Tuesday, November 4, 2014
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.
Saturday, October 25, 2014
In the wake of Craig Spencer’s decision to go bowling in Brooklyn, governors of three major states—Illinois, New Jersey, and New York—have imposed new Ebola quarantine rules that are inconsistent with national public health policy, are not likely to protect Americans from Ebola, and may compromise the response to Ebola in Africa, as health care providers may find it too burdensome to volunteer where they are needed overseas. Don’t we have an Ebola czar who is supposed to ensure that our country has a coherent and coordinated response to the threat from Ebola?
Of course, the term “czar” was poorly chosen precisely because Ron Klain does not have the powers of a czar. He will oversee the federal response to Ebola, but he cannot control the Ebola policies of each state. Unfortunately, on an issue that demands a clear national policy that reflects medical understanding, public anxieties will give us something much less desirable.
Friday, October 24, 2014
Guest Blogger Research Fellow and Lecturer in Law Tara A. Ragone: Valuable Internet Resource Focused on Healthcare Cost Containment and Competition
Jaime King and colleagues at UCSF/UC Hastings Consortium on Law, Science & Health Policy have been busy building a rich web resource devoted to promoting cost control and competition in health care. The Source for Competitive Healthcare seeks to create a one-stop shop for academics, journalists, state attorneys general, and potential litigants by “posting news articles, policy papers, academic articles, litigation documents, and legislative/regulatory materials, as well as legal and policy-based analysis of those materials,” focused on “market issues, such as provider leverage and reform efforts, including the promotion of price transparency in healthcare.”
The site is relatively new and actively seeking content and feedback, but it already is a valuable treasure trove of information. The Litigation/Enforcement and Legislation/Regulation tabs immediately caught my eye. Each offers an interactive map of the United States highlighting states that are active in this space with links to pleadings, proposed statutory and regulatory language, and other primary sources in addition to analyses. I am exploring ways to weave these resources into simulations in my health law skills class this spring.
Guest Blogger Professor Seema Mohapatra: The Role of Physicians in Counseling Women Seeking Elective Egg Freezing: Providing Heightened Informed Consent
Currently, 70% of Apple’s employees are male, and 69% of Facebook’s employees are male. In an effort to recruit and retain more female employees, Facebook and Apple announced earlier this week that they were offering to pay up to $20,000 for egg freezing as a luxury perk. Egg freezing is an expensive process, costing about $10,000 per retrieval and $500 a year for storage. Since, the announcements, much has been discussed about the ethics of offering this technology by an employer, about the need for family friendly work policies, and how this may affect the atmosphere in the workplace for women who choose not to delay motherhood. However, what has been missing in the conversation is the role of a physician in counseling women who seek to freeze their eggs to delay fertility. Already, more companies, such as Virtus Health in Australia, are following Facebook and Apple’s lead, and offering egg freezing as a benefit. If women decide to take advantage of this benefit in greater numbers, because now cost is not a barrier, we need to ensure that physicians give women the realistic view of egg freezing before women decide to undergo the invasive procedure to freeze their eggs.
Thursday, October 23, 2014
Timothy D. Lytton, Barbara A. Dennison, Trang Q. Nguyen, Janine M. Jurkowski, There is More to Transparency than Meets the Eye: The Impact of Mandatory Disclosure Laws Aimed at Promoting Breastfeeding, Am. J. of L. & Med. (Forthcoming).
Anne-Maree Farrell, No-Fault Compensation for Medical Injury: Principles, Practice and Prospects for Reform, to appear in P. Ferguson and G. Laurie (eds), Inspiring a Medico-Legal Revolution: Essays in Honour of Sheila McLean, (Aldershot: Ashgate) (Forthcoming).
Emma Cave, Goodbye Gillick? Identifying and Resolving Problems with the Concept of Child Competence, 34 Legal Stud. 103 (2014).
By Arden Rowell
Early agency attempts to communicate with the public about Ebola have focused on bare facts and bare numbers. On this score, the Centers for Disease Control and Prevention (CDC) and Ron Klain, President Obama’s new “Ebola czar,” can do better.
Wednesday, October 22, 2014
Cross-posted from Bill of Health
The enormity of the tragedy in West Africa remains hard to appreciate even as Ebola begins to migrate into developed countries. In the U.S. mindless panic stoked by the 24 hour news cycle and fear-mongering politicians are not the only familiar phenomena. In important ways our “Ebola crisis” is only tangentially related to a malicious virus and has much more to do with the state of our health care system. Consider the following “Ebola issues”
- Ebola has been marked by uncertainty as to federal and state responsibilities for infectious disease policy, prevention and reaction. Sadly, first impressions have been confirmed by the appointment of an Ebola “czar”, a sure sign that various branches of government have not been playing well together. Such regulatory fragmentation and lack of coordination is not new. Health care is our most regulated industry emanating from a bewildering array of legislation and regulation enforced by innumerable and frequently dysfunctional federal and state agencies.
- That lack of coordination has been replicated at the local level between agencies and healthcare institutions and between multiple institutions. Regional or local planning appears to be missing or only reactive. In a post-Katrina, post-swine flu world it seems extraordinary that there were not cogent plans waiting to be executed. Of course “There are only four in the U.S. with special isolation units designed to contain biohazards like Ebola” but why weren’t there plans to utilize them? Even now how many localities have a plan to handle, say, a major outbreak by using a centralized, tertiary care facility?
- We don’t know exactly what happened at Texas Health Presbyterian Hospital in Dallas (although some reports are now quite detailed). At the least there are suspicions of fragmentation and lack of coordination within the hospital. That shouldn’t be a surprise. In too many healthcare institutions inadequate systems, lack of teamwork, ambiguity at hand-offs, etc., stubbornly remain part of the narrative.
- In Dallas one or several healthcare workers made a mistake. And, if it is true that Thomas Duncan’s blood was transported through the hospital’s pneumatic tube system, so did the facility. It is now 15 years since the publication of To Err is Human. How can it be that preventable adverse events are now the number 3 killer in the U.S. after heart disease and cancer? Just last week a major hospital in Los Angeles recently suspended elective surgeries after an outbreak of surgical infections. Why would we believe that such institutions could handle a case or two of Ebola?
- Press reports suggest that affected healthcare institutions had either inadequate protocols in place to combat a contact virus like Ebola or that protocols were not properly implemented or followed. Thankfully, the CDC now seems to be working hard to provided updated protocols and guidance. Yet, overall, many healthcare system stakeholders treat protocols or clinical practice guidelines as optional. The Affordable Care Act’s section 3501 mandate to AHRQ has never looked more vital.
- The tragedy of Thomas Duncan’s death was almost instantly overshadowed by a blame game. Someone or something must have been responsible—the CDC, doctors, nurses, the victim, even technology. Once again the urging of the IoM in To Err to concentrate on system and process reform and move away from individual blame seems to have been ignored. Notwithstanding, because we lack any sensible alternative compensation system some healthcare institutions or workers, maybe even airlines could face liability claims and in some cases an OSHA investigation.
- Even seasoned observers of the culture of blame in healthcare likely were surprised to see the Dallas hospital throw their electronic health records system under the proverbial bus. As David Blumenthal later noted the problem in Dallas was “humanware, not the software,” but also reflected on how “providers’ unhappiness with EHRs reflects profound underlying dysfunctions in our health care system.” Sadly that instinctive criticism of the facility’s EHR illustrates a dislike of HIT in hospitals caused by underperforming technologies and poor integration into clinical workflows. Further the general failure of the meaningful use subsidies to improve interoperability does not bode well for tracking patients during large outbreaks, or supplying CDC with good data to plug into its predictive analytics models.
- Of course once the blame game starts almost anything can be criticized and HIPAA has long carried a large target on its back. In the case of the Ebola patients in Dallas HIPAA apparently is simultaneously both too leaky and insufficiently transparent. However, at the moment there seems little need to dispense with our general rules protecting patients’ confidential information. Public health authorities already have access to the PHI they need. And, if there was to a major Ebola outbreak such that the President declared a public health emergency the HHS Secretary can waive some HIPAA rules for hospitals that have instituted an emergency protocol. On a related note the Americans with Disabilities Act (ADA) imposes some privacy-like requirements, for example by limiting the amount of information that can be required of an employee and placing limitations on requiring medical examinations.
In short almost every issue raised so far is not Ebola (or even pandemic) specific but further evidence that the Affordable Care Act was only a baby step towards righting our health care ship. As my colleague Fran Quigley observed about the ongoing catastrophe in Africa, “functioning health systems have proved elusive for the world’s poor.” But here we should be able to do better.
Friday, October 17, 2014
The announcement by Apple and Facebook that they will cover the costs of egg freezing predictably provoked some controversy—predictably because it involves reproduction and also because too many people do not trust women to make reproductive decisions.
Interestingly, the challenge to women’s autonomy can come from both sides of the political spectrum, as has happened with several assisted reproductive technologies. Scholars on the left criticized surrogate motherhood on the ground that surrogates were exploited by the couple intending to raise the child, and other new reproductive technologies are criticized on the grounds that women will feel obligated to use them rather than free to use them. Indeed, this concern about coercion drives some of the objections to egg freezing.
Some women freeze their eggs because they face infertility from cancer chemotherapy; other women may not have found a life partner and want to suspend their biological clock until that time comes.
But some observers worry that with the option of egg freezing, some women will succumb to the pressures of the workplace and choose egg freezing not because they really want to but because they feel that have to. After all, if a woman can delay procreation and put in long hours at the office, why shouldn’t she do so? Employers might think that women who forgo egg freezing are not really committed to their jobs.
These concerns are legitimate, but are people too willing to invoke them? Egg freezing is not a simple procedure, nor is its success a certainty. Even if covered by insurance, women are not likely to choose egg freezing lightly. We should worry that egg freezing critics may be too ready to question the decision making capacity of women contemplating their reproductive choices.
Thursday, October 16, 2014
Kara Loewentheil, Satanists, Scott Walker, & Contraception: A Partial Account of Hobby Lobby's Implications for State Law, 9 Harvard L. & Pol'y Rev. (Forthcoming, 2015).
Seema Mohapatra, Use of Facial Recognition Technology for Medical Purposes: Do Our Current Laws Protect Health Privacy?, Pepperdine L. Rev. (Forthcoming).
Emma Cave, Competence and Authority: Adolescent Treatment Refusals for Physical and Mental Health Conditions, 8 Contemp. Soc. Sci.92 (2013).