Digital Commons Network^™

Removing Obstacles To A Peaceful Death, Kathy L. Cerminara, Barbara A. Noah

Faculty Scholarship

We all will die, but the American health care system often impedes a peaceful death. Instead of a quiet death at home surrounded by loved ones, many of us suffer through overutilization of sometimes-toxic therapeutic interventions long past the time when those interventions do more good than harm. This article proposes revisions to health professional training and payment policy to eliminate as much as possible physical and existential suffering while progressing through the terminal phase of illness. The solution lies in seamless progression from treatment with integrated palliative care to hospice before death, but provider attitudes and payor practices must …

Ministries Of Catholic Sisters In The Diocese Of Cleveland: Assessing Capacity And Opportunity In A Period Of Transition, Robert L. Fischer, Rong Bai

Faculty Scholarship

Catholic sisters have long played a vital role in addressing the needs of the poor, neglected, and vulnerable members of society. In northeast Ohio, sisters have been instrumental in the arenas of education, healthcare, social service, and advocacy. This research builds on research conducted in 2009 on the characteristics of the ministries of Catholic sisters. Using a survey approach, responses were collected from 358 Catholic Sisters in 12 religious orders, approximately 60 percent of the sisters living in the Diocese of Cleveland. The study explores sisters' current ministries (work and service), the plans for their ministries to continue, and their …

Teaching Bioethics: The Role Of Empathy & Humility In The Teaching And Practice Of Law, Barbara A. Noah

Faculty Scholarship

This essay considers the role of empathy and humility in the professional practices of physicians and lawyers and in those who prepare students for these professions. Beginning with an overview of the goals and methods of legal education, it compares similar goals in medical education and the value of practicing law (and medicine) with empathy and humility. The essay then describes exercises used in the law school classroom designed both to teach law students about end-of-life law and also to allow them to practice counseling clients. Through these exercises, law students can experience firsthand the challenges of advising a client …

Merging Ahead, Increase Speed: A Pilot Of Funder-Driven Nonprofit Restructuring, Robert L. Fischer, Claudia J. Coulton

Faculty Scholarship

Nonprofit agencies face increasing competition for scarce funding resources. Many agencies are considering ways to restructure themselves, often via mergers and acquisitions, as a way to become more effective and competitive. This case study examines a pilot initiative in Cleveland, Ohio, in which philanthropic funders invited and supported nonprofits in the pursuit of significant restructuring efforts. Health and human service nonprofits were recruited into a three-phase facilitated pilot that assisted the agency executive directors and boards in determining what type of restructuring was feasible and desirable. Overall, 75 nonprofits participated in some part of the pilot, 17 of which formally …

Unbefriended And Unrepresented: Better Medical Decision Making For Incapacitated Patients Without Healthcare Surrogates, Thaddeus Pope

Faculty Scholarship

How should we make medical decisions for incapacitated patients who have no available legally-authorized surrogate decision maker? Because these patients lack decision making capacity, they cannot authorize treatment themselves. Because they lack a surrogate, nobody else can authorize treatment either. Clinicians and researchers have referred to these individuals as “adult orphans” or as “unbefriended,” “isolated,” or “unrepresented” patients. Clinicians and researchers have also described them as “unimaginably helpless,” “highly vulnerable,” and as the “most vulnerable,” because “no one cares deeply if they live or die.”

The persistent challenges involved in obtaining consent for medical treatment on behalf of these individuals …

Teaching The Law Of American Health Care, Elizabeth Weeks, Nicole Huberfeld, Kevin Outterson

Faculty Scholarship

In writing our casebook, The Law of American Health Care, we started from scratch, rethinking the topics to include and themes around which to organize them. Like many health law professors, we were schooled in and continued to propound the traditional themes of cost, quality, access, and choice. While those concerns certainly pervade many areas of health care law, our casebook's overarching themes emphasize different issues, namely: federalism, individual rights, fiduciary relationships, the modem administrative state, and market regulation. These new themes, we believe, better capture the range of issues and topics essential forthe new generation of health lawyers. When …

Oral Cryptococcosis In A Patient With Chronic Lymphocytic Leukemia, Sachin Patel, Maria Navas, Courtney Batt, Robin L.P. Jump

Faculty Scholarship

No abstract provided.

Book Review: Automating The Professions: Utopian Pipe Dream Or Dystopian Nightmare?, Frank A. Pasquale

Faculty Scholarship

No abstract provided.

On The Expansion Of “Health” And “Welfare” Under Medicaid, Laura Hermer

Faculty Scholarship

Medicaid was intended from its inception to provide financial access to health care for certain categories of impoverished Americans. While rooted in historical welfare programs, it was meant to afford the "deserving" poor access to the same sort of health care that other, wealthier Americans received. Yet despite this seemingly innocuous and laudable purpose, it has become a front in the political and social battles waged over the last several decades on the issues of welfare and the safety net. The latest battleground pits competing visions of Medicaid. One vision seeks to transform Medicaid from a health care program into …

Avoiding Overtreatment At The End Of Life: Physician-Patient Communication And Truly Informed Consent, Barbara A. Noah, Neal R. Feigenson

Faculty Scholarship

This Article considers how best to ensure that patients have the tools to make informed choices about their care as they near death. Informed decision making can help reduce excessive end-of-life care and unnecessary suffering, and result in care that aligns with patients’ well-considered values and preferences. The many factors that contribute to dying patients receiving too much therapy and life-prolonging care include: the culture of denial of death, physicians’ professional culture and attitudes toward treatment, physicians’ fear of liability, physicians’ avoidance of discussions about prognosis, and the impact of payment incentives that encourage overutilization of medical technologies.

Under the …

The (Ir)Rationality Of (Un)Informed Consent, Barbara A. Noah

Faculty Scholarship

This essay considers the problem of over-utilization of medical care at the end of life and the lack of truly informed consent and briefly considers the multiple causes of these phenomena. It then explores the inherent challenges to making informed medical decisions using concepts of Knightian uncertainty, bounded rationality, optimism bias, and other heuristics. The essay concludes that uncertainty inherent in these decisions means that challenges to making truly informed decisions about medical care are even more substantial than physicians acknowledge or patients ever realize. Acknowledging these challenges is the first step to better medical decision making. informed consent has …

The Picture Begins To Assert Itself: Rules Of Construction For Essential Health Benefits In Health Insurance Plans Subject To The Affordable Care Act, Wendy K. Mariner

Faculty Scholarship

As the ACA shifts the function of health insurance from voluntary contract to a means of financing health care, it poses some challenges to traditional doctrines for interpreting health plan provisions. This article explores whether and how the doctrine of reasonable expectations and rules of statutory interpretation might apply to Essential Health Benefits coverage. A functional approach linking the two into a doctrine of reasonable statutory expectations could move us toward developing more consistent rules of interpretation within a more realistic conception of contemporary health insurance.

Duress As Rent-Seeking, Mark Seidenfeld, Murat C. Mungan

Faculty Scholarship

The doctrine of duress allows a party to avoid its contractual obligations when that party was induced to enter the contract by a wrongful threat while in a dire position that left it no choice but to enter the contract. Although threats of criminal or tortious conduct clearly are wrongful, under the doctrine of “economic duress” courts have held that other threats can be wrongful and hence the basis of a duress defense. Courts, however, have not developed a coherent understanding of what makes such non-criminal and non-tortious threats wrongful.

This Article proposes that a threat should be wrongful when …

Recovery And Preemption: The Collision Of The Medicare Secondary Payer Act And The Medical Device Amendments, George Horvath

Faculty Scholarship

Congress often uses its power to preempt state laws when a uniform nationwide regulatory environment is desirable. Unfortunately, preemption may have unintended, far-reaching effects. When Congress enacted the Medical Device Amendments of 1976 (“MDA”), it included an express preemption clause to ensure that only the Food and Drug Administration (“FDA”) could establish ex ante, premarket requirements for medical devices, thus allowing the Agency to establish a uniform regulatory floor. Just four years later, Congress enacted the Medicare Secondary Payer Act (“MSP”), part of a series of amendments to the Medicare program designed to improve the program’s finances. The MSP included …

A Better Death In Britain?, Barbara A. Noah

Faculty Scholarship

In the United States, patients and physicians often avoid discussing the inevitability of death and planning for it. As a result, opportunities are missed to make choices that comport with patients’ values and preferences. In the absence of such decisions, the default model is to “err on the side of life,” which often results in overtreatment or inappropriate prolongation of life and avoidable suffering. This Article discusses the United States' end-of-life training and care and Britain’s Liverpool Care Pathway as related to end-of-life care availability, quality, and cost. It further sets forth the argument that while the United States' medical …

Autopsy Reports And The Confrontation Clause: A Presumption Of Admissibility, Daniel J. Capra, Joseph Tartakovsky

Faculty Scholarship

Courts nationwide are divided over whether autopsy reports are “testimonial” under the Sixth Amendment’s Confrontation Clause. Resolving that split will affect medical examiners as dramatically as Miranda did police. This article applies the latest Supreme Court jurisprudence to the work of modern medical examiners in a comprehensive inquiry. It argues that autopsy reports should be presumed non-testimonial—a presumption overcome only by a showing that law enforcement involvement materially influenced the examiner’s autopsy report.

Support For Sister-Affiliated Ministries During Challenging Times: Understanding A Foundation Initiative In Two Regions, Robert L. Fischer

Faculty Scholarship

This article describes the efforts of two foundations to sustain the ministries of Catholic sisters in two regions: northeast Ohio and South Carolina. Spanning more than 10 years, the initiative has drawn on multiple strategies – including convening, grantmaking, communicating, and research – in partnership with sisters themselves to sustain a diverse set of ministries. The work informs foundation practice by illuminating an approach to capacity development in very different regional contexts. Key lessons include being sensitive to the context, paying attention to both individual and organizational capacity, and the need for data.

You Can't Get There From Here: Elderly Prisoners, Prison Downsizing, And The Insufficiency Of Cost Cutting Advocacy, Elizabeth Rapaport

Faculty Scholarship

The prison population in the United States has peaked and begun to recede, reversing more than 30 years of growth. Mass incarceration is yielding to the imperative to reduce state budgets in recessionary times. As states turn away from the extravagant use of prison for nonviolent offenders, the percentage of the prison population serving long and life sentences for violent felonies will increase. By 2009 one in eleven prisoners were lifers. These are the prisoners growing old and dying in prison. High cost elderly prisoners who have aged out of crime should be good candidates for cost saving measures such …

Dispute Resolution Mechanisms For Intractable Medical Futility Disputes, Thaddeus Mason Pope

Faculty Scholarship

Medical futility disputes occur frequently in healthcare facilities across the United States. In this Article, I provide an overview of dispute resolution mechanisms through which healthcare providers can resolve these disputes. In Section I, identify three distinctive features of medical futility disputes. First, they usually concern life-sustaining medical treatment for patients in a hospital’s intensive care unit. Second, these patients typically lack decision making capacity. So, a surrogate must make treatment decisions on the patient’s behalf. Third, this surrogate and the patient’s physician disagree over the treatment plan. The surrogate wants to continue life-sustaining treatment. But the physician thinks that …

Legal, Medical, And Ethical Issues In Minnesota End-Of-Life Care: An Introduction To The Symposium, Thaddeus Mason Pope

Faculty Scholarship

As America grays, and medicine’s ability to treat the sickest of patients expands, the legal, medical, and ethical issues in end-of-life care become more numerous, pressing, and intertwined. Because Minnesota’s citizens, clinicians, and courts are not far from these concerns, the Hamline University Health Law Institute and the Hamline Law Review hosted an interdisciplinary Symposium entitled "Legal, Medical, and Ethical Issues in Minnesota End-of-Life Care."

On November 9, 2012, we welcomed more than 200 participants to the newly opened Carol Young Anderson and Dennis L. Anderson Center on Hamline University’s Saint Paul campus. These participants included: attorneys, physicians, nurses, social …

Clinicians May Not Administer Life-Sustaining Treatment Without Consent: Civil, Criminal, And Disciplinary Sanctions, Thaddeus Mason Pope

Faculty Scholarship

Both medical and legal commentators contend that there is little legal risk for administering life-sustaining treatment without consent. In this Article, I argue that this perception is inaccurate. First, it is based on an outdated data set, primarily damages cases from the 1990s. More recent plaintiffs have been comparatively more successful in establishing civil liability. Second, the published assessments focus on too-limited data set. Even if the reviewed cases were not outdated, a focus limited to civil liability would still be too narrow. Legal sanctions have also included licensure discipline and other administrative sanctions. In short, the legal risks of …

In Denial: The Role Of Law In Preparing For Death, Barbara A. Noah

Faculty Scholarship

Only approximately 20% of Americans have engaged in any form of advance care planning and, even among older Americans, the process frequently is delayed until an acute illness provides sufficient pressure to act. End of life law, though flawed, offers some opportunity to express individual values and preferences via advance directives of various kinds in order to prepare for death before it is imminent. Yet many people avoid making these preparations because the thought of death is uncomfortable to confront. This Article considers the utility of existing law in preventing and resolving end of life disputes and avoiding over-utilization of …

Two Conflicts In Context: Lessons From The Schiavo And Bland Cases And The Role Of Best Interests Analysis In The United Kingdom, Barbara A. Noah

Faculty Scholarship

This Essay considers the different approaches to end of life decision making for incapacitated patients in the United States and in the United Kingdom. In the United States, individual patient autonomy is the primary guidepost for making end of life decisions for incapacitated patients. In the United Kingdom, patient preference is openly and deliberately supplemented with a careful consideration of the patient’s best interest. To contrast the two approaches, the Essay focuses on two cases involving patients in permanent vegetative states (PVS) for whom little was known about their respective individual preferences, and it analyzes the differences in conceptualization and …

Human Trafficking: Trends In Africa, Florence Shu-Acquaye

Faculty Scholarship

No abstract provided.

The Affordable Care Act And Health Promotion: The Role Of Insurance In Defining Responsibility For Health Risks And Costs, Wendy K. Mariner

Faculty Scholarship

This article examines whether insurance is an appropriate mechanism for improving individual health or reducing the cost of health care for payers. The Affordable Care Act contains implicit standards for allocating responsibility for health, especially in provisions encouraging health promotion and wellness programs. A summary of the accumulating evidence of the effects of such programs suggests that wellness programs have been somewhat more effective in making people feel better than in reducing costs. Health promotion should be encouraged, because health is valuable for its own sake. Insurance is not well suited to improve health or manage behavioral risks to health; …

The Role Of Race In End-Of-Life Care, Barbara A. Noah

Faculty Scholarship

This essay focuses on one important aspect of racial disparities that has received comparatively little attention in the legal literature--the existence and causes of racial differences in end-of-life decision making and in the utilization of palliative and hospice care. African Americans and other racial minorities in the United States utilize palliative care and hospice less frequently than white Americans. These minority populations also tend to resist advance care planning and instead opt to receive more life-prolonging care at the end of life, even when quality of life and prognosis are poor. After a lifetime of limited access to health care …

Women Religious In A Changing Urban Landscape: The Work Of Catholic Sisters In Metropolitan Cleveland, Robert L. Fischer, Jennifer Bartholomew

Faculty Scholarship

In many communities, women religious play a vital role in addressing the needs of the poor, neglected, and vulnerable members of society. Catholic Sisters have long been active in the areas of education, health care, outreach, and advocacy in northeast Ohio. In high-poverty urban areas such as Cleveland, women religious continue to provide essential services, support, and spiritual guidance. The experience in Cleveland is relevant to other cities where the population has shifted from an urban center to suburban areas, leaving inner-city churches with declining membership and support. Survey data collected from 164 Catholic Sisters from fifteen religious orders in …

Voluntarily Stopping Eating And Drinking: A Legal Treatment Option At The End Of Life, Thaddeus Mason Pope

Faculty Scholarship

Despite the growing sophistication of palliative medicine, many individuals continue to suffer at the end of life. It is well settled that patients, suffering or not, have the right to refuse life-sustaining medical treatment (such as dialysis or a ventilator) through contemporaneous instructions, through an advance directive, or through a substitute decision maker. But many ill patients, including a large and growing population with advanced dementia who are not dependent upon life-sustaining medical treatment, do not have this option. They have the same rights, but there is simply no life-sustaining medical treatment to refuse.

Nevertheless, these patients have another right, …

La Caja De Pandora: Improving Access To Hospice Care Among Hispanic And African-American Patients, Kathy L. Cerminara, Alina M. Perez

Faculty Scholarship

Many patients clinging to hope in the form of potentially curative treatment could benefit from hospice services, but, for the most part, it is not until the patient accepts the finality of his or her condition that the physical, psychological and social benefits of hospice care become accessible to the patient and his or her family. Under current Medicare regulations and other health care payers’ policies, patients must abandon the hope of curative treatment before opting for hospice services. As a result, many terminally ill patients access the services late, sometimes a few hours before death. Scholars have proposed that …

Race And Healthcare In America: Foreword, Barbara A. Noah

Faculty Scholarship

In all four of the articles that form this Symposium, the authors identify troubling disparities and injustices in our healthcare system and suggest strategies to ameliorate these problems. Sadly, the reforms of the Obama administration will probably do little to address these issues directly. The mandated insurance coverage requirement, for example, applies to U.S. citizens and legal residents, but not, unsurprisingly, to undocumented immigrants? Similarly, the legislation expands public programs but does nothing directly to support the burden of EMT ALA's unfunded mandate on hospitals. And, as the evidence has long demonstrated, insurance coverage alone fails to guarantee equal medical …