HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Saturday, August 18, 2012

Memphis Seeks Founding Director

The University of Memphis Cecil C. Humphreys School of Law, here, is seeking the founding Director for its new Center for Health Law.  The position announcement notes:

The Director’s responsibilities will include strategic planning, fundraising, curriculum development, maintenance and growth of relationships with relevant local, national, and international scholarly and professional associations, scholarship production, teaching, and mentoring.

The Law School seeks to expand its health-law curriculum and related health-law opportunities for the purpose of assuming the leading role in the MidSouth in training health-care lawyers, promoting scholarship and discussion concerning health-care law and policy, and providing pro bono health care-related legal services to low-income individuals.  This initiative is aligned with the University’s increasing emphasis on health-related education, demonstrated, inter alia, by the recent founding of the School of Public Health and a significant expansion of the School of Nursing.

Sounds like a great opportunity! Steven Mulroy, here, is chairing the search. 



August 18, 2012 | Permalink | Comments (0) | TrackBack (0)

Friday, August 17, 2012

How the Hidden Curriculum in Medical Training Increases the Cost of Health Care.

 A recent column by Pauline Chen in the New York Times exposing the culture of bullying that is still very much a part of medical education generated an outstanding number of comments from medical professionals affirming her facts (yes, indeed there is still a lot of bullying) as well as those insisting that it is only through instilling fear within a rigid hierarchy that patient’s lives can be saved.   Reading them leads me to consider how much harm this “hidden curriculum” actually does not just to doctors themselves and their individual patients, but to society as a whole as we struggle with the ever rising cost of health care.

Many of us in health law have written before about medical education and most articles include the phrase “hidden curriculum” to mean what medical students learn when they leave the classroom and go forth into their years of clinical training.   See Amy Campbell, “Teaching Law in Medical Schools: First, Reflect.Journal of Law, Medicine & Ethics. 2012; 40(2);   It has also been blamed by ethicists who point out that whatever work is done in the classroom teaching empathy and professionalism is untaught on the wards. (I’ve written about this too-here ). See  Christopher Johnson  Here’s an interesting article from Academic Medicine showing how medical students’ attitudes about accepting gifts from pharmaceutical companies changes when they move from classroom to clinic. , Here’s another one talking about unfounded bias against family medicine physicians.

Here’s another, perhaps less discussed, bad thing that comes from the hidden curriculum: defensive medicine!  Uwe Reinhardt, Princeton health economist (which is like saying that Alfred Einstein was Princeton Physicist),  is often quoted as saying that defensive medicine raises the cost of health care—and he does say that.  But with more nuance that a short quote allows.  Here’s a fuller explanation in an interview in which he reviews some factors related to the cost of health care, and refers to defensive medicine as a “psychological” factor.  And psychological it is—along the lines of fear of alien abduction.  Medical malpractice law suits are rare events for most physicians, and, as David Hyman, Charles Silver, Bernard Black and Myungho Paik point out, even rarer in states like Texas which has essentially eliminated them through Tort Reform.  See more of their work here, here, and hereTom Baker, author of the Medical Malpractice Myth, has written extensively about how beliefs about malpractice are mostly unfounded (and I have tried to convey this message too). 

I’m in the preliminary stages of designing a study to look for the roots of this fear within the hidden curriculum.  It’s my been my experience as someone who teaches in both a medical and law school, that much of the fear doctors have of lawyers comes from the hidden curriculum.  We are often used as “the monster under the bed” to scare young doctors.  Some of the bullying Dr. Chen refers to takes the form of threats of malpractice.   But what if instilling disproportionate fear of malpractice not only poisons patient/doctor relationships but also raises the cost of health care for everyone? 

So what can we do to change the hidden curriculum and the harm it causes?  The first step is to recognize it.  One of my favorite themes among comments Dr. Chen’s article elicited  is that since doctors “are the only” professionals who hold the lives of others in their hands, those entering into medical training must accept abuse or not be doctors.

Well, interestingly there are some other professions that hold peoples’ lives in their hands and one of them is the airline industry.  Moreover, this is an industry which has transformed its training and its operating procedures in order to get rid of exactly the kind of hierarchy that now exists in medicine and which has been found to be a direct contributing factor in airline fatalities.  The story is well told by Malcolm Gladwell in a New Yorker essay and summarized in this WSJ blog post.    If the military and the airline industry can change the way it trains pilots, we, faced with similar issues of safety and cost, should be able to change the way we change doctors. 


August 17, 2012 | Permalink | Comments (0) | TrackBack (0)

Worth Reading This Week

Thursday, August 16, 2012

What's at stake for Medicare?

A pointer and a question for Thursday:

1.  Mitt Romney's choice of Paul Ryan for his vice presidential candidate has garnered a lot of speculation as to his design for and potential influence on Medicare's future.  Kaiser Health News has posted a terrific rundown of the issues in video interview form; the clip lasts about 6 minutes, and it is time well spent.  Find it here: or on the KHN website with a transcript (free content, as always).

2.  Do you plan to have your students read all or a portion of NFIB v. Sebelius?  If an abridged reading, how are you selecting the sections of the decision they will read (e.g., the Roberts opinion and Ginsburg opinion but not the joint dissent, only the joint dissent, etc.)?  I am leaning toward having my students read the whole Roberts opinion and the whole Ginsburg opinion but making the joint dissent optional (primarily to reduce the reading but also because Roberts covered their constitutional and statutory points more or less, except for severability, though not quite as broadly).  Thoughts?


August 16, 2012 | Permalink | Comments (0) | TrackBack (0)

Medicaid Agonistes

Legal blogs have covered the Medicaid expansion in great detail. Now the law review scholarship is starting to emerge. Here’s one piece sure to make an impact: Nicole Huberfeld, Elizabeth Weeks Leonard, and Kevin Outterson on “Medicaid and Coercion in the Healthcare Cases.” From the abstract:

For the first time in its history, the Court held federal legislation based upon the spending power to be unconstitutionally coercive. Chief Justice Roberts’ plurality (joined for future voting purposes by the joint dissent) decided that the Medicaid expansion created by the ACA was a “new” program to which Congress could not attach the penalty of losing all Medicaid funding for refusing to participate. NFIB signals the Roberts Court’s interest in continuing the Federalism Revolution.

The Court relied on, seemingly modified, and strengthened at least two existing elements of the test for conditional spending articulated in South Dakota v. Dole. Clear notice and germaneness now appear to be folded into the newly fashioned yet undefined coercion doctrine, which relied on quantitative as well as qualitative analysis to determine that the Medicaid expansion was unconstitutionally coercive. The Court is now actively enforcing the Tenth Amendment to protect states from federal spending legislation. NFIB raises many questions regarding implementation of the Medicaid expansion as well as the ACA. The dockets will experience the reverberations of these open questions, as well as the Court’s invitation to explore the coercion doctrine.

For the near future, at least, the authors believe we are “plunged into Justice Cardozo’s ‘endless difficulties.’” For the long term, policymakers may want to take the advice of political science professor Andrea Louise Campbell:

[States are] ill suited to redistributive policy because they [have] an incentive to provide the lowest possible means-tested benefits in order to repel poor people and retain affluent taxpayers. The Great Recession also laid bare the devastating costs of the inability of nearly all states to run budget deficits and to engage in countercyclical spending during economic downturns. For many years, governors have urged the federal government to take on the portion of Medicaid that pays for nursing home stays for the disabled elderly.

Maybe now the time has come to federalize Medicaid altogether. Doing so would remove an enormous burden from state budgets and put an end to variations in state policy toward the poor that can have near-barbaric results. For example, in Texas, one of the states whose government plans to opt out, the working parents of Medicaid-eligible children can only get coverage for themselves if their income is below 26 percent of the federal poverty level. For a family of three, that’s $4,900 in annual income. Constitutionality is no barrier to federalization of Medicaid. The only question is whether it is politically feasible.

Huberfeld comes to a similar conclusion in another paper, arguing that “medicine generally and Medicaid specifically are already on the path to nationalization” and “Medicaid should be nationalized because federalism ideals are generally not served by the current structure.”


August 16, 2012 | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 15, 2012

Health Affairs and Safety Net Providers

Safety-net providers will be among the most significantly affected--for better or for worse--by what happens to Medicaid over the next several years.  Perhaps prescient about the Supreme Court's ACA decision, Health Affairs has devoted its August edition to challenges facing safety net providers. The issue begins with Timothy Jost's discussion of the Court's holding concerning Medicaid and the states and the editor's observation that we may be facing a two-state system:  states that do expand Medicaid and states that do not (or that even cut back). (Here's the issue:  Health Affairs Aug 2012)

The issue is particularly useful for the empirical work it presents about the current state of safety net providers and their patients.  Not surprisingly, nearly a third of providers are unwilling to accept new Medicaid patients at current reimbursement rates, percentages that were higher in smaller practices and in metropolitan areas. Perhaps more surprisingly, safety net hospitals directly governed by elected officials have done reasonably well financially--in part because of subsidies from state and local governments and disproportionate share payments, payments that may erode over the next several years.  These hospitals have faced challenges in implementing new technologies such as electronic health records and may find themselves struggling competitively over the next few years. Efforts to introduce integrated delivery systems, medical homes, and accountable care organizations have met with some success, but the evidence suggests that as funding incentives wane these gains have diminished.

I commend this rich issue to readers of this blog. The overall conclusion I draw is that if safety net providers are to continue to function for patients, we will need to pay attention not only to which states expand Medicaid or to Medicaid reimbursement rates, but also to support for the infrastructure of safety net providers themselves.


August 15, 2012 | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 14, 2012

The Intersection of Immigration Reform and Health Care Reform

On Thursday, August 9, Reuters published an article about one of the hidden effects of the Affordable Care Act on undocumented immigrants that both supporters and opponents of the ACA should think about. Undocumented immigrants are not permitted to purchase private insurance on the heatlh insurance exchanges set up by the ACA, nor are they eligible for Medicaid. Health-care providers that serve this community are concerned that as more low-income citizens and documented immigrants get insurance under the ACA, undocumented immigrants will fail to seek health care because of the fear that they will be easily identified as undocumented due to their uninsured status, and reported to the authorities. Not only will the undocumented immigrants fail to seek health care for themselves, but they may very well fail to seek health care for their U.S.-born children, for fear of being identified, deported, and separated from their children. Despite assurances from health care providers that they don't check immigration status when treating patients, and don't report immigration status to the authorities, many undocumented immigrants have been taught through long experience in their home countries (and here) not to trust any authority, even health care providers. All of this makes the case for a comprehensive review of our laws regarding immigration and the treatment of undocumented immigrants when they are in the country. Having the laws regarding health care and immigration work at cross-purposes is hardly efficient or helpful to any of us.

Comparing our Policy to North Korea and Iran

However, I have little hope that any serious reform efforts to remedy this situation will be forthcoming. I recently saw something circulating on Facebook comparing our immigration policy unfavorably to the actions of North Korea, Afghanistan, and Iran towards those who illegally cross their borders (where you would generally be shot, sentenced to hard labor, or imprisoned for a lengthy period for crossing the border), and insinuating that this is why we are "broke." The absurdity of comparing our policies to those of totalitarian regimes, where people are starving (North Korea) or lacking in freedoms that we consider fundamental to our rights as Americans (Iran), and insinuating that North Korea and Iran have it right, all in an effort to foment baseless hostility towards undocumented immigrants (who have been found to use all social services less than American citizens) as the root of our economic troubles, does not bode well for any reasoned debate about our policy towards immigrants and health care.

A Health Insurance Executive with a Heart

On a more positive note, one of the more surprising statements in the article came from a health insurance executive who spoke anonymously, who expressed frustration with Washington, and stated that "the health system works better when people have access to coverage." The fact that this insurance executive felt the need to speak this simple fact anonymously does not make the the insurance industry look good. Apparently, not everybody in the industry feels the same way, given the history of coverage rescissions, refusals to cover people with pre-existing conditions, and skimpy insurance coverage peddled to many self-employed people. This executive was probably wise to to remain anonymous, if the executive wants to remain employed in the industry.


Cross-posted on Healthy Interests

August 14, 2012 | Permalink | Comments (0) | TrackBack (0)

Monday, August 13, 2012

Teaching Health Care Reform

With the Supreme Court's mostly green light for implementation of the Affordable Care Act, it will continue to be an important topic in health care law courses. Two years ago, Shelly Kurtz and I organized a colloquium on ACA at the University of Iowa College of Law. We posted a good deal of the materials for the course here.


August 13, 2012 | Permalink | Comments (0) | TrackBack (0)