HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Monday, January 31, 2011

Introducing Our Third New Co-Editor, Mary Munson

You may have already noticed several posts from the third new member of Health Law Prof's new blogging team, Mary Munson. Ms. Munson is the Executive Director of the Graduate Program in Environmental Sustainability at the St. Thomas University School of Law. She has a B.S. from the Massachusetts Institute of Technology, an M.P. and  M.A. from the University of Virginia, a J.D. from the Marshall-Wythe School of Law, College of William and Mary and an LL.M. from Queen Mary College, University of London.

We are very proud to be adding Ms. Munson as one of our new Co-Editors and here is her bio: 

Mary Munson Ms. Munson earned advanced degrees in law, international law, environmental science and natural resource planning, and has been awarded a Sea Grant Congressional Fellowship, Drapers Guild Scholarship and Virginia Environmental Endowment Law Fellowship. She has two decades of experience as an environmental lawyer, lobbyist and program director at various environmental nongovernmental organizations. She has represented these organizations in major federal litigation involving natural resources, concerning issues as diverse as land use capacities, endangered species, energy transmission and greenhouse gas emission control. She has also testified before House and Senate committees on proposed legislation and worked as a legislative assistant for a United States Senator covering marine conservation issues. Internationally she led a legal team to investigate environmental policies in the Czech Republic and was instrumental in achieving a law limiting the use of massive, destructive fishing nets in the European Community. She served three terms as chair of the Everglades Coalition, an umbrella group of more than 50 organizations dedicated to restoring the Florida Everglades. She has served on various boards, including three years on the Florida Water Resources Advisory Board, the U.S. Trade Representatives Industry Sector Advisory Committee on Timber Products, and advisory committees for Biscayne National Park and Miami Dade County’s Crandon Park. Most recently, as legal director of the Center for Earth Jurisprudence, Ms. Munson directed the creation of the new LL.M. program in Environmental Sustainability at St. Thomas University, in addition to teaching environmental law.


January 31, 2011 | Permalink | Comments (0) | TrackBack (0)

It Isn't Easy Being NICE

 In late October, the UK announced its intention to rein in what many observers viewed as a model for the sensible rationing of health care.  For nearly a decade, the National Institute of Health and Clinical Excellence (NICE) had employed rigorous expert assessments to decide whether new drugs or other medical treatments were sufficiently cost-effective that they should be covered by the National Health Service.  But denying coverage for new therapies is bound to provoke controversy, and NICE received its share of criticism.  Hence, the UK government plans to eliminate the power of NICE to make coverage decisions based on its analyses.  Of course, Congress withheld that kind of power from the Patient Centered Outcomes Research Institute that will be created under the Patient Protection and Affordable Care Act.  The change in policy at NICE reminds us of the discussion by Calabresi and Bobbitt in "Tragic Choices" that society deals with life-and-death decisions implicitly because of the social conflict that results from efforts at explicit resolution.

David Orentlicher 


January 31, 2011 | Permalink | Comments (0) | TrackBack (0)

Introducing the Second of Our New Co-Editors, David Orentlicher

Health Law Prof extends a big welcome to the second of our new Co-Editors, Professor David Orentlicher. Here is Professor Orentlicher's bio: 

David Orentlicher, MD, JD, is visiting professor at the University of Iowa College of Law.  He holds permanent appointments as Samuel R. Rosen Professor and co-director of the Hall Center for Law and Health at Indiana University School of Law-Indianapolis and as adjunct professor of medicine at Indiana University School of Medicine.

David Orentlicher A graduate of Harvard Law School and Harvard Medical School, he previously served as director of the Division of Medical Ethics at the American Medical Association. While there, Dr. Orentlicher led the drafting of the AMA’s first patients’ bill of rights. He also helped develop many other positions—on end-of-life decisions, organ transplantation, reproductive issues, and physicians’ conflicts of interest—that have been incorporated into federal and state law and cited by courts and government agencies in their decision-making. At the time, he was on the adjunct faculty of the University of Chicago Law School and Northwestern University Medical School.

Dr. Orentlicher has held a number of distinguished visiting professorships, serving as Visiting DeCamp Professor in Bioethics at Princeton University, Frederick Distinguished Visiting Professor of Ethics at DePauw University, and George E. Allen Professor of Law at T. C. Williams School of Law, University of Richmond.

He has published Matters of Life and Death with Princeton University Press, and is co-author of the law school textbook Health Care Law and Ethics, now in its 7th edition. Dr. Orentlicher also has written widely in leading legal and medical journals on critical issues in law and medicine, including health care reform, new reproductive technologies, and organ transplantation, as well as on questions in constitutional law.

Dr. Orentlicher served in the Indiana House of Representatives between 2002 and 2008. He was named “Best Politician” in 2007 by NUVO, Indianapolis’ alternative newspaper, for his work on property tax reform, reproductive rights, and equality for all persons. During his three terms, he also authored legislation to promote job creation, protect children from abuse and neglect, and make health care coverage more affordable.


January 31, 2011 | Permalink | Comments (0) | TrackBack (0)

Introducing the First of Our New Co-Editors, Nicolas P. Terry

This week Health Law Prof is very proud to begin the introductions of the four new members of our new blogging team. Today, you will notice several entries from Professor Nicolas P. Terry. Soon, you will see our masthead change to indicate that Professor Terry has been added as one of our new Co-Editors. Here is Professor Terry's bio: 

081028Fram_328[1] Nicolas P. Terry is the Chester A. Myers Professor of Law at Saint Louis University School of Law where he teaches Torts, Products Liability, Health Information Technology, Law & Science, and Health Care Quality. Educated at Kingston University and the University of Cambridge, Professor Terry began his academic career as a member of the law faculty of the University of Exeter in England. He has served as a Senior Fellow at Melbourne Law School and holds the secondary appointment of Professor of Health Management & Policy at the Saint Louis University School of Public Health. He has held visiting faculty positions at the law schools of Santa Clara University, the University of Missouri-Columbia, Washington University, and the University of Iowa. From 2000-08 Professor Terry served as co-director of Saint Louis University’s Center for Health Law Studies — consistently ranked by U.S. News & World Report as the finest health law program in the nation. From 2008-10 Terry served as the School of Law’s Senior Associate Dean. Professor Terry’s research interests lie primarily at the intersection of medicine, law, and information technology. His recent law review publications dealing with health information privacy include “Physicians And Patients Who ‘Friend’ Or ‘Tweet’: Constructing A Legal Framework For Social Networking In A Highly Regulated Domain,” 43 Ind. L. Rev.285-341 (2010); “Personal Health Records: Directing More Costs and Risks to Consumers?” 1 Drexel L. Rev. 216 (2009); “What’s Wrong with Health Privacy?” 5 J.Health & Bio. L. 1-32 (2009), and “Ensuring The Privacy and Confidentiality of Electronic Health Records” (with Leslie P. Francis) 2007 U. Ill. L. Rev. 681-735. 


January 31, 2011 | Permalink | Comments (1) | TrackBack (0)

Prescriber Data Aggregation Goes Mainstream

Thanks to a recent Los Angeles Times editorial, Your Rx or your privacy, the somewhat esoteric world of prescribing data aggregation shows signs of going mainstream. If you've been following the litigation you'll know that Maine, New Hampshire and Vermont adopted laws that in various ways regulate the use or alienability of prescribing information. Data aggregators purchase the information from pharmacists, de-identify, otherwise process and aggregate it, before selling it on to pharmaceutical manufacturers who use it to tune their detailers' interactions with physicians. The three statutes are not identical, varying in details such as whether physician consent to data collection uses an opt-in or opt-out model.

in 2008 in IMS Health Inc. v. Ayotte, 550 F.3d 42 (1st Cir. 2008), the First Circuit upheld the New Hampshire statute. The Supreme Court showed a lack of interest and denied cert. Two years later in August 2010 a different panel of the First Circuit upheld the Maine statute, IMS Health Inc. v. Mills, 616 F.3d 7 (1st Cir. 2010). Both opinions rotated around finding that the statutes prohibited certain conduct and so did not implicate protected speech. In November 2010 the Second Circuit in IMS Health Inc. v. Sorrell, 2010 WL 4723183 (2nd Cir. 2010) disagreed, applied a commercial speech analysis, and held that the Vermont statute failed to survive intermediate scrutiny, notwithstanding a Physicians Amicus Brief submitted in the Second Circuit case and written by Kevin Outterson, Christopher Robertson, and fellow blogger David Orentlicher (available on SSRN).

Given the industry interests involved and the new circuit split it was no great surprise when the Supreme Court granted cert. (Sorrell v. IMS Health Inc., U.S., January 7, 2011). But, Supreme Court interest notwithstanding, is this brouhaha anything more than a somewhat esoteric objection to drug detailing by a few New England doctors or a mainstream privacy issue? The Los Angeles Times thinks the latter. Two classic privacy arguments seem to inform that opinion. First, there is the question of proportionality limits on data collection; these records are collected to further law enforcement interests. The use of such data should be limited to that stated purpose. Second, the specter of re-identification hangs over this data. Patient information may be removed but how close to what would be protected health information (if held by a covered entity) does this data get after its processing by sophisticated data aggregators? Nic Terry.

January 31, 2011 | Permalink | Comments (0) | TrackBack (0)

And the score is 2-2…

I suspect that many of you view the district court opinions alternatively upholding or striking down the Affordable Care Act to be similar to the hockey season; of only passing interest until the playoffs begin in the Supreme Court in a couple of years. However, the regular season games continue to be played, albeit without too many surprises. Today, the cumulative score reached 2-2 with Judge Roger Vinson's ruling in Florida v. HHS, No. 10-91 (N.D. Fla., Jan. 31, 2011) (available here) striking down the individual mandate (and in the absence of a severability clause, everything else).

Arguably, the stakes were a little higher in this latest case, with the plaintiffs including the governors of twenty-six states. Certainly the volume of words has increased with the latest opinion clocking in at 78 pages. And, in between deference to Hamilton and Madison some of those words do give one pause; for example the Judge's statement "At a time when there is virtually unanimous agreement that health care reform is needed in this country, it is hard to invalidate and strike down a statute titled 'The Patient Protection and Affordable Care Act.'"

If you are of a mind to wait for the playoffs but want to expose your students to the issues I recommend a couple of pieces; our friends from BU have published the pithily titled "Can Congress Make You Buy Broccoli? And Why That’s a Hard Question" in the New England Journal and Mark Hall recently posted "Commerce Clause Challenges to Health Care Reform" on SSRN. Nic Terry.


January 31, 2011 | Permalink | Comments (0) | TrackBack (0)

Thursday, January 27, 2011

Kaplan: The Impact of ObamaCare on Older Americans

Richard L. Kaplan (Illinois) has published Analyzing the Impact of the New Health Care Reform Legislation on Older Americans, 18 Elder L.J. 213 (2011).

Here is the abstract:

Rkaplan This Article analyzes the impact on older Americans of the major changes enacted in the Patient Protection and Affordable Care Act. It begins with Medicare’s treatment of prescription medications, explaining the origin of the coverage gap known colloquially as the "doughnut hole" and then examining how this gap will be filled over the coming decade. It also considers changes affecting employer-provided drug plans for retirees and the new income-based surcharges on higher-income enrollees. The Article next analyzes long-term care, addressing first the new voluntary entitlement program known as Community Living Assistance Services and Supports (CLASS) and then the newly mandated disclosures regarding nursing homes. It then considers the expansion of Medicare’s preventative services and the changes to Medicare’s managed care program. Finally, the Article addresses early retirees who are not yet age-eligible for Medicare.

January 27, 2011 | Permalink | Comments (0) | TrackBack (0)

Rates for Elective C-Sections Soar In Some Areas Ignoring Best Practices and Creating Surgical Signatures

A new study reports that the rates of elective c-section surgeries for no valid medical reason have soared to upwards of 40% in some hospitals in some areas, ignoring the risks associated with this choice to the mother and baby. According to the WSJ,

[s]ome 773 hospitals voluntarily provided the group with information on early elective deliveries. Rates varied widely, even within a single community — rates in Boston ranged from almost zero to 27%, Leapfrog says. (The group’s target rate this year is 5%, down from 12% last year.)

This pattern of early elective C-sections performed for no medical reason creates 'surgical signatures' indicating that the probability that a pregnant woman will undergo labor in the normal course or will have a C-section is not related to medical need but is related to geographic location or hospital choice.

These stats come courtesy of the Leapfrog Group — a coalition of health-benefit purchasers aiming to improve health-care safety, quality and affordability — which today put out a new report calling on expectant moms to request the rates of early elective delivery from hospitals in their area.

The group, along with Childbirth Connection (a not-for-profit focused on maternity-care quality) and the March of Dimes is trying to educate women about the importance of those last few weeks of pregnancy for the baby’s development, and about the risks to both moms and babies if delivery is induced or scheduled early without a valid medical reason. Those might include a mother developing hypertension or her water breaking without labor beginning. Here’s Childbirth Connection’s review of the evidence on labor induction.

Leapfrog says early elective deliveries cost the U.S. health-care system almost $1 billion a year.

“Some of these data will be quite disturbing,” said Leah Binder, Leapfrog’s CEO, on a phone call with reporters. “The hospitals that reported have at least committed themselves to transparency.” Many hospitals declined to report data.

As we wrote a while back, Utah’s Intermountain Health tapped its electronic medical records to show its physicians data on the health consequences of early elective deliveries, including higher rates of intensive care and ventilator use. Intermountain also developed guidelines to discourage early elective deliveries and tracked cases that didn’t adhere to the guidelines.

Within six months of starting the program, the rate of elective early delivery fell to less than 10% from 28%, and after six years “continues to be less than 3%,” according to a study published in 2009.

Maternity-care bonus: Will New Guidelines Let More Women Try Labor After a C-Section?

January 27, 2011 | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 25, 2011

Global progress on clean water and sanitation

Improving access to safe drinking water and good sanitation is an international priority, and progress is unfolding due to cooperation sparked by the sustainable development movement.

In September 2000 United Nations Millennium Declaration was approved, committing signatories a new global partnership to reduce extreme poverty and setting out eight goals to be achieved by the year 2015. Known as the Millennium Development Goals, they range from achieving universal primary education to combating diseases like HIV/AIDS and malaria.

Millennium Goal #7 commits countries to “ensure environmental sustainability.” One of the major targets within this goal is to reduce by half “the proportion of people without sustainable access to safe drinking water and basic sanitation” by the year 2015. In the past, economic development often relied on resource depleting or polluting industries to expand economies and create jobs in developing countries. The result was often more income for workers, but declines in health and standards of living due to water pollution, poor sanitation and other environmental problems. Millennium Goal #7 was designed to change this trend, redirecting countries to economic development that is sustainable, and focuses more communities' quality of life.

With less than five years to go until the 2015 deadline, how far has the international community come in achieving the clean water goals of Goal #7?

According the U.N. Development Programme (UNDP), the agency charged with monitoring the progress on the goals, several countries have made major strides, due to commitment from their governments as part of millennium goal strategies, and grants made through funding sources like the World Bank’s Global Environmental Facility (GEF). Examples are numerous, as shown in a UNDP monitoring map: from 2000 to 2006, the proportion of the population with access to clean water increased from 93% to 97% in Turkey, 44% to 51% in Angola, 79% to 84% in El Salvador, 68% to 72% in Mongolia. In other places the improvements are minor; in Afghanistan this access increased from 21% to 22%, and in the Congo from 45% to 46%. Obviously, these values do not approach the “increase by 50%” goal, but clearly progress is occurring.

Today, partnerships and projects are focusing on rapidly developing countries. On January 11, the World Bank and the government of India announced its “green growth” strategy, which includes projects to make water supply and wastewater systems more efficient. On April 13, 2011, India will host a major international water conference. China, whose urban population is expected to grow by 350 million in the next 20 years, is working with the U.N. and has committed to a low-carbon, sustainable urban growth plan. On January 19, the World Trade Organization (WTO) met to discuss a WTO agreement that would include tariff reductions on waste management and water treatment products. Essentially, the strategies emerged from United Nations Conference on Environment and Development in 1992 where an “integrated water resources management (IWRM) framework” was highlighted based on the perception of water as an integral part of the ecosystem, a natural resource and a social and economic good. It was stressed that priority has to be given to the satisfying basic needs and safeguarding ecosystems. Subsequently, at the 2002 World Summit for Sustainable Development countries pledged to develop IWRM and water efficiency plans. These provide a backbone for new policies.

The improvements and initiatives demonstrate that the world can make progress when nations cooperate. Certainly, challenges continue. For example, on January 13, the IUCN issued a report on Eastern Himalaya freshwater systems, indicating that development of water resources in the region is expanding at a rapid rate, and ecosystems and communities are at risk. The Millennium Goal implementation provides one way to identify and take real steps to address these problems.

The United Nations is keeping this issue on the public agenda through by declaring the years 2005 - 2015 as the "Water for Life" decade. Information on the latest publications on water and sanitation from the UN agencies and programmes is available here.  On January 18, in a press release, the new President of the UN Economic and Social Council (ECOSOC) announced that one of his priorities would be accelerating the review, coordination and implementation of the Millennium Development Goals (MDGs). This is good news, because it helps keep world focused on these goals.

Posted by Mary Munson


January 25, 2011 | Permalink | Comments (0) | TrackBack (0)

Sunday, January 23, 2011

Why Don't Beer, Wine and Alcohol Have Nutrition Fact Labels?

A flurry of articles published this week highlighting a long-time movement to mandate nutrition labeling on alcohol (hat tip to Doug Ray) raises the question, 'why don't beer, wine and alcohol have nutrition fact labels?' This question appears to be particularly germane in light of alcohol's high liquid calorie count and the current obesity crisis.

A look back through history may help to answer this question. After the end of prohibition, the period from 1920 to 1933 when alcohol could not be made, transported or sold in the United States, Congress passed the Federal Alcohol Administration Act of 1935 which is still in force. Instead of delegating the regulation of alcohol to the Food & Drug Administration, which regulates most consumer food and beverages and requires nutrition labeling, Congress recognized the tax potential of alcoholic beverages and assigned to the Treasury's Alcohol and Tobacco Tax and Trade Bureau (TTB) the role of regulating alcohol, including its labels. As Marion Nestle over at SFGate points out, adding the TTB to the regulatory mix means that, "as absurd as it may seem, the labeling rules differ for wine, beer and distilled spirits:"

- Substances to which people might be sensitive, such as sulfites and yellow No. 5, must be labeled.

- Labels of distilled spirits must state percent alcohol. They may list calories (but usually don't). Wine label rules depend on percent alcohol.

- Wines from 7 to 14 percent must list alcohol and may list calories (but don't).

-  Wines with less than 7 percent alcohol are regulated by the Food and Drug Administration, not TTB. They must display Nutrition Facts labels with calories, nutrients and actual ingredients. They may disclose percent alcohol, and some do.

However, this all may be changing. According to the blog Food in America

[m]ost notably, the provision in the Obama health care reform law that will require menu nutrition labeling at chain restaurants will also include alcoholic beverages. Baylen Linnekin at Crispy on the Outside reports that by March 2011 the FDA will issue proposed regulations requiring chain restaurants to disclose on nutrition information about menu items including alcoholic beverages. The required info will include total calories, fat, saturated fat, cholesterol, sodium, total carbohydrates, sugars, fiber and total protein.

Beer label Another recent development with implications for alcohol nutrition labeling was the Alcohol and Tobacco Tax and Trade Bureau’s (TTB’s) determination in July 2008 that certain products commonly referred to as beer but produced without malted barley (e.g. beers made from sorghum, rice or wheat) do not qualify as malt beverages under the TTB’s enabling statute, and thus are not subject to TTB regulation. Per the terms of a memorandum of understanding between TTB and FDA, that means these products are instead subject to regulation by the FDA. What does that mean? Well, according to the FDA’s November 2010 guidance on the topic, that means these beers will be subject to the labeling requirements under the Federal Food, Drug, and Cosmetic Act (FFDCA) and the Fair Packaging and Labeling Act (FPLA). The specific guidelines are spelled out in the guidance document, but in brief the beers will be required to have nutrition facts and ingredients labels like those you already see on most hard cider. 


These recent developments may be a signal that the TTB will finally be taking action on its Notice of Proposed Rule 73, published back in 2007, which proposes amending labeling regulations to require on all alcohol beverage labels (1) a statement of alcohol content expressed as a percentage of alcohol by volume, and (2) a Serving Facts panel including a statement of calories, carbohydrates, fat and protein. The example in PR 73 is as follows:   

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The five previous attempts at similar rule making, in 1974, 1979, 1980, 1985, 2005, were all unsuccessful. One of the dubious grounds for these failures was an argument by industry that putting a "nutrition" label on alcohol would deceive consumers into believing that alcohol is part of a nutritious diet. It is hoped that this type of paternalistic argument, that keeping calorie information from consumers is somehow in their best interest, will no longer be seen as persuasive, especially in light of the current obesity crisis.

January 23, 2011 | Permalink | Comments (0) | TrackBack (0)

Thursday, January 20, 2011

House Deals Symbolic Blow By Voting to Quash Health Reform

 H.R. 2, legislation to repeal the health care reform law of 2010, was approved by a 245-189 vote in the House on Jan. 19, 2010. BNA reports that

[w]hile the bill is not expected to advance in the Senate, its passage sets the stage for Republicans over the coming months to try to dismantle the health reform law and craft legislative alternatives.

The final vote came at the end of a two-day debate on the Patient Protection and Affordable Care Act in which lawmakers for both parties laid out their arguments for repealing or maintaining the law. Three Democrats joined all Republicans in voting for H.R. 2.

With Senate action on H.R. 2 highly unlikely, House Republicans will try to disrupt implementation of the law in other ways, including attempting to deny funding for it through the appropriations process and by conducting numerous oversight hearings with Obama administration officials.

The House Jan. 20 will consider a resolution (H. Res. 9) instructing committees with health care jurisdiction to begin crafting legislative alternatives to the health care law.

Chairmen of the committees with health care jurisdiction have scheduled a Jan. 20 press briefing to discuss their plans for developing health care legislation and conducting oversight.

The House Energy and Commerce Committee document is available here

January 20, 2011 | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 19, 2011

Seton Hall Law School and Graduate Institute of International and Development Studies to Offer Executive Course in Intellectual Property and Global Public Health in Geneva, Switzerland

Intellectual property issues have come to play an increasingly important role in discussions of national and global health problems. Yet, individuals whose primary expertise is health or diplomacy may find these discussions inaccessible because they lack a sufficient understanding of basic intellectual property concepts and their relationship to global public health. To fill this gap, Seton Hall Law School and the Graduate Institute of International and Development Studies in Geneva have joined together to offer an executive course on health-related aspects of intellectual property from a global public health perspective. A key goal of the course will be to develop concrete tools for implementing the World Health Organization’s Global Strategy and Plan of Action on Public Health, Innovation, and Intellectual Property.  Course faculty will include key representatives from the World Health Organization, the World Trade Organization, the World Intellectual Property Organization, academia, industry, and nongovernmental organizations.  The course will be held on the Graduate Institute's campus in Geneva, Switzerland on February 16-18, 2011.  Further information is available here.

January 19, 2011 | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 18, 2011

Compensating victims of environmental disasters

The Gulf of Mexico oil spill and British Petroleum’s quick efforts to pay for clean-up and compensation for victims may lead many people to falsely conclude that national and international laws operate effectively to make the polluter pay for harm. In truth, clean-up and compensation is rarely accomplished so efficiently, and laws operate to insulate polluters when they disaster occurs in poorer countries.

An obvious illustration is in Nigeria, where oil production facilities have caused 546 million gallons of oil to be spilled into the Niger Delta over the last five decades, at a rate of nearly 11 million gallons per year. The oil comes from operations owned by foreign companies including Exxon Mobil and Royal Dutch Shell that operate in the area. While many of the spills are due to sabotage and theft, there are few efforts to enforce laws, or engage in diplomacy to determine the companies’ liability or duties to stop the problems. Shrimp, crab and fish that once fed the local population have disappeared. Unlike the Gulf of Mexico, law and diplomacy have been ignored, and the local people suffer. See the NY Times Niger Delta article.  

Victims of India’s Bhopal gas leak disaster In1984 also continue to suffer. Approximately 3,800 people died and several thousand more experienced permanent or partial disabilities when methyl isocyanate (MIC) gas leaked from the Union Carbide plant in Bhopal, India. The Supreme Court of India approved the final settlement of $470 million in compensation to India for the victims. In 1994, Union Carbide sold its interest in the plant to another company, and was allowed to do so under the condition that it fund a 500-bed hospital. Since then, there have been many lawsuits in the U.S. and India to provide more relief for victims and punishment for those responsible. But it is widely claimed that the law has failed the victims, as over 6,000 gas-affected patients visit hospitals in Bhopal every day, and according to a Times of India report, massive amounts of human suffering continues with little compensations over 25 years after the event.

Clearly, if the actions of one nation cause harm to another country, public international law can operate. Multilateral and bilateral agreements, conventions and customary laws operate to assign responsibility and liability. For example, international law was used to force Iraq to clean up the massive amounts of oil that it released in Kuwait’s deserts after Iraq invaded Kuwait in 1980, with an estimated 60 million cubic meters of contaminated soil still remaining today. A Reuters article reports that  Iraq now pays 5 percent of its oil revenues as war reparations, and still owes Kuwait nearly $22 billion in reparations. Here, the law of war reparations was easy to apply: the only issue here is Iraq’s ability to pay it, given its current situation, and Iraq is currently asking to renegotiate its payments.

However, Bhopal and Nigeria illustrate the difficulties in obtaining compensation for harm when private international law is involved. Here, private companies caused damage and relief often must be sought through national courts using national laws. Relief is rarely fair and uniform. Innovative legal strategies are needed, and one, involving the United States Alien Tort Claims Act, will be addressed in a future blog. But suffice to say that differences in national laws mean that compensation for environmental damage caused by private actors needs to be addressed in a global way, and is ripe for International study and action. The Gulf of Mexico oil spill and the quick steps taken to provide compensation reinforced the advantages of being a victim in the United States, as opposed to being one in Nigeria or India. [MM]

January 18, 2011 | Permalink | Comments (0) | TrackBack (0)

Monday, January 17, 2011

99% of Pregnant Women in US Test Positive for Multiple Chemicals, Including Banned Ones

A new study suggests that virtually all pregnant women in the United States have a chemical stew in their bodies which includes some chemicals that have been banned since the 1970s and other chemicals that are known to have negative health effects on the fetus including those used in "common products such as non-stick cookware, processed foods and personal care products." This is the first time the number of chemicals that pregnant women are exposed to in their everyday environments has been assessed. According to ScienceDaily,

[a]nalyzing data for 163 chemicals, researchers detected polychlorinated biphenyls (PCBs), organochlorine pesticides, perfluorinated compounds (PFCs), phenols, polybrominated diphenyl ethers (PBDEs), phthalates, polycyclic aromatic hydrocarbons (PAHs) and perchlorate in 99 to 100 percent of pregnant women. Among the chemicals found in the study group were PBDEs, compounds used as flame retardants now banned in many states including California, and dichlorodiphenyltrichloroethane ( DDT), an organochlorine pesticide banned in the United States in 1972.

 Bisphenol A (BPA), which makes plastic hard and clear, and is found in epoxy resins that are used to line the inside of metal food and beverage cans, was identified in 96 percent of the women surveyed. Prenatal exposure to BPA has been linked to adverse health outcomes, affecting brain development and increasing susceptibility to cancer later in life, according to the researchers. 

Lead author Tracey Woodruff, PhD, MPH, director of the UCSF Program on Reproductive Health and the Environment, stated,

'Several of these chemicals in pregnant women were at the same concentrations that have been associated with negative effects in children from other studies. In addition, exposure to multiple chemicals that can increase the risk of the same adverse health outcome can have a greater impact than exposure to just one chemical,' said Woodruff [who is] an associate professor in the UCSF Department of Obstetrics and Gynecology and Reproductive Sciences. 

Exposure to chemicals during fetal development has been shown to increase the risk of adverse health consequences, including preterm birth and birth defects, childhood morbidity, and adult disease and mortality according to the research team. In addition, chemicals can cross the placenta and enter the fetus, and in other studies, a number of chemicals measured in maternal urine and serum have been found in amniotic fluid, cord blood and meconium, they state.




January 17, 2011 | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 12, 2011

House Vote to Repeal Health Care Law Postponed in Wake of Shooting

There has been a delay in the House vote to repeal the health care reform law in the wake of the shooting Jan. 8 that critically wounded Rep. Gabrielle Giffords (D-Ariz.). BNA reports that

the House will take up a commemorative resolution Jan. 12 on the House floor honoring Giffords, who is in critical condition at a hospital in Tucson, Ariz., and those who died in the Tucson shooting. A previously scheduled Jan. 12 vote on a bill (H.R. 2) to repeal President Obama's health care overhaul has been postponed, and it is unclear when a vote on the legislation will be held. Several press briefings by lawmakers and stakeholder groups scheduled to be held before the Jan. 12 vote also have been postponed.

The House Jan. 7 voted 236-181 to approve a rule (H. Res. 26) governing debate on the repeal bill. The rule provides for seven hours of debate on the bill and does not allow any amendments. Four Democrats joined Republicans in voting for the rule.The rule was approved after a debate in which Republicans said the health care law is hampering job creation and economic growth and is too costly. Democrats said the law will provide new consumer protections, extend the life of the Medicare Part A trust fund, and provide health care coverage to millions of Americans.


January 12, 2011 | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 11, 2011

Strategy to Engage the Health Sector in Controlling Adverse effects of Chemicals: Comments Due January 17, 2011

The international community  continues to seek ways to improve the sound management of chemicals in order to protect human health. One of the pressing issues is to effectively engage the health care sector – doctors, caregivers, government health ministries and regulators and similar bodies – in strategies to prevent exposure to dangerous chemicals that can harm humans and the environment. The United Nations agency overseeing this work has issued a draft strategy on ways to engage the health sector, and comments are due January 17, 2011. The Report acknowledges that there have been improvements in chemical management over recent years, but unsound practices remain a major concern. Unintentional poisonings kill an estimated 355,000 people each year, and in developing countries (where most of the deaths occur), the deaths are often caused by excessive exposure to or inappropriate use of toxic chemicals, including pesticides. 


One of the international goals adopted at 2002 World Summit on Sustainable Development is to address the effects of chemicals on human health and the environment. The goal, known as the “2020 Goal,” is that “by 2020, chemicals will be produced and used in ways that minimize significant adverse effects on human health and the environment.” The goal was agreed upon by the international community and was articulated in the Johannesburg Plan of Implementation.

In order to devise plans and take steps to achieve the 2020 Goal, the United Nations established a global policy framework called the Strategic Approach to International Chemicals Management  (SAICM) and a Directorate within the U.N. Environmental Programme to oversee its implementation. The SAICM contains objectives grouped under five themes: risk reduction, knowledge and information, governance, capacity-building and technical cooperation, and illegal international traffic. There is a good background in the SAICM’s 2008 Bulletin #1.  

The SAICM has issued a report for public comment, which sets out a strategy to engage the health sector in achieving sound chemicals management practices.  The health sector is the part of the economy dealing with health issues, and consists of public and private health care deliverers (medical doctors, nurses, other health professionals), ministries of health and health standard-setting agencies, health agencies such as the World Health Organisation, and similar bodies and associations. Comments on the Provisional Draft Strategy are due on January 17, 2010.

The draft Report identifies many challenges to getting widespread engagement of the health sector in chemical management. An example is the substantial number of chemicals management frameworks and agreements, many implemented on a piecemeal basis, making it difficult to keep abreast of activities. The report calls for actions in six areas: raising awareness, building health sector networks, empowering SAICM focal points, creating healthy health-care settings, strengthening professional training and development, and increasing joint actions between sectors. MM



January 11, 2011 | Permalink | Comments (0) | TrackBack (0)

Call for Papers: "The Role of Solidarity in Bioethics"

Guest Editors Patricia Illingworth and Wendy E. Parmet of Bioethics are pleased to announce a special issue in 2012 on the role of solidarity in bioethics. We invite submissions on all aspects of this topic and are particularly interested in papers that explore one or more of the following questions: 

  • Does relying on solidarity as a bioethical norm support universal access to health care or does it limit access to discrete, identifiable groups?
  • Is the human right to health, as enunciated in Article 12 of the International Covenant on Economic, Social, and Cultural Rights, dependent upon or challenged by norms of solidarity?
  • Does solidarity support or undermine cosmopolitan duties to health?
  • Do medical enhancement technologies threaten solidarity locally, domestically, or internationally?
  • What are the implications of using a norm of solidarity for the health of immigrants, migrants, and displaced persons?
  • What are the implications of globalization and migration for the maintenance of solidarity as a foundation for the provision of health care?
  • Does a robust notion of solidarity imply a sacrifice of autonomy in relation to health decision-making (e.g. with respect to vaccine mandates, confidentiality, reproductive rights, organ donation, bone marrow transplants)?
  • Is solidarity a social determinant of health?
  • What are the implications of a market-based health insurance system for solidarity?
  • Does solidarity favor a population-based perspective on health and bioethics as opposed to a medical or clinical perspective?
  • What are the distributive implications of solidarity as a bioethical norm?
  • Does international law support global solidarity with respect to health?
  • How can the structure of international health governance be used to promote global solidarity with respect to health?
  • What is the nature and basis of the norm of solidarity with respect to health?

The editors welcome early discussion of brief proposals and/or abstracts by e-mail to both: Patricia Illingworth  and/or Wendy Parmet For submission requirements, format and referencing style, refer to the Author Guidelines on the Bioethics website: Please note that we discourage papers of more than 5000 words and the submission deadline is September 1, 2011. Manuscripts should be submitted online at: Please ensure that you select manuscript type 'Special Issue' and state that it is for the “Solidarity”, Special Issue when prompted.

January 11, 2011 | Permalink | Comments (0) | TrackBack (0)

Sunday, January 9, 2011

Health Spending Grew At An Historically Low Rate In 2009

According to Health Affairs, health spending grew at an historically low rate In 2009:

During 2009, a year of deep recession followed by slow economic growth, national health care spending rose at its lowest rate in five decades, federal analysts report.

Health spending rose only 4.0 percent in 2009 to $2.5 trillion, or $8,086 per person. That pace was slower than the 4.7 percent growth rate in 2008, say the analysts from the Centers for Medicare and Medicaid Services (CMS) Office of the Actuary in their annual report on national health spending.

Despite the slowdown, health spending growth still outpaced the growth rate of the overall economy. As a result, health spending grew to 17.6 percent of the gross domestic product in 2009, a full percentage point higher than the 16.6 percent in 2008, marking the largest one-year increase in the history of the National Health Expenditure Accounts (1960-2009).

January 9, 2011 | Permalink | Comments (0) | TrackBack (0)

Thursday, January 6, 2011

Announcing the Symposium "The Role of States in Federal Health Care Reform"

Please join the Kansas Journal of Law & Public Policy 2010-2011 Symposium, "The Role of States in Federal Health Care Reform," on Friday, Feb. 11, 2011. The symposium will address the new federal health care reform legislation and its effects at the state level. It will be held at the University of Kansas School of Law in the Stinson Morrison Hecker Lecture Hall, Room 104, Green Hall.

- Welcome and Introductory Remarks, Elizabeth Leonard Weeks, Professor of Law, University of Kansas.

- Sandy Praeger, Kansas Insurance Commissioner, "A View from the Insurance Commissioner on the Health Care Reform."   

- Tim Greaney, Professor of Law, Saint Louis University School of Law, "Designing Health Insurance Exchanges to Promote Competition."

- Jonathan Adler, Professor of Law, Case Western Reserve University School of Law, "Cooperation, Commandeering, or Crowding Out? Federal Intervention and State Choices in Health Care Policy."

- Abigail Moncrieff, Associate Professor of Law, Boston University School of Law, "The Positive Case for Federal Health Care Regulation."

- Mark Hall, Professor of Law, Wake Forest University School of Law, "The Role of Risk Adjustment under the Affordable Care Act."

- Dr. Andrew Allison, Executive Director, Kansas Health Policy Authority Board, "State     Choices and Challenges in the Wake of Federal Health Reform Legislation."

-  Dr. Marcia Nielsen, Vice Chancellor for Public Policy and Planning, University of  Kansas Medical Center, "Understanding Federal Health Reform: Setting the Stage for State Implementation." 

Registration & Breakfast: Advance registration is appreciated but not required. Please RSVP online by Friday, Feb. 4 to let us know you will attend the program. Registration will begin at 7:30 a.m. on the day of the symposium. CLE Credit:  We are seeking approval to offer seven hours of continuing legal education credit for Kansas and Missouri. There is no charge. Those wishing to receive CLE credit may obtain materials at the door. Questions? Please contact symposium editors Jessie Riley and TJ Trum at

January 6, 2011 | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 4, 2011

Call for Papers on Public Health and Federal Health Reform

The Journal of Law, Medicine & Ethics will host a thematic Issue on the topic of "Public Health Reform: Patient Protection and Affordable Care Act Implications for the Public's Health."

Enactment of the Patient Protection Affordable Care Act of 2010 (PPACA) represents a monumental political achievement and promises dramatic changes for the United States health care delivery system. But what impact will the law have on public health? PPACA's primary aim is improving access to comprehensive, affordable health insurance coverage. Improved access to insurance should improve access to medical care which then should improve the health of individuals and, thereby, the population. Was public health merely an afterthought in the comprehensive package of reforms, or does PPACA offer real possibilities for strengthening the public health system and improving the population's health?

This issue seeks scholarly commentary on the public health impact of federal health reform. In addition to improving access to health insurance, PPACA promises to expand government health care programs, promote primary care and prevention, improve quality of care, increase the health care workforce, and invest in outreach, and education. Specifically in the public health realm, PPACA contains provisions addressing oral health, workplace wellness, menu labeling, tanning salons, immunization, obesity, diabetes, breast cancer, and health disparities.

This is an open call for papers from any perspective, concerning any aspect of the issue. We are primarily interested in shorter papers (10 - 30 double-spaced pages; 3000 - 9000 words, exclusive of endnotes), although longer paper will receive careful consideration. Click here for JLME's style guidelines. Please submit an abstract by February 15, 2011. Papers will be due May 15, 2011, for publication Fall 2011. Early submissions are appreciated. All correspondence should be directed to Elizabeth Weeks Leonard at

January 4, 2011 | Permalink | Comments (0) | TrackBack (0)