Wednesday, January 9, 2013
A very nice article in today's New York Times by Eduardo Porter lays out in clinical fashion the failures of for-profit health care in the US (and the failure of reliance on for-profit entities for other essential services, too). Although the data about high costs, populations without access, and poor quality even for those who have access are well known, Porter presents them starkly. One of the best-taken points in the article is Porter's comparison between the tax burden in countries where health care is viewed largely as a public responsibility and what we ought to see as the tax burden in the United States, if we just added health insurance premiums in as an additional tax: "In a way, private delivery of health care misleads Americans about the financial burdens they must bear to lead an adequate existence. If they were to consider the additional private spending on health care as a form of tax — an indispensable cost to live a healthy life — the nation’s tax bill would rise to about 31 percent from 25 percent of the nation’s G.D.P. — much closer to the 34 percent average across the O.E.C.D."
Tuesday, January 8, 2013
2013 promises to be a very active year for health-care-related cases at the SCOTUS. Today, the SCOTUS is hearing oral argument in Delia v. E.M.A., in which the state of North Carolina defends its statute creating a lien on any tort recovery equal to the lesser of (a) the total funds advanced by the state Medicaid program for the medical expenses of a Medicaid recipient or (b) one-third of the total recovery. The question to be decided is whether the North Carolina statute is preempted by the Medicaid Act’s anti-lien provision, 42 U.S.C. §§ 1396a(a)(25), 1396k(a)? Apparently, the Fourth Circuit and the Supreme Court of North Carolina disagree about this, with the Fourth Circuit holding the statute preempted, and the North Carolina Supreme Court holding it is not preempted. The case highlights many of the problems with insurer or government attempts to recover payments made for medical care out of tort recoveries, especially the ability of the tortfeasor and the plaintiff in such a case to characterize settlements so that the payments are not allocated as reimbursement for medical expenses already incurred. In this case, there is a particularly sympathetic plaintiff, a child who sustained birth injuries and received a multi-million-dollar settlement against the physicians who attended the birth. Interestingly, despite the push to cut costs in public spending programs, the United States is at odds with the state in this case, siding with the child. Sounds like North Carolina will be going it alone on this one. Should be an interesting oral argument.
Cross-posted on Healthy Interests
As the National Football League (NFL) finally has come to take seriously the problem of concussion, litigation by many former players will focus on the question whether the league acted unreasonably in not taking action sooner.
In reviewing the response of NFL to concussion, one can easily think that the league was too slow to worry about the medical consequences of head trauma. Despite concerns being raised for many years about the risk to player health, it took until December 2009 for the NFL to advise its teams that players should not return to play or practice on the same day that they suffer a concussion.
But the NFL was not alone in viewing concussion as a relatively mild problem. Physicians also did not worry very much about the medical consequences of concussions. For decades, neurologic experts disagreed as to whether concussions could cause permanent injury, with many attributing patient symptoms to psychological issues or to the incentives created by compensation programs for people with disabling conditions.
While the NFL may have responded slowly to problems from concussion, the extent to which its response was unreasonable is unclear. If many medical experts did not worry about concussions, it is difficult to fault the NFL for not worrying either. Still, one can question the NFL’s failure to adopt concussion guidelines in the late 1990’s when they were being issued by medical experts.
For more detail on these questions, see a forthcoming article that I've co-authored.
[DO; cross-posted at Faculty Lounge]