near the Aegean Sea in western Turkey. All animals on the farm had been slaughtered to prevent the disease spreading, it added.

"Yesterday, unfortunately, we experienced a case of bird flu. But everything is under control, every precautionary measure has been taken to prevent it spreading," CNN Turk quoted Eker as saying.

Effect Measure has an excellent round up of the conclusion of Pandemic Flu Awareness Week. [bm]

October 9, 2005 | Permalink | TrackBack (0)