HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Wednesday, December 21, 2011

Guest Blogger James T. O'Reilly - Fed-Mal: Revenge of Healthcare Policy Wonks

Oreilly06Wonks like us lack the bling of “big time courthouse lawyers.” For those plaintiff’s attorneys whose billboards and phone book cover ads have annoyed us as quietly competent health law gurus, our day of retribution is coming. You slogged through our classes in administrative law, struggled with adjudication processes and burned the midnight oil learning the difference between a regulation and a guidance document. Revenge is sweet.

In my forthcoming text on the new medical malpractice environment, I explain how the administrative law student has a field day under PPACA while the dramatic Perry Masons of the Bar will slump into (relative) silence. As a result of the 2014 inclusion into the health care system of approximately 42 million uninsured persons [this number varies and time will tell the totals], the health care system is likely to face a bolus of postponed and untreated medical conditions as the new entrants appear on the doorstep to be diagnosed, treated, surgically corrected or otherwise healed.

A majority of the 42 million will be “working poor” whose care will come from either “community health centers” or “free clinics,” which now treat about 23 million patients annually. These descriptors are terms of art for lower cost sites at which medical care has been subsidized by charities and/or federal funding. Overcrowding, stress, lower paid staff, records confusion, etc. make these facilities somewhat more challenged to deliver perfect patient outcomes with every patient visit. That’s the right way to predict that medical malpractice claims will rise as the diagnostic and treatment roles of these funded clinics are pushed beyond their current capacity. Mistakes are made everywhere in the healthcare system, of course, but the stage is set for a medical malpractice scenario in the rural, rust belt and inner city clinic environment.

Aha! Plaintiff’s lawyers might salivate … did you say lots more med-mal claims are possible? Too bad, you who skipped administrative law; you have never seen an SF-95 and don’t understand HRSA’s PAL on FTCA roles of HHS-GC. You’ll be DOA!

In briefest terms, the clinics are immune from state tort med-mal claims; specialists in administrative claims will be invaluable to injured victims; Assistant U.S. Attorneys will easily remove and dismiss any state med-mal cases; of the administrative claimants anticipated, a small number will emerge as Federal Tort Claims Act litigants; FTCA cases are tried by the federal magistrate judge with no jury, a cap on attorney fees and a limitation on judicial awards to the specific dollar amount of the filed administrative claim. Money comes not from the doctor or clinic but from a federal fund whose appropriations are fixed in advance; awards late in the summer cannot be paid until the fund’s new fiscal year begins October 1st.

 Stay tuned for later blog entries as I expound on the impact of the PPACA on the glittering hubris of the plaintiff’s jury masters!

- James T. O' Reilly

December 21, 2011 | Permalink | Comments (0) | TrackBack (0)

Monday, December 19, 2011

Essential health benefits

Tim Jost, here, on HHS's "Bulletin" guidance. Politico's take is here. [NPT]

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

Sunday, December 18, 2011

Five Recent Cuts from the Media: Health & Popular Technological Devices

compiled by Thomas L. Hafemeister, J.D., Ph.D., Assoc. Prof., Univ. of Virginia School of Law

Matt Richtel, As Doctors Use More Devices, Potential for Distraction Grows, N.Y. Times, Dec. 15, 2011, at A1 (here):

Hospitals and doctors’ offices, hoping to curb medical error, have invested heavily to put computers, smartphones and other devices into the hands of medical staff for instant access to patient data, drug information and case studies.

But like many cures, this solution has come with an unintended side effect: doctors and nurses can be focused on the screen and not the patient, even during moments of critical care.  And they are not always doing work; examples include a neurosurgeon making personal calls during an operation, a nurse checking airfares during surgery and a poll showing that half of technicians running bypass machines had admitted texting during a procedure.

This phenomenon has set off an intensifying discussion at hospitals and medical schools about a problem perhaps best described as “distracted doctoring.”  In response, some hospitals have begun limiting the use of devices in critical settings, while schools have started reminding medical students to focus on patients instead of gadgets, even as the students are being given more devices.

* * *

Doctors and medical professionals have always faced interruptions from beepers and phones, and multitasking is simply a fact of life for many medical jobs.  What has changed, doctors say, especially younger ones, is that they face increasing pressure to interact with their devices.

The pressure stems from a mantra of modern medicine that patient care must be “data driven,” and informed by the latest, instantly accessible information.  Annual investment in gadgets and other technology by hospitals and doctors has soared into the billions of dollars.

By many accounts, the technology has helped reduce medical error by, for example, providing instant access to patient data or prescription details.

Dr. Peter W. Carmel, president of the American Medical Association, a physicians group, said technology “offers great potential in health care,” but he added that doctors’ first priority should be with the patient.

* * *

Scott J. Eldredge, a medical malpractice lawyer in Denver, recently represented a patient who was left partly paralyzed after surgery.  The neurosurgeon was distracted during the operation, using a wireless headset to talk on his cellphone, Mr. Eldredge said.

“He was making personal calls,” Mr. Eldredge said, at least 10 of them to family and business associates, according to phone records.  His client’s case was settled before a lawsuit was filed so there are no court records, like the name of the patient, doctor or hospital involved.  Mr. Eldredge, citing the agreement, declined to provide further details.

Others describe multitasking as relatively commonplace.

Matt Richtel, Reframing the Debate Over Using Phones Behind the Wheel, N.Y. Times, Dec. 17, 2011, at A25 (here):

For years, policy makers trying to curb distracted driving have compared the problem to drunken driving.  The analogy seemed fitting, with drivers weaving down roads and rationalizing behavior that they knew could be deadly.

But on Tuesday, in an emotional call for states to ban all phone use by drivers, the head of a federal agency introduced a new comparison: distracted driving is like smoking. 

The shift in language . . . opened a new front in a continuing national conversation about a deadly habit that safety advocates are trying desperately, and with a growing sense of futility, to stop.

[This] new tack also echoes a growing consensus among scientists that using phones and computers can be compulsive, both emotionally and physically, which helps explain why drivers may have trouble turning off their devices even if they want to.  In effect, they are saying that the running joke about BlackBerrys as “CrackBerrys” is more serious than people think.

. . .

In a study conducted last year and released this month by the federal government, about 120,000 drivers were estimated to be sending text messages or physically manipulating phones at any given time during the day, up 50 percent from 2009.

And according to the research, from the National Highway Traffic Safety Administration, 660,000 drivers were holding phones to their ears at any moment last year.

Part of the lure of smartphones, [David Greenfield, a psychologist and assistant professor of psychiatry,] said, is that they randomly dispense valuable information.  People do not know when an urgent or interesting e-mail or text will come in, so they feel compelled to check all the time.

“The unpredictability makes it incredibly irresistible,” Dr. Greenfield said. “It’s the most extinction-resistant form of habit.”

. . .

The lure of multitasking may be, in at least one respect, more powerful for drivers than for other people, said Clifford Nass, a sociology professor at Stanford University who studies electronic distraction.  Drivers are typically isolated and alone, he said, and humans are fundamentally social animals.

The ring of a phone or the ping of a text becomes a promise of human connection, which is “like catnip for humans,” Dr. Nass said.

“When you tap into a totally fundamental, universal human impulse,” he added, “it’s very hard to stop.”

But see Amy Norton, Studies May Have Overestimated Cellphone Crash Risk, Reuters Health, Dec. 13, 2011 (here): 

Increased risk of having a car crash attributed to cellphone use may have been overestimated in some past studies, a new analysis suggests.

So-called “distracted driving” has become a big public health issue in recent years. The majority of U.S. states now ban texting behind the wheel, while a handful prohibit drivers from using handheld cellphones at all (though many more ban “novice” drivers from doing so).

But studies have reached different conclusions about how much of an added crash risk there is with cellphone use.

In the new report, Richard A. Young of Wayne State University School of Medicine in Detroit finds that two influential studies on the subject might have overestimated the risk.

The problem has to do with the studies’ methods, according to Young.  Both studies -- a 1997 study from Canada, and one done in Australia in 2005 -- were “case-crossover” studies.

The researchers recruited people who had been in a crash, and then used their billing records to compare their cellphone use around the time of the crash with their cell use during the same time period the week before (called a “control window”).

But the issue with that, Young writes in the journal Epidemiology, is that people may not have been driving during that entire control window.

Such “part-time” driving, he says, would necessarily cut the odds of having a crash (and possibly reduce people's cell use) during the control window -- and make it seem like cellphone use is a bigger crash risk than it is.

Genevra Pittman, “Virtual Visits” Unpopular Among Cancer Survivors, Reuters Health, Dec. 15, 2011 (here): 

In a new survey of breast cancer survivors, few people said that having a follow-up appointment with a doctor or nurse over the phone or online instead of in person would ease their stress and worry.

* * *

“When patients first hear, ‘Oh, we can do a follow-up from your house, you don’t even have to come in,’ it might seem like they’re not getting as good care,” said Dr. Christine Hill-Kayser, a radiation oncologist at the Hospital of the University of Pennsylvania in Philadelphia, who was not involved in the new study.

Kristina Fiore, Violent Video Games May Alter Brain Function, MedPage Today, Nov. 28, 2011 (here):

CHICAGO -- Men who can’t pry their fingers off the controllers when it comes to shoot-em-up video games may have changes in areas of the brain associated with emotional and cognitive function, researchers said here.

In a small fMRI study, men who took aim at video game characters for about 10 hours during one week had diminished activity in areas of the brain associated with control of aggressive behavior, Vincent Mathews MD, of Indiana University in Indianapolis, reported at the Radiological Society of North America meeting here.

“We found that gamers showed reduced activity in areas of the brain involved in attention, inhibition, and decision making,” Mathews said in an interview with MedPage Today.  “This explains what others have observed in behavioral studies that when people are exposed to violent video games, they may show more aggression.”

Though researchers have long questioned whether violent video games can change brain structure, there’s limited evidence as to whether gaming has any long-term neurological effects.

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

An Additional Thought On Coercion

Nicole Huberfeld continues her series this month on the Medicaid cases pending before the U. S. Supreme Court over at Concurring Opinions with the following post:

Recently I wrote about the coercion question posed by Florida et al. in the PPACA litigation.  I have a quick follow up thought: I wonder if those advocating a more robust read of coercion recognize that their position could backfire if the goal is broadening federalism protections.  An expanded coercion doctrine ostensibly would introduce the possibility of judicially enforcing states’ rights against the congressional power to spend.  But the states should not assume that they are the only parties that could enforce federalism principles.  Just last term in Bond v. United States, Justice Kennedy wrote that individuals can have standing to enforce the principles of the Tenth Amendment against the federal government because federalism protects not just the states but also individuals.  In Bond, the conclusion was foreseeable, as a criminal defendant should be able to challenge the constitutionality of the statute under which she is charged.  But the idea is muddied in a conditional spending program, wherein individual beneficiaries are often at odds with the state and contest its compliance with the federal government’s statutory conditions. 

States have sought to prevent private enforcement of conditional spending statutes, and they have been more and more successful in closing the courthouse doors.  For example, the Court has limited implied rights of action as well as actions under civil rights law 42 U.S.C. § 1983, decisions that narrow state exposure in federal court.  In fact, this type of question is before the Court now in Douglas v. ILC, which confronts private enforcement of the Medicaid Act against states via the Supremacy Clause.

If the coercion theory is expanded, then private plaintiffs could be reintroduced into the federal courts, the very thing that states have been trying to prevent.  And, individuals engaging in coercion analysis may have different goals than states.  Further, it is possible that coercion could inaugurate a new theory by which those conditions, and the ways in which they are or are not executed by states, can be challenged by private plaintiffs.  So, not only is state coercion by the federal government an inherently sticky question, but it also may not produce results that states desire.


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