HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Saturday, November 26, 2005

Kidney Swap Bonds Families

Heartwarming Thanksgiving Story #234 (in the Organ Donation Division):

Two men need kidneys.  In each case, their spouses aren't a good match, but each spouse matches the other's husband.  Solution: kidney swap.  The only glitch that occurred was an inadvertent violation of the transplant center's rule that the donor families shouldn't meet beforehand, in case one or the other (or the other or the other) doesn't click and backs out at the last minute. Due to a scheduling error, however, all four got on the hospital's elevator, each with his or her overnight bag, at 6 a.m. the morning of the operations (4 of them).  They quickly deduced why they were all there. The couples have become fast friends, going out to dinner twice a month and spending Thanksgiving together this year.

The AP story is here. [tm]

November 26, 2005 | Permalink | Comments (0) | TrackBack (0)

HMO Liable for Nursing Home's Negligence

From Mealey's Health Care Legal News:

A California appeals court on Oct. 25 held that a health maintenance organization that contracts out its health care responsibilities to various providers, including nursing homes, is liable when one of those providers denies medically necessary services or commits malpractice in the delivery of those services (Teri Pagarigan, et al. v. Aetna U.S. Healthcare of California Inc., et al., No. B167722, Calif. App., 2nd Dist., Div. 7).  [Lexis/Nexis link to opinion] 


November 26, 2005 | Permalink | Comments (0) | TrackBack (0)

Religion, International Human Rights, and Women's Health

David E. Guinn has posted a working paper entitled "Religion, International Human Rights, and Women's Health: Synthesizing Principles and Politics" [SSRN Working Papers Series].  Here is the abstract:

For many people at the turn of the millennium, human rights have become the new language of faith resonate with great meaning and profound value. However, like all traditional religions, human rights embody great complexity. Neither coherent nor consistent, human rights cannot overcome the fallibility of its human creators. When we attempt to use rights as absolute values - Dworkin's trump cards against infringement - we find ourselves confronting the contradictions inherent in equally valued rights when they come in conflict.

As noted by many authors, nowhere is this conflict more pronounced than the conflict between women's rights and the rights of freedom of conscience/religion present in many international human rights instruments. Lest this be thought a problem of Western privilege, where women can afford the luxury of seeking political parity with men, in this paper I will confront human rights conflicts that have a direct impact on women's health. This will include both reproductive health concerns and female circumcision/female genital mutilation.

In attempting to address these conflicts, I will begin by analyzing the nature of human rights to health and the particular rights of women to health - with the problems created by their separation from non-gendered rights. Next, I will begin my principled argument by arguing against both an absolutist understanding of rights, and a "strict equality" standard of interpretation that seeks to recognize a hierarchy of rights. Such an approach fails as a matter of law, as a matter of philosophy (under the foundationalist challenge), and in the face of history. Instead, I argue that while a principled interpretation of rights can provide some guidance, its utility is limited. Instead, it is imperative to consider rights within their political context. Human rights do not stand outside politics, but instead reflect aspects of that politics. Ultimately, the goal of any rights analysis is not to determine which rights take precedence, but how to find a synthesis respectful of each.

The full paper can be downloaded through a link at the address above. [tm]

November 26, 2005 | Permalink | Comments (0) | TrackBack (0)

Friday, November 25, 2005

Cartoon Roundup

The avian flu, sometimes with a Thanksgiving theme, proved irresistable again this week:

Medicare Part D was also a popular target this week:

Plan B & the FDA:


November 25, 2005 | Permalink | Comments (0) | TrackBack (0)

Thursday, November 24, 2005

TelaDoc: Is It Unlawful?

Last September we wrote here about TelaDoc.  Here's some follow-up from the LA Times (abstract only), summarized by the CDC's Public Health Law News service:

A controversial service is providing over-the-phone medical care to patients across the country, and while it is filling a need, some states say TelaDoc Medical Services is violating the law. The Dallas-based company began providing non-emergency medical care, including prescriptions, earlier this year, and has so far treated 40,000 patients. Patients must be more than 12 years old, subscribe to the service through a monthly membership fee, and pay a $35 fee for each call. After the patient sends an online message to the company, a licensed doctor calls the patient back within three hours. In states where regulations require doctors to diagnose patients in person, a technician visits the patient, takes vital statistics, and conducts a videotaped interview to send to the doctor. TelaDoc is popular with people who do not have the time or the money to see a doctor in person. But groups like the American Academy of Family Physicians and the American Medical Association oppose the service and worry that a patient could be seriously harmed. “They don’t examine the patient,” said Dr. David Goldstein, co-director of the University of Southern California’s Pacific Center for Health Policy and Ethics, “What about the clinical benefit of looking at someone’s skin or their eyes or listening to their heart?” The Medical Board of California says TelaDoc may be violating state law requiring that physicians conduct “a good faith prior examination” before prescribing drugs. But the company says it is not violating the law. “This is no different than doctors who’ve treated people over the telephone for years,” said TelaDoc’s general counsel Rocky Dhir.


November 24, 2005 | Permalink | Comments (0) | TrackBack (0)

Mandatory Health Insurance in the Bay State?

From Wednesday's CDC's Public Health Law News:

Massachusetts may soon require health insurance for the state’s estimated half million uninsured residents. The state legislature is considering two separate plans. Under Gov. Mitt Romney’s plan, all residents would be required to buy insurance. Health insurance companies would be required to offer low-cost options, and people who earn less than $28,710 could receive state subsidies. The second plan, proposed in the House, would require employers to provide insurance or face a payroll tax. All persons who remained uninsured would face suspension of their driver’s licenses. The Massachusetts proposals are the first time any U.S. state legislature has seriously considered mandatory health insurance. “We have entered an age when there is more of a sense that there should be individual responsibility for your life and your family, that you owe it to your community to have coverage,” said Robert Blendon, a research professor at the Harvard School of Public Health. But not all residents are pleased with the prospect of being required to pay for health insurance. “Insurance is not my top priority right now. Day-to-day living is, like food,” said a Boston hair stylist. Other states have been hesitant to mandate insurance. “The fear with individual mandates is that you drive people out of state. Essentially it’s a tax, no matter how it gets worked out,” said Howard Berliner, of the New School for Management and Urban Policy in New York. But, said Berliner, “the individual mandate is not perfect, but I would much prefer in New York that we had that than just a growing number without insurance at all.” The Massachusetts bills are being considered by a legislative committee this week.

Read all about it in the Christian Science Monitor[tm]

November 24, 2005 | Permalink | Comments (0) | TrackBack (0)

Happy Thanksgiving to All

Thanksgiving_wp2 Today will be a day of food, family, and football for most of us, though not necessarily in that order.  Your editors at HealthLawProf Blog extend our wishes for a happy and safe Thanksgiving holiday.  If the Cowboys' game gets boring, I may be back at the computer for a while, but otherwise, expect a slow few days at the Dallas office of the Blog.  [tm]

November 24, 2005 | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 23, 2005

More Unkind Words for Medicare Part D

From the Washington Post's Robert Samuelson ("Drug Benefit Disaster"): 

Good policy can make for good politics, and bad policy can make for bad politics. Republicans may be about to discover this truism with their Medicare drug benefit, passed by Congress in 2003 and scheduled to take effect in January. As policy, the drug benefit is a calamity. It worsens one of the nation's major problems (paying baby boomers' retirement costs) while addressing a nonexistent "crisis" (allegedly oppressive drug costs for retirees). Its purpose was mostly political: to bribe the elderly or soon-to-be-elderly to vote for Republicans in 2004. Now it may backfire on Republicans.

Samuelson's bill of particulars is familiar to many of us, but he neatly summarizes the problems: (i) unnecessary complexity, (ii) conservative outrage over the biggest expansion of the Medicare program since 1965, and (iii) the blatant political calculation that produced a plan that will produce higher out-of-pocket expenditures for many seniors (courtesy of the infamous doughnut hole) and that is still so bleeping expensive that the costs of the program will be covered by future taxes and borrowing.  [tm]

November 23, 2005 | Permalink | Comments (0) | TrackBack (0)

Hospitals' Uncompensated Care Rises Slightly

From Modern Healthcare's Daily Dose (requires free registration):

Hospital costs for patients who did not pay or could not afford to pay hit $26.9 billion in 2004, an 8% increase from 2003, the American Hospital Association said. The cost of patients' unpaid bills accounted for 5.6% of hospitals' total expenses last year. That's a slight increase from 5.5% in 2003, but still one of the lowest percentages reported since 1984. The association calculated uncompensated-care costs -- rather than charges -- based on hospital responses to its 2004 survey and using a formula that did not include discounts for Medicaid, Medicare or private insurers. The AHA said 85% of U.S. hospitals responded.


November 23, 2005 | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 22, 2005

CDC's 10-Year Research Agenda

Public health scholars trying to synchronize their research activities to keep pace with the "next new thing" might want to take a look at the CDC's "Public Health Protection Research Guide 2006 – 2015."  The 60-day formal comment period on the agency's research agenda began November 18.  More information is here.  The research guide is available here (free registration required).  [tm]

November 22, 2005 | Permalink | Comments (0) | TrackBack (0)

CDC: Better Quarantine Rules Needed

The AP reports that the CDC today proposed amendments to quarantine regulations, "hoping changes such as easier access to airline passenger lists could better protect Americans from foreign infectious diseases, including bird flu."

CDC's Pandemic Influenza Page
Notice of Proposed Rulemaking


November 22, 2005 | Permalink | Comments (0) | TrackBack (0)

Monday, November 21, 2005

Krugman on Health Care

Four of Paul Krugman's recent op-eds in the New York Times have looked at health care economics and policy.  Because of recent changes on the Times' web site, these have been moved to the Times Select section, meaning (i) they require a paid subscription and (ii) the usual RSS feed for Times articles isn't available.  Oh, and they aren't available for free any more on the "unofficial Paul Krugman web site," either.  Well, you're just going to have to pay to see these, or pull them off Lexis-Nexis (to make that easier to do, I have added the Lexis-Nexis link for each of these):

  • November 18, 2005: A Private Obsession [Lexis-Nexis]
    The Medicare drug benefit is an example of gratuitous privatization on a grand scale.
  • November 14, 2005:  Health Economics 101 [Lexis-Nexis]
    Our patchwork, semiprivate system of health insurance is failing because insurance companies spend too much time screening applicants.
  • November 11, 2005:  The Deadly Doughnut [Lexis-Nexis]
    Politicians who don' t believe in a positive role for government shouldn' t be allowed to design new government programs.
  • November 7, 2005:  Pride, Prejudice, Insurance [Lexis-Nexis]
    National health insurance is the obvious solution for health care reform in America.


November 21, 2005 | Permalink | Comments (0) | TrackBack (0)

Sunday, November 20, 2005

Oral Argument Transcript in Gonzales v. Oregon

I'm a little late getting this link posted, but better late than . . .

Here's the 60-page transcript of the oral argument in Gonzales v. Oregon in the Supreme Court (question: whether Oregon's Death With Dignity Act is trumped by the Attorney General's interpretation of the Controlled Substances Act; the Ninth Circuit said no). [tm]

November 20, 2005 | Permalink | Comments (0) | TrackBack (0)

Genetic Screening Gets Serious

Today's NY Times has a piece by Amy Harmon about prenatal genetic screening and the social revolution that many see around the corner.  The article seems to have been spurred on by a report (abstract) in the Nov. 10 New England Journal of Medicine on first- and second-trimester screening for Down's Syndrome.  Here are some of the observations from the article:

  • The new prenatal test provides earlier, more reliable results for all women than the current test, which is routinely offered to only older women who are at higher risk. But for people with Down syndrome and the cluster of other conditions subject to prenatal screening, the new test comes with a certain chill. Because such tests often lead to abortions, people with conditions from mental disability to cystic fibrosis may find their numbers dwindling. As a result, some fear, their lives may become harder just as they are winning the fight for greater inclusion.
  • Some bioethicists envision a dystopia where parents who choose to forgo genetic testing are shunned, or their children are denied insurance. Parents and people with disabilities fear they may simply be more lonely. And less money may be devoted to cures and education.
  • The co-director of the disabilities studies program at Pennsylvania State University, Michael Bérubé, whose 14-year-old son has Down syndrome, worries that if fewer children are born with the condition, hard-won advances like including them in mainstream schools may lose support. "The more people who think the condition is grounds for termination of a pregnancy, the more likely it will be that you'll wind up with a society that doesn't welcome those people once they're here," he said. "It turns into a vicious cycle."


November 20, 2005 | Permalink | Comments (0) | TrackBack (0)