Law Commons^™

How Do The Elderly Fare In Medical Malpractice Litigation, Before And After Tort Reform? Evidence From Texas, Myungho Paik, Bernard S. Black, David A. Hyman, William M. Sage, Charles M. Silver

Faculty Scholarship

The elderly account for a disproportionate share of medical spending, but little is known about how they are treated by the medical malpractice system, or how tort reform affects elderly claimants. We compare paid medical malpractice claims brought by elderly plaintiffs in Texas during 1988–2009 to those brought by adult non-elderly plaintiffs. Controlling for healthcare utilization (based on inpatient days), elderly paid claims rose from about 20% to about 40% of the adult non-elderly rate by the early 2000s. Mean and median payouts per claim also converged, although the elderly were far less likely to receive large payouts. Tort reform …

Health Insurance And Federalism-In-Fact, Radha A. Pathak, Brendan S. Maher

Faculty Scholarship

The constitutional legitimacy of the Patient Protection and Affordable Care Act (“ACA”) received substantial attention. Less examined has been the legislation’s sub-constitutional effect on the regulatory power that states can and might exercise. Regarding a state's ability to promulgate "sickness rules," (those legal rules pertaining to the conditions or treatment an insurance policy covers) and "non-sickness" rules (those legal rules pertaining to insurance other than sickness rules), we scrutinize the ACA itself and contrast it with the other most significant statute governing private health insurance, the Employee Retirement Income Security Act of 1974 (“ERISA”). The authors would like to thank …

Reframing Federalism — The Affordable Care Act (And Broccoli) In The Supreme Court, Wendy K. Mariner, George J. Annas, Leonard H. Glantz

Faculty Scholarship

The U.S. Supreme Court decision to uphold most of the Affordable Care Act (ACA), including the insurance-coverage requirement, allows historic reforms in the health care system to move forward. Because the justices were split four to four on whether the ACA was constitutional, Chief Justice John Roberts was able to write the lead opinion that commanded five votes for whatever outcome he determined was constitutional. The chief justice's leadership in upholding almost all of the ACA was unanticipated, as was much of his legal reasoning. It was widely assumed that the interpretation of the Commerce Clause by the Court would …

Post-Reform Medicaid Before The Court: Discordant Advocacy Reflects Conflicting Attitudes, Nicole Huberfeld

Faculty Scholarship

The Supreme Court will decide two major Medicaid cases this term that raise major questions about the program and the tensions it creates between the federal government and the states. The Court heard oral arguments on October 3d in Douglas v. Independent Living Center, a dispute between California and its Medicaid providers regarding reimbursement cuts due to California’s budget crisis. The Medicaid providers argue that these proposed cuts are so extreme as to violate federal law and thus the Supremacy Clause. Their contention hinges on the Equal Access Provision of the Medicaid Act, which commands states to pay healthcare providers …

Safeguarding The Safeguards: The Aca Litigation And The Extension Of Structural Protection To Non-Fundamental Liberties, Abigail Moncrieff

Faculty Scholarship

As the lawsuits challenging the Patient Protection and Affordable Care Act (ACA) have evolved, one feature of the litigation has proven especially rankling to the legal academy: the incorporation of substantive libertarian concerns into structural federalism analysis. The breadth and depth of scholarly criticism on this point is surprising, however, given that judges today frequently choose indirect methods for protecting substantive constitutional values, including structural and process-based methods of the kinds at issue in the ACA litigation. Indeed, indirection in the protection of constitutional liberties is a well-known and well-theorized strategy, which one scholar recently termed “semisubstantive review” and another …

Using Law To Improve Public Health: The Example Of Tobacco Regulation, Kathleen Hoke Dachille

Faculty Scholarship

Tobacco use has been the leading cause of preventable death in the United States for decades yet public health advocates have struggled to secure legislation effectively regulating tobacco products and their use. This is largely due to the role tobacco played in the economic development of the United States, particularly in the southern states, and the power tobacco companies wielded with Congress. Although tobacco use has declined significantly in recent decades and our country no longer relies on tobacco crops for economic stability, tobacco products still maintain a prominent place in American culture, often serving as the straw man in …

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; …

All Pain, No Gain: Need For Prudent Antimicrobial Use Provisions To Complement The Gain Act, Kevin Outterson

Faculty Scholarship

Once every five years, Congress re-authorizes funding for the FDA under PDUFA. In the current PDUFA legislation, Congress also addressed issues relating to antimicrobial resistance in the Generating Antibiotic Incentives Now (GAIN) Act. This short article critiques the absence of antimicrobial stewardship incentives in the GAIN Act, which is a serious error in the long-term struggle with pathogenic microbes.

Some Thoughts On Health Care Exchanges: Choice, Defaults, And The Unconnected, Brendan S. Maher

Faculty Scholarship

One feature of the ACA that appealed to observers across the political spectrum was the creation of health insurance “exchanges.” Among other things, exchanges are intended to aid consumers in making simple and transparent choices regarding the purchase of health insurance. This Article considers how exchanges might benefit from the use of “default” options — both online and off. Given the significant number of Americans that have limited or no Internet access, offline defaults may be an attractive way to promote coverage of the “unconnected.”

Brief Of Amici Curiae Jewish Alliance For Law, Social Action (Jalsa), Jewish Council On Urban Affairs (Jcua), Jewish Social Policy Action Network (Jspan), New England Jewish Labor Committee (Jlc), And Professor Abigail R. Moncrieff In Support, Abigail Moncrieff, Andrew Fischer

Faculty Scholarship

The minimum coverage provision does not require individuals to purchase any unique product or service but rather requires a standardized financial contribution to the national healthcare infrastructure from all legal residents who are able to pay – a kind of requirement that has never been found unduly or even unusually restrictive of individual liberty.

Amici Curiae Brief In Support Of Petitioners Urging Reversal On The Minimum Coverage Provision Issue, Department Of Health And Human Services V. State Of Florida, Wendy Parmet, Lorianne Sainsbury-Wong

Faculty Scholarship

This amicus brief was filed before the Supreme Court in the Affordable Care Act (ACA) litigation on behalf of Health Care for All and other Massachusetts organizations that have been involved in the implementation of Massachusetts’ health 2006 health reform legislation. The brief argues that Massachusetts’ health reform law, upon which the ACA is modeled, has been very effective in expanding insurance coverage within the State, but it required substantial federal support, through a Medicaid waiver, to achieve its success. In addition the Commonwealth’s experience illustrates that the health insurance and health care markets are inherently interstate commerce and that …

Brief Amici Curiae Of Prescription Policy Choices, Professors Of Law, And Professors Of Health Policy In Support Of Petitioners On The Minimum Coverage Provision In Department Of Health & Human Services V. State Of Florida, Abigail Moncrieff, Kevin Outterson, Kyle Thomson, David Arnold, Julia Grace Mirabella, Wang Hao

Faculty Scholarship

One purpose of the individual mandate is to eliminate the market for self-insured healthcare transactions. It is well-established in this Court’s precedent that the elimination of an interstate commercial market is a constitutionally legitimate end for Congress to pursue under the Commerce Clause. Under the Necessary and Proper Clause, Congress may use any reasonably adapted means to accomplish constitutionally legitimate ends. The individual mandate is not only reasonably adapted but is quite elegant as a means of eliminating the market for self-insured healthcare transactions. The provision effectively encourages individuals to shift from the inefficient market for self-insured care to its …

Standards For Health Care Decision-Making: Legal And Practical Considerations, A. Kimberley Dayton

Faculty Scholarship

This Article explores the guardian’s role in making, or assisting the ward to make, health care decisions, and provides an overview of existing standards and tools that offer guidance in this area. Part II outlines briefly the legal decisions and statutory developments assuring patient autonomy in medical treatment, and shows how these legal texts apply to and structure the guardian’s role as health care decision-maker. Part III examines the range of legal and practical approaches to such matters as decision-making standards, determining the ward’s likely treatment preferences, and resolving conflicts between guardians and health care agents appointed by the ward. …

Creating A Clearinghouse To Evaluate Environmental Risks To Fetal Development, Kate Bloch

Faculty Scholarship

No abstract provided.

Developmental Neuroscience, Children's Relationships With Primary Caregivers, And Child Protection Policy Reform, Lois A. Weithorn

Faculty Scholarship

No abstract provided.

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 …

Accountable Care Organizations In The Affordable Care Act, Frank Pasquale

Faculty Scholarship

No abstract provided.

Commerce Games And The Individual Mandate, Leslie Meltzer Henry, Maxwell L. Stearns

Faculty Scholarship

While the Supreme Court declined an early invitation to resolve challenges to the Patient Protection and Affordable Care Act (“PPACA”), a recent split between the United States Courts of Appeals for the Sixth Circuit (sustaining the PPACA’s “individual mandate”) and the Eleventh Circuit (striking it down) virtually ensures that the Court will decide the fate of this centerpiece of the Obama Administration’s regulatory agenda. Whatever the Court’s decision, it will likely affect Commerce Clause doctrine- and related doctrines - for years or even decades to come.

Litigants, judges, and academic commentators have focused on whether the Court’s “economic activity” tests, …

Pain As Fact And Heuristic: How Pain Neuroimaging Illuminates Moral Dimensions Of Law, Amanda C. Pustilnik

Faculty Scholarship

Legal statuses, prohibitions, and protections often turn on the presence and degree of physical pain. In legal domains ranging from tort to torture, pain and its degree do important definitional work by delimiting boundaries of lawfulness and of entitlements. The omnipresence of pain in law suggests that the law embodies an intuition about the ontological primacy of pain. Yet, for all the work done by pain as a term in legal texts and practice, it has had a confounding lack of external verifiability. As with other subjective states, we have been able to impute pain’s presence but have not been …

Teaching Law Students To Be Policymakers: The Health And Science Policy Workshop On Genomic Research, Benjamin E. Berkman, Karen H. Rothenberg

Faculty Scholarship

No abstract provided.

Mixed Messages: The Intersection Of Prenatal Genetic Testing And Abortion, Rachel Rebouché, Karen H. Rothenberg

Faculty Scholarship

This article, prepared for the 2011 Wiley A. Branton Symposium at Howard Law School, provides a snapshot of how current law and practice generate mixed messages about prenatal genetic testing and abortion. The ability to screen and to test for genetic conditions prenatally is expanding, not only because of technological innovations but also because of increased legal and financial incentives. At the same time that prenatal genetic testing is expanding, abortion – one option pregnant women have after testing – is contracting. Federal and state legislation restricts abortion services, for example, by reducing or prohibiting funding; banning the types or …

Manipulating Fate: Medical Innovations, Ethical Implications, Theatrical Illuminations, Karen H. Rothenberg, Lynn W. Bush

Faculty Scholarship

Transformative innovations in medicine and their ethical complexities create frequent confusion and misinterpretation that color the imagination. Placed in historical context, theatre provides a framework to reflect upon how the ethical, legal, and social implications of emerging technologies evolve over time and how attempts to control fate through medical science have shaped -- and been shaped by -- personal and professional relationships. The drama of these human interactions is powerful and has the potential to generate fear, create hope, transform identity, and inspire empathy -- a vivid source to observe the complex implications of translating research into clinical practice through …

Accountable Care Organizations In The Affordable Care Act, Frank Pasquale

Faculty Scholarship

No abstract provided.

The Assault On Bad Food: Tobacco-Style Litigation As An Element Of The Comprehensive Scheme To Fight Obesity, Jada Fehn

Faculty Scholarship

This article provides a summary of the obesity epidemic - the economic costs and importantly, some causes. The need for a comprehensive scheme will be explained by examining the shortfalls of current regulatory mechanisms. Next, this article will explain the three waves of tobacco litigation, the strategy involved in each, and why the third wave left an impact. Then, the current status of food litigation will be explained. Next, applying the tobacco model to big food, this article will make it clear that discovery is crucial in several respects. Lastly, an explicit call to action and a battle plan will …

Not This Child: Constitutional Questions In Regulating Non-Invasive Prenatal Genetic Diagnosis And Selective Abortion, Jaime S. King

Faculty Scholarship

No abstract provided.

Mental Health Care Consumption And Outcomes: Considering Preventative Strategies Across Race And Class, Barak D. Richman, Dan Grossman, Frank A. Sloan, Craig Chepke

Faculty Scholarship

In previous work (Richman 2007), we found that even under conditions of equal insurance coverage and access to mental healthcare providers, whites and high-income individuals consume more outpatient mental health services than nonwhites and low-income individuals. We follow-up that study to determine (1) whether nonwhite and low-income individuals obtain medical substitutes to mental healthcare, and (2) whether disparate consumption leads to disparate health outcomes. We find that nonwhites and low-income individuals are more likely than their white and high-income counterparts to obtain mental health care from general practitioners over mental healthcare providers, and nearly twice as likely not to follow …

About Abortion: The Complications Of The Category, Carol Sanger

Faculty Scholarship

My subject this afternoon is abortion, a subject that for the last 40 years has embedded itself in American consciousness, American politics, and American culture with remarkable durability and reach. Looking only at the first decade of this century – from George W. Bush to Barack Obama, to use two presidential landmarks – abortion has been central to how Americans conceptualize, debate, and sometimes resolve all sorts of things: foreign aid, health care reform, high school sex education, and judicial nominations to the Supreme Court. Abortion has been at the heart of disputes over what products Walmart keeps on its …

Regulating Compounding Pharmacies After Necc, Kevin Outterson

Faculty Scholarship

Food and Drug Administration (FDA) rules are often forged in crisis. After the 1937 sulfanilamide disaster that killed more than 100 people, Congress passed the Food, Drug, and Cosmetic Act (FDCA),requiring drugs to be safe and properly labeled. In 1962, a requirement was introduced for proof of drug efficacy through “adequate and well-controlled investigations,” partly in response to the thalidomide tragedy. Rules protecting human-research subjects owe a debt to Tuskegee and Nuremberg.

Brief Of Amici Curiae Health Law & Policy Scholars And Prescriptions Policy Choices In Support Of Respondents On The Constitutional Validity Of The Medicaid Expansion In State Of Florida V. Department Of Health And Human Services, Kevin Outterson, Nicole Huberfeld

Faculty Scholarship

The Medicaid expansion in Section 2001(a)(1)(C) of the Patient Protection and Affordable Care Act is one part of Congress’s comprehensive effort to expand access to health care coverage. This expansion is not revolutionary, but builds on many prior statutory amendments to Medicaid. Nor does it alter the voluntary nature of the Medicaid program – as before, States remain free to decline federal funding. The Petitioners and their amici have mischaracterized the expansion to obscure these facts, hoping this Court will unravel this hard-fought legislative enactment.

The question presented is whether Congress may offer States generous additional funding for Medicaid, with …

Deductions For Drug Ads? The Constitution Does Not Require Congress To Subsidize Direct-To-Consumer Prescription Drug Advertisements, Kevin Outterson, Shoshana Speiser

Faculty Scholarship

The First Amendment protects lawful, non-misleading advertising as commercial speech, which constrains Congressional attempts to regulate direct-to-consumer advertising (DTCA) of prescription drugs. But the Constitution does not require the federal government to subsidize advertising through the Tax Code. Congress could revoke the legislative gift of tax deductions for DTCA without running afoul of regulating speech. While DTCA proponents maintain that DTCA increases disease awareness and leads to more doctor-patient conversations, Congress could find that these purported benefits are outweighed by other negative consequences, including excessive prescribing.