Health Law and Policy Commons^™

Puncturing The Funnel—Saving The "Any Willing Provider" Statutes From Erisa Preemption, Sharon Reece

University of Arkansas at Little Rock Law Review

No abstract provided.

Taking One For The Team: Should Colleges Be Liable For Injuries Occurring During Student Participation In Club Sports?, Nick White

Vanderbilt Journal of Entertainment & Technology Law

Since the 1970s, colleges have not been liable for their adult students' actions or injuries, but courts have since delineated many exceptions to this rule. This Note will analyze the effect of college involvement in club sports as to whether it creates a duty for a college to protect its club athletes and those they might injure. This Note will also examine whether such a duty might exist in the future if the current trends in the law and college policy continue unchecked. Finally, this Note will address the effectiveness of the current defenses to liability and the effect of …

Erisa: State Regulation Of Insured Plans After Davila, 38 J. Marshall. L. Rev. 693 (2005), Donald T. Bogan

UIC Law Review

No abstract provided.

Turning From Damage Caps To Information Disclosure: An Alternative To Tort Reform, Kathryn Zeiler

Georgetown Law Faculty Publications and Other Works

Medical malpractice damage caps are among the most popular instruments of tort reform at the state level. The Bush administration proposed a federal damage cap on non-economic damages to quell the rise of medical malpractice insurance premiums despite the paucity of empirical evidence demonstrating that damage caps actually decrease premiums. This case study argues that imposing statutory caps on medical malpractice damages is not an effective method of remedying the medical malpractice insurance crisis: therefore, policymakers should consider alternatives to damage caps. In particular, evidence suggests that implementing mandatory disclosure of the contract terms between managed care organizations and physicians …

Foreword: The State Of America’S Health Care System, Tommy G. Thompson

William Mitchell Law Review

Thanks to technology, innovation, and creative entrepreneurs, Americans in the twenty-first century enjoy a wide variety of products and services that would astonish previous generations. Many of these innovations allow them to prevent, treat, cure, and recover from serious injuries and diseases that were once fatal. While medical knowledge and technology have surged ahead, some parts of the health care industry are still struggling to catch up. These include the ability to keep patient records up to date, prevent medical errors, and compensate patients promptly and fairly when errors do occur. The U.S. Department of Health and Human Services continues …

Medical Malpractice Insurance And The Emperor's Clothes, William M. Sage

Faculty Scholarship

Tom Baker and Mark Geistfeld's contributions to this Symposium offer detailed and persuasive analyses of medical malpractice insurance. Their principal contribution to the malpractice reform debate, however, is simple: confirming that liability insurers should not be left to their own devices between malpractice crises or appeased during crisis periods. Instead, liability insurance must be consciously designed to help the health care system work toward its core goals of high quality, broad access, and affordable cost.

In 2000, the IOM issued a follow-up report to its earlier indictment of medical error, calling upon the health care system to become safe, effective, …

Public Medical Malpractice Insurance: An Analysis Of State-Operated Patient Compensation Funds, Frank A. Sloan, Carrie A. Mathews, Christopher J. Conover, William M. Sage

Faculty Scholarship

Compared to major tort and insurance reforms, PCFs have received virtually no attention by scholars. With an exception or two, they are not a major focus of public policy debate either. Because they are small organizations and there have been lengthy periods in which medical malpractice markets are quiescent, they have not attracted much scrutiny. Given a lack of quantitative evidence, our evaluation depended on qualitative evidence. Yet PCFs address the fundamental issues of medical malpractice that have led to reoccurring crises in the availability of medical malpractice insurance coverage and in its premiums for such coverage. As such, PCFs …

The Supreme Court's Limitation Of Managed-Care Liability, Wendy K. Mariner

Faculty Scholarship

This article summarizes and critiques the U.S. Supreme Court's decision in Aetna Health Inc. v. Davila, which limited managed care organizations' liability for negligent decisions about the care of patients in private employer-sponsored health plans governed by ERISA. It contrasts the Court's dichotomous view of health benefit plans, in which insurers administer contracts and treating physicians make medical judgments, with the more complicated relationships that affect decisions about both coverage and treatment.

Giving Pharmaceutical Manufacturers A Pill To Swallow: Why North Carolina Should Provide Discount Prescription Drugs To Non-Elderly Uninsured Citizens, Vaddrick Q. Parker

North Carolina Central Law Review

No abstract provided.

Can Consumer-Choice Plans Satisfy Patients? Problems With Theory And Practice In Health Insurance Contracts, Wendy K. Mariner

Faculty Scholarship

Much scholarship has considered whether health care - and insurance - should be distributed by voluntary contract or subject to government standards or regulation. Contracts will likely play a key distributive role in any future health care system. Yet we do not fully understand where private contracting does and does not work to further the goals of equitable access to affordable care. This article examines the role of health insurance policies in defining and enforcing access to medical care, focusing on private employment-based group health benefit plans. It describes models of consumer choice health plans and critiques their capacity for …

The Insurance Aspects Of Damages, Robert H. Jerry Ii, Douglas R. Richmond

UF Law Faculty Publications

"[I]t is difficult ... to imagine an event or transaction that does not involve insurance in some way." So it is with the most salient event in the lives of Tony and Donna Sabia, whose son Tony John Sabia, or "Little Tony," was born with profound disabilities. In the final analysis, the ability of Tony and Donna to pay for the future medical care and living expenses needed by their son depends on whether they can reach the liability insurance coverage possessed by the health care providers who attended Donna and Little Tony at the time of his birth. It …

Not So Peaceful Coexistence: Inherent Tensions In Addressing Tort Law Reform, Jeffrey W. Stempel

Scholarly Works

As Professor Michael Green's comments trenchantly remind us, all of this has a familiar ring: insurers and tort defendants claim unfairly escalating liability, plaintiffs' lawyers and consumer groups counterattack, and (for the most part), insurers and defendants obtain some of the relief they seek. The tort reform victories are not so overwhelming as to completely unravel the historical rights of victims or the power of courts generally, but some constriction of rights inevitably occurs. During periods of quiescence, plaintiffs and consumers take back some lost territory through common law victories expanding claimant rights, or through specific legislation. Statutes that permitted …

Images Of Health Insurance In Popular Film: The Dissolving Critique, Elizabeth Pendo

Articles

Several recent films have villainized the health insurance industry as central elements of their plots. This Article examines three of those films: Critical Care, The Rainmaker, and John Q. It analyzes these films through the context of the consumer backlash against managed care that began in the 1990s and shows how these films reflect the consumer sentiment regarding health insurance companies and the cost controlling strategies they employ. In addition, the Article identifies three key premises about health insurance in the films that, although exaggerated and incomplete, have significant factual support. Ultimately, the author argues that, despite their passionately critical …

Managed Care’S Crimea: Medical Necessity, Therapeutic Benefit, And The Goals Of Administrative Process In Health Insurance, William M. Sage

Faculty Scholarship

This Essay explores the concept of medical necessity as it has evolved in the judicial and administrative oversight of managed care. The goals of the Essay are to illustrate the range of plausible rationales for establishing administrative procedures to govern medical necessity disputes, and to demonstrate the difficulty of incorporating into those procedures the most important professional and social responsibilities of managed care in today’s health care system. Part I of the Essay explains the ideological and practical significance of medical necessity as managed care has evolved. Part II examines medical necessity as a legal problem, and questions whether current …

Making The Health Insurance Flexibility And Accountability (Hifa) Waiver Work Through Collaborative Governance, Barbara Zabawa

Faculty Works

This article examines the Health Insurance Flexibility and Accountability (HIFA) waiver introduced in 2001, focusing on its potential as a tool for collaborative governance in expanding health insurance coverage. The HIFA waiver grants states greater programmatic flexibility and encourages public-private partnerships, aiming to address the complex challenges of uninsured populations. Although the waiver has been criticized for possibly reducing benefits and increasing cost-sharing, the paper argues for its use as a vehicle to foster stakeholder collaboration. It highlights the importance of integrating diverse perspectives to design politically and economically viable health reforms. Challenges such as stakeholder engagement, accountability, and resource …

Academics And Bioterrorists: New Thinking About The New Terror, Richard Danzig

Cardozo Law Review

No abstract provided.

Pharmacists Without Remedies Means Serious Side Effects For Patients: Third Circuit Denies Pennsylvania Pharmacists Standing To Challenge Reimbursement Rates Under Medicaid Act, Meredith Warner Nisse

Villanova Law Review (1956 - )

No abstract provided.

A Policy Overview, Stephen Utz

Faculty Articles and Papers

No abstract provided.

Representative Conyers Proposes National Health Insurance Act, Amber Nesbitt

Public Interest Law Reporter

No abstract provided.

To Preempt Or Not To Preempt: Hmo Liability Pre And Post Pegram V. Herdrich , Adam D. Glassman

Journal of Law and Health

Should consumers have the right to sue their HMOs (health maintenance organizations) for the way they deliver medical care? In recent years, the federal courts have focused their attention upon, inter alia, the issue of whether HMOs have a duty to reveal financial incentive provisions contained in contracts between the HMO plan physicians to plan members and beneficiaries under a health plan. In fact, on June 12, 2000, the United States Supreme Court, in Pegram v. Herdrich, pondered whether HMO physicians and administrators are fiduciaries under the Employee Retirement Income Security Act (ERISA), and if so, must they exercise their …

The Muhammad Ali Boxing Reform Act: Its Problems And Remedies, Including The Possibility Of A United States Boxing Administration, Devin J. Burstein

Cardozo Arts & Entertainment Law Journal

No abstract provided.

One Word Can Make All The Difference: An Examination Of The Third Circuit's Handling Of Health Care Insurance Policy Exclusion Clauses For Pre-Existing Conditions, Christina M. Finello

Villanova Law Review (1956 - )

No abstract provided.

Health Care Law, Peter M. Mellette, Emily W. G. Towey, J. Vaden Hunt

University of Richmond Law Review

No abstract provided.

Before It's Too Late- Addressing Fear Of Genetic Information, Karen H. Rothenberg, Sharon F. Terry

Faculty Scholarship

No abstract provided.

Winning The Battle, But Losing The War: Purported Age Discrimination May Discourage Employers From Providing Retiree Medical Benefits, 35 J. Marshall L. Rev. 709 (2002), Christopher E. Condeluci

UIC Law Review

No abstract provided.

The Role Of Jury In Modern Malpractice Law, Philip G. Peters Jr.

Faculty Publications

This article explores the policy issues raised by the choice between a custom-based standard of care and a jury-determined reasonability standard. The author examines not only traditional legal arguments but also the recent findings of cognitive psychology, jury performance studies, and health industry research. Not surprisingly, this analysis reveals that both options are imperfect. However, the author cautiously recommends the reasonable physician standard. The revolutionary transformation of the health care industry in last quarter of a century has transferred considerable power from physicians to the health insurance industry, an industry that has not yet earned the privilege of self-regulation. Unlike …

The Serpent In The Garden Of Eden: A Look At The Impact Of Physician Financial Incentive Programs And A Reconsideration Of Herdrich V. Pegram , Amy L. Cralam

Journal of Law and Health

The impact of physician incentive programs is at the heart of the recent Supreme Court case Herdrich v. Pegram. In Herdrich, the patient, Cynthia Herdrich, challenged the use of a common incentive structure that allowed physicians to profit from decreased utilization of expensive medical procedures.' Ms. Herdrich alleged that the use of these incentive programs created a conflict of interest for her treating physician and that conflict of interest caused a misdiagnosis of her appendicitis." The Seventh Circuit Court of Appeals agreed with Ms. Herdrich but was later overruled by the Supreme Court. This article suggests that Herdrich v. Pegram …

Fundamental Mismatch: The Improper Integration Of Individual Liberty Rights Into Commerce Clause Analysis Of The Patient Protection And Affordable Care Act, Arthur J.R. Baker

University of Miami Law Review

No abstract provided.

Bad Medicine: Erisa's Equitable Remedies And The Preemption Of Fundamental Legal Rights, 34 J. Marshall L. Rev. 583 (2001), Marilyn Lablaiks

UIC Law Review

No abstract provided.

Genomic Medicine: The Human Genome Project From A Healthcare Provider's Perspective, Georgia Wiesner

Journal of Law and Health

But the Human Genome Project from my point of view as a healthcare provider has really been on what advantages and what advances can we be able to provide from that. So we really learned a lot about how genes work, how they talk together and how we actually have both health and disease as a consequence of the Human Genome Project. So really understanding this complex interaction is one of the most exciting things as well. What this really has done for healthcare is allowed us to individualize our healthcare. To be able to say for one person against …