HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Friday, February 25, 2011

I Cannot Recommend Him/Her Highly Enough

Is it reference-writing season where you are? Before putting pen to paper consider a couple of prime physician reference cases. New out of the blocks is Chi v. Loyola University Medical Center, N.D. Ill., 2/16/11, available here. An oncology resident brought an action against his Chicago residency training hospital and professor. After completing the residency program notwithstanding a period of academic probation (subsequently remediated) the resident was offered a job in Arizona. The professor filled out forms provided by the new employer. The professor filled out the first form noting "sufficient ability to practice competently and independently in his specialty" but disclosed the probation and noted some "difficulties in interpersonal communication." The professor answered the second form by cross-referencing the first and checked a box next to the phrase "I cannot recommend him/her."

Dealing swiftly with the plaintiff's claims the court held that as a matter of law the defendants' conduct could not be considered extreme or outrageous (Intentional Infliction of Emotional Distress) and that there was no general duty of fair treatment (argued under a Negligent Infliction of Emotional Distress theory). The court also dismissed the plaintiff's claims of tortious interference and defamation.

Chi is an interesting counterpoint to the better known Kadlec v. Lakeview Anesthesia Center, available here. Kadlec is altogether more serious fare. An anesthesiologist at the defendant practice group was suspected of on-duty use of narcotics. Eventually he was terminated. He later found work at the plaintiff hospital. There he became addicted to Demerol and allegedly was responsible for a tubal ligation patient ending up in a permanent vegetative state. After settling that case the hospital and its insurer brought suit against the practice group, the doctor's prior employer, alleging negligent misrepresentation regarding requested references. The Fifth Circuit, applying Louisiana law, found that there could be liability for letters that were affirmatively misleading but that the defendants had no affirmative duty to disclose (referencing a form letter that was sent to the hospital by the Practice Group that confirmed the doctor's prior privileges but said no more). 

I agree with Sallie Sanford's argument that Kadlec notwithstanding "a requirement of greater candor is likely to be adopted either in a subsequent case, by statute, or through hospital accreditation standards." See Candor After Kadlec: Why, Despite the Fifth Circuit's Decision, Hospitals Should Anticipate an Expanded Obligation to Disclose Risky Physician Behavior, 1 Drexel L. Rev. 383 (2009), available here. So let's not forget why we have that Nation Practitioner Data Bank, here, and caveat referrer! [NPT]


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

Worth Reading This Week

Thursday, February 24, 2011

Naughty or Nice? Quality-Based Reimbursement in Action

Maryland seems to be ahead of PPACA on some quality improvement fronts. The state's Health Services Cost Review Commission operates under a CMS waiver and exclusively sets rates for Maryland hospitals. The Commission uses quality-related measures across three initiatives, Process Measures, Complications, and Readmissions, as described here. The Commission tracks 49 "complications" such as bed sores, infections, and falls (see here). According to an article in today's Washington Post by Julie Appleby of Kaiser Health News, available here, the program seems to have real teeth. Recently, nine hospitals have been denied $2.1m in reimbursement while twenty-three will receive small bonuses. [NPT]


February 24, 2011 | Permalink | Comments (0) | TrackBack (0)

From Viral Marketing to Medical Profile Contagion

As ACA implementation lumbers ahead, and challenges to it slouch toward the Supremes, the U.S. health care system's arbitrary old ways continue to mystify and frustrate. Consider this story on one person's quest to obtain insurance:
Most employees assume that if they lose their job and the health coverage that comes along with it, they’ll be able to purchase insurance somewhere. . . .My husband, teenage daughter and I were all active and healthy, and I naïvely thought getting health insurance would be simple. . . .
Then the first letter arrived — denied. . . .What were these pre-existing conditions that put us into high-risk categories? For me, it was a corn on my toe for which my podiatrist had recommended an in-office procedure. My daughter was denied because she takes regular medication for a common teenage issue. My husband was denied because his ophthalmologist had identified a slow-growing cataract. Basically, if there is any possible procedure in your future, insurers will deny you. . . .
As I filled out more applications, I discovered a critical error in my strategy. The first question was “Have you ever been denied health insurance”? Now my answer was yes, giving the new companies reason to be wary of my application. I learned too late that the best tactic is to apply simultaneously to as many companies as possible, so that you don’t have to admit to a denial.
As was recently reported, "50 to 129 million (19 to 50 percent of) non-elderly Americans have some type of pre-existing health condition." The "health care market" is sending a strong signal: don't step out of the system if you have any continuing need for even minor care. But what's more worrisome are the types of information circulating about you that you aren't even aware of. Consider this story from Businessweek about the profiling of insurance applicants by third-party intermediaries:
Most consumers and even many insurance agents are unaware that Humana, UnitedHealth Group , Aetna (AET), Blue Cross plans, and other insurance giants have ready access to applicants' prescription histories. These online reports, available in seconds from a pair of little-known intermediary companies at a cost of only about $15 per search, typically include voluminous information going back five years on dosage, refills, and possible medical conditions. The reports also provide a numerical score predicting what a person may cost an insurer in the future. . . .
[A] 57-year-old safety consultant in the oil and gas industry, says he tried to explain that the medications weren't for serious ailments. The blood-pressure prescription related to a minor problem his wife, Paula, had with swelling of her ankles. The antidepressant was prescribed to help her sleep—a common "off-label" treatment doctors advise for some menopausal women. But drugs for depression and other mental health conditions are often red flags to insurers. Despite his efforts to reassure Humana, the phone interview with the company representative "just went south," Walter recounts. He and his wife remain uninsured [as of 2008].
Health-related data from a wild west of unregulated intermediaries may spread to employers and other decisionmakers, just as credit scores have migrated from the bank context to influencing insurance pricing, and credit histories now influence employers. Sharona Hoffman has observed that "It is not uncommon for employers to obtain applicants’ and employees’ medical records. According to one source, every year, over ten million authorizations for release of medical information are signed by workers prior to the commencement of employment." She has predicted disturbing possibilities arising out of that accesss to data:
Existing laws, including the ADA, GINA, HIPAA, and their state counterparts, provide important assurances to applicants and employees but are insufficient to guarantee that they will suffer no ill consequences as a result of EHR disclosure to employers. Employees may be especially concerned in times of recession, knowing that financial pressures make workers with health problems particularly unattractive to employers. Employers or their hired experts may develop complex scoring algorithms based on EHRs to determine which individuals are likely to be high-risk and high-cost workers. In addition, in times of financial difficulty, limited resources may be available to implement technology and policies that will secure EHR confidentiality.
Secondary uses of health data could be a very lucrative niche for profilers of the future. Given these possibilities, individuals should at least have the right to access and correct the health data that intermediaries have compiled about them. The FTC recognized this right, and "forced the [insurance] industry to begin disclosing the use of prescription information under . . . the Fair Credit Reporting Act. . . . Copies of prescription reports are supposed to be available to consumers at no charge under federal law." This is a small step forward. But if the "scores" assessing individual risk are compiled according to proprietary algorithms, the consumer may still feel "in the dark," unable to adequately influence the presentation of herself to the insurer. As Esther Dyson has stated in another context, mysterious data flows can jeopardize individual autonomy:
The comforting thing about the kind of data that Facebook primarily deals with is that it’s public. If your friends and other people can see it, so can you.
More troubling is the data you don’t even know about – the kind of data about your online activities collected by ad networks and shared with advertisers and other marketers, and sometimes correlated with offline data from other vendors. By and large, that’s information you can’t see – what you clicked on, what you searched for, which pages you came from and went to – and neither can your friends, for the most part. But that information is sold and traded, manipulated with algorithms to classify you and to determine what ads you see, what e-mails you receive, and often what offers are made to you. Of course, some of that information could go astray.
Online advertisers already slice and dice population segments (and distribute opportunities & exposure to ads) via marketing discrimination. Will the "e-health revolution" bring their methods out of cyberspace, and into the deadly serious business of offering employment and insurance based on estimates of health status that applicants can't understand or challenge? [FP]

February 24, 2011 | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 23, 2011

Third Judge Finds New Healthcare Law's Individual Mandate Constitutional

For Those Keeping Score: The WSJ reports that U.S. District Court Judge Gladys Kessler is the third U.S. trial judge to hold that Congress was within its constitutional authority to regulate interstate commerce when it chose to penalize people who forgo health insurance.

'Congress had a rational basis for its conclusion that the aggregate of individual decisions not to purchase health insurance substantially affects the national health insurance market,' Judge Kessler wrote in a 64-page opinion. 'Consequently, Congress was acting within the bounds of its Commerce Clause power.'

The judge also rejected an argument that the law was an undue burden on people who opt not to receive any medical services for religious reasons.

Two other judges have ruled against all or part of it. Most recently U.S. District Court Judge Roger Vinson in Florida, who ruled on a legal challenge brought by a group of 26 states, voided the entire law. [KVT]

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

Tuesday, February 22, 2011

The Price of Privacy

Ever since the HITECH Act (42 U.S.C. 1320d–5, here) toughened up HIPAA enforcement and Secretary Sibelius consolidated security and privacy enforcement in the Office of Civil Rights we have been anticipating a "statement" case. Maybe that day has come. In a News Release today HHS announced the imposition of a $4.3 million civil money penalty on Cignet Health of Prince George’s County, Maryland. [NPT]


February 22, 2011 | Permalink | Comments (0) | TrackBack (0)

House of Representatives Votes to Cut Environmental Programs

The House voted for a Continuing Resolution on Friday that would seriously undermine environmental protections if the Senate fails to counter it effectively. H.R.1 reflects a decrease of $100 billion from the President’s FY 2011 budget. It includes a 30% cut to EPA's budget, the largest percentage reduction in 30 years. The sweeping cuts have generated outrage from environmentalists, illustrated by this release from the Sierra Club. Piling on amendments, the House voted to:

- eliminate US funding to the IPCC (Intergovernmental Panel on Climate Change) for the rest of 2011.

- repeal Clean Air Act provisions aimed at reducing Green House Gases.

- defund certain NASA's satellites.

- scale back environmental regulation of mountaintop removal protections.

- prevent the overhaul of a major federal climate research program.

- sharply slash funding for green energy R&D.

Click here for a wry commentary on these amendments by one of my favorite writers.  

Mary Munson

February 22, 2011 | Permalink | Comments (0) | TrackBack (0)

Monday, February 21, 2011

Conscience Clauses and Health Care

The U.S. Department of Health and Human Services announced its new rule regarding health care and conscience clauses.  The new rule replaces a rule issued in 2008.  It ensures that the law protects health care providers who object to performing or assisting an abortion, while eliminating the confusion from the previous rule that the definition of abortion also included contraception.  Kaiser Health News provided a digest of press reports on the revision. [DO]


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

Sunday, February 20, 2011

Camille Nelson: "Racializing Disability, Disabling Race: Policing Race and Mental Status"

Camille Nelson, Dean and Professor of Law at Suffolk University School of Law, posted "Racializing Disability, Disabling Race: Policing Race and Mental Status" on SSRN. Here is the abstract:

Camille Nelson This article focuses on police practices in arresting and detaining criminal suspects who have mental illnesses. It identifies three modalities police may adopt when detaining a mentally ill suspect: medical modality (and its subset the family mode), the criminal modality, and the disciplinary modality. This article examines archetypal cases in which harsher treatment of a suspect may be meted out by the police against mentally ill persons of color.

To illustrate the different modalities, this article examines the case study of Donald Winters. Mr. Winters was a Caucasian male who was diagnosed with Delusional Disorder. He had threatened to kill the police officers when they attempted to apprehend him. Police understood they were dealing with a mentally ill suspect, and they restrained themselves from using violence in order to subdue him. In Coghlan v. Phillips, Mr. Coghlan, a white male known to have a criminal record and a history of mental illness, fired four to ten shots at police officers when they initially attempted to arrest him. The police officers did not return fire, but returned with a bullhorn and told Mr. Coghlan they wished to take him to a doctor. These cases are illustrative of the medical and criminal modalities and represent more appropriate police responses to mentally ill suspects. However, police seemingly demonstrate far less tolerance for suspects whose Suspect Identity Construction (“SIC”) is both a minority and mentally ill.

In Banks ex rel. Banks v. Modesto City Schools District, Rosie Banks was a thirteen year old, autistic, African American girl attending a junior high school. Rosie entered a new school and at first behaved in an aggressive manner. She was taken to the principal’s office where an officer confronted Rosie as she became more aggressive and pepper sprayed her in the face. In Reynolds v. City of Little Rock, John Willie Reeves, an African American man known by police to be mentally ill, was shot to death by several officers after waving a pocket knife. In Ali v. City of Louisville, Mr. Marlby was a homeless African American man who was known by several officers to be mentally ill. He was shot to death after an encounter with police. In each of these cases, police officers often chose the disciplinary modality, and often without prior utilization of a lesser modalities.

In these and other cases, the police do not utilize lesser modalities despite their knowledge that the suspect is mentally ill. This article explores the intersection of race and mental status as one that attracts heightened police scrutiny and which disparately leads to excessive use of force. It appears from the case law that the selection of the modality often depends on the racialization of the alleged offender.

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

Terry Carney: "Mental Health Tribunals as Governance: Lessons from an Australian Study?"

Terry Carney, Professor at the University of Sydney Law School, posted "Mental Health Tribunals as Governance: Lessons from an Australian Study?" on SSRN:

Terry Carney This article draws on a multi-year Australian collaborative study of mental health review tribunals in three jurisdictions (Victoria, New South Wales and the Australian Capital Territory) undertaken in conjunction with the NSW Law and Justice Foundation, using qualitative and quantitative methods to examine the role of mental health tribunals in advancing goals such as fairness, legality and access to treatment. In recognition of shrinkage of state resources available for treatment and care of the mentally ill in many jurisdictions, and limited time and resources for review bodies, the article reflects on stakeholder and client concerns about access to quality treatment and associated support services, review of treatment adequacy and drug regimes, and their ‘participation’ or dignity of engagement in review processes. Building on earlier arguments in favour of equipping tribunals to adequately engage the clinical and social domains in addition to the domain of ‘legal rectitude’, and for ‘flexibility’ of process more characteristic of case-conferencing modes, this article examines the implications of such findings for the interests of clients and overall ‘governance’ in mental health.

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

Data Segmentation

We continue to see the tensions in patient data protection play out in new and interesting ways. For example, as HHS continues to study the comments from its HITECH-authorized lock-down of HIPAA Privacy NPRM, available here, the White House's OSTP has been touting its "Blue Button" initiative, available here and according to the Markle foundation, here, strongly supported by both doctors and patients. Clicking on the Blue Button will copy a person's PHI from a HIPAA-protected zone (an EMR curated by a covered entity) to a HIPAA-free zone (a PHR).

Two useful reports prepared for ONC by GW's Department of Health Policy provide detail on some of the options available to policymakers seeking to both protect patient data (or at least patient choice regarding such data) and yet share such data for patient and societal benefits. The first report, “Consumer Consent Options for Electronic Health Information Exchange: Policy Considerations and Analysis,” available here, details the various patient consent models with their advantages and disadvantages. The second, "Data Segmentation in Electronic Health Information Exchange: Policy Considerations and Analysis," available here, builds on familiar exceptionalism or data segregation models, such as the treatment of HIV/AIDS tests under state laws or the protection of psychotherapy notes under HIPAA Privacy. With EHRs, of course, we are talking about segmenting the patient's data within the record. Questions posed in this useful report include identifying who should define the segments, whether patient or physician should control the segmentation. Additionally, we will need to study whether there should be an emergency protocol for overriding the segmentation choices.

These are important questions that in many ways will define the future of the relationship of the patient with her EHR far more than the privacy, confidentiality, and consent models heretofore explored.

Nic Terry

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

Recording the Beginning of Life

Monty Python's Miracle of Birth, the opening sketch from The Meaning of Life (and an inspiration for my work), ends with a fake doctor (played by a real doctor) instructing the new mother, "So, it's lots of happy pills for you, and you can find out all about the birth when you get home. It's available on Betamax, VHS, and Super Eight."  

In 2009 a Minnesota couple live streamed the birth of their child on the Internet, available here and one Idaho hospital allows Skype video transmission to, for example, fathers serving in the military as noted here. Recently, however, a New York Times, article, Rules on Cameras in Delivery Rooms Stir Passions, has noted growing the growing reluctance of hospitals to allow cameras at all or, for example, until five minutes after the birth.

The hospitals' explicit arguments seem to be protection of the privacy of the medical staff (although, with anonymizing masks and other surgical gowns the chance of identification seem limited) and stopping the technology getting in the way of the care and treatment of mother and child (which seems fair enough until one factors in the miniaturization and low light sensitivity of the modern pocket camera). The Times article implies that provider concerns over the evidentiary power  of video recordings in the case of an adverse event is an important additional factor. 

It is hard to identify any kind of legal right in the patient that would permit cameras in the delivery room (or during any other kind of hospital-based procedure) unless, for example, the hospital was in breach of contract or, possibly, its own regulations. More likely to be the subject of litigation are cases where the hospital films or tweets a procedure (as here or fictionalized here) given the difficulty in  extracting appropriate informed consent in such scenarios (as discussed here), or where one of the parties seeks to make use of surveillance video footage. See e.g., Ykimoff v. Foote Mem. Hosp., 285 Mich.App. 80 (2009). 

Nic Terry


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

Worth Reading This Week

Richard J. Bonnie, James S. Reinhard, Phillip Hamilton, & Elizabeth L. McGarvey, Tragedy and Mental Health System Transformation in Virginia, SSRN

Dayna B. Royal, The Skinny on the Federal Menu-Labeling Law & Why it Should Survive a First Amendment Challenge, SSRN

Jennifer Prah Ruger, Shared Health Governance, SSRN/AJOB

Timothy Stoltzfus Jost, Can Congress Regulate “Inactivity” (and Make Americans Buy Health Insurance)? NEJM, February 16, 2011

Nic Terry

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