HealthLawProf Blog

Introducing Guest Blogger Thaddeus Pope

The Health Law Professors Blog is honored to introduce our guest blogger for the month of May, Professor Thaddeus Pope.  Here is his short bio: 

Professor Thaddeus Pope is Director of the Health Law Institute and an Associate Professor of Law at Hamline University. He teaches Health Quality and Liability, Bioethics, and Medical Law at the End of Life. Professor Pope is also Adjunct Associate Professor of Law at Albany Medical College, where he teaches both courses and CME for the Alden March Bioethics Institute. Before joining Hamline in 2012, Professor Pope taught Torts and Health Law at Widener University.

In his scholarship, Professor Pope has focused on two main areas:  (1) end-of-life medicine and (2) public health ethics.  Whether addressing medical futility disputes or smoking bans Professor Pope is especially concerned with exploring the justifiability of limitations on individual liberty.  His work has appeared in law reviews, bar journals, medical journals, nursing journals, bioethics journals, and book chapters.  He authors a regular column for the Journal of Clinical Ethics.  And he writes about legislative, judicial, regulatory, medical, and other developments concerning end-of-life medical treatment conflicts for the Medical Futility Blog. 

Professor Pope’s engagement with these issues goes beyond scholarship.  For example, he has participated both as appellate counsel and as expert witness in cutting-edge litigation.  He has been invited to testify before the President’s Council on Bioethics and the Texas House of Representatives.  He has served as legal consultant to several Policy Statement groups of the American Thoracic Society.  And Professor Pope helped draft MOLST regulations for the state of Delaware. 

Before joining academia, Professor Pope clerked for the U.S. Court of Appeals for the Seventh Circuit and practiced as a corporate litigator with Arnold & Porter LLP in Los Angeles and Washington, DC.  Professor Pope was graduated from Georgetown University, where he received both his J.D. and a Ph.D. in philosophy and bioethics.  He earned his B.A. from the University of Pittsburgh with highest honors and was elected to Phi Beta Kappa. 

[KVT]

Call for Speakers: Sections on Law, Medicine & Health Care, and Employee Benefits and Executive Compensation

The Sections on Law, Medicine & Health Care, and Employee Benefits and Executive Compensation are issuing Call for Speakers for one additional panelist for our 2013 annual meeting co-sponsored program, described below.  The program is scheduled for Saturday, January 5, 2013, 8:30 a.m. – 10:15 a.m. 

To be considered, please send an abstract of no more than 300 words describing your proposed presentation to Elizabeth Weeks Leonard, Chair-Elect of the Section on Law, Medicine & Health Care, at [email protected], by June 30, 2012.  Section Executive Committee members will review the submissions and notify panelists by September 2012.

 The panel description and confirmed panelists are as follows: 

American Exceptionalism:  Health Reform and the Persistence of Employer-Based Benefits:  In keeping with the 2013 AALS Annual Meeting theme on “Global Engagement and the Legal Academy,” this panel will examine the United States’ unique reliance on private employers to provide essential health insurance benefits for the majority of Americans.  Barring a seismic shift in federal health policy following the Supreme Court’s decision on the constitutionality of the Patient Protection and Affordable Care Act (ACA) in June 2012 and the presidential elections in November 2012, the prominence of employer-based health benefits will persist or even increase.  Panelists will consider the incentives for U.S. employers to continue offering employee health benefits and the ability of firms to compete globally while shouldering that burden, as well as offer comparative perspectives on welfare policies and recognition of affirmative health care rights in other countries.  

Confirmed panelists:

Mark Hall, Fred D. & Elizabeth L. Turnage Professor of Law, Wake Forest University School of Law 

Jeffery Stempel, Doris S. and Theodore B. Lee Professor of Law, UNLV William S. Boyd School of Law

Kathryn L. Moore, University of Kentucky, Laramie L. Leatherman Professor of Law, University of Kentucky College of Law

Abigail R. Moncrieff, Peter Paul Career Development Professor, Associate Professor of Law, Boston University School of Law

Please note:  Participants are responsible for paying their Annual Meeting registration fee and travel expenses.  Full-time faculty members of AALS member schools are eligible to submit proposals.  Faculty at fee-paid law schools, foreign, visiting, and adjunct faculty members, graduate students, fellows, and non-law school faculty are not eligible to submit.

Worth Reading This Week

Zirui Song & Bruce Landon, Controlling Health Care Spending — The Massachusetts Experiment, NEJM

Tim Jost, Is Medicaid Constitutional? NEJM

Mark Hall, Supreme Court Arguments on the ACA — A Clash of Two World Views, NEJM

George Smith, Strategizing the End-Game: Palliative Medicine and the Law, SSRN

[NPT]

 

Publication Study of Faculty at Non-Top 50 Law Schools

As reported by the Tax Prof Blog:

Roger Williams University School of Law has updated its per capita publication study of the faculties at "'non-elite' law schools" -- those schools ranked outside the 2012 U.S. News Top 50. The study covers the 1993-2011 period and uses methodology developed by Brian Leiter, with one change: although Brian focused exclusively on the Top 20 journals, this study examines the Top 50 journals, defined as the general law reviews published by the 54 schools receiving the highest U.S. News peer assessment scores (2.8 or higher) in the 2008 U.S. News rankings, plus an additional 13 journals that appeared in the Top 50 of the Washington & Lee Law Journal Combined Rankings in 2007. (See here for an alphabetical listing of those journals).

[KVT] 

Saying Goodbye to the Sunshine State

After several years of sun and fun, I am leaving Florida to move back to my home state of Ohio to join the talented faculty at the University of Akron School of Law as a tenured Professor of Law. I am blessed to have made many new friends in Florida and will miss my wonderful colleagues at St. Thomas University.   

With my interest in public health and in the laws that regulate innovative biotechnologies, Akron is the perfect place for me. Biotechnology and life sciences are a top industry in Akron. Nationally known for its innovation in polymers, materials science and medical research, the city is home to a Biomedical Corridor, anchored by top health, education and research institutions, including the University of Akron’s nationally recognized engineering programs in polymers and advanced materials, biomaterials and medical devices, advanced energy, computational science and nanotechnology. 

A particularly exciting group of researchers is working at the Austen BioInnovation Institute of Akron (ABIA) on, among many other projects, a new community-wide collaboration to reduce the impact of chronic disease through the creation of an Accountable Care Community initiative. ABIA, through its Center for Community Health Improvement, is leading this initiative with more than 60 public and private community partners. Based on the initial results, this Accountable Care Community model, which deals holistically with an entire community, may prove to have a greater positive impact on healthcare quality, access and cost than the Accountable Care Organization model which creates healthcare silos within communities.  

I am also looking forward to working on law and science issues with the law school’s Center for Intellectual Property Law and Technology. Nationally respected, the Center administers one of the most comprehensive intellectual property programs in the country, offering over 20 courses in the field. The Center also administers the law school’s Master of Laws in Intellectual Property program and the joint J.D./LL.M. program in intellectual property law. 

I look forward to sharing with you all the exciting developments at Akron Law School as we grow our programs in Public Health Law, as well as in Law and Science and as we collaborate on research efforts with the members of the Akron Biomedical Corridor and the Austen BioInnovation Institute of Akron. 

With best wishes,

Katharine Van Tassel

Annual Southern Illinois Healthcare/Southern Illinois University Health Policy Institute - “EHRs, EMRs, and Health Information Technology: To Meaningful Use and Beyond"

On May 18, 2012, the Southern Illinois University School of Law’s Center for health Law and Policy will host the 14th annual Southern Illinois Healthcare/Southern Illinois University Health Policy Institute - “EHRs, EMRs, and Health Information Technology: To Meaningful Use and Beyond."

Featured speakers will include Nicolas Terry, Co-Director of the Hall Center for Law and Health at Indiana University; Eric Meslin, Director of the Indiana University Center for Bioethics at the Indiana University School of Medicine; Jodi Daniel, Director of the Office of the National Coordinator for Health Information Technology at HHS; and David Liebovitz, M.D. of Northwestern University’s Feinberg School of Medicine. 

For more information and to register for the Institute go to: http://www.law.siu.edu/healthlaw/14hpi.php  

[KVT]

 

Patient Safety, Automation, and the Aviation Model

If one jumbo jet crashed in the US each day for a week, we'd expect the FAA to shut down the industry until the problem was figured out. But in our health care system, roughly 250 people die each day due to preventable error. A vice president at a health care quality company says that "If we could focus our efforts on just four key areas - failure to rescue, bed sores, postoperative sepsis, and postoperative pulmonary embolism - and reduce these incidents by just 20 percent, we could save 39,000 people from dying every year." The aviation analogy has caught on in the system, as patient safety advocate Lucian Leape noted in his classic 1994 JAMA article, Error in Medicine. Leape notes that airlines have become far safer by adopting redundant system designs, standardized procedures, checklists, rigid and frequently reinforced certification and testing of pilots, and extensive reporting systems. Advocates like Leape and Peter Provonost have been advocating for adoption of similar methods in health care for some time, and have scored some remarkable successes.

But the aviation model has its critics. The very thoughtful finance blogger Ashwin Parameswaran argues that, "by protecting system performance against single faults, redundancies allow the latent buildup of multiple faults." While human expertise depends on an intuitive grasp, or mapping, of a situation, perhaps built up over decades of experience, technologized control systems privilege algorithms that are supposed to aggregate the best that has been thought and calculated. The technology is supposed to be the distilled essence of the insights of thousands, fixed in software. But the persons operating in the midst of it are denied the feedback that is cornerstone of intuitive learning. Parameswaram offers several passages from James Reason's book Human Error to document the resulting tension between our ability to accurately model systems and an intuitive understanding of them. Reason states:

[C]omplex, tightly-coupled and highly defended systems have become increasingly opaque to the people who manage, maintain and operate them. This opacity has two aspects: not knowing what is happening and not understanding what the system can do. As we have seen, automation has wrought a fundamental change in the roles people play within certain high-risk technologies. Instead of having ‘hands on’ contact with the process, people have been promoted “to higher-level supervisory tasks and to long-term maintenance and planning tasks." In all cases, these are far removed from the immediate processing. What direct information they have is filtered through the computer-based interface. And, as many accidents have demonstrated, they often cannot find what they need to know while, at the same time, being deluged with information they do not want nor know how to interpret.

A stark choice emerges. We can either double down on redundant, tech-driven systems, or we can try to restore smaller scale scenarios where human judgment actually stands a chance of comprehending the situation. For those who accept the inevitability of larger, more interconnected, and more technologized finance systems, the work of Kenneth Bamberger and Erik Gerding may provide a useful framework for eliminating the most troubling potential effects of automation. They have outlined commendable changes for the current regulatory framework. We will need to begin to recognize this regulatory apparatus as a "process of integrating human intelligence with artificial intelligence." (For more on that front, the recent "We, Robot" conference at U. Miami is also of great interest.) [FP]

Worth Reading This Week

Kyle Powys Whyte et al, Nudge, Nudge or Shove, Shove — The Right Way for Nudges to Increase the Supply of Donated Cadaver Organs, AJoB

Randy Barnett, Turning Citizens into Subjects: Why the Health Insurance Mandate is Unconstitutional, SSRN/Mercer L.Rev.

Joan Krause, Kickbacks, Honest Services, and Health Care Fraud after Skilling, SSRN/ Annals of Health Law

Mark Hall & Michael McCue, Estimating the Impact of the Medical Loss Ratio Rule: A State-by-State Analysis, Commonwealth Fund

Barbara Evans, The Ethics of Postmarketing Observational Studies of Drug Safety Under Section 505(o)(3) of the Food, Drug, and Cosmetic Act, SSRN/AJLM

[NPT]

 

Worth Reading This Week

Sara Rosenbaum, Suing States over Threatened Access to Care — The Douglas Decision, NEJM

Gregory Dolin, Exclusivity Without Patents: The New Frontier of FDA Regulation for Genetic Materials, SSRN 

David Brailer & Farzad Mostashari, Two National Health IT Czars Compare Notes, Health Affairs

Robert Berenson et al, Medicare's Readmissions-Reduction Program — A Positive Alternative, NEJM

[NPT]

 

Political Spin and the Constitution

Oral arguments last week suggest an activist decision by the Supreme Court in the challenges to the Affordable Care Act. Indeed, in their response to the taxing power argument, the justices seemed poised to adopt a rather intrusive doctrine of policing political speech by elected officials. While some critics claimed that the mandate could not have qualified as a valid tax however it was characterized, the mandate has failed as a tax primarily because Congress called it a penalty and expressly disclaimed any intent to invoke its taxing power.

Consider, then, the following hypothetical version of the mandate's enactment. Suppose Democratic members of Congress discussed the taxing power as a source of authority and came to the incorrect conclusion that they could not use that power but instead had to use the Commerce Clause power to pass a valid mandate. They therefore called the levy for failing to carry insurance a penalty and disavowed any reliance on the taxing power, even though the levy was pegged at 2.5 percent of income (with minimum and maximum levies).

Should the Court really hold Congress to an inaccurate understanding of constitutional law? What would be the harm if the Court upheld the mandate as a valid exercise of the taxing power?

Continue reading

EMTALA and the Free Rider Problem

This tragic case may interest those who teach EMTALA: 

[Anna Brown] yelled from a wheelchair at St. Mary's Health Center security personnel and Richmond Heights police officers that her legs hurt so badly she couldn't stand. She had already been to two other hospitals that week in September, complaining of leg pain after spraining her ankle. This time, she refused to leave.

A police officer arrested Brown for trespassing. He wheeled her out in handcuffs after a doctor said she was healthy enough to be locked up. . . . She told officers she couldn't get out of the police car, so they dragged her by her arms into the station. They left her lying on the concrete floor of a jail cell, moaning and struggling to breathe. Just 15 minutes later, a jail worker found her cold to the touch.

For some context, here is an excerpt from a column from Steven Pearlstein on a far more noted battle last week: 

[T]he solicitor general and several justices tried to make the obvious point that one reason so many Americans lack health insurance is that the market is inherently unlike any other in that we don’t deny medical care to sick people who can’t pay for it. It is from this anomaly that springs the “individual mandate,” a requirement that all citizens buy health insurance, to prevent them from becoming free-riders on a system paid for by others.

Rather than wrestling with this obvious anomaly, however, Scalia and Alito simply [blamed] the government for creating the problem in the first place by obligating hospitals to treat the sick even if they are uninsured and cannot pay for the care.

As the case of Anna Brown shows, there are many ways to "solve" the free rider problem. [FP]