HealthLawProf Blog

Editor: Katharine Van Tassel
Akron Univ. School of Law

A Member of the Law Professor Blogs Network

Friday, February 22, 2008

No Discrimination in Health Insurance Act

Today, DemFromCt writing at  Daily Kos notes that Representative Kagan (D-WI) has introduced new legislation to end discrimination in health care coverage.  The author states,

Now, Rep. Kagen has introduced something else to the discussion: legislation that alters the "pre-existing condition" concept.

Our Constitution protects every citizen against discrimination, the result of long and hard-won gains by ordinary people who for decades showed extraordinary courage fighting for change. Applying these fundamental gains to our health care system is the right thing to do, because my patients and my constituents cannot hold their breath any longer.

That's why I've introduced the No Discrimination in Health Insurance Act. This essential legislation will guarantee access to affordable care for every citizen in America by bringing an end to discriminatory practices employed by insurance companies who deny life-saving coverage to millions of Americans solely because of their pre-existing medical conditions.

The grim reality is our Constitution does protect you against discrimination, until you become ill. Well, my legislation puts discrimination where it belongs -- in the past.

More description of the bill directly from Kagen:

The essential elements of this necessary legislation are: (1) No Discrimination due to pre-existing conditions, (2) Open Disclosure of all prices, and (3) Every Citizen is allowed to Pay the Lowest Price available. These ideas must be included in any successful comprehensive health care reform legislation.

At this very early step in the process, I am pleased to have the encouragement and support of many of my freshman colleagues, AFSCME and Families USA. I am looking forward to presenting this bill and these ideas in a Congressional hearing this spring.

Surely, the insurance companies will oppose this. But first, Kagen's bill need to pass Ways and Means and make it out of committee before further action is taken. The bill is HR 5449 and like other health care bills from SCHIP to the Langevin-Shays universal health care bill, it may or may not go anywhere in an election year. Sometimes, these bills are little more than posturing. Chris Shays is the last House R in New England, and the CT-04 Republican survives by talking like a moderate in even-numbered years; Jim Langevin, the Democrat from RI-02, has introduced this bill before though this is the first time Shays has signed on).

DemFromCt has further information on the politics of this bill and how health care reform has definitely made it to the frontburner of many people's legislative agenda.

February 22, 2008 | Permalink | Comments (0) | TrackBack (0)

Thursday, February 21, 2008

Supreme Court Medical Device Manufacturers

The New York Times reports on the Supreme Court's decision in    in which the Justices ruled "that the manufacturer of a federally approved medical device cannot be sued under state law if the device causes an injury."  The TImes --- reports,

The 8-to-1 ruling in favor of Medtronic, the Minneapolis-based maker of cardiovascular devices, made it much more difficult for patients and their families to sue makers of medical devices that have been granted federal approval.

In 1996, a balloon catheter burst and severely injured Charles R. Riegel while he was undergoing an angioplasty. Mr. Riegel and his wife, Donna, sued the company in federal court, contending that the catheter had been designed, labeled and manufactured in a way that violated New York state law, and that those defects had caused severe and permanent injuries to Mr. Riegel.

But a federal district court and the United States Court of Appeals for the Second Circuit, in Manhattan, dismissed the Riegels’s suit on the ground that the catheter had been given pre-market approval by the Food and Drug Administration, thus protecting the manufacturer from liability under state law. (The case of Riegel v. Medtronic was tried in federal court because the plaintiffs and defendant were based in different states.)

The Supreme Court upheld the lower federal courts on Wednesday, with Justice Antonin Scalia writing for the majority that Medtronic and other manufacturers were protected under the Medical Device Amendments of 1976, which in its section on pre-emption bars states from imposing on medical devices “any requirement which is different from, or in addition to, any requirement applicable under this chapter.”

But the justices’ ruling was hardly the last word on when F.D.A. approval bars patients from suing. They are already considering at least three cases involving drugs and drug-labeling.

In 1996, when there was a different lineup of justices, the Supreme Court ruled that medical devices approved by the F.D.A. under a different, more expedited process were not shielded from state liability. At the time, the federal government took that position.

But in 2004, the Bush administration reversed the government’s position and began to take the side of manufacturers. In the Medtronic case, the administration argued that there would be “serious undermining of F.D.A.’s approval authority and its balancing of the risks and benefits” if juries could second-guess the agency.

Justice Ruth Bader Ginsburg was the lone dissenter on Wednesday, asserting that the majority had adopted an unnecessary “constriction of state authority.” Justice Ginsburg said she did not believe that Congress had intended to bring about “a radical curtailment of state common-law suits seeking compensation for injuries caused by defectively designed or labeled medical devices.”

But, will the Supreme Court have the last word on this topic . . .  we discover that perhaps not -

“The Supreme Court’s decision strips consumers of the rights they’ve had for decades,” said Representative Henry A. Waxman of California, the chairman of the House Committee on Oversight and Government Reform. “This isn’t what Congress intended and we’ll pass legislation as quickly as possible to fix this nonsensical situation.”

Senator Edward M. Kennedy of Massachusetts, the chairman of the Senate Health, Education, Labor and Pensions Committee, agreed, saying: “Congress never intended that F.D.A. approval would give blanket immunity to manufacturers from liability for injuries caused by faulty devices. Congress obviously needs to correct the court’s decision. Otherwise, F.D.A. approval will become a green light for shoddy practices by manufacturers.”

If I had a better feeling about how the people running our government, I probably wouldn't be upset by this decision but it doesn't appear that everyone is playing on a level field.  With all the stories in the news about recalls for tainted products and food, I am a bit concerned about the regulators being influenced too greatly by those they are supposed to be regulating.

February 21, 2008 | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 20, 2008

Health Clinics: Not Yet Super Popular

The Wall Street Journal Health Blog reports on the use of retail health clinics.  It states,

The public’s still pretty wary of the retail clinics cropping up in Wal-Marts and drugstores around the country. But there are enough people comfortable with the clinics to fuel their continued spread. At least, that’s the conclusion we drew from reading the results of a survey to be published this week by Deloitte’s Center for Health Solutions, and talking with Paul Keckley, who runs the center.

In an online survey that drew roughly 3,000 responses, about 33% of people didn’t like the idea of retail clinics much at all. On a scale of one to 10, with one being “not at all comfortable” and 10 being “completely comfortable,” this group of doubters put themselves at one, two or three. Only 16%, on the other hand, put themselves at eight, nine or 10.

The clinics are typically staffed by nurse practitioners or physicians assistants. But that’s a big problem for a sizable chunk of the public that’s reluctant to be treated by anyone other than a doctor, even for the sorts of minor complaints (sore throats, flu shots) handled by the clinics, Keckley said.

But the 16% who are comfortable going to the clinics will be enough to keep the business model going, Keckley said. And the number of people who are comfortable going to a retail clinic is likely to grow as the clinics figure out how to make the business work. . . .

That particular detail reminded us of Wal-Mart’s recent re-positioning of the retail clinics in its stores. A few weeks after a company suddenly closed retail clinics it was operating in 23 Wal-Mart stores, Wal-Mart said it would be opening its own brand of retail clinics — and that they’d be affiliated with local hospitals and health systems.

February 20, 2008 | Permalink | Comments (0) | TrackBack (0)

Cancer Rates

CNN.Com reports on the increase number of cancer deaths in 2005 although the overall death rate from cancer continued to decline.  The story states,

U.S. cancer deaths rose by more than 5,000 in 2005, a somewhat disappointing reversal of a two-year downward trend, the American Cancer Society said in a report issued Wednesday.

The group counted 559,312 people who died from cancer.

The cancer death rate among the overall population continued to fall, but only slightly, after a couple of years of more dramatic decline.  In 2005, there were just under 184 cancer deaths per 100,000 people, down from nearly 186 the previous year. Experts said it wasn't surprising that the rate would stabilize. The cancer death rate has been dropping since the early 1990s, and early in this decade was declining by about 1 percent a year. The actual number of cancer deaths kept rising, however, because of the growing population. . . .

But now the death rate decline is back to 1 percent. And the 2005 numbers show annual cancer deaths are no longer falling, but are up more than 5,400 since 2004. "The declining rate was no longer great enough to overcome the increase in population," said Elizabeth Ward, a co-author of the cancer society report.  Officials with the organization say they don't know why the decline in the death rate eased. . . .

It may be that cancer screenings are not having as big an effect as they were a few years ago, said Dr. Peter Ravdin, a research professor in biostatistics at the University of Texas M.D. Anderson Cancer Center in Houston.  One possible example: In 2004, the largest drop in deaths among the major cancers was in colorectal cancer. Experts gave much of the credit to colonoscopy screenings that detect polyps and allow doctors to remove them before they turn cancerous. They also mentioned "the Katie Couric effect" -- a jump in colonoscopy rates after the "Today" show host had the exam on national television in 2000.  In the new report, the colorectal cancer death rate decreased by about 3 percent from 2004 to 2005, after plunging 6 percent from 2003 to 2004. . . .

Cancer society officials have also voiced concern that cancer deaths may increase as Americans lose health insurance coverage and get fewer screenings.

The good news is the cancer rate is still declining, and that since the early 1990s is down more than 18 percent for men and more than 10 percent for women. Those reductions translate to more than half a million cancer deaths avoided, according to the cancer society. Experts attribute the success to declines in smoking and to earlier detection and more effective treatment of tumors.

February 20, 2008 | Permalink | Comments (0) | TrackBack (0)

Monday, February 18, 2008

Largest Meat Recall: Only a Few Years Too Late

The New York Times reports today on the largest meat recall ever!!  I feel safer - my government at work etc. but unfortunately this appears to be a little late - I certainly don't have meat in my freezer from two years ago.  It is enough to make me - a true beef-loving person - into a vegetarian.  The Times story states,

A California meatpacker accused of animal cruelty is making the largest U.S. meat recall on record -- 143 million lbs, the U.S. Agriculture Department said on Sunday.

Most of the meat, raw and frozen beef products, probably has already been consumed, said USDA officials at a briefing. Some 37 million lbs were bought for school lunches and other federal nutrition programs. USDA said there was only a minor risk of illness from eating the beef.  Hallmark/Westland Meat Packing Co voluntarily recalled all of its beef produced since February 1, 2006. USDA said Hallmark violated rules against the slaughter of "downer cattle" -- that is, animals too ill to walk.

"This is the largest beef recall in the history of the United States, unfortunately," said Agriculture Undersecretary Richard Raymond.  Based in Chino, California, Hallmark/Westland has been closed since early February. Company officials were not immediately available for comment.

The Humane Society of the United States showed videotapes on January 30 showing workers at the plant using several abusive techniques to make animals stand up and pass a pre-slaughter inspection. These included ramming cattle with forklift blades and using a hose to simulate the feeling of drowning.

The HuffingtonPost Blog has more about the slaughterhouse.  Perhaps there could be an updated novel in this . . . . mmmmm

February 18, 2008 | Permalink | Comments (0) | TrackBack (0)

Being Poor and Uninsured: Not a Healthy Combination

The New York Times reports today on an American Cancer Society study illuminating the disadvantages of being without health insurance - later cancer diagnosis.  The Times' Kevin Sack states,

A nationwide study has found that the uninsured and those covered by Medicaid are more likely than those with private insurance to receive a diagnosis of  cancer in late stages, often diminishing their chances of survival.  The study by researchers with the American Cancer Society also found that blacks had a higher risk of late diagnosis, even after accounting for their disproportionately high rates of being uninsured and underinsured. The study’s authors speculated that the disparity might be caused by a lack of health literacy and an inadequate supply of providers in minority communities. The study is to be published online Monday in The Lancet Oncology.

      

Previous studies have shown a correlation between insurance status and the stage of diagnosis for particular cancers. The new research is the first to examine a dozen major cancer types and to do so nationally with the most current data. It mined the National Cancer Data Base, which began collecting information about insurance in the late 1990s, to analyze 3.7 million patients who received diagnoses from 1998 to 2004.

The widest disparities were noted in cancers that could be detected early through standard screening or assessment of symptoms, like breast cancer, lung cancer, colon cancer and melanoma. For each, uninsured patients were two to three times more likely to be diagnosed in Stage III or Stage IV rather than Stage I. Smaller disparities were found for non-Hodgkins lymphoma and cancers of the bladder, kidney, prostate, thyroid, uterus, ovary and pancreas.

When comparing blacks to whites, the disparities in late-stage diagnosis were statistically significant for 10 of the 12 cancers. Hispanics also had a higher risk but less so than blacks.

The study’s authors concluded that “individuals without private insurance are not receiving optimum care in terms of cancer screening or timely diagnosis and follow-up with health care providers.” Advanced-stage diagnosis, they wrote, “leads to increased morbidity, decreased quality of life and survival and, often, increased costs.” . . .

“There’s evidence that not having insurance increases suffering,” said Dr. Otis W. Brawley, the American Cancer Society’s chief medical officer.

Not all cancer researchers believe that comprehensive screening and early detection is universally constructive. They argue that with certain cancers, like melanoma and prostate cancer, it can lead to misdiagnosis and overdiagnosis, with doctors identifying and treating tumors that may never cause serious problems. In some of those cases, surgery and drug therapies may actually shorten lives. . . . .

February 18, 2008 | Permalink | Comments (0) | TrackBack (0)