HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Saturday, July 13, 2013

Announcement: Health Law Clinic Faculty Position at University of Pittsburgh School of Law

The University of Pittsburgh School of Law invites applications for a full-time faculty position at the rank of Assistant Clinical Professor or Associate Clinical Professor to teach in and direct the School’s Health Law Clinic. This position is not in the tenure stream, but is part of a system of contracts progressing to renewable long-term contracts. The position will begin on July 1, 2014.

The Clinic’s primary mission is to provide an excellent experiential learning opportunity for our students, while also providing legal services to low-income individuals involved in health-related litigation (e.g., denial of benefits, guardianship proceedings). Duties will include classroom teaching; supervision of second- and third-year law students as they represent clients and participate in community projects; and community outreach and administrative responsibilities relating to the Health Law Clinic. 

Qualifications include admission to practice in Pennsylvania or willingness to seek admission to the Pennsylvania bar; experience in the field of health law (with a preference for experience representing individuals in benefits and guardianship proceedings); and the ability to work effectively with students, clients, and other constituents. The School has a strong preference for candidates with experience in clinical pedagogy or other law school teaching experience.

To apply:  Please submit a letter of interest, resume, and a list of references to Professor Mary Crossley, Chair, Clinical Appointments Committee, University of Pittsburgh School of Law at The University of Pittsburgh is an Affirmative Action/Equal Opportunity Employer and values equality of opportunity, human dignity and diversity. The deadline for applications is­­­­­­­­­­ September 3, 2013.


July 13, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 10, 2013

Summer Reading--"The Tough-Luck Constitution"

Hello all – I am back from my teaching adventures in Italy, followed by a bit of a vacation, and am ready to resume regular blogging.  I hope everybody is having a great summer, it is good to be back in the saddle again in Spokane.

Just finished reading Prof. Andrew Koppelman’s new book “The Tough Luck Constitution and the Assault on Health Care Reform.”  Professor Koppelman nicely lays out the libertarian roots of the argument against the constitutionality of the Affordable Care Act’s individual mandate, explains how the Supreme Court’s conservatives came to embrace the argument, and puts forth his belief that this view of limited government power has nothing to do with the Constitution, but everything to do with contemporary politics.  I particularly like his christening of the libertarian position on these issues as “tough luck” philosophy; if you fall on hard times, too bad for you, and the federal government is powerless to help you.  He also aptly points out that virtually nobody actually follows this philosophy in their own life or in politics, but it fits well with the mythology of the rugged American individual, pulling himself up by his own bootstraps.

The book is written for non-experts, although having some legal background would be helpful in understanding the broader themes (he notes that other efforts by the Supreme Court to limit congressional power have been ill-advised and short-lived; such as its striking down of anti-lynching laws and child-labor laws in the pre-New-Deal era).  It is short, and although I know it is not exactly summer beach reading, it is well worth your time if you have any desire to understand the constitutional arguments about the Affordable Care Act.


July 10, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, July 8, 2013

Our Not-So-Exceptional System of Employer-Sponsored Health Insurance

In yesterday's New York Times, Ross Douthat joined the chorus that criticizes employer-sponsored health care insurance. According to Douthat, this "unsustainable relic" is a "burden on businesses, a source of perverse incentives for the health care market and an obstacle to more efficient, affordable and universal coverage."

In fact, the United States is not unusual in the extent to which it relies on companies to fund health care coverage. Indeed, employers in France, Germany and Japan shoulder a higher percentage of their countries' national health spending than do U.S. employers. Government-run systems must find sources of funding for their programs, and employers are an obvious place to look.

To be sure, there are problems with employer-sponsored coverage, but the Affordable Care Act (ACA) takes care of a very important one. Employer-sponsored coverage has promoted "job lock" in the United States. Many would-be entrepreneurs have been reluctant to start their own companies because they would lose their employer-sponsored coverage and have to pay for insurance out of their own pocket. For people with pre-existing medical conditions, insurance might not be available. Under ACA, the new entrepreneur will be able to find an affordable health care plan on an insurance exchange.

The abandonment of employer-sponsored coverage would reduce the burden on businesses only if health care costs overall were lower under the replacement system. Many health care policy experts observe that costs are lower in government-run systems overseas because the governments can exercise greater negotiating leverage with doctors and hospitals than can insurance companies in the United States. In short, the high cost of U.S. health care and its burden on business seems to be not so much a problem of relying on employers rather than individuals to purchase coverage but a problem of relying on private insurers rather than government to operate the system.



July 8, 2013 in Affordable Care Act, Employer-Sponsored Insurance, Health Care, Health Care Costs, Health Care Reform, Reform | Permalink | Comments (0) | TrackBack (0)

Sunday, July 7, 2013

Nursing Home Asks Supreme Court to Review State's Enforcement of Arbitration of Wrongful Death Claims

In early 2013, a nursing home operator filed a writ of certiorari asking the U.S. Supreme Court to determine whether state courts can refuse to enforce an arbitration agreement signed by the now deceased resident in a wrongful death action brought by the resident's survivors under the Federal Arbitration Act (FAA).[1]  In its petition, SSC Odin Operating Co. asserted that there is a conflict among the highest state courts over whether wrongful death plaintiffs are bound by arbitration agreements signed by their decedents.

In the case involving Odin Operating Company, the Illinois Supreme Court refused to enforce an arbitration agreement between a nursing home and a deceased resident that allegedly required arbitration of wrongful death claims asserted by the resident's heirs, personal representative and estate administrator.[2]  The Illinois Court explained that the wrongful death claim was not an "asset" of the estate that could have been encumbered by the decedent, the derivative nature of the claim did not require arbitration and basic contract principles barred the enforcement of the arbitration agreement against the administrator.   

The Kentucky Supreme Court [3] also held that wrongful death plaintiffs cannot be compelled to arbitrate claims. According to the Kentucky Court, under Kentucky law, wrongful death claims are not derivative, but accrue separately to the beneficiaries and are meant to compensate them for their loss. Courts in four other states, Missouri, Utah, Ohio, and Washington, have ruled similarly.[4]

In contrast, the Texas Supreme Court held that the FAA preempts a state rule of law treating arbitration agreements signed by decedents differently than other types of contracts signed by decedents.[5]  The Court held that contracts signed by decedents generally are enforceable against their estates. To hold otherwise would create an anomaly as the estate would be bound by a contract in which the decedent completely disposed of the claim, but would then not be bound by an agreement that changed the forum in which the claim would be resolved.

The Florida Supreme Court recently used similar reasoning to declare an arbitration agreement  enforceable against wrongful death plaintiffs.[6]  The Court found that a survivors' right to recover damages under the state's wrongful death act is predicated on the decedent's right to recover in a personal injury action. As a result, survivors cannot recover in actions where the decedent previously won damages or settled an action based on the same injuries that caused his or her death, or signed a document releasing the tortfeasor from liability.


[1] SSC Odin Operating Co. v. Carter, U.S., No. 12-1015, petition for review filed 2/15/13.

[2] Carter v. SSC Odin Operating Co., Ill., No. 113204, 9/20/12.

[3] Ping v. Beverly Enterprises Inc., 376 S.W.3d 581 (Ky. 2012).

[4] Mary Anne Pazanowski, Nursing Home Asks Supreme Court to Review States' Treatment of Wrongful Death Claims, 22 HLR 341(2013), available at

[5] In re Labatt Food Service LP, 279 S.W.3d 640 (Tex.2009).

[6] Laizure v. Avante at Leesburg Inc., Fla., No. SC10-2132, 2/14/13.

July 7, 2013 | Permalink | Comments (0) | TrackBack (0)