HealthLawProf Blog

Editor: Katharine Van Tassel
Creighton University School of Law

Saturday, March 18, 2006

Tennessee's "Choose Life" License Plates OK'd by 6th Circuit

The AP reports that the 6th Circuit has upheld Tennessee's pro-life license plate even though it does not offer the option of ordering a pro-choice license plate. According to the story,

Tennessee is the 13th state to offer "Choose Life" plates. The others are Alabama, Arkansas, Connecticut, Florida, Hawaii, Louisiana, Maryland, Mississippi, Montana, Ohio, Oklahoma and South Dakota. Most states donate proceeds to adoption groups, but Alabama, Hawaii, Maryland and Montana donate at least some of the money to anti-abortion groups.

Jurist has a full report, including links to the court's opinion (2-1).  This could be a cert-worthy issue, judging from the circuit split described by Jurist:

Other courts around the country have ruled on the issuance of special license plates previously. In September 2005, a district judge ruled that Arizona could refuse to issue "choose life" plates [JURIST report]. In March 2004, the US Court of Appeals for the Fourth Circuit struck down anti-abortion plates [JURIST report] in South Carolina, while the US Court of Appeals for the Fifth Circuit in April 2004 upheld similar plates [JURIST report] against a challenge in Louisiana.


March 18, 2006 | Permalink | Comments (0) | TrackBack (0)

US Not Ready for Single Payer ?

MIchael Kinsley of has a thought-provoking article on whether United States is ready for single payer health care program outlined by Krugman and Wells.  He prefers more modest reforms and says,

. . . Much of it isn't insurance at all but a subsidy. The value of the subsidy is the difference between what the individual pays and what the insurance would cost in the free market. If people were buying health care or insurance with their own money, they might or might not spend too much—whatever "too much" is—but no one else would need to care if they did.

A subsidy has to take from someone and give to someone else. Everybody can't subsidize everybody. Or, to put it another way, society cannot give the average citizen better health care than the average citizen would choose to buy on his or her own. And this is what people want. Krugman and Wells believe that the average citizen will be sated by whatever bonus comes out of single-payer efficiencies. In this day of $100,000-a-year pills, I doubt it.

Even though we don't do it, most Americans surely think we ought to guarantee decent health care to everyone. In fact, most would probably be uncomfortable saying it's OK to have anything less than equal health care for everybody. Should a poor child die because her family can't afford a medicine that an insured, middle-class parent can pick up at the drugstore? Current government programs don't protect poor people very well against the cost of becoming sick. They do much better at protecting sick people against the risk of becoming poor. People who can afford insurance ought to protect themselves against a catastrophic health expense. But subsidizing this insurance for them is not only unnecessary, it is futile and unfair. No one is better able to afford health care for people of average means or above than they are themselves.

Krugman and Wells say that private insurance is flawed by "adverse selection": Insurance companies will avoid riskier customers. Only a single payer (that is, an insurance monopoly) can insure everybody and spread the risk. But anyone is insurable at some price—a price that reflects the cost they are likely to impose on the insurer. Adverse selection is only a problem to the extent that insurance is not really insurance, but rather a subsidy.

If you're not as hopeful as Krugman and Wells about being able to avoid rationing, you face the question: Should people be allowed to opt out of rationing if they can afford it? That is, if the system (private or single-payer) won't pay for the $100,000 pill, should you be able to pay for it yourself? Fear that this would not be allowed helped to kill the Clinton health-care reform 13 years ago. But explicitly granting some people life and health while denying these things to others is hard, even though this disparity has existed throughout history and is probably unavoidable. In fact, a serious defect of single-payer is that it makes all sorts of unbearable trade-offs explicit government policy, rather than obscuring them in complexities.

For excellent commentary on his post, see Healthy Policy and Erza Klein.  [bm]

March 18, 2006 | Permalink | Comments (0) | TrackBack (0)

Selling Eggs

The Times UK discusses the new book by Debora Spar called, "The Baby Business," and examines the unregulated market for eggs from young, smart women in the United States.   The article reports, 

“We are selling components of children,” Professor Spar said yesterday. “My whole argument is I would much rather we ’fess up to what we are doing and regulate it than push it under the carpet, as we have been doing with egg donation.”

As other countries tighten their rules, America’s loosely regulated market is becoming the world centre for egg donation. The Government’s Centres for Disease Control and Prevention has tracked a 40 per cent surge in the use of donor eggs, from 10,389 in 2000 to 14,323 in 2003, the latest year for which figures are available. Stem-cell research, still in its infancy, could add to demand for donor eggs.

Selling organs is illegal in America. But human eggs, like sperm, are not covered by the law. Nevertheless, fertility clinics insist that payments to donors are intended to compensate their time and effort rather than purchase the egg.

Thanks to the Huffington Post for this cite. [bm]

March 18, 2006 | Permalink | Comments (0) | TrackBack (0)

Thursday, March 16, 2006

Bizarre Medical Malpractice Case

I cannot believe that a doctor (or any human being) would actually do this to another individual.  At first, the story read a little like some of those managed care horror stories that we used to hear about, but apparently this was not an effort to save money - just a case of some missing medical equipment.

According to a report on MSNBC, a jury in Hawaii found a doctor and a hospital negligent (the hospital for negligent credentialing) and awarded $5.6 million to the " family of a man who had the shaft of a screwdriver implanted into his spine by an orthopedic surgeon."  Why would the surgeon do such a thing, you ask . . . well, apparently Dr. Robert Ricketson could not find the "two titanium rods he planned to attach to [the patient's] spine . . . during the operation at Hilo Medical Center."  (Next time I undergo surgery, I plan to check for any common household tools that might be hidden in the operating room).   Unfortunately for the doctor, the stainless steel (I believe this substance to be somewhat less strong than titanium) snapped several days later and the man had to undergo three more surgeries and then died two years later.

Dr. Ricketson's medical license had been suspended by both Texas and Oklahoma before he moved to Hawaii.  Looks like someone failed to consult with  the databank.  [bm]

March 16, 2006 | Permalink | Comments (0) | TrackBack (0)

New FDA Commissioner

The New York Times reports today that President Bush has nominated the current acting FDA commissioner, Andrew von Eschenbach to become permanent head of the agency.   He is currently also the director of the National Cancer Institute.  For more information on him, see the very helpful write-up by the Kaiser Network Org.  Citing to a recent LA Times story, it states as some of Von Eschbach's goals include:  "As permanent commissioner, von Eschenbach likely would focus on streamlining FDA's process for approving new medications for hard-to-cure diseases like certain cancers. FDA also must "establish a framework for regulating emerging fields such as generic medicine."

However, according to a story aired this morning on National Public Radio, von Eschenbach may not ever be confirmed because Senators Patty Murray (D-Wash.) and Hillary Rodham Clinton (D-N.Y.) have placed a hold on the confirmation vote due to the failure of the FDA to act on the nonprescription availability of Plan B (emergency contraceptive device).  For more information and commentary, see the Washington Monthly discussion and read the full Kaiser Network Org article.  [bm]

March 16, 2006 | Permalink | Comments (0) | TrackBack (0)

Cincinnati Moves Forward

This article may be broadly viewed as a public health update from my own city.  Yesterday, the Cincinnati City Council passed an amendment to the city's human rights ordinance that offers protections to gays, lesbians and transgendered people.  The Business Courier reports,

The amendment, sponsored by Vice Mayor Jim Tarbell and council members David Crowley, Chris Bortz, Laketa Cole and John Cranley, was approved by Council's Law and Public Safety Committee Tuesday.

Under the human rights ordinance as amended, gays, lesbians and trangendered people can't be fired from a job or evicted from an apartment, for example, because of their sexual orientation.

Council approved a similar amendment to the human rights ordinance in the early 1990s, but opponents placed a charter amendment on the ballot in 1994 that banned the city from passing any ordinance protecting gays and lesbians. Voters overturned that amendment last year, after a campaign spearheaded by community leaders and business groups.

Hopefully the city will continue to work toward equality for all people.  [bm]

March 16, 2006 | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 15, 2006

Right to Refuse to Provide Drugs

The Healthy Policy Blog has an interesting post on the pharmacists who invoke various concientious objections to providing certain forms of birth control.  She succinctly notes,

There are plenty of people that all of us have deal with/help in our everyday life that we'd rather not.  But that's life!  There are plenty of things people do I believe are morally reprehensible, but when your professional calling is to give people medical care, you do it.

I agree. [bm]

March 15, 2006 | Permalink | Comments (0) | TrackBack (0)

Reader Survey

Please take a moment to fill out our short reader survey here.  We would like to have a better idea about who is reading this blog so we can better serve you.  Thanks in advance for your help.  (The survey will remain at the top of the middle column throughout this week.)

March 15, 2006 | Permalink | Comments (0) | TrackBack (0)

Health Care Reform

The LA Times has an excellent piece on the various proposals that states are considering concerning health care reform.  The article states,

From coast to coast, Democratic and Republican governors are pursuing divergent policies to control healthcare costs and expand access to services. In the process, they are grappling with the same basic question facing Washington: Should government attempt to reinforce the existing system under which most Americans receive health insurance as part of large groups, or tilt the nation toward an approach that shifts more control, but also more financial burden and risk, to individuals?

In tune with President Bush's agenda, GOP plans in Florida and South Carolina attempt to reduce the growth of healthcare costs by directing more of the cost away from government and private insurers and toward individuals. Republican leaders promote these plans as models to guide healthcare changes.

"One of the reasons we have a healthcare crisis is because, as a consumer, I don't have that much skin in the game," said Arkansas GOP Gov. Mike Huckabee. "A lot of us feel there needs to be a transformation from a third-party [insurance] system to more [financial] participation by the [patient]."

By contrast, Democratic proposals seek to reinforce public and employer-based healthcare systems that partly shelter individuals from medical bills. That philosophy underlies efforts in California, Illinois and New Mexico to guarantee coverage of all children — and efforts in Maryland, Wisconsin and Iowa to encourage or compel more employers to insure workers.

In these states, "We are very explicitly talking about whether we pool together to share the risk in healthcare or we devolve into a system of everybody for themselves," said Anthony Wright, head of the liberal group Health Access California, which supports a proposed ballot measure that would guarantee universal coverage for the state's children.

Thanks to Ezra Klein for this article.  He also has a terrific discussion of the "no skin in the game" comment by Governor Huckabee.  [bm]

March 15, 2006 | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 14, 2006

Government Not Prepared for Bird Flu

Was anyone else slightly alarmed by the government's preparation recommendations for the potential  bird flu pandemic -- stocking up on powered milk and canned tuna fish (both you are apparently supposed to store under your bed).  More details on this from the Daily Kos website,

"Did you know that flu experts met in Washington this week and took stock of the situation? The conclusion, after evaluating what's going on here and abroad, is that we're not ready if it should ever get here.

U.S. experts expect to be overwhelmed by bird flu


WASHINGTON, Feb 2 (Reuters) - U.S. flu experts are resigned to being
overwhelmed by an avian flu pandemic, saying hospitals, schools,
businesses and the general public are nowhere near ready to cope.
Money, equipment and staff are lacking and few states have even the
most basic plans in place for dealing with an epidemic of any disease,
let alone the possibly imminent pandemic of H5N1 avian influenza, they
told a meeting on Thursday. While a federal plan has been out
for several weeks, it lacks essential details such as guidance on when
hospitals should start to turn away all but the sickest patients and
when schools should close, the experts complained.

The Feds agree. HHS Secretary Mike Leavitt is touring the country (he was in CT yesterday), explaining about the disastous 1918 flu and warning that if (and when) a pandemic strikes the US, and you're not prepared, there's no cavalry coming from DC.

Rell and Leavitt signed a resolution at Thursday's event to affirm the
state and federal governments' commitment to work together on pandemic
planning. Local officials who attended the conference also were
directed use its lessons as they create or revamp their own
municipalities' preparedness plans.

But the details include a $1 million grant to prepare all of CT. That works out to be around $32,000 per CT's acute care hospital, and  if you think that's enough to solve this problem (if nothing else, that'll buy enough tamiflu to treat 10,000 of CT's 3.5 million citizens), I've got a bridge in Brooklyn to sell you. The Feds know this, and that's why they're warning citizens to consider stockpiling food and water in the event services are disrupted."


March 14, 2006 | Permalink | Comments (0) | TrackBack (0)

Monday, March 13, 2006

Mad Cow Disease - Here Again

The Associated Press reports on the Agriculture Department's disclosure that an Alabama cow tested positive for mad cow disease.   On the upside, the AP states,

The cow did not enter the food supply for people or animals, officials said. The animal, unable to walk, was killed by a local veterinarian and buried on the farm.

"We remain very confident in the safety of U.S. beef," said the department's chief veterinarian, John Clifford. . . .

Federal and state investigators are working to determine the cow's age, where it was born and raised and locate its herdmates and offspring. Sparks said there are no suspect animals on the farm.

Clifford said the cow was a Santa Gertrudis breed, a red-colored animal that thrives in hotter weather in the southern U.S.

On the downside, the AP's report continues,

The Agriculture Department has been considering when to scale back its higher level of testing for mad cow disease. After the first case of BSE, testing was increased from about 55 to 1,000 daily. As of Monday, 652,697 of the nation's estimated 95 million head of cattle had been tested.

The department hasn't decided how many animals to test once surveillance is scaled back but will follow international guidelines, Clifford said.

I would think that now would be a bad time to "scale back" testing for the disease, but I am not a  veterinarian.  [bm]

March 13, 2006 | Permalink | Comments (0) | TrackBack (0)

Wrongful Birth

Yesterday's New York Times Magazine contained an article by Elizabeth Weil discussing wrongful birth lawsuits.  She states,

The practice of terminating specific pregnancies, as opposed to aborting pregnancies so as not to have a child at all, is seldom discussed in its baldest terms. It is also poised to rise. Just this past November, scientists at Columbia University published a major paper in The New England Journal of Medicine on the effectiveness of new, noninvasive techniques for screening for Down syndrome in the first trimester, when the decision to terminate will most likely be more common and, some argue, more humane. In in vitro settings, a new technology called P.G.D. — preimplantation genetic diagnosis — allows doctors to test for genetic defects days after fertilizing an egg in a petri dish. Perhaps most important, the number of prenatal genetic tests is increasing exponentially — it jumped from 100 to 1,000 between 1993 and 2003 — and no regulations yet guide parents and doctors about fair reasons for terminating or going forward with particular births. Should it be O.K. to terminate a deaf child? What about a blind one? How mentally retarded is too mentally retarded? What if the child will develop a serious disease, like Huntington's, later in life? According to one reproductive legal scholar, Susan Crockin in Newton, Mass., "As reproductive genetics opens up new possibilities, we should expect to see more of these cases, and we should expect to see more novel issues."

At present, courts in about half the states recognize wrongful birth as a subset of medical negligence or allow lawsuits under the more general malpractice umbrella if a doctor's poor care leads to the delivery of a child the parents claim they would have chosen to terminate in utero had they known in time of its impaired health. In some of these states, like New York,  . . . emotional damages — compensation for the distress incurred by having an impaired child — cannot be recovered. No matter the legal context, terminating a wanted pregnancy is no one's first choice, but for the time being at least, when faced with a fetus that will become a severely handicapped child, all the choices are bad. At this moment, we are fairly adept at finding chromosomal flaws and horribly inept at fixing them. . . .

An unintended and particularly disconcerting consequence of all these new reproductive lawsuits is that they may bias the medical establishment toward termination, and some argue that such a bias already exists. This is alarming for many reasons, not least of which is the fact that several studies have shown that the raising of children with impairments is on the whole a lot less difficult and a lot less different from raising so-called normal kids than we imagine it will be. "Families with severely impaired children do not differ significantly in stresses and burdens from families with normal children," Wasserman, the bioethicist, maintains, citing articles like "The Experience of Disability in Families: A Synthesis of Research and Parent Narratives." The idea that a handicapped child will destroy a marriage is exaggerated, he told me: "A child prodigy can have just as large an impact on a family as a child with cystic fibrosis or Down."

The entire article is a terrific read and provides a fairly complete background to some of the issues faced by families and the medical profession.  [bm]

March 13, 2006 | Permalink | Comments (0) | TrackBack (0)

Health Care Professionals and Conscientious Objection

HSAs: Good for the Middle Class & Great for the Rich?

Joe Paduda has a good post over at the Managed Care Matters blog, where he quotes LawProf Blogmeister Paul Caron to the effect that President Bush's announced plan to expand the health-savings accounts would create "the mother of all tax shelters."  Paduda, relying on a March 3 Bloomberg article, concludes that the plan disproportionately favors the rich and typically amounts to a wash for middle-incomers who will rely use the "savings" to pay for out-of-pocket expenses, resulting in a wash.  At least one commenter points out that his company's HSA saved an employee thousands of dollars, compared to what her out-of-pocket payments would have been with her previous PPO, but that doesn't negate the underlying fact that employees have to have enough free-floating cash to fund their HSA in the first place, and dollars-in-dollars-out in the same year will produce little or no tax gain.

Even if you think expanded HSAs are a good thing because they will help increase coverage and therefore access to healthcare (by alllowing out-of-pocket expenses to be paid with untaxed income and even untaxed gain on that untaxed income), I will stand by my previous comment that the one thing expanded HSAs will not do -- contrary to the claims made by Pres. Bush when he first floated this plan -- is constrain the rate of inflation in the health-care sector. You can't have it both ways.  If a plan will make health care more affordable and increase access, it will increase demand, and more dollars will end up chasing available resources.  If you're a believer in markets, as the president claims to be, you have to see a scenario that will result in higher inflation, unless you honestly believe that tax-supported savings will make patients better consumers to such a degree that the savings attributable to "smart shopping" will offset the increased demand produced by the expanded HSA program.  I don't buy that for a minute.  If the administration was serious about relying on market forces it would reduce the tax subsidies for health care expenditures, not increase them.  That's not necessarily my preferred approach, but it would have the advantage of at least being internally consistent.  [tm]

March 13, 2006 | Permalink | Comments (0) | TrackBack (0)

Sunday, March 12, 2006

Readers' Survey

Please take a moment to fill out our short reader survey here.  We would like to have a better idea about who is reading this blog so we can better serve you.  Thanks in advance for your help.  (The survey will remain at the top of the middle column throughout this week.)

March 12, 2006 | Permalink | Comments (0) | TrackBack (0)

Doctor in Iraq

Newsweek has a very moving and rather graphic story examining a doctor's experience in Iraq with our armed forces.  The story is entitled, "On call in Hell," and is written by Pat Wingert and Evan Thomas and recounts Richard Jadick's time as a surgeon in Iraq.  Thanks to TalkLeft for the heads up on the cite.  [bm] 

March 12, 2006 | Permalink | Comments (0) | TrackBack (0)

Wrongful Birth Redux

Today's NY Times Magazine has a piece by Elizabeth Weil, "A Wrongful Birth," that provides poignant details of one case and a good overview of the legal and ethical issues involved in such suits. Betsy and I have recently posted on this subject, as well.  [tm]

March 12, 2006 | Permalink | Comments (0) | TrackBack (0)

Drug Prices: What's "Too Expensive"?

Today's NY Times has an article by Alex Berenson on dramatically increased drug prices ("A Cancer Drug's Big Price Rise Is Cause for Concern").  Some examples:

  • Between Feb. 3 and Feb. 17, an increase in Ovation Pharmaceutical's wholesale price for Mustargen, used as an ointment to treat a rare lymphoma, raised the retail price from $77.50 to $548.50.
  • Genentech has indicated it will effectively double the price of its colon cancer drug Avastin, to about $100,000, when Avastin's use is expanded to breast and lung cancer patients.
  • In 2003, Abbott Laboratories raised the price of Norvir, an AIDS drug introduced in 1996, from $54 to $265 a month. AIDS groups protested, but Abbott refused to rescind the increase.
  • Last year, Genentech raised the price of Tarceva, a lung-cancer drug, by about 30 percent, to $32,000 for a year's treatment. In an interview last month, Dr. Susan Desmond-Hellmann, the president of product development for Genentech, said that the company had raised Tarceva's price because the drug works better than Genentech had anticipated.

The article quotes Henry A. McKinnell, the chairman of Pfizer, the world's largest drug company, who wrote (in his 2005 book "A Call to Action") that drug prices were not driven by research spending or production costs: "'A number of factors go into the mix' of pricing, he wrote. 'Those factors consider cost of business, competition, patent status, anticipated volume, and, most important, our estimation of the income generated by sales of the product.'"  As the article points out, a lack of competition seems to be the common denominator among the examples cited.  The lack of competition can be due to patent protection, but it might also be because the drug has low-volume sales in a market for the treatment of a niche disease, and low projected sales discourages the development of generics.

Is there a substantive ethical constraint on the duty of corporate managers to maximize sharefolder returns?  Some preliminary thoughts on this question were developed by Prof. Marc J. Roberts of the Harvard School of Public Health for BIO and are a good place to start. The case study he refers to, which was the basis for a Fred Friendly-syle roundtable moderated in 2004 by Harvard law prof Charlie Nesson, is here[tm]

March 12, 2006 | Permalink | Comments (0) | TrackBack (0)

$5 Million Gift to Loyola's Health Law Program

From the newsroom of the Loyola University (Chicago):

$5 Million Gift to Law School

Bernard J. Beazley, a 1950 graduate of Loyola's School of Law, has given a $5 million gift that will help fund a significant expansion of the university's Institute for Health Law, which will be renamed the Beazley Institute for Health Law and Policy.

A leader in the field since 1984, Loyola's Institute for Health Law offers one of the most comprehensive and respected programs of its kind and is consistently ranked by U.S. News and World Report as one of the best in the nation. "Our health law program is already a national leader in the critical intersection of law and health care. This remarkable gift by Bernie Beazley will enable us to move to another level," said David Yellen, dean, School of Law.

"As a long-time supporter of Loyola and a health care advocate, I am extremely pleased to be supporting the law school's Institute for Health Law," said Mr. Beazley. "Loyola's Institute for Health Law program is one of the best in the country, and I would like to continue to build and grow this prestigious program."

Mr. Beazley has served on Loyola's President's Advisory Council and is a member of the Shield of Loyola University Chicago, the planned giving society. 

Thanks to Paul Caron for this link.  [tm]

March 12, 2006 | Permalink | Comments (0) | TrackBack (0)