June 8, 2012
Worth Reading This Week
John Blum, Sin Tax, Forgiveness and Public Health Governance, SSRN
Kenneth Arrow et al, Valuing Health Care: Improving Productivity and Quality, SSRN/ Kauffman Task Force on Cost-Effective Health Care Innovation
Stephen Hoffman, Euthanasia and Physician-Assisted Suicide: A Comparison of EU and U.S. Law, SSRN
Jonathan Stroud, A Thousand Tiny Pieces: The Federal Circuit’s Fractured Myriad Ruling, Lessons to Be Learned, and the Way Forward, SSRN/IP Theory
June 6, 2012
Welcome Back Guest Blogger Professor Leslie P. Francis
The HealthLawProf Blog is very proud to welcome back our guest blogger for the month of June, Professor Leslie P. Francis. Here is a short bio for Professor Francis:
Leslie P. Francis is Distinguished Professor of Law and Philosophy and Alfred C. Emery Professor of Law at the University of Utah. At Utah, she also holds adjunct appointments in the Division of Medical Ethics in the Department of Internal Medicine, in the Public Health program in the Department of Family Medicine, and in the Political Science Department. Francis received her Ph.D. in Philosophy from the University of Michigan in 1974 and her J.D from the University of Utah in 1981. She was a law clerk to Judge Abner Mikva of the United States Court of Appeals for the District of Columbia Circuit in 1981-82.
Professor Francis specializes in Ethics, Bioethics, Philosophy of Law, Health Law, and Disability Law. At present, she is leading the College of Law’s efforts to develop the Biolaw Project. Francis’s most recent books are The Patient as Victim and Vector: Ethics and Infectious Disease (with Margaret Battin, Jay Jacobson, and Charles Smith; Oxford University Press 2009); and the Blackwell Guide to Medical Ethics (edited with Rosamond Rhodes and Anita Silvers; Blackwell’s 2006). She also has edited (with Anita Silvers), Americans With Disabilities: Implications of the Law for Individuals and Institutions (Routledge, 2000). Articles published within the past year deal with topics such as syndromic surveillance, patient trust and electronic medical records, race and genetic discrimination, disability discrimination and access to health care, the intersection between disability discrimination and discrimination based on aged-ness, and federalism and the recognition of new legal rights. She is currently a member of the American Law Institute (elected 1986), the ethics committee of the American Society for Reproductive Medicine, and the National Committee on Health and Vital Statistics where she serves as cochair of the committee on Security, Privacy, and Confidentiality. In the spring of 2000, she was awarded the University of Utah’s Rosenblatt Prize for overall excellence in research, teaching, and academic service.
Developments in Long Term Care
As someone who teaches in the health/insurance law area, I get a lot of questions about long term care insurance. Much of the literature in the area is turgid and forbidding for nonspecialists. Corporate brochures are long on promises and short on "worst case scenarios" that could easily befall those who misunderstand the "product."
I commend the Diane Rehm show for hosting an excellent discussion of LTC here. Lawyers of a certain cast of mind will relish the calls in the last half of the program, featuring real life stories of recissions, pre-existing condition exclusions, hidden premium hikes, and all manner of ingenious fine print designed to keep profits high and payouts low. The CLASS Act would have addressed some of these issues. One of the triumphs of the "Anti-Obamacare" Tea Party movement was to get that repealed. Maybe they're counting on 401(k)s. [FP]
Guest Blogger Professor Thaddeus Pope: Wisconsin’s Informed Consent Law: Restatement or Expansion?
Michigan is considering a medical malpractice reform bill that would make healthcare providers not liable in an action alleging medical malpractice, so long as the provider’s conduct at issue constituted the exercise of professional judgment. The bill defines “professional judgment” as acting “with a reasonable and good-faith belief that the person's conduct is both well founded in medicine and in the best interests of the patient.” This is a rather sweeping and dramatic change to traditional medical malpractice liability. If enacted, this law would basically require plaintiffs to establish some level of intent or willfulness on the part of the clinician defendant.
But even under such a protective law, a Wisconsin physician might still be liable for providing inadequate informed consent. In late April, the Wisconsin Supreme Court handed down a nearly 80-page opinion in Jandre v. Wisconsin Injured Patients and Families Compensation Fund.
In 2003, Thomas Jandre was taken to an emergency room suffering from slurred speech, facial paralysis, and dizziness. The ER physician administered a CT scan to check for hemorrhagic stroke. The results were negative. She did not order carotid ultrasound to detect an ischemic stroke, but instead listened to Jandre’s carotid arteries with a stethoscope. The ER physician ruled out an ischemic stroke event and came to a final diagnosis of a mild form of Bell’s palsy. Eleven days later, Jandre suffered a major stroke which left him severely impaired.
At trial, the jury found that although the ER physician’s diagnosis of Bell’s palsy was incorrect, it was not negligent. But the jury also determined that the ER physician should have disclosed the option of having a carotid ultrasound test. It awarded Jandre $2 million in damages. The Wisconsin Supreme Court upheld this award.
The defendants and their amici argued that upholding the verdict would impose a ridiculously broad duty on physicians. Any malpractice claim of incorrect diagnosis could be paired with an informed consent claim that the physician failed to tell the patient about all potential diagnoses and tests that could have been employed to evaluate whether different ailments were the source of the patient’s symptoms. Furthermore, defendants and their amici contended that it makes no sense to hold a physician liable for not disclosing an option that it was not negligent to fail to offer. This effectively gives patients a choice to usurp professional judgment.
But, at least in the twenty-some states that use a material risk disclosure standard, this has always been precisely the main point of informed consent. The ER physician should have known that a reasonable person in the Jandre’s position would want to know about the non-recommended diagnostic procedure, so that he could decide intelligently whether to follow the physician’s recommendation.
June 4, 2012
2nd International Summit on the Future of Health Privacy
Like Frank, here, I am happy to be speaking at this week's Health Privacy Summit at Georgetown Law Center, here. As I considered the smart questions Frank posted about "Big Data" it struck me that the topic has attracted little attention from health law scholars. Most of us are still struggling with the limited HIPAA rules mandating confidentiality and security or HITECH's new breach notification model. In the meantime the absence of any limitations on data collection (the true role of privacy regulation) has inextricably resulted in the creation of "big data." The metaphorical rhetoric of such data aggregation is as quaint as it is disturbing; we will experience a "gold-rush" after which data is going to be "mined" so as to "extract value." As Frank notes healthcare stakeholders are joining the rush, frequently encouraged by government programs like Meaningful Use and hyperbolic statements about the public goods value of our health data (ironically best achieved when the data finds its way into private hands!). Meanwhile opinions like Sorrell, here, marginalize any public policy in favor of controlling the reach of big data. This week's Summit promises an opportunity to take stock of Big Data even as instrumentalism threatens to run riot. [NPT]