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Akron Univ. School of Law

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Wednesday, February 8, 2012

Health Law Headlines of the Week (Week of Jan. 29, 2012)

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

Emily P. Walker, Memo Reveals Obama Thinking on Malpractice, MedPage Today, Feb. 3, 2012.

A memo from two White House aides to President Obama reveals the administration's thinking on medical malpractice reform and its role in passage of the Affordable Care Act.

The memo—and Obama's response to it—made clear that, in July of 2009, the president was most interested in an approach that included early disclosure of an error, an apology, and mediation, in hopes that it would secure buy-in on healthcare reform from the American Medical Association (AMA), which supported that approach.

Ultimately he didn't want to do anything on malpractice reform that would upset the chances that healthcare reform would pass.

The memo and the President’s hand-written response can be found in a Jan. 27 posting by The New Yorker. They are part of a lengthier article containing various memos from the President that explores “the making” of his Presidency published in The New Yorker. The Southern Methodist University Law Review has also published an article that similarly explores the approach taken to medical malpractice reform in the Affordable Care Act, what influenced the approach taken, and the likely consequences of that approach.

Mark Oppenheimer, A Counselor’s Convictions Put Her Profession on Trial, N.Y. Times, Feb. 3, 2012.

In 2009, Julea Ward, a teacher and an evangelical Christian, was studying for a master’s degree in counseling at Eastern Michigan University in Ypsilanti. As part of her training, she was required to treat clients, and she expressed her reluctance to work with any who were in same-sex relationships. A professor, heeding Ms. Ward’s wishes, referred a gay client to another counselor.

That seemingly simple request became a problem for Ms. Ward when the university expelled her for having made it. Ms. Ward sued, and her case raises the question of whether a counselor’s religious convictions can disqualify her from the profession.

A federal court dismissed Ms. Ward’s claim of religious discrimination. But on Jan. 27, the United States Court of Appeals for the Sixth Circuit ordered the lower court to rehear the case, finding that Eastern Michigan “cannot point to any written policy that barred Ward from requesting this referral.”

The Sixth Circuit ruling can be found here. The article notes that the Sixth Circuit distinguished “another recent case, Keeton v. Anderson-Wiley, in which Jennifer Keeton, a counseling student at Augusta State University, in Georgia, was required to enter a remediation program because she said she planned to tell gay clients that homosexuality was wrong,” with the Eleventh Circuit ultimately ruling “Augusta State had done nothing wrong in removing Ms. Keeton, who had refused to enter remediation, from its program.” The Eleventh Circuit ruling can be found here, while a Dec. 11 article discussing the Eleventh Circuit's ruling can be found in The Chronicle of Higher Education.

Michael Smith, Child Abuse in One Year Costs Billions in Long Run, MedPage Today, Feb. 3, 2012.

The lifetime costs—including healthcare, lost productivity, and criminal justice costs—of all the children abused in the U.S. over a single year total up to $124 billion, researchers reported.

The figure . . . is based on an estimated lifetime cost of $210,012 for each nonfatal case and nearly $1.3 million for each fatal case. . . . The estimated burden of child abuse on an individual basis is comparable to such public health problems as stroke and type 2 diabetes. . . .

Maltreatment of children—including physical, sexual, and psychological abuse, as well as simple neglect—has been shown to have lifelong health, social, and economic consequences, the researchers noted. . . . The consequences include increased medical needs, a higher risk of becoming involved in crime, and a greater need for special education . . . .

The report itself was published this week in Child Abuse & Neglect (accompanied by another article that addresses the consequences of children being exposed to Intimate Partner Violence, which can be found here). The Centers for Disease Control and Prevention issued a related press release, as well as examples of “demonstrated” “effective” programs for responding to child abuse and additional related data. A Ohio Northern University Law Review article identifies and describes the various governmental responses to child abuse (as well as their history) and explores their respective effectiveness.

Denise Lavoie, Bone Marrow Donor Recruiting Cases Settled, CBS Boston, Feb. 2, 2012.

A bone marrow registry and medical laboratory company that used fashion models wearing high heels and short skirts to recruit potential donors will pay the states of Massachusetts and New Hampshire $770,000 for engaging in an improper marketing practice, officials in both states said Thursday. . . .

According to a final judgment filed Thursday in Suffolk Superior Court, the registry and lab company — both subsidiaries of UMass Memorial Health Care — will pay restitution to Massachusetts consumers for any out-of-pocket payments they previously made for donor testing.

They will also pay the state $500,000 for initiatives to improve health care services and to combat unlawful marketing practices . . . . They also agreed to not charge health plans more than $175 over the next five years for donor testing.

New Hampshire Attorney General Michael Delaney Thursday announced a separate consent judgment in which UMass Memorial will pay the state of New Hampshire $200,000 in civil penalties for unfair and deceptive practices . . . and donate $100,000 to the National Bone Marrow Registry.

Delaney said UMass Memorial violated the public’s trust by overcharging for testing done by its lab and paying commissions to employees who lured donors who had private insurance.

An article appeared in The Denver Post last summer, which reported that the long waits of the tens of thousands of “transplant hopefuls in medical purgatory, already at five years' wait and moving toward 10 in some states, is pushing more and more donation advocates into previously taboo territory: removing longtime prohibitions on paying donors for their healthy organs.” A recent article in The Washington Post addresses the additional barriers that individuals with mental disabilities may face in obtaining an organ transplant. An article published by the University of Kansas Law Review addresses possible fiduciary duties associated with the marketing of medical products and services.

Dina ElBoghdady, Some Doctors Try to Squelch Online Reviews, Wash. Post, Jan. 28, 2012.

Fuming about a billing dispute with his dentist, Robert Allen Lee posted his complaints on two consumer review Web sites, triggering a legal battle over a technique designed to snuff out negative online commentary.

In late August, a day after Lee posted his comments on Yelp and DoctorBase, he received a letter from the dental practice threatening to sue him for at least $100,000 for “defamation, slander and libel.” The letter reminded him that he’d signed an agreement with his dentist that barred him from publishing a critique of her or her office.

While extreme, such do-not-talk contracts underscore the struggle between consumers that are eager to share their thoughts online and companies that are looking for ways to protect their reputations in an environment in which social media helps shape opinions on just about everything.

A recent article published by Kaiser Health News discusses the patient safety ratings of thousands of the nation’s hospitals reported at the website of the Centers for Medicare and Medicaid Services, with a parallel article on hospital errors published by the Washingtonian.

An interesting related article appears in The New York Times, describing a web site with social network features where users can post medical questions and doctors can provide brief replies, with fellow physicians able to show if they concur with the advice given and the users able to show their appreciation with a “thank you.” A doctor who receives twenty-five thanks is given a “Doogie Howser Award” and a physician who receives fifty thanks receives a “Dr. Heathcliff Huxtable Award.” It is suggested that “[b]y participating, doctors who want to attract new patients have a chance to gain visibility.” The article also reports that the owner of the website, which was started last May, “says that it has signed up more than 9,000 physicians and that it is adding 100 a day.”

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