HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Saturday, August 10, 2013

Published This Week

Wednesday, August 7, 2013

Useful Article on Human Rights and Reproduction in Europe

In an article just posted on SSRN, "Reproductive health information and abortion services: Standards developed by the European Court of Human Rights," International Journal of Gynecology and Obstetrics 122 (2013) 173–176, Johanna Westeson provides a useful account of three recent decisions by the European Court of Human Rights.  In light of the decisions, she also highlights the importance of the development of professional standards to the evolution of human rights norms.

In the first case, R.R. v. Poland, No. 27617/04, Eur. Ct. H.R.; 2011, the patient had been denied access to diagnosis of a genetic condition of her fetus until after the time at which abortion was legal in Poland.  The ECHR held that this was a violation of her right to information in the context of reproductive health care.  Westeson points out the importance in this decision of the existence of medical standards regarding rights of access to information about maternal and fetal health. In the second case, P & S v. Poland, App. No. 57375/08, Eur. Ct. H.R.; 2012, the patient was a 14-year-old rape victim, for whom abortion in Poland was legally permissible.  However, she was subjected to a variety of forms of humiliating treatment, including release of her confidential information to the press and removal from the custody of her supportive mother . The ECHR determined that her treatment had violated the right not to suffer inhuman and degrading treatment and the right to respect for private life of both the patient and her mother.  Here, Westeson emphasizes the importance placed by the ECHR on ethical standards for when and how conscientious objection by providers is permissible.  Westeson also notes the ECHR's decison not to address the claim that the failure to provide emergency contraception violated the adolescent's human rights, and suggests that if Poland had had clearer ethical standards about such contraception, the ECHR might have been willing to take up the question.

The final decision discussed by Westeson is A. B. & C. v. Ireland, App. No. 25579/05, Eur. Ct. H.R.; 2010, a case involving three Irish women who received abortions in the UK.  Abortion is illegal in Ireland except when the mother's life is at stake.  In the case of one of the women, a patient with a form of cancer that could not be safely treated during pregnancy, the ECHR concluded that her inability to determine whether her life was at stake, and thus the legality of an abortion in her case, violated her right to private life.  For the other women, not suffering from life-threatening conditions, the ECHR concluded that Ireland was justified prohibiting abortion given the deep moral views of the Irish people.  Westeson is critical of the court's refusal to conclude that there is a human right to abortion, failure to recognize that travelling abroad is not an option for many women and is degrading for others, and inability to recognize that life and health may be difficult to distinguish in the abortion context.  Had the WHO Safe Abortion Guidelines been available in 2010, Westeson hypothesizes, the ECHR might have had medical judgments to rely upon in reaching a conclusion that threats to the women's life and health cannot be easily distinguished.

Westeson's discussion is worth reading both as a useful summary of the cases and as suggestive of how evolving standards of medical ethics and practice can be useful to courts in dealing with complex human rights issues. 


August 7, 2013 in Europe, Health Law | Permalink | Comments (0) | TrackBack (0)

Concerns About Network Adequacy for Health Insurance Plans in Exchanges

My home state of Washington is about as far along in the process of creating a functional health insurance exchange as any state in the country.  So when the Washington State Office of Insurance Commissioner announced that only four companies were approved to offer plans in the exchange, out of nine applicants, I was curious as to why the other five had been turned down. 

 According to the Insurance Commissioner, the companies whose plans were not approved "struggled to guarantee access" to hospitals and providers.  Many of the companies that were not approved were traditionally purveyors of Medicaid managed care plans, such as Molina, or otherwise have a history of insuring low-income people, such as Community Health Plan of Washington.  The failure of these plans to be able to ensure that they would have sufficient providers who are willing to contract with them to care for the newly insured says two important things about the state of our heatlh care for low-income people--comparatively few doctors are willing to treat these people now, and doctors have a high level of distrust of the insurers who have traditionally cared for them.  One of the biggest challenges for the ACA will be to change the attitudes of both consumers and providers towards providing care to those of low or moderate income.

The Insurance Commissioner's announcement highlighted another interesting fact that confirms that at least one of the problems with the ACA that are anticipated are likely to come to fruition.  Although a total of 31 plans were approved, in many of the rural counties of Washington, residents will have a choice of only one insurer. The problem of coverage in rural areas will be a real one.  At least the customer service reps for the three insurers who did not want to provide insurance in the rural counties won't have to learn names like "Okanogan," "Wahkiakum," and "Pend Oreille."

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

Monday, August 5, 2013

Is Big Data Overhyped?

For some in Silicon Valley, the rise of new data and communication networks creates unprecedented opportunities to solve problems like obesity, traffic, and flu pandemics. For example, an app like FitBit or LoseIt can keep track of calories and buzz a dieter once he goes over his daily limit. Futuristic early warning systems can warn drivers away from bottlenecks, and detect emerging influenza outbreaks.

Evgeny Morozov’s illuminating book To Save Everything, Click Here challenges both “internet centrism” and “solutionism.” The internet may, for instance, make traffic worse. Moreover, solutionism tends to “reach for the answer before the questions have been fully asked.” Is the problem really traffic, or something deeper in the way cities and opportunities are arranged? Solutionism tends to prioritize issues that widely accessible tech can address: small, algorithmically decomposable bits of wicked problems.

While a solutionist might think of gamified calorie counting as a wonderful new way to fight obesity, a more sober analysis of the problem will lead us to doubt the smartphone will make us svelte. Similarly, calorie counts may be a great disclosure tactic, but disclosure is only the first step on the road to changing behavior. And our food problem, like our traffic problem, may entail reconsideration of privilege, taste, and inequality as far deeper problems than individual struggles for self-control.

Big data has been linchpin of solutionist narratives about the future of tech in health care. However, there are still major challenges in data quality. Even if the data were perfect, causal inference still may be a challenge, as Hoffman & Podgurski explain:

EHR [electronic health record] vendors are making slow progress towards achieving interoperability, the ability of two or more systems to exchange information and to operate in a coordinated fashion. In 2010 only 19% of hospitals exchanged patient data with providers outside their own system. Vendors may have little incentive to produce interoperable systems because interoperability might make it harder to market products as distinctive and easier for clinicians to switch to different EHR products if they are dissatisfied with the ones they purchased. . . .

Even if the EHR data themselves are flawless, analysts seeking to answer causal questions, such as whether particular public health interventions have had a positive impact, will face significant challenges relating to causal inference. These include selection bias, confounding bias, and measurement bias.

Paul Ohm adds to the data skepticism in a recent essay:

[A]s medical research follows the lead of Google Flu Trends and begins to slip outside these traditional institutions and their concomitant safeguards, we should be concerned about the relative lack of controls. Particularly as more medical research is conducted by profit-driven companies—–whether large corporations or small startups—–we should worry about forcing the public to accept new risks to privacy with little countervailing benefit and none of the controls. The worst of all worlds would occur if medical researchers at non-profit institutions began to clamor for relaxed human subjects review in a race to the bottom to compete with their forprofit counterparts.

Ohm’s point about maintaining a baseline of standards is prescient: I have heard at least one behavioral scientist argue that research will migrate out of universities and into private companies if the universities don’t relax IRB standards. Ohm also questions whether something as celebrated as Google Flu Trends has led to actionable data:

Who has created an app, therapy, or epidemiological study based on the colors on [Google's flu maps]? Has a traveler ever avoided boarding a plane to a city on a distant coast because of the relative difference in the shading of the oranges between home and destination? The answer, I suspect, is that none of these positive results has occurred. Instead, the project’s primary mission is to market Google: we are reminded by a colorful map that Google is not evil.

As I’m sure the Washington Post will be soon be reminding us of cloud services generally.


X-Posted at Concurring Opinions

August 5, 2013 in Disparities, Effectiveness | Permalink | Comments (0) | TrackBack (0)

Call for Proposals: The Role of Nonprofits Under the Affordable Care Act

AALS Section on Nonprofit
Philanthropy Law

AALS Section on Law,
Medicine and Health Care

Call for

2014 Annual Meeting
Section Panel

Friday, January 3, 2014,
10:30 a.m.–1:15 p.m. 

The Role of Nonprofits Under the Affordable Care Act 

The Sectionon Nonprofit and Philanthropy Law is issuing a call for proposals for its session on the role of nonprofit organizations under the Affordable Care Act of 2010 ("ACA").  The panel, co-sponsored by the AALS Section on Law, Medicine and Health Care, will be held on Friday, January 3, 2014, from 10:30 a.m. to 1:15 p.m., at the AALS 2014 Annual Meeting in New York, New York. Presentations might address the ACA's impact on nonprofit and other tax-exempt organizations; the ACA’s new  requirements for 501(c)(3) tax-exempt hospitals; the participation of tax-exempt hospitals in Accountable Care Organizations (ACOs); and nonprofit Consumer Operated and Oriented Plans (CO-OPs).

Panelists will be a mix of presenters chosen through this call for proposals and solicited panelists with relevant expertise.  Presenters will have the opportunity to publish their papers in the Indiana Health Law Review. To submit your proposal, please email a short abstract (one or two paragraphs) of your proposed paper to Rob Katz, Chair of the Section on Nonprofit and Philanthropy Law, at, and Elizabeth Weeks Leonard,, Chair of the Section on Law, Medicine and Health Care, at The deadline for abstracts is August 31, 2013.  If you have any questions, please send them to Rob Katz and Elizabeth Weeks Leonard.  


August 5, 2013 | Permalink | Comments (0) | TrackBack (0)