Law Commons^™

A Closer Look At The Federalization Snowball, Abigail R. Moncrieff

Law Faculty Articles and Essays

While on the academic job market, I presented Federalization Snowballs to several stellar law faculties.1 My argument, in short, was that: (1) federal healthcare spending allows the states to externalize onto the federal government about 40% of the utilization costs associated with their medical malpractice policies (such as the cost of defensive medicine); (2) such an externality systematically distorts a rational state’s incentive to reform medical malpractice; and (3) federalization of medical malpractice is necessary to correct the distortion. In other words, I argued that federalization of healthcare spending through Medicare, Medicaid, and similar programs has snowballed into a need …

Federalization Snowballs: The Need For National Action In Medical Malpractice Reform, Abigail R. Moncrieff

Law Faculty Articles and Essays

Because tort law and healthcare regulation are traditional state functions and because medical, legal, and insurance practices are localized, legal scholars have long believed that medical malpractice falls within the states' exclusive jurisdiction and sovereignty. This conventional view fails to consider the impact that federal healthcare programs have on the states' incentives to regulate. As a result of federal financing, each state externalizes some of the costs of its malpractice policy onto the federal government. The federal government therefore needs to take charge of medical malpractice in order to fix the spillover problem created by existing federal healthcare programs.

Importantly, …

Dying To Wait: How The Abigail Court Got It Wrong, Juan Joel Tovanche

Journal of Law and Health

At age twenty-one, Abigail Kathleen Burroughs met a fate usually reserved for aged men who have spent much of their lives drinking and smoking. Diagnosed with cancer at nineteen, Abigail battled the squamous cell carcinoma that invaded her body even as she struggled to maintain her characteristic optimism. Abigail struggled with more than her illness, however. In the last years of her life, Abigail and her family also wrestled with Food and Drug Administration (FDA) regulations that denied her access to medication that could have saved her life. The policy at issue was the FDA's practice of progressive testing, which …

Hiv Testing In State Correctional Systems, James Lee Pope

Journal of Law and Health

In recent years, reports have surfaced that the prevalance of acquired immunodeficiency syndrome (AIDS) and human immunodeficiency virus (HIV) within U.S. prison systems is three to five times higher than that of the general population. These reports, combined with the release of new HIV testing guidelines by the Centers for Disease Control (CDC) in 2006, have caused many states to change their laws and policies regarding HIV testing in state correctional facilities. This report briefly discusses some of the issues related to HIV testing within state correctional facilities. This report also discusses the methods of HIV testing currently used in …

The Neglect Of The Umbilical Cord: Ohio's Failure To Adequately Promote Banking Of Umbilical Cord Blood Stem Cells And The Need For New Legislation, Shannon Folger

Journal of Law and Health

Because current legislation, including OH H.B. 237, is insufficient in that it does not have the potential to significantly increase the number of cord blood donations, it will be necessary to enact legislation that is more demanding. Such legislation should be modeled after current "required request" organ donation laws, which mandate that health professionals actively pursue organ donations by expressly asking the family to consent to donation. Modeled after these laws, better legislation will not only require that state health departments generate information about donation opportunities, but also that health professionals then provide each maternity patient with materials about cord …

Discretion To Follow The Law: The Collision Of Ohio's Nursing Home Bill Of Rights With Ohio's Political Subdivision Tort Liability Act, Peter Traska Elk & Elk Co., Ltd., Katherine Knouff

Journal of Law and Health

The Ohio Political Subdivision Tort Liability Act confers general immunity on political subdivisions. Therefore, government owned homes seek to avoid liability by raising the defenses provided by the Ohio Political Subdivision Tort Liability Act, despite the resident's rights under the Nursing Home Bill of Rights. The result is that residents of government owned nursing homes have inferior remedies for the tortious acts of a county home's employees. The disparate treatment meted out to residents of county owned homes opens the Political Subdivision Act to another challenge: equal protection. The law formerly recognized that government actors taking part in the marketplace …

The Deficit Reduction Act Of 2005 - Reducing The Number Of Recipients And Applicants Eligible To Receive Medicaid Benefits, Christal Contini

Journal of Law and Health

Medically impaired individuals such as George, as well as disaster victims, mentally handicapped persons, homeless persons, and foster children, will be adversely affected by the new citizenship documentation requirements imposed upon the states by the Act. States will also be adversely affected by the increased administrative costs of implementing the Act's requirements. This note asserts that aspects of the citizenship verification requirements treat citizen applicants worse than immigrant applicants, which violates the Due Process Clause of the Fifth Amendment. Amendments should be made to the United States Code and the Code of Federal Regulations to ease the burden on individuals …

Physician Peer Review Immunity: Time To Euthanize A Fatally Flawed Policy, Charles R. Koepke M.D.

Journal of Law and Health

Dr. X is a young, charismatic, board-certified surgeon at the local hospital. While popular among her patients and non-surgical colleagues, to the established surgical "Old Guard," she appears somewhat of a threat. Her training in new advanced techniques, coupled with splendid bedside manner, has caused her practice to become quite busy. However, disruption in some well-established referral patterns has occurred, and business has been siphoned away from her older colleagues. . . . This hypothetical - but not uncommonly recurring - fact pattern demonstrates the destruction of a promising medical career, elimination of competition, promotion of status quo cronyism, and …

To Pay Or Not To Pay: Medicare And The Preventable Adverse Event: A Rational Decision Of Dangerous Philosophical Change, Amy J. Chaho M.D.

Journal of Law and Health

The proposed Medicare reimbursement schedule intended to become effective in October 2008 represents a drastic change to the traditional policy of payment for needed services. The proposal mandates that certain preventable adverse events should not be reimbursed. This spending scheme is intended to improve quality while decreasing cost to the Medicare system. The goals of the spending scheme are laudable. Quality improvement, when used to improve the health, safety and general welfare of the intended patient beneficiary of the Medicare program, is a rational and compelling government interest that warrants coercive use of authorized spending power. This beneficial interest may …

Regional Health Information Organizations: Lower Health Care Costs, Fewer Iatrogenic Illnesses, And Improved Care - What Are We Waiting For, Angela Ferneding

Journal of Law and Health

Rising health care costs have a significant impact on our economy, and medical errors pose a meaningful and costly risk to health care consumers. The adoption of information technology, including the implementation of RHIOs (Regional Health Information Organizations) and electronic medical record systems, is critical to addressing these issues. Although President Bush's vision of a NHIN (National Health Information Network)is a positive first step in governmental involvement, Congress must address the biggest challenge health care providers cite in implementing information technology: the lack of funding. The national government must demonstrate its commitment to reducing costs and improving care by committing …

Germs On A Plane: Legal Protections Afforded To International Air Travelers And Governments In The Event Of A Suspected Or Actual Contagious Passenger And Proposals To Strengthen Them, Alexandra R. Harrington

Journal of Law and Health

This article calls for the creation of an international public health do-not-fly list akin to those used by Interpol and the United States government as a stop-gap measure to ensure that passengers who have been diagnosed with infectious diseases or have been exposed to infectious diseases are unable to travel until it is established that it is medically safe for them to do so. This article has also called for amendments to the IHR and the Vienna Conventions to clarify the rights and obligations of travelers and states in the event of a suspected or established case of infectious disease …

Reverse Pre-Empting The Federal Arbitration Act: Alleviating The Arbitration Crisis In Nursing Homes, Jana Pavlic

Journal of Law and Health

In Casarotto, the Supreme Court enunciated that Montana's notice requirement conflicted with the "goals and policies of the FAA." The inequities associated with the process of pre-dispute arbitration agreements in nursing homes, however, confirm that the FAA's "goals and policies"' conflict with "accepted principles of contract law"' in this context. Long standing principles of contract law that predate the FAA, as well as basic human morality, should supersede the interests of efficiency and convenience purportedly served by the general enforceability of the statute. State case law as well as attempted state legislation already evince an underlying public policy to protect …