HealthLawProf Blog

Louisiana AG's Euthanasia Investigation Continues

CNN reports that "more than one medical professional is under scrutiny as a possible person of interest as Louisiana's attorney general investigates whether hospital workers resorted to euthanasia in the chaotic days after Hurricane Katrina shattered New Orleans."  The investigation centers on Memorial Hospital:

CNN has learned the investigation is looking at the possibility that medical personnel at the hospital were afraid of anarchy in the city, feared they could be the next targets of violence as they grew increasingly tired of horrible conditions inside the hospital.

Memorial Hospital had been a storm refuge for up to 2,000 people. Patients, staff and their families rode out the storm inside. But by Thursday, four days after Katrina hit, despair was setting in. The hospital was surrounded by floodwater. There was no power, no water and stifling heat. Food was running low. Nurses were forced to fan patients by hand. And outside the hospital windows, nurses tell CNN they saw looters breaking into a credit union.

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L.A. City Attorney Warns Hospitals About Patient-Dumping

According to this Dec. 22 article in the LA Times, the city attorney is warning local hospitals to stop dumping homeless patients on skid row or he will pursue criminal or civil remedies. [tm]

"Miracle Worker" (or Quack) On Trial for Insurance Fraud

As reported on Dec. 28 in the Atlanta Journal-Constitution, a Georgia doctor is the subject of a federal 87-count indictment for treating desperately ill patients with alternative therapies -- including a chemical found in weed killer -- and billing insurance companies for covered standard therapies.  Once word of the indictment got out, the medical licensing board in Georgie issued a summary suspension of the 70-year-old physician's license (PDF). [tm]

Pay-As-You-Go With a Vengeance

There's a fascinating first-page story in today's Wall Street Journal (paid subscription required -- the Chinese aren't the only ones who believe in "pay as you go"!) that describes the structural and operational features of the Chinese health care system.  [tm]

Verdict on South Korean Stem Cell "Breakthrough": Total Fabrication

This story gets more bizarre by the day.  As reported here last month, stem cell pioneer Hwang Woo Suk fessed up to ethical lapses in the course of his groundbreaking stem cell research -- specifically, some of the eggs used in his research came from junior researchers in his lab.  If not an outright ethical lapse, it was considered "ethically murky" enough (a) for him to lie about it and (b) for his American research partner (Dr. Gerald Schatten of the Univ. of Pittsburgh) to withdraw from the partnership. 

Lots of stories followed concerning sloppy data keeping.  Then came the bombshell.

It is now being reported by AP (courtesy of MSNBC) that

[a]n already disgraced scientist lied about all of the stem cell lines he claimed were matched to different patients through cloning, investigating researchers said in a new jolt to the shattered reputation of Hwang Woo-suk.

Thursday’s announcement all but ends the fraud investigation into one of three major cloning breakthroughs claimed by the one-time scientific superstar and national hero. Probes of Hwang’s two other groundbreaking experiments are still under way at Seoul National University where he worked before resigning in disgrace last week.

The latest news was one more disappointment to the scientific world, which had viewed Hwang’s achievements as holding great promise for treating people with a variety of ailments, from spinal cord injuries to Parkinson’s disease. . . .

In the experiment deemed fraudulent, Hwang had claimed in a paper published in May in the journal Science that he had created 11 colonies of human embryonic stem cells genetically matched to specific patients.

An investigative panel at the university reported last week that Hwang had faked the research on nine of the stem cell lines. On Thursday, it confirmed he also fabricated his research for the two remaining cell lines as well.

Before his fall from grace, Hwang enjoyed rock-star status in South Korea.  Now two other majore breakthroughs reported out of his lab -- the extraction of stem cells from cloned human embryos and the cloning of a dog -- are also under suspicion and review.

The original article in the June 17, 2005, issue of Science is here. To its credit, the journal has diligently reported on the disturbing reports of ethical lapses and on Dec. 23 published an expression of editorial concern over the possible lapses in connection with the June paper and another paper published out of the Hwang lab on March 12, 2004. [tm]

Bird Flu Resources

There's a pretty good government website that collects a lot of data and links on this subject: http://www.pandemicflu.gov.  It appears to be a joint effort by HHS, CDC, and the Department of Agriculture.  There are good links on these topics:

• Monitoring outbreaks (U.S. and international): WHO and European Commission
• Planning and response activities (White House's National Strategy, HHS activities, other federal activities (Departments of State, Agriculture, and Homeland Secutirty; USAID, USGS National Wildlife Health Center); state, local, and globale activities
• Planning checklists (state and local government & businesses)
• Public health tools
• Risk communication resources

Many of the goverment resources are a week or more out of date.  If you're a subscriber, though, the Wall Street Journal  is really on top of this story (see Avian Flu News Tracker).  For example, every official web site says there have been two confirmed human deaths in China.  This morning, however, Chinese officials reported a third case.  The WSJ interactive world map has already been updated to reflect the new number. [tm]

States' Tips Against Avian Flu

This morning's Bangor Daily News has a "Viewpoints" piece on various states' (e.g., Maine, Minnesota, New Hampshire, Montana) recommendations for protection against the avian flu.  Summaries:

• Have an emergency supply on hand of food, water, batteries and other necessities for your family to live in isolation for three to five days. Maine calls this an all-hazards kit, and it may be useful in the event of a pandemic.
• Families also should develop a plan for who would be contacted through what telephone numbers or e-mail if an outbreak did occur and where the family would seek treatment.
• Hand-washing is big in all states, also staying out of the line of sneezes and covering your mouth if you do sneeze.
• Some limits on travel to Asian countries that have more serious outbreaks of bird flu is [sic] recommended - for instance, visits to poultry farms there are discouraged.

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Health Affairs' Most-Read Articles of 2005

Health Affairs is the pre-eminent health policy (and often health-law & policy) journal on this side of the Atlantic.  Today they published the list of 25 articles that were the most-viewed in past year.  To put this in context, #1 was viewed 70,000 times and every article garnered at least 20,000 views:

1. David U. Himmelstein, Elizabeth Warren, Deborah Thorne, and Steffie Woolhandler,
Illness And Injury As Contributors To Bankruptcy
Health Affairs 24 (2005): w63-w73 (published online 2 February 2005; 10.1377/hlthaff.w5.63).
http://content.healthaffairs.org/cgi/content/abstract/hlthaff.w5.63v1

2. Stephen Heffler, Sheila Smith, Sean Keehan, Christine Borger,
M. Kent Clemens, and Christopher Truffer
U.S. Health Spending Projections For 2004–2014
Health Affairs 24 (2005): w74-w85 (published online 23 February 2005; 10.1377/hlthaff.w5.74).
http://content.healthaffairs.org/cgi/content/abstract/hlthaff.w5.74v1

3. Jerald Winakur,
“What Are We Going To Do With Dad?”
Health Affairs 24, no. 4 (July/August 2005): 1064-1072.
http://content.healthaffairs.org/cgi/content/full/24/4/1064

4. Gerard F. Anderson, Peter S. Hussey, Bianca K. Frogner and Hugh R. Waters,
Health Spending In The United States And The Rest Of The Industrialized World
Health Affairs, 24, no. 4 (July/Aug 2005): 903-914.
http://content.healthaffairs.org/cgi/content/abstract/24/4/903

5. Uwe E. Reinhardt, Peter S. Hussey and Gerard F. Anderson,
U.S. Health Care Spending In An International Context
Health Affairs, 23, no. 3 (May/June 2004): 10-25.
http://content.healthaffairs.org/cgi/content/abstract/23/3/10

6. Richard Hillestad, James Bigelow, Anthony Bower, Federico Girosi, Robin Meili, Richard Scoville, and Roger Taylor,
Can Electronic Medical Record Systems Transform Health Care? Potential Health Benefits, Savings, And Costs
Health Affairs 24, no. 5 (September/October 2005): 1103-1117.
http://content.healthaffairs.org/cgi/content/abstract/24/5/1103

7. Cathy Schoen, Robin Osborn, Phuong Trang Huynh, Michelle Doty, Kinga Zapert, Jordon Peugh, Karen Davis,
Taking The Pulse Of Health Care Systems: Experiences Of Patients With Health Problems In Six Countries
Health Affairs 24 (2005): w509-w525 (published online 3 November 2005; 10.1377/hlthaff.w5.509).
http://content.healthaffairs.org/cgi/content/abstract/hlthaff.w5.509v3

8. Jan Walker, Eric Pan, Douglas Johnston, Julia Adler-Milstein,
David W. Bates, and Blackford Middleton,
The Value Of Health Care Information Exchange And Interoperability
Health Affairs 24 (2005): w10-w18 (published online 19 January 2005; 10.1377/hlthaff.w5.10).
http://content.healthaffairs.org/cgi/content/abstract/hlthaff.w5.10v1

9. John Holahan and Arunabh Ghosh,
Understanding The Recent Growth In Medicaid Spending, 2000-2003
Health Affairs 24 (2005): w52-w62 (published online 26 January 2005; 10.1377/hlthaff.w5.52).
http://content.healthaffairs.org/cgi/content/abstract/hlthaff.w5.52v1

10. David M. Eddy,
Evidence-Based Medicine: A Unified Approach
Health Affairs 24, no. 1 (January/February 2005): 9-17.
http://content.healthaffairs.org/cgi/content/abstract/24/1/9

11. Bradley C. Strunk, Paul B. Ginsburg, John P. Cookson,
Tracking Health Care Costs: Declining Growth Trend Pauses In 2004
Health Affairs 24 (2005): w286-295 (published online 21 June 2005; 10.1377/hlthaff.w5.286).
http://content.healthaffairs.org/cgi/content/abstract/hlthaff.w5.286v1

12. Todd Gilmer, Lawrence J. Schneiderman, Holly Teetzel, Jeffrey Blustein, Kathleen Briggs, Felicia Cohn, Ronald Cranford, Daniel Dugan, Glen Komatsu and Ernlé Young,
The Costs Of Nonbeneficial Treatment In The Intensive Care Setting
Health Affairs 24, no. 4 (July/Aug 2005): 961-971.
http://content.healthaffairs.org/cgi/content/abstract/24/4/961

13. Ann E. Rogers, Wei-Ting Hwang, Linda D. Scott, Linda H. Aiken, David F. Dinges,
The Working Hours of Hospital Staff Nurses and Patient Safety
Health Affairs 23, no. 4 (July/August 2004): 202-212.
http://content.healthaffairs.org/cgi/content/abstract/23/4/202

14. Cynthia Smith, Cathy Cowan, Art Sensenig, Aaron Catlin and the Health Accounts Team,
Health Spending Growth Slows In 2003
Health Affairs 24, no. 1 (January/February 2005): 185-194.
http://content.healthaffairs.org/cgi/content/abstract/24/1/185

15. Anne-Marie J. Audet, Michelle M. Doty, Jamil Shamasdin, and Stephen C. Schoenbaum,
Measure, Learn, And Improve: Physicians’ Involvement In Quality Improvement
Health Affairs 24, no. 3 (May/June 2005): 843-853.
http://content.healthaffairs.org/cgi/content/abstract/24/3/843

16. Kenneth E. Thorpe, Curtis S. Florence, David H. Howard, Peter Joski,
The Rising Prevalence Of Treated Disease: Effects On Private Health Insurance Spending
Health Affairs 24 (2005): w317-325 (published online 27June 2005; 10.1377/hlthaff.w5.317).
http://content.healthaffairs.org/cgi/content/abstract/hlthaff.w5.317v1

17. Joseph R. Betancourt, Alexander R. Green, J. Emilio Carrillo, and Elyse R. Park,
Cultural Competence And Health Care Disparities: Key Perspectives And Trends
Health Affairs 24, no. 2 (March/April 2005): 499-505.
http://content.healthaffairs.org/cgi/content/abstract/24/2/499

18. Robert Galvin,
‘A Deficiency Of Will And Ambition’: A Conversation With Donald Berwick
Health Affairs 24 (2005): w1-w9 (published online 12 January 2005; 10.1377/hlthaff.w5.1).
http://content.healthaffairs.org/cgi/content/abstract/hlthaff.w5.1v3

19. Victor R. Fuchs and Ezekiel J. Emanuel,
Health Care Reform: Why? What? When?
Health Affairs 24, no. 6 (November/December 2005): 1399-1414.
http://content.healthaffairs.org/cgi/content/abstract/24/6/1399

20. Dana Gelb Safran, Patricia Neuman, Cathy Schoen, Michelle S. Kitchman, Ira B. Wilson, Barbara Cooper, Angela Li, Hong Chang, and William H. Rogers,
Prescription Drug Coverage And Seniors: Findings From A 2003 National Survey
Health Affairs 24 (2005): w152-w166 (published online 19 April 2005; 10.1377/hlthaff.w5.152).
http://content.healthaffairs.org/cgi/content/abstract/hlthaff.w5.152v1

21. Barbara L. Brush, Julie Sochalski, and Anne M. Berger,
Imported Care: Recruiting Foreign Nurses To U.S. Health Care Facilities
Health Affairs 23, no. 3 (May/June 2004): 78-87.
http://content.healthaffairs.org/cgi/content/abstract/23/3/78

22. Kenneth E. Thorpe,
The Medical Malpractice ‘Crisis’: Recent Trends And The Impact Of State Tort Reforms
Health Affairs 23 (2004): w20-w30 (published online 21 January 2004; 10.1377/hlthaff.w4.20).
http://content.healthaffairs.org/cgi/content/abstract/hlthaff.w4.20v1

23. Cathy Schoen, Robin Osborn, Phuong Trang Huynh, Michelle Doty, Karen Davis, Kinga Zapert, and Jordan Peugh,
Primary Care And Health System Performance: Adults’ Experiences In Five Countries
Health Affairs 23 (2004): w487-w503 (published online 28 October 2004; 10.1377/hlthaff.w4.487).
http://content.healthaffairs.org/cgi/content/abstract/hlthaff.w4.487v1

24. A.C. Enthoven and L.A. Tollen,
Competition In Health Care: It Takes Systems To Pursue Quality And Efficiency
Health Affairs, 24 (2005): w420-w433 (published online 7 September 2005; 10.1377/hlthaff.w5.420).
http://content.healthaffairs.org/cgi/content/abstract/hlthaff.w5.420v1

25. Jeanne M. Lambrew, John D. Podesta, and Teresa L. Shaw,
Change In Challenging Times: A Plan For Extending And Improving Health Coverage
Health Affairs 24 (2005): w119-w132 (published online 23 March 2005; 10.1377/hlthaff.w5.119).
http://content.healthaffairs.org/cgi/content/abstract/hlthaff.w5.119v1

Top Downloads from SSRN's Health Law Collection

No changes in relative position among the top ten downloads since our last look at the list on Dec. 17 . . . .

1. Safe Storage Gun Laws: Accidental Deaths, Suicides, and Crime
   John R. Lott Jr. and John E. Whitley
   American Enterprise Institute (AEI) and University of Adelaide - School of Economics
   Date Posted:May 22, 2000
   Last Revised:June 10, 2002
   Working Paper Series
   8832 downloads
2. Abortion and Crime: Unwanted Children and Out-of-Wedlock Births
   John R. Lott Jr. and John E. Whitley
   American Enterprise Institute (AEI) and University of Adelaide - School of Economics
   Date Posted:May 16, 2001
   Last Revised:June 5, 2001
   Working Paper Series
   5580 downloads
3. Stability, Not Crisis: Medical Malpractice Claim Outcomes in Texas, 1988-2002
   Journal of Empirical Legal Studies, Vol. 2, pp. 207-259, 2005
   Bernard S. Black , Charles Silver , David A. Hyman and William M. Sage
   University of Texas at Austin - School of Law , University of Texas Law School , University of Illinois College of Law and Columbia Law School
   Date Posted:October 25, 2005
   Last Revised:December 5, 2005
   Accepted Paper Series
   1566 downloads
4. What the Publisher Can Teach the Patient: Intellectual Property and Privacy in an Era of Trusted Privication
   Stanford Law Review, Vol. 52
   Jonathan Zittrain
   Oxford University
   Date Posted:March 9, 2000
   Last Revised:June 30, 2000
   Accepted Paper Series
   1174 downloads
5. TRIPs, Pharmaceuticals, Developing Countries, and the Doha 'Solution'
   Alan O. Sykes
   University of Chicago Law School
   Date Posted:February 19, 2002
   Last Revised:March 7, 2002
   Working Paper Series
   895 downloads
6. Incentives in Nonprofit Organizations: Evidence from Hospitals
   James A. Brickley and R. Lawrence Van Horn
   Simon School, University of Rochester and Simon School, University of Rochester
   Date Posted:February 14, 2000
   Last Revised:April 2, 2002
   Working Paper Series
   748 downloads
7. Unintended Consequences of Medical Malpractice Damages Caps
   NYU Law Review, Vol. 80, pp. 391-512, May 2005
   Catherine M. Sharkey
   Columbia University - Columbia Law School
   Date Posted:February 17, 2005
   Last Revised:June 1, 2005
   Accepted Paper Series
   727 downloads
8. Bayh-Dole Reform and the Progress of Biomedicine
   Law and Contemporary Problems, Vol. 66, No. 1
   Arti K. Rai and Rebecca S. Eisenberg
   Duke University School of Law and University of Michigan Law School
   Date Posted:November 23, 2002
   Last Revised:February 6, 2003
   Accepted Paper Series
   719 downloads
9. Medical Problems and Bankruptcy Filings
   Norton's Bankruptcy Adviser, May 2000
   Elizabeth Warren , Teresa Sullivan and Melissa B. Jacoby
   Harvard Law School , University of Texas at Austin - Office of the Vice President and Dean of Graduate Studies and University of North Carolina at Chapel Hill - School of Law
   Date Posted:May 9, 2000
   Last Revised:July 29, 2000
   Accepted Paper Series
   599 downloads
10. The TRIPS Agreement, Access to Medicines and the WTO Doha Ministerial Conference
    Frederick M. Abbott
    Florida State University College of Law
    Date Posted:October 8, 2001
    Last Revised:October 15, 2001
    Working Paper Series
    540 downloads

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Top Public Health Stories of 2005

From the Harvard School of Public Health's "World Health News":

Public Health 2005: Year in Review

In this special year-end edition, World Health News reviews the public health issues that shaped 2005.

The Year of Bird Flu
Human cases of influenza A (H5N1) infection have been reported in Cambodia, China, Indonesia, Thailand, and Vietnam.

World Bird Flu Risk Is 'Gravest Possible'
Reported in the International Herald Tribune on February 24, 2005

"The risk that Asia's outbreak of avian influenza could turn into a deadly global pandemic has increased sharply in recent months, a top international health official warned on Wednesday. 'The world is now in the gravest possible danger of a pandemic,' said the official, Dr. Shigeru Omi, Western Pacific director of the World Health Organization. 'We need to consider urgent and decisive action in radical new ways.' Speaking by telephone from the sidelines of an avian flu conference in Vietnam, Omi said that in recent months it had become clear that strains of avian influenza that emerged last year were now entrenched, endemic, versatile and transmitted through animals showing no symptoms of the disease. If mutated to transmit between humans, he said, the deadly strain of influenza could spread quickly around the world and infect millions."

With stories on hunting bird flu in Cambodia; pursuing a bird flu vaccine in the U.S.; the WHO's 'bird flu strike force' in Switzerland; a $7.1 billion flu plan for the U.S.; and the effects bird flu has had on Thailand, Vietnam, and China.

Among the Highlights from 2005:

• The Immediate and Lasting Effects of Hurricane Katrina
  Los Angeles Times and The Atlanta Journal-Constitution
• South Korean Stem Cell Research Suffers Major Setback
  The New York Times, International Herald Tribune, and The Boston Globe
• The Terri Schiavo Case
  St. Petersburg Times, Florida
• Pakistan's Earthquake: The Rescue Effort, the Resulting Homelessness, and the Possibility of 'Donor Fatigue'
  The Observer (London) and The Christian Science Monitor
• Refugee Crisis in Sudan
  The Washington Post
• Toxic Spill in China Left Over 3 Million Without Running Water for Three Days
  International Herald Tribune, The New York Times, and the Los Angeles Times
• AIDS: The Rath Controversy in South Africa, and the WHO's '3x5 Goal' Missed, But Praised
  The Guardian (London) and The New York Times
• Bill & Melinda Gates Leave Indelible Mark on Global Health
  The Economist and Time magazine
• Tsunami Relief Poses Major Challenges
  The Washington Post and The New England Journal of Medicine
• Medicare Drug Benefit Sign-Up Begins
  The New York Times and The Washington Post
• The War on Meth
  The New York Times, the Des Moines Register (Iowa), and The Oregonian
• In Japan, Deaths from Asbestos Shock the Nation
  The Japan Times
• Zimbabwe's 'Operation Clear Out the Trash' Leaves Many Homeless
  The Guardian (London)
• Polio Vaccine: 50 Years Later
  Pittsburgh Post-Gazette
• A Call to 'End Poverty Now' Grabs the Headlines
  The Economist, BBC News Online, and The Washington Post
• Widespread Hunger in Niger
  The Guardian (London), BBC News Online, and The Washington Post
• Morning-After Pill & the FDA
  The Washington Post, The New England Journal of Medicine, and The New York Times
• Supreme Court Rules on Medical Marijuana, Juvenile Executions
  The Washington Post and the San Francisco Chronicle
• Outbreaks: Encephalitis Outbreak Hit India, and a Marburg Virus Outbreak Hit Angola
  BBC News Online and The New York Times
• Strides Made in Fight Against Cancer
  The Baltimore Sun and The Wall Street Journal
• Renewed Focus on Nutrition & Obesity in the U.S.
  The Washington Post, The Boston Globe, The New York Times, The Atlanta Journal-Constitution, The Sacramento Bee
• Merck Research Controversy Over Vioxx
  The Boston Globe and the Chicago Tribune
• 'Rx for Survival': An Unprecedented Global Health Media Education Project
• Los Angeles Times Editorial Series, 'Malaria -- The Sting of Death'
• Courier-Journal (Kentucky) Investigation Looks at the State's Poor Health
• Seattle Times Investigation Finds Drug Researchers Leak Secrets to Wall Street
• Rocky Mountain News (Colorado) Juvenile Justice Series, 'Life for Death'

For links to the full text of these reports, go to www.worldhealthnews.harvard.edu.

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Moratorium on Specialty Hospitals: Not So Fast

Contrary to my post yesterday, it appears that last-minute maneuvering in the Senate temporarily blocked passage of the budget bill, S. 1932, that contains the provision that would require HHS to extend the moratorium on new specialty hospitals. That is at least what the N.Y. Times is reporting today. The glitch, which can be tracked in the Congressional Record's rendition of yesterday's events (not available yesterday), occurred because Senate Democrats took out three relatively insignificant provisions from the budget reconciliation bill.  That meant that the House would have to re-vote on the budget bill, and because many House members left town for the holidays after their vote on a couple of appropriations bills on the 19th and 20th, it is unclear when that vote will occur -- possibly not until January, according to the Times' report. Accord, Washington Post.  [tm]

Should Physicians Prescribe Tamiflu On Demand?

Here's a terrific article in today's New England Journal of Medicine:

The Run on Tamiflu — Should Physicians Prescribe on Demand? A. S. Brett and A. Zuger Extract | FREE Full Text | PDF

Bottom line: "Thus, an individual physician has no obligation to prescribe oseltamivir in response to a patient's request — a position that discourages prescribing of the drug but does not prohibit it. In contrast, the public health perspective clearly suggests that the physician has an obligation not to prescribe oseltamivir — a position that is tantamount to a prohibition against prescribing it. The public health perspective need not always trump the individual perspective, but since both point in the same direction in this instance, the prohibition should prevail." [tm]

Congress Extends Moratorium on Specialty Hospitals (Again)

S. 1932 passed in the Senate this morning by a vote of 51-50 (with Veep Cheney casting the deciding vote), following the House's passage on Monday (212-206).  There are quite a few changes to Medicare and Medicaid tucked away in Conference Report 109-362 (not available on Thomas, but available (presumably for a fee) at the BNA website). One of the more significant developments is the continuation of the moratorium on new specialty hospitals (download specialty_hospitals.pdf).  There's also a provision that instructs the Secretary of HHS to conduct a pilot program to evaluate gainsharing. [tm]

Texas AG: Canadian Drug Purchasing Authority Conflicts with Federal Law

Today the Office of the Attorney General posted a new opinion that may be of interest to members of the Health Law Section:

Opinion No. GA-0384

Go to: http://www.oag.state.tx.us/opinions/op50abbott/ga-0384.htm
Re: Whether federal law preempts a portion of Senate Bill 410, enacted during the regular session of the Seventy-ninth Legislature, that purports to authorize the importation of Canadian pharmaceuticals into Texas, and to require the State Board of Pharmacy to assist in such importation (RQ-0355-GA) http://www.oag.state.tx.us/opinions/requests_ga/RQ0355GA.pdf

Summary: Sections 36 through 43 of Senate Bill 410, enacted during the Seventy-ninth regular session of the Texas Legislature, directly conflict with federal law, namely the Federal Food, Drug, and Cosmetic Act, chapter 9 of title 21 of the United States Code (the "FFDCA"), and specifically sections 381 and 384 thereof. The FFDCA makes it an offense not only to import, but to "cause" the importation of prohibited medications. See 21 U.S.C. § 331 (2000 & Supp. 2003).[1] By "designating" certain Canadian pharmacies, promoting them on its website, and expressly permitting Texas consumers to import prescription drugs that cannot be imported under federal law, the Texas State Board of Pharmacy would violate the Federal Food, Drug, and Cosmetic Act, as will Texas consumers and those Texas pharmacies that take part in such transactions.

[1] Note: 21 USC § 331 has been amended five times since the publication of the 2000 United States Code:
    (i) Pub. L. No. 108-136, § 1603(c)
    (ii) Pub. L. No. 108-173, § 1121(b)(1)
    (ii) Pub. L. No. 108-214, § 2(b)(2)(A)
    (iii) Pub. L. No. 108-282, § 102(b)(5)(C) & (D)
    (iv) Pub. L. No. 109-59, § 7202(d) & (e).

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Employer-Provided Health Insurance, Tax Subsidies, and the Uninsured

The New York Times ran a short but insightful piece today on the exclusion of employer-provided health insurance contributions from employees' taxable income.  The amount of the subsidy (in foregone tax collections) is fast approaching $150 billion and is expected to get to $180 billion by 2010.  Quoting Harvard economist David Cutler, "If you had $150 billion to play with, you could come very close to universal coverage."  Eliminating the tax subsidy, however, would be enormously unpopular with the employed taxpayers who have gotten use to the tax break.  And MIT economist Jonathan Gruber sees other problems:

As soon as the tax break was eliminated, company-provided health insurance would be likely to disappear, too. So some mechanism would be needed to pool groups of people and to avoid leaving higher-risk people to face enormous insurance costs. Such a mechanism would probably make health insurance affordable for all. And to make it universal, a mandate would be needed to make people buy it.

This isn't communism. The changes could happen under a public health care system or one that is privately run.

The politics of the issue are such that taking away the tax subsidy would probably be suicidal, despite the impressive bill of particulars against it:

[T]he fiscal incentive isn't helping many of the people who need it most. A report by the Kaiser Family Foundation says two-thirds of the 45.5 million Americans who lacked health insurance in 2004 earned less than twice what the federal government defines as poverty. (For a family of four, the poverty line is about $19,300.) In four of every five cases, the uninsured made less than three times the poverty level.

In addition to going to the wrong people, the subsidy as designed promotes wasteful medical spending, encouraging the wealthy to buy more insurance and to use more health services than they need, according to the president's tax panel. And it may bolster premiums across the board.

Altogether, the health insurance tax break exacerbates America's medical dystopia: while the nation has the highest per-capita spending on health in the world - about $5,400 in 2002 - 18 percent of the population under 65 remains uninsured.

The President's Advisory Panel on Federal Tax Reform's final report (Nov. 1, 2005) addressed the issue and offers a tepid, but politically realistic suggestion (cap the tax benefit at the average cost of family health policyies ($11,500).  It would be a start. . . .  [tm]

Intermediate Sanctions: Comment Period on Proposed Rule Closed

A short commentary  in HealthLeaders News ("The Intersection of Intermediate Sanctions and Loss of Tax-Exempt Status for Nonprofits," by J. Leigh Griffith and Donald B. Stewart) reminded me of a proposed rule from the IRS on the always timely issue of intermediate sanctions.  Published on Sept. 9, the NPRM identifies the five factors to be taken into account when the IRS is trying to decide whether to revoke the exempt entity's tax-exempt status in addition to imposing intermediate sanctions.  As the authors point out, the factors omit any mention of good faith on the part of the entity's managers and emphasize the importance of self-discovery and self-correction (i.e., rectification of the excess-benefit transaction before the IRS brings it to the entity's attention).  The transaction may still enjoy a rebuttable presumption of reasonableness if it satisfies the requirements of 26 CFR § 53.4958-6, but good-faith reliance on those factors (including valuations and opinion letters) won't save the entity from loss of its exemption.  On the other hand, as the authors point out, the proposed rule introduces the five factors with this clause: "the Commissioner will consider all relevant facts and circumstances, including, but not limited to, the following—," so the good faith of the managers won't necessarily be irrelevant.  The comment period for this NPRM closed on Dec. 8.  The IRS has indicated this rule is a priority, so we should see a final rule sometime early in 2006. [tm]

Top 10 SSRN Downloads

Of 74,306 downloads in the SSRN Health Law database, 10 articles account for 21,000 of 'em.  Here, in the first of what will be a weekly summary, is the straight dope on the top 10 downloads.  Later this weekend, look for a listing of the latest titles posted to the database.

1. Safe Storage Gun Laws: Accidental Deaths, Suicides, and Crime
   John R. Lott Jr. and John E. Whitley
   American Enterprise Institute (AEI) and University of Adelaide - School of Economics
   Date Posted:May 22, 2000
   Last Revised:June 10, 2002
   Working Paper Series
   8829 downloads
2. Abortion and Crime: Unwanted Children and Out-of-Wedlock Births
   John R. Lott Jr. and John E. Whitley
   American Enterprise Institute (AEI) and University of Adelaide - School of Economics
   Date Posted:May 16, 2001
   Last Revised:June 5, 2001
   Working Paper Series
   5571 downloads
3. Stability, Not Crisis: Medical Malpractice Claim Outcomes in Texas, 1988-2002
   Journal of Empirical Legal Studies, Vol. 2, pp. 207-259, 2005
   Bernard S. Black , Charles Silver , David A. Hyman and William M. Sage
   University of Texas at Austin - School of Law , University of Texas Law School , University of Illinois College of Law and Columbia Law School
   Date Posted:October 25, 2005
   Last Revised:December 5, 2005
   Accepted Paper Series
   1558 downloads
4. What the Publisher Can Teach the Patient: Intellectual Property and Privacy in an Era of Trusted Privication
   Stanford Law Review, Vol. 52
   Jonathan Zittrain
   University of Oxford - General
   Date Posted:March 9, 2000
   Last Revised:June 30, 2000
   Accepted Paper Series
   1172 downloads
5. TRIPs, Pharmaceuticals, Developing Countries, and the Doha 'Solution'
   Alan O. Sykes
   University of Chicago Law School
   Date Posted:February 19, 2002
   Last Revised:March 7, 2002
   Working Paper Series
   890 downloads
6. Incentives in Nonprofit Organizations: Evidence from Hospitals
   James A. Brickley and R. Lawrence Van Horn
   Simon School, University of Rochester and Simon School, University of Rochester
   Date Posted:February 14, 2000
   Last Revised:April 2, 2002
   Working Paper Series
   744 downloads
7. Unintended Consequences of Medical Malpractice Damages Caps
   NYU Law Review, Vol. 80, pp. 391-512, May 2005
   Catherine M. Sharkey
   Columbia University - Columbia Law School
   Date Posted:February 17, 2005
   Last Revised:June 1, 2005
   Accepted Paper Series
   717 downloads
8. Bayh-Dole Reform and the Progress of Biomedicine
   Law and Contemporary Problems, Vol. 66, No. 1
   Arti K. Rai and Rebecca S. Eisenberg
   Duke University School of Law and University of Michigan Law School
   Date Posted:November 23, 2002
   Last Revised:February 6, 2003
   Accepted Paper Series
   715 downloads
9. Medical Problems and Bankruptcy Filings
   Norton's Bankruptcy Adviser, May 2000
   Elizabeth Warren , Teresa Sullivan and Melissa B. Jacoby
   Harvard Law School , University of Texas at Austin - Office of the Vice President and Dean of Graduate Studies and University of North Carolina at Chapel Hill - School of Law
   Date Posted:May 9, 2000
   Last Revised:July 29, 2000
   Accepted Paper Series
   595 downloads
10. The TRIPS Agreement, Access to Medicines and the WTO Doha Ministerial Conference
    Frederick M. Abbott
    Florida State University College of Law
    Date Posted:October 8, 2001
    Last Revised:October 15, 2001
    Working Paper Series
    540 downloads

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More on the Ethics of Face Transplant

The New York Times has been all over the bioethical implications this story, ever since its piece on Dec. 6, "Ethical Concerns on Face Transplant Grow," by Michael Mason & Lawrence K. Altman (blogged).  In the last couple of days, they've published these articles:

• "As a Face Transplant Heals, Flurries of Questions Arise," by Craig S. Smith (Dec. 14)
  • in the rush to perform the first face transplant, were corners cut to avoid ethical issues?
  • is the carnival atmosphere compromising the patient's well-being?
  • "Among the most disturbing aspects of the debate are conflicting reports from doctors about whether the transplant was the result of two suicide attempts, one successful by the donor, and one failed by the recipient.

    "If Ms. Dinoire's disfigurement resulted from an attempted suicide, it would raise questions about her emotional stability and her ability to consent to such a risky operation.

    "Reports that the donor committed suicide also have implications for Ms. Dinoire's future, because if true, and if the transplant is successful, it would mean that for the rest of her life, she would see in the mirror the nose, mouth and chin of a woman who herself met a brutal end."

  • "Critics have already questioned the ethics of a commercial arrangements brokered by Dr. Dubernard ['the flamboyant French doctor and politician in charge of Ms. Dinoire's post-transplant treatment'] in which exclusive rights for photographs and video of the operation were given to Microsoft's Corbis photo agency under an agreement that allows Ms. Dinoire to share in the proceeds from the materials' sale."

• "The Face of the Future," by Ruth La Ferla & Natasha Singer (Dec. 15)

  • What's next? Cosmetic face transplants? The authors sample lay opinion on the nettlesome issue.  Sound farfetched?  Check back in 20 years . . . .

[tm]

Breaking Into Law Teaching

Paul Caron at TaxProf Blog has posted some great resources for lawyers who want to teach but need advice on how to break into academe.  I'll save you the mouse-click:

Teaching Fellowships for Aspiring Law Professors

For practitioners and others contemplating joining the law professor ranks, many law schools offer wonderful opportunities to transition into the legal academy with one- or two-year fellowships which allow you to enter the AALS Faculty Recruitment Conference (the "meat market") armed with teaching experience and published scholarship under your belt:

• Chicago:
  • Harry A. Bigelow Teaching Fellowships
  • John M. Olin Fellows in Law
• Chicago-Kent: Visiting Assistant Professor Program
• Columbia:
  • Associates in Law Program
  • James Milligan Law Review Fellowships (for Columbia Law Review alumni)
• Florida:  Visiting Assistant Professor Program (Tax)
• Georgetown: Graduate Fellowship Program for Future Law Professors
• Harvard:
  • Reginald F. Lewis Fellowships for Law Teaching
  • Charles Hamilton Houston Fellowships for Law Teaching
• Iowa:  Faculty Fellows Program
• John M. Olin Fellows in Law
• New York University:
  • Acting Assistant Professor Program (Tax)
  • Furman Academic Fellowship Program (for NYU grads)
• Northwestern:  Visiting Assistant Professor Program
  • John M. Olin Fellows in Law
  • Searle Fellows in Public Law
  • VAP in Finance
  • VAP in Health Care Law and Economics
  • VAP in Negotiations
  • VAP in Securities and Finance
  • VAP in Taxation
• Stanford: Teaching Fellowship Program
• Temple:  Abraham L. Freedman Graduate Teaching Fellowship Program
• Texas:  Emerging Scholars Program
• Wisconsin: William H. Hastie Fellowship Program
• Yale:  Robert M. Cover Fellowship Program

A great discussion of many of these fellowship programs can be found in Patricia A. Cain (Iowa) & Faith Pincus (Iowa), Faculty Fellowship Programs That Lead to Law Teaching.

For more information on becoming a law professor, including a discussion of the advantages of these fellowship programs, see:

• Jack Chin (Arizona), TeachLaw:  Resources for Lawyers Who Want to be Law Professors
• Jack Chin (Arizona) & Denise Morgan (New York Law School), Breaking Into the Academy: The 2002-2004 Michigan Journal of Race & Law Guide for Aspiring Law Professors, 7 Mich. J. Race & L. 457 (2002)
• Eric Goldman (Marquette), Careers in Law Teaching
• Institute for Humane Studies, George Mason University, Law School and Beyond: The IHS Guide to Careers in Legal Academia
• Law Crossing, Becoming a Law Professor: Part 1 and Part 2
• Brian Leiter (Texas), Information and Advice for Persons Interested in Teaching Law
• Brad Wendel (Cornell), The Big Rock Candy Mountain: How to Get a Job in Law Teaching
• Don Zillman (Maine), Marina Angel (Temple), Jan Laitos (Denver), George Pring (Denver) & Joseph Tomain (Cincinnati), Uncloaking Law School Hiring: A Recruit's Guide to the AALS Faculty Recruitment Conference, 39 J. Legal Educ. 345 (1988)

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WSJ: Debate on the Future of Health Care

The Wall Street Journal ends its "Big Issues" debate series with "Consumer Choice: Can It Cure The Nation's Health-Care Ills?" (free feature).  Here's the intro:

Joining the debate are American Enterprise Institute scholar Joseph Antos, who was former assistant director for health and human resources at the Congressional Budget Office, John C. Goodman, founder and president of the National Center for Policy Analysis, and Robert Reischauer, president of the Urban Institute and vice chair of the Medicare Payment Advisory Commission. The debate is moderated by Laurie McGinley, assistant bureau chief at The Wall Street Journal's Washington bureau.

The policy journal Health Affairs covers much the same territory in its Nov./Dec. 2005 issue (series of articles on "Consumerism").  [tm]