Monday, November 10, 2014
HealthLawProf Blog is very pleased to welcome our third guest blogger for the month of November, Associate Dean and Professor of Law Joan H. Krause. The following is her short bio:
Professor Krause received her B.A. with Honors in Political Science from Yale University, where she graduated summa cum laude and was elected to Phi Beta Kappa. She received her J.D. with Distinction from Stanford Law School, where she was elected to the Order of the Coif and served as Senior Articles Editor for the Stanford Law & Policy Review. Before attending law school, Professor Krause worked as a medical writer/editor. After law school, Professor Krause clerked for the Honorable Dorothy W. Nelson of the United States Court of Appeals for the Ninth Circuit. As an Associate in the Health Practice Group of Hogan & Hartson L.L.P. in Washington, D.C., Professor Krause’s work focused on regulatory and administrative health care matters, with an emphasis on health care fraud and abuse. After serving as an Assistant Professor at Loyola University Chicago School of Law from 1997-2001, Professor Krause became an Associate Professor at the University of Houston Law Center in 2001 and was appointed George Butler Research Professor of Law in 2005. She served as Associate Director and then Co-Director of the University of Houston Health Law & Policy Institute from 2003-2009. Professor Krause joined the faculty of UNC School of Law in 2009 and was named Dan K. Moore Distinguished Professor of Law in 2011 and Associate Dean for Faculty Development in 2012. Professor Krause teaches the Health Law survey courses, Criminal Law, Fraud & Abuse, and Women & Health Law. Her research interests include health law, criminal law, and women and the law.
Guest Blogger Assistant Professor Marc D. Ginsberg: Enforceability of Voluntary Binding Arbitration of Medical Negligence Claims
Is a physician entitled to condition medical treatment upon the patient’s “agreement” to submit future medical negligence claims to arbitration and waive the right to a jury trial? Is such an “agreement” ethical and enforceable? These are issues of concern in Florida, which has a statute, F.S.A. § 766.207, providing for voluntary binding arbitration of medical negligence claims. However, the recent appellate opinion in Santiago v. Baker, 135 So. 3d 569 (Fla. App. 2d Dist. 2014) supports non-statutory arbitration, which the patient had not requested.
In Santiago, the parents of a child suffering from severe birth injuries sued a physician and clinic for medical negligence arising from prenatal care. An arbitration agreement was signed by the child’s mother (but not by the father) before conception occurred. The clinic successfully requested arbitration pursuant to the agreement. The parents did not request arbitration and never requested the application of the Florida arbitration statute. The parents appealed the order compelling arbitration.
Saturday, November 8, 2014
As a law and bioethics scholar who often works with a political scientist (my husband John Francis, to be exact), I've regretted the limited extent to which these fields interact. The American Political Science Association (APSA) has a section that might be of significant interest to blog readers--the section on health politics and policy. They've issued a call for papers for the next APSA meeting (the weekend just before Labor Day, in San Francisco). Here's their call:
Division 48: Health Politics and Policy
Division Chair: Frank J. Thompson, Rutgers University-Newark
The conference theme, "Diversities Reconsidered...," comes naturally to the section, which has long served scholars with a spectrum of conceptual, theoretical, empirical, and normative perspectives, who have employed diverse methodologies to advance knowledge. The section invites proposals for papers, panels, and roundtables focused on health politics and policy, broadly defined. We welcome submissions not only on the politics of health care (e.g. the challenges of implementing Obamacare) but on preventive policies (e.g., initiatives to fight obesity or foster cleaner air). To maximize opportunities for health papers being accepted, we recommend two steps. First, be sure to submit your proposal to a second APSA section as well as this one. This will facilitate co-sponsored panels. Second, we encourage panel submissions that directly address the diversity theme of the conference (e.g., rigorous research concerned with health disparities that engage diverse populations and worldviews). This may open up opportunities for augmenting our section allotment of panels with convention theme sessions. In addition, we welcome submissions from those who wish to serve as chair or discussant.
The APSA is quite competitive; submissions are due by Dec. 15th.
Friday, November 7, 2014
I. Glenn Cohen, Front Matter, Preface, and An Introduction to: Patients with Passports Medical Tourism Law and Ethics, Patients with Passports: Medical Tourism, Law and Ethics (Oxford Univ. Press 2015).
Guest Blogger Professor Jean Macchiaroli Eggen - Low-Level Exposures to Chemicals in Drinking Water: Are They Actionable?
A recently filed complaint in California Superior Court will likely bring renewed attention to the growing debate about low levels of chemicals in drinking water and whether and to what extent low-level exposures may be deemed injuries in tort law. In City of Hughson v. Dow Chemical Company (Case No. 14-542221) (filed Oct. 16, 2014), the City alleged that the public water supply was contaminated with 1,2,3-trichloropropane (“TCP”), a chemical byproduct of the manufacture of certain commercial products for use in agriculture and other industries. The complaint alleged that the groundwater used to supply its drinking water was contaminated with TCP generated by various companies named as defendants. EPA has not regulated TCP, though it is on the Contaminant Candidate List. The state of California has issued an advisory notification level for TCP and established a Public Health Goal for the chemical, and the State Water Resources Control Board is in the process of developing a maximum contaminant level (“MCL”) for TCP. The City’s tort action seeks, among other relief, the costs of designing, constructing, and operating treatment facilities and equipment to remove the TCP and to ensure compliance with state and federal drinking water standards. The complaint alleges that levels of TCP in the drinking water have sometimes risen above the state Public Health Goal. It does not allege that any citizens have become ill from exposure to TCP. The case raises some thorny issues:
Wednesday, November 5, 2014
Guest Blogger Research Fellow and Lecturer in Law Tara A. Ragone: Continued Debates regarding Antitrust Concerns and Professional Licensing Boards
Earlier this year, I blogged about developments concerning antitrust liability and professional licensing boards. In particular, I noted that the North Carolina Board of Dental Examiners had asked the United States Supreme Court to review the Fourth Circuit’s decision upholding the Federal Trade Commission’s ruling that the Board was not entitled to state action immunity because it was not actively supervised by the state. I also highlighted a then-forthcoming article in the University of Pennsylvania Law Review by Professors Aaron Edlin and Rebecca Haw that explored whether the actions of state professional licensing boards should be subject to antitrust scrutiny.
Tuesday, November 4, 2014
I hope it is ok to post an announcement about a very exciting symposium at the University of Utah S.J. Quinney College of Law, where I teach. On Friday, Nov. 7th, we are hosting our annual Law Review Symposium, Legal Borders and Mental Disorders: The Challenge of Defining Mental Illness. The all-day event, organized by Professor Teneille Brown, brings together nationally recognized experts in law and mental health to explore the difficulty of defining mental disorders, and the impact that this has on the law. What counts as a mental disorder? Is it when your behavior is statistically unusual, when it impairs your functioning, or when others think it is antisocial? For clinical treatment and research, having reliable and discrete labels can help. But what about for the law? Should the law rely on the same diagnoses as psychiatrists do? Doesn’t the law value very different things? How should the law respond to changes in clinical diagnostic structures, such as the 2013 revision of the Diagnostic and Statistical Manual (or, “DSM”) developed by the American Psychiatric Association for clinical use--the first substantial revision to the manual in over 30 years.
You can watch the program live here, beginning at 8:30 am MT.
The conference program (all times are MT) is as follows:
9:15 a.m. – Introduction to the Diagnostic and Statistical Manual (DSM): How Psychiatrists Use It
Jan Terpstra, MD
9:45 a.m. – Panel: When Changes to the DSM Affect Health and Education Benefits
Rebecca Johnson, Medical Sociology PhD Candidate, Princeton University
Stacey Tovino, Lincy Professor of Law, Lehman Professor of Law, William S. Boyd School of Law, UNLV
11:00 a.m. – Panel: The Role of Psychiatric Diagnosis in Civil Commitment and Sentencing
Sara Gordon, Associate Professor of Law, William S. Boyd School of Law, UNLV
Michael Perlin, Professor of Law, New York Law School
Nancy Haydt, JD
Conference Kaynote: Professor Elyn Saks, Orrin B. Evans Professor of Law, Psychology, and Psychiatry and the Behavioral Sciences, University of Southern California Gould School of Law, will deliver a lunchtime address beginning at 12:45 p.m.
1:45 p.m. – Panel: The Future of the DSM: the ethical and legal implications for revolutionizing the “psychiatric bible”
Jennifer Bard, Alvin R. Allison Professor of Law and Director, Health Law Program, Texas Tech University School of Law
Teneille Brown, Professor of Law, S.J. Quinney College of Law, University of Utah
For further information, check out the law school's website here.
Advancements in nanotechnology have led to a proliferation of nanomaterials for both industrial and consumer use, raising concerns about the potential health effects of exposure to nanoparticles on both workers and the general public. Nanotechnology is generally defined as “the understanding and control of matter at dimensions between approximately 1 and 100 nanometers, where unique phenomena enable novel applications.” National Science and Technology Council et al., National Nanotechnology Initiative Strategic Plan 1 (Feb. 2014). On the one hand, these characteristics have led to research into previously unattainable applications, such as pesticides, electronics, and certain drug delivery systems within the human body. On the other hand, such developments have generated questions about health risks when nanoparticles are absorbed into the human body or interact with ecosystems in the environment. Scientists have noted that particles at the nano-scale behave differently than non-nano-scale particles of the same substances. Although the United States Government has been studying the risks of nanomaterials, there is disagreement over the need for discrete regulation of nanomaterials. To date, this is an ongoing debate. In advance of any comprehensive or consistent regulation, workers compensation claims and product liability litigation are likely to emerge.
HealthLawProf Blog is very pleased to welcome our second guest blogger for the month of November, Professor Jean Macchiaroli Eggen. The following is her short bio:
Jean Macchiaroli Eggen is Distinguished Professor of Law at Widener’s Delaware campus. Professor Eggen specializes in toxic torts, torts, and civil procedure. After joining the law faculty of Widener in 1986, she became one of the first legal academics to develop the new discipline of toxic torts and introduce it into the legal curriculum of a law school.
Distinguished Professor Eggen received an A.B. from Connecticut College and an M.A. from Michigan State University, and was a Ph.D. Candidate (ABD) at the University of Michigan. She received a J.D., magna cum laude, from Syracuse University College of Law, where she served as Editor-in-Chief of the Syracuse Law Review, held the prestigious Syracuse University Graduate Fellowship, and received awards for published writing. Following law school, Professor Eggen worked as a tort and environmental litigation attorney at the law firm of Bond, Schoeneck & King in Syracuse, New York. She is admitted to practice in New York.
Monday, November 3, 2014
Guest Blogger Assistant Professor Marc D. Ginsberg: The Locality Rule And A National Standard Of Care
Familiarity with the “standard of care” applicable to physician-defendants in medical negligence litigation undoubtedly arose in our law school study of tort law. When the care and treatment provided by a physician complies with the “standard of care,” the medical services rendered are consistent with the care required of a reasonably well qualified physician in the same or similar circumstances. Modern medicine, with the assistance of technology, improved facilities and (hopefully) universal access to medical knowledge, no longer resembles medicine in the 1800’s. It was in the 1800’s that the “locality rule” originated. The case of Small v. Howard, 128 Mass. 131 (1880), overruled by Brune v. Belinkoff, 235 N.E.2d 793 (Mass. 1968), is thought to be the origin of the rule. The locality rule placed a geographical aspect on the medical standard of care, requiring a physician to comply with the standard of care applicable in a particular locality or community. The rule “protected” the rural physician, who would not have had access to the resources and knowledge of the urban physician.
Saturday, November 1, 2014
HealthLawProf Blog is very pleased to welcome the first of our bloggers for the month of November, Assistant Professor Marc D. Ginsberg. The following is his short bio:
Marc D. Ginsberg, B.A., M.A., J.D., LL.M (Health Law), is an Assistant Professor at The John Marshall Law School (Chicago). He teaches Evidence, Civil Procedure II and Medical Negligence. He joined the JMLS faculty after many years of representing physicians while practicing law in Chicago at Rooks Pitts and its successor firm. His scholarship focuses on medical-legal jurisprudence.
Friday, October 31, 2014
The Journal of Law and the Biosciences (JLB) is the first fully Open Access peer-reviewed legal journal focused on the advances at the intersection of law and the biosciences. A co-venture between Duke University, Harvard University Law School, and Stanford University, and published by Oxford University Press, this open access, online, and interdisciplinary academic journal publishes cutting-edge scholarship in this important new field. The Journal contains original and response articles, essays, and commentaries on a wide range of topics, including bioethics, neuroethics, genetics, reproductive technologies, stem cells, enhancement, patent law, and food and drug regulation. Read the full current issue free online.
Register to receive email alerts each time an issue or article publishes online.
David A. Hyman, Shirley Svorny, If Professions are Just 'Cartels by Another Name,' What Should We Do About it?, 163 U. of Pa. L. Rev. 101 (2014).
Brian K. Chen, Chun‐Yuh Yang, Increased Perception of Malpractice Liability and the Practice of Defensive Medicine, 11 J. of Empirical Legal Stud. 446 (2014).
Ebola-infected Thomas Eric Duncan was misdiagnosed in an emergency room and sent home in Texas, a state where patient safety deteriorated significantly when hospital emergency rooms were immunized for negligence. Beloved comedian Joan Rivers died during an office-based procedure in New York, where an extraordinary 12 percent of adverse events during such procedures result in death.
Tuesday, October 28, 2014
Steven P. Grossman, Using the DNA Testing of Arrestees to Reevaluate Fourth Amendment Doctrine, 49 Valparaiso U. L. Rev. (Forthcoming).
I. Glenn Cohen, Robert D. Truog, Mark Rockoff, Physicians, Medical Ethics, and Execution by Lethal Injection, 311 JAMA 2375 (2014).
Jessica A Cohen, Anna C. Mastroianni, Ruth Macklin, Ethical Issues for Late-Stage Trials of Multipurpose Prevention Technologies for HIV and Pregnancy, 127 Int'l J. of Gynecology & Obstetrics 221 (2014).
I. Glenn Cohen, Organs Without Borders? Allocating Transplant Organs, Foreigners, and the Importance of the Nation State (?), 77 L. & Contemp. Probs. 101 (2014).
Guest Blogger Research Fellow and Lecturer in Law Tara A. Ragone- State Quarantines: Balancing Public Health with Liberty Interests
Nurse Kaci Hickox is a powerful reminder that states must carefully balance patient’s liberty interests when crafting appropriate, reasonable responses to potential threats to public safety.
Beginning with New York and New Jersey last Friday and now continuing with Illinois, Florida, Maine, and Virginia, states are issuing quarantine orders that exceed the CDC’s federal response. New York and New Jersey initially announced that individuals who had direct contact with a person infected with Ebola while in Liberia, Guinea, or Sierra Leone would be subject to a mandatory 21-day quarantine even if they showed no signs of infection.
Under this policy, New Jersey quarantined Maine nurse Kaci Hickox in a tent at University Hospital in Newark after she returned from caring for Ebola patients in Sierra Leone, even though reportedly she did not initially display any symptoms and subsequently tested negative for the disease. The American Civil Liberties Union demanded that Governor Chris Christie disclose how the state had determined that mandatory quarantine of healthcare workers was medically necessary and expressed its “serious constitutional concerns” regarding the policy. New Jersey quickly changed course, announcing that Ms. Hickox would be permitted to return home, subject to Maine’s home quarantine requirement.
Monday, October 27, 2014
In this article, published today at the Illinois Law Review online, Jessica Roberts and I argue why the Medicaid expansion is a matter of social justice that must be taken seriously in the upcoming gubernatorial elections. Here's the blurb from the journal:
On the doorstep of its fiftieth anniversary, Medicaid at last could achieve the ambitious goals President Lyndon B. Johnson enunciated for the Great Society upon signing Medicare and Medicaid into law in 1965. Although the spotlight shone on Medicare at the time, Medicaid was the “sleeper program” that caught America’s neediest in its safety net—but only some of them. Medicaid’s exclusion of childless adults and other “undeserving poor” loaned an air of “otherness” to enrollees, contributing to its stigma and seeming political fragility. Now, Medicaid touches every American life. One in five Americans benefits from Medicaid’s healthcare coverage, and that number soon will increase to one in four due to the Patient Protection and Affordable Care Act. Medicaid’s universalization reveals that the program can now be best understood as a vehicle for civil rights. ...
Feel like you just need to get a manuscript out by the end of the academic year? Worried that your paper didn't get a fair look during the August submission window? I may have the solution for you! Consider this call for papers:
The Kentucky Law Journal will be opening an exclusive submission window for articles until November 14, 2014 at 5:00 PM EDT. All papers submitted during this window will be reviewed for publication in Volume 103, Issue 4, set for publication in Spring 2015. By submitting your article during this window, you agree to accept a publication offer, should one be extended. This window is available for articles on all topics, including articles previously submitted to the Kentucky Law Journal, though resubmission will be required. Submissions should be between 15,000 and 25,000 words with citations meeting the requirements of The Bluebook.
Submissions should be sent via email to firstname.lastname@example.org. Please include your article, a copy of your C.V. and a short abstract or cover letter.
Undoubtedly, the death toll in West Africa would be much lower if Guinea, Liberia, and Sierra Leone had better health care systems or if an Ebola vaccine had been developed already. But as Fran Quigley has observed, Ebola is much more a problem of poverty than of health. Ebola has caused so much devastation because it emerged in countries ravaged by civil wars that disrupted economies and ecosystems.
Ultimately, this Ebola epidemic will be contained, and a vaccination will be developed to limit future outbreaks. But there are other lethal viruses in Africa, and more will emerge in the coming years. If we want to protect ourselves against the threat of deadly disease, we need to ensure that the international community builds functioning economies in the countries that lack them.
Our humanitarian impulses in the past have not been strong enough to provide for the needs of the impoverished across the globe. Perhaps now that our self-interest is at stake, we will do more to meet the challenge.
A few days ago the appointment of Ron Klain as the White House’s Ebola czar and Karen DeSalvo as acting assistant secretary at HHS promised an end to the fragmented response to Ebola from our health agencies. The CDC also stepped up its game with new guidances while Homeland Security’s screening at the five major gateways seemed more proportionate than politicized fear mongering proposals to close our borders or institute wrong-headed travel bans. For a while there was the promise of a measured, national response.
Of course, the unthinkable happened. An MSF doctor, one of the few heroes of this tragedy, rode on a subway in New York and went bowling! Dr. Craig Spencer, who had been responsibly monitoring his condition since his return from West Africa immediately notified health authorities and is now being treated at Bellevue Hospital.
At which point everything fell apart. New Jersey Governor Christie issued Executive Order 164 and his colleagues in New York and Illinois followed with similar but not identical emergency orders. Thereafter, apparently symptom-free MSF nurse Kaci Hickox made the mistake of landing at Newark and soon found herself in isolation. Given the text of Executive Order 164, Ms. Hickox seems to be in a bad place legally. Habeas corpus aside persons in her position must hope that there is rapid deployment and reliance on the new one-hour PCR Ebola tests that have received emergency authorization from the FDA.
The immediate question is whether disproportionate state responses will stop here or spread to other locations with designated gateways for West African passengers? Worse, will governors of states without such international communication hubs issue similar emergency orders, not because their states are under threat but to show they are "tough on Ebola”? Unfortunately, Florida with its new "twice-daily health evaluations" order may be the canary in that particular coal mine.
Disincentivizing heroic health care workers attempting to stop Ebola at its source is not the only problem with these state orders. Harsh, emergency rules create expectations that our border and health officials will execute them, promoting officious mission creep, while abandoning a national approach promotes fragmentation and encourages dysfunction. Worse, draconian and disproportionate responses create fear where prevailing medical science tells us there should only be concern. And, in the unlikely event that the science was wrong and things were to get worse, officials are left with nowhere to go.