April 8, 2011
Worth Reading This Week
Wendy Parmet, Pandemics, Populism and the Role of Law in the H1N1 Vaccine Campaign, SLU JHLP/SSRN
Bill Sage & David Hyman, Do Health Reform and Malpractice Reform Fit Together? SSRN
David Orentlicher, Controlling Health Care Costs Through Public, Transparent Processes: The Conflict between the Morally Right and the Socially Feasible, J. Corporation Law/SSRN
Deirdre M. Smith, Diagnosing Liability: The Legal History of Posttraumatic Stress Disorder, Temple L. Rev./SSRN
Steve C. Gold, The 'Reshapement' of the False Negative Asymmetry in Toxic Tort Causation, SSRN/William Mitchell Law Review
April 7, 2011
Antibiotic Resistance on the Rise, Thanks to Capital Misallocation on a Grand Scale
An unusually hardy strain of Klebsiella pneumoniae was isolated from a 59-year-old Swedish patient who had been treated in a New Delhi hospital. The bacterium was found to be indifferent to even our most powerful antibiotics. To make matters worse, the genes that gave it this superpower were found on a small ring of DNA that is easily traded between different species of bacteria.
New Delhi metallo-beta-lactamase (NDM-1) has since turned up in more than 16 countries across the world, including Britain. A study published in Lancet Infectious Diseases today shows the resistance factor has spread to 14 different species of bacteria. . . In a report published last year, the US Institute of Medicine described antimicrobial resistance as "a global public health and environmental catastrophe", while the WHO called the rise of NDM-1 a "doomsday scenario of a world without antibiotics".
Econbloggers on both left and right are worried. But the chairman of the Board for the Canadian Committee on Antibiotic Resistance says that, despite these tocsins, "The problem is that it is somewhat akin to climate change and so slow and insidious that people, and notably our politicians, are lulled asleep." I am worried by the chair's climate analogy: it may speed antibiotic activism to the same graveyard of "socialist ideas" that high speed rail recently crashed into. (Yes, that metaphor was as ugly as the political process that provoked it.) Obama advisor Cass Sunstein's dismissal of the precautionary principle is far closer to administration policy than, say, Lisa Heinzerling's, Robert Verchick's, or Greg Mandel's and James Thuo Gathii's rehabilitations of the concept. Official Democrats endlessly dither over risk prospects, while Red America is not even that concerned:
One of the most Republican demographic groups -- affluent white men -- is the demographic with the highest number of confident risk takers. Among academic researchers, this phenomenon is known as "the white male effect." A 1992 study reported in the journal Risk Analysis found that, in a survey of 1,512 people, men saw less risk than women from each of twenty-five potential health hazards including nuclear waste, pesticides, blood transfusions, radon, and X-rays: "Sizeable differences between risk perceptions of men and women have been documented in dozens of studies. Men tend to judge risks as smaller and less problematic than do women."
Why invest in future antibiotics if risk is seen as so manageable? As Edsall noted, in other studies of Americans, "fully 69 percent believe[d] they are 'above average' in their overall personality and character, and 86 percent [said] their intelligence is above average." A culture of "self-help" encourages individuals to think they can outwit the superbug, if they are smart and savvy enough.
But there is a deeper problem that American culture is only beginning to grapple with. As FT editor Martin Wolf recently noted in a address at the LSE, the US has been the beneficiary of enormous capital inflows since the beginning of the Bush administration, and has spectacularly wasted them. Charged with efficiently allocating capital, the finance sector has instead opted, by and large, for get-rich-quick schemes. That mentality has affected every sector, including pharma. Even in a society where national priorities are set by an increasingly small group, one would think that drug-resistant bacteria would stir some coordinated response. But when money is primarily thought of as a way to earn more money, even the most pressing needs can be left neglected. Perhaps that's why Americans are increasingly suspicious of the "free market" and financial institutions. [FP]
Surrogacy Across the Borders
Surrogate motherhood may not be as controversial in the United States as it was in the 1980’s when Baby M roiled the legal and cultural landscape. But a case from France reminds us that people still disagree on the morality of the practice. As reported by NPR, France’s highest court refused yesterday to recognize French citizenship for twin girls who were born in the United States through a surrogacy arrangement between a French couple and a California woman.
April 5, 2011
The Long Road to Regulate Mercury from Power Plants
With so much attention focused on the Environmental Protection Agency’s regulation of greenhouse gas emissions, a major development in reducing exposure to toxic air pollutants may have been overshadowed. Last month, the EPA issued a proposed rule on standards for mercury (Hg), arsenic and other toxic air pollution from power plants. These hazardous air pollutants (HAPs) have been shown to cause neurological damage, including lower IQ, in children exposed in the womb and during early development.
This is the culmination of a legal struggle that highlighted the divide between the Bush Administration and the administrations that preceded and followed it. In 2000, under Clinton, the EPA issued a finding that toxic emissions of Hg and other HAP from power plants made it both appropriate and necessary to adopt regulations. Under Bush, the finding was reversed, and a 2005 mercury rule was issued that set up a cap and trade arrangement. A lawsuit was filed on behalf of nine states, and in New Jersey v. EPA, the DC Circuit vacated the 2005 rule and restored the 2000 rule. The 2011 rule was issued accompanying claims that it will prevent as many as 17,000 premature deaths and 11,000 heart attacks a year, among others.
Predictably there has been pushback from some members of Congress. Sen. Inhofe (R-OK) and Sen. Mike Johanns (R-Neb.) introduced the Comprehensive Assessment of Rules on the Economy (CARE) bill that would require an interagency federal panel to undertake a “cumulative economic analysis” of EPA regulations. This would delay the promulgation, and depending on who calculates costs and benefits, possibly undermine the rule.
April 4, 2011
Adolescent Consent to Abortion, Mental Health Care, and Health Care Services in General
The following appeared last week in a Minnesota newspaper:
Senate Republicans have included a provision in a health and human services omnibus bill that would repeal Minnesota’s minors’ consent laws. Those laws, first enacted in 1971, allow Minnesotans under the age of 18 to access mental and physical health care, as well as substance use care. The bill would strip those laws from the books and only allow a minor to seek those services in the case of incest.
Andy Birkey, Senate Republicans Seek Repeal of Minors’ Consent for Health Care, The Minn. Indep., Mar. 28, 2011.
The debate on this bill, of course, focuses on whether adolescents should be able to access abortions without the permission of their parents. As this article points out: “Anti-abortion rights groups have been attacking [minors’ consent] laws through legislation and lawsuits over much of the past decade . . . [although i]f the proposed bill became law, it would be one of the most restrictive in the country.”
But what often gets overlooked in these debates is whether adolescents should be able to access other forms of health care services, particularly mental health care, without the permission or knowledge of their parents or other legal guardians, as well as whether revisions such as the ones being considered in Minnesota may inadvertently impact this access as well.
The trend in recent years has been to expand the ability of adolescents to access mental health care. California, for example, enacted a law on September 29, 2010, that allows “children ages 12 and older to consent to their own mental health care if a mental health professional deems them mature enough to intelligently participate in treatment.” National Center for Youth Law, New CA Minor Consent Law Increases Teens’ Access to Mental Health Care, 29(3) Youth L. News (July-Sept. 2010).
The impetus for such laws is often the suicide of a youth, the implication being that these youth were unable or unwilling to discuss their underlying mental health problems—often attributed to bullying or harassment—with their parents and that if they had been able to independently access mental health services these tragedies would have been averted. Notably, the Centers for Disease Control and Prevention reports: “For youth between the ages of 10 and 24, suicide is the third leading cause of death. It results in approximately 4400 lives lost each year.” See Centers for Disease Control and Prevention, Suicide Prevention: Youth Suicide (2009). At the same time, it is generally estimated that roughly 20% of U.S. children ages nine to seventeen have a diagnosable mental or addictive disorder associated with at least minimum impairment. See U.S. Dep’t Health & Human Servs., Mental Health: A Report of the Surgeon General, Ch. 3: Children and Mental Health (1999).
However, frequently left unaddressed by this legislation are a number of other important issues, including how adolescents are to identify, access, and pay for such services; which services are effective in this context; whether youth fully understand the implications of obtaining mental health services (including that a mental health professional may be subject to reporting requirements or be obligated to take other steps to protect the adolescent without the adolescent’s permission); and whether they should be able to independently obtain psychotropic medications and other forms of mental health treatment (the recently enacted California law generally requires parental consent).
There are also a series of important issues associated with adolescents being able to access health care services in general, including whether distinctions should be made between different types of services such as abortions and mental health treatment. Although a continuing legislative concern and at one time a focus of considerable academic interest, little scholarly attention has been given to adolescent decision making in the health care sphere of late. For one relatively recent effort to provide a basic thematic framework based on empirical findings for these decisions, see Baruch Fischoff, Assessing Adolescent Decision-making Competence, 28 Developmental Rev. 12 (2008).
-- Guest Blogger Thomas L. Hafemeister
Welcome to Guest Blogger Thomas L. Hafemeister
A warm welcome to the first of our guest bloggers for the month of April, Thomas L. Hafemeister. Here is a short bio for Professor Hafemeister:
Thomas L. Hafemeister, J.D., Ph.D.; Associate Professor of Law, University of Virginia School of Law; Associate Professor of Medical Education, University of Virginia School of Medicine. I have been affiliated with the law school for the past ten years, where I teach what one student described as “value-added” courses in Bioethics and the Law, Medical Malpractice and Health Care Quality, Mental Health Law, and Psychiatry and Criminal Law. I received my JD/PhD from the University of Nebraska where I was part of the first class in the first formal joint degree law-psychology program in the country. In addition to various publications related to the courses that I teach, a colleague and I recently completed a three-year study funded by the National Institute of Justice exploring the differences between financial abuse of the elderly and other forms of elder abuse. I am also in the process of publishing a series of articles addressing society’s response to violence across the lifespan (child abuse, intimate partner violence, elder abuse) and looking for a book contract for a series of articles on PTSD, war veterans, and the criminal justice system. In addition, I recently agreed to serve as co-author of the Sixth Edition of Law and the Mental Health System: Civil and Criminal Aspects, which is part of the American Casebook Series published by West.
Getting up to Speed on ACOs
Kaiser Health News has an excellent FAQ, available here.
Scott Becker and colleagues have posted "50 Things to Know About the Proposed ACO Regulations," available here.
Mark McClellan & Elliott Fisher have posted "Accountable Care Organizations: A Framework For Evaluating Proposed Rules" on the Health Affairs blog, available here.
My colleague Tim Greaney has posted "Accountable Care Organizations and Antitrust: A New PSA Test," available here.
And if you still need help understanding ACOs, hire a consultant. According to the Washington Post, available here, that's what everybody else is doing!