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Articles 241 - 270 of 466
Full-Text Articles in Health Law and Policy
Physician-Assisted Suicide In Oregon: A Medical Perspective, Herbert Hendin, Kathleen Foley
Physician-Assisted Suicide In Oregon: A Medical Perspective, Herbert Hendin, Kathleen Foley
Michigan Law Review
This Article examines the Oregon Death with Dignity Act from a medical perspective. Drawing on case studies and information provided by doctors, families, and other care givers, it finds that seemingly reasonable safeguards for the care and protection of terminally ill patients written into the Oregon law are being circumvented. The problem lies primarily with the Oregon Public Health Division ("OPHD"), which is charged with monitoring the law. OPHD does not collect the information it would need to effectively monitor the law and in its actions and publications acts as the defender of the law rather than as the protector …
Patients As Consumers: Courts, Contracts, And The New Medical Marketplace, Mark A. Hall, Carl E. Schneider
Patients As Consumers: Courts, Contracts, And The New Medical Marketplace, Mark A. Hall, Carl E. Schneider
Michigan Law Review
The persistent riddle of health-care policy is how to control the costs while improving the quality of care. The riddle's oncepromising answer-managed care-has been politically ravaged, and consumerist solutions are now winning favor This Article examines the legal condition of the patient-as-consumer in today's health-care market. It finds that insurers bargain with some success for rates for the people they insure. The uninsured, however, must contract to pay whatever a provider charges and then are regularly charged prices that are several times insurers'pricesa nd providers' actual costs. Perhaps because they do not understand the healthcare market, courts generally enforce these …
The Choice To Limit Choice: Using Psychiatric Advance Directives To Manage The Effects Of Mental Illness And Support Self-Responsibility, Breanne M. Sheetz
The Choice To Limit Choice: Using Psychiatric Advance Directives To Manage The Effects Of Mental Illness And Support Self-Responsibility, Breanne M. Sheetz
University of Michigan Journal of Law Reform
Psychiatric advance directives are a valuable tool for individuals with mental illnesses. Ulysses directives, in particular, allow individuals to bind themselves to treatment in advance of needing it for the purpose of overcoming illness-induced refusals. This Note evaluates the effectiveness of state advance directive statutes in three areas that are especially important for Ulysses directives: defining competency to execute, activate, and revoke directives; waiving the constitutional right to refuse treatment; and encouraging provider compliance. This Note ultimately advocates for other states to adopt provisions similar to a Washington State statute. The Washington statute authorizes Ulysses directives by allowing advance consent …
Offsetting Risks, Ariel Porat
Offsetting Risks, Ariel Porat
Michigan Law Review
Under prevailing tort law, an injurer who must choose between Course of Action A, which creates a risk of 500 (there is a probability of .1 that a harm of 5000 will result), and Course of Action B, which creates a risk of 400 (there is a probability of.] that a harm of 4000 will result), and who negligently opts for the former will be held liable for the entire harm of 5000 that materializes. This full liability forces the injurer to pay damages that are five times higher than would be necessary to internalize the risk of 100 that …
What Do Nonprofits Maximize? Hospital Service Provision And Market Ownership Mix, Jill R. Horwitz, Austin Nichols
What Do Nonprofits Maximize? Hospital Service Provision And Market Ownership Mix, Jill R. Horwitz, Austin Nichols
Law & Economics Working Papers Archive: 2003-2009
Conflicting theories of the nonprofit firm have existed for several decades yet empirical research has not resolved these debates, partly because the theories are not easily testable but also because empirical research generally considers organizations in isolation rather than in markets. Here we examine three types of hospitals – nonprofit, for-profit, and government – and their spillover effects. We look at the effect of for-profit ownership share within markets in two ways, on the provision of medical services and on operating margins at the three types of hospitals. We find that nonprofit hospitals’ medical service provision systematically varies by market …
The Cash Nexus, Carl E. Schneider
The Cash Nexus, Carl E. Schneider
Articles
Courts and legislatures have labored for decades to protect patients' choice of medical treatments, even though patients seize that gift less eagerly than lawmakers expect. Yet while courts have rushed to build the whited sepulchre of informed consent, they have fled from a related problem that patients actually yearn to solve and that actually can be ameliorated the plight of patients who perforce agree to a treatment before they know its costs and who receive a bill both unrelated to the treatment's value and several times what an insured patient would pay. Increasingly, patients must be consumers in the medical …
Privatization And The Human Right To Water: Challenges For The New Century, Melina Williams
Privatization And The Human Right To Water: Challenges For The New Century, Melina Williams
Michigan Journal of International Law
This Note considers implications for the human fight to water in the context of the trend toward privatization of water supplies. Part II examines the legal bases of the right to water, and Part III discusses the potential obligations that arise from it. Part IV then looks at the interaction between the fight to water and arrangements to privatize water supplies. This Note posits that human rights law does not simply support or oppose privatization of water supplies and services. Rather, bringing a human rights perspective to the problem of providing water to the world's population both clarifies the minimum …
Does Nonprofit Ownership Matter?, Jill R. Horwitz
Does Nonprofit Ownership Matter?, Jill R. Horwitz
Articles
In recent years, policymakers have increasingly questioned whether nonprofit institutions, particularly hospitals, merit tax exemption. They argue that nonprofit hospitals differ little from their for-profit counterparts in the provision of charity care and, therefore, should either lose their tax-exempt status or adhere to new, strict, and specific requirements to provide free services for the poor. In this Article, I present evidence that hospital ownership-whether it is for-profit, nonprofit, or government owned-has a significant effect on the mix of medical services it offers. Despite notoriously weak enforcement mechanisms, nonprofit hospitals act in the public interest by providing services that are unlikely …
Void For Vagueness, Carl E. Schneider
Void For Vagueness, Carl E. Schneider
Articles
When law regulates a profession, where does it get its standards? Largely from the profession. Members of professions acquire esoteric and abstract knowledge through formal education and the experience of practice. They use professional judgment in applying this knowledge to each case. Because legislatures and courts lack this expertise, they adopt the standards of the experts. Thus in a malpractice suit, juries are instructed to determine whether the doctor met medicine's standard of care. Furthermore, physicians must be called as expert witnesses to guide juries in that work. Even when lawmakers contemplated intensifying their regulation of medicine by creating the …
Private Ordering And Intimate Spaces: Why The Ability To Negotiate Is Non-Negotiable, Michele Goodwin
Private Ordering And Intimate Spaces: Why The Ability To Negotiate Is Non-Negotiable, Michele Goodwin
Michigan Law Review
This review moves beyond a critique of Cherry's study to incorporate a radical new way of thinking about organ commodification as a social justice issue. Part I provides a brief empirical overview of organ demand in the United States, offering an alternative perspective and introducing data illexamined in commodification debates. Part II challenges the notion that private ordering abandons liberal and egalitarian values in favor of individualism over communitarianism. It also acknowledges the limitations of private ordering and addresses how its more problematic features, including the abuse of power, might be avoided. Part III argues for a hybrid system that …
Secondhand Smoke Signals From Prison, Scott C. Wilcox
Secondhand Smoke Signals From Prison, Scott C. Wilcox
Michigan Law Review
This Note argues that courts should acknowledge current societal and medical perspectives on second hand smoke (SHS) and afford real protection to prisoners against SHS through injunctive relief. Part I examines evidence that conclusively demonstrates the serious risk of harm posed by SHS to the health of inmates. It reports that inmates' long-term exposure to SHS increases their risk of contracting lung cancer, heart disease, and other potentially life threatening conditions. Part II argues that, as required by the Helling standard, contemporary society does not tolerate involuntary, long-term exposure to SHS and that prison officials exhibit deliberate indifference by allowing …
The Glucksberg Renaissance: Substantive Due Process Since Lawrence V. Texas, Brian Hawkins
The Glucksberg Renaissance: Substantive Due Process Since Lawrence V. Texas, Brian Hawkins
Michigan Law Review
On their faces, Washington v. Glucksberg and Lawrence v. Texas seem to have little in common. In Glucksberg, the Supreme Court upheld a law prohibiting assisted suicide and rejected a claim that the Constitution protects a "right to die"; in Lawrence, the Court struck down a law prohibiting homosexual sodomy and embraced a claim that the Constitution protects homosexual persons' choices to engage in intimate relationships. Thus, in both subject matter and result, Lawrence and Glucksberg appear far apart. The Lawrence Court, however, faced a peculiar challenge in reaching its decision, and its response to that challenge brings …
Drugged, Carl E. Schneider
Drugged, Carl E. Schneider
Articles
The Supreme Court's recent decision in Gonzales v. Oregon, like its decision last year in Gonzales v. Raich (the "medical marijuana" case), again raises questions about the bioethical consequences of the Controlled Substances Act. When, in 1970, Congress passed that act, it placed problematic drugs in one of five "schedules," and it authorized the U.S. attorney general to add or subtract drugs from the schedules. Drugs in schedule II have both a medical use and a high potential for abuse. Doctors may prescribe such drugs if they "obtain from the Attorney General a registration issued in accordance with the …
Something Must Be Done: An Argument For The Partial Deregulation Of Research On Bipolar Disorder And The Implementation Of Rolling Informed Consent, Janalee S. Kraschnewski
Something Must Be Done: An Argument For The Partial Deregulation Of Research On Bipolar Disorder And The Implementation Of Rolling Informed Consent, Janalee S. Kraschnewski
University of Michigan Journal of Law Reform
Bipolar disorder (BD) cripples the lives of countless individuals across the globe. The healthcare community has had difficulty securing effective, long-term treatment for this disease. This Note argues that enlarging the pool of possible research subjects through partial deregulation of BD research would facilitate the development of better treatment. This Note further proposes the implementation of a system of rolling informed consent to ensure that actual and full consent is obtained from BD research subjects.
After Autonomy, Carl E. Schneider
After Autonomy, Carl E. Schneider
Articles
Bioethicists today are like Bolsheviks on the death of Lenin. They have, rather to their surprise, won the day. Their principle of autonomy is dogma. Their era of charismatic leadership is over. Their work of Weberian rationalization, of institutionalizing principle and party, has begun. The liturgy is reverently recited, but the vitality of Lenin's "What Is To Be Done?" has yielded to the vacuity of Stalin's "The Foundations of Leninism." Effort once lavished on expounding ideology is now devoted to establishing associations, organizing degree programs, installing bioethicist commissars in every hospital, and staffing IRB soviets. Not-so-secret police prowl the libraries …
The Culture Of Legal Change: A Case Study Of Tobacco Control In Twenty-First Century Japan, Eric A. Feldman
The Culture Of Legal Change: A Case Study Of Tobacco Control In Twenty-First Century Japan, Eric A. Feldman
Michigan Journal of International Law
This Article argues that the interaction of international norms and local culture is a central factor in the creation and transformation of legal rules. Like Alan Watson's influential theory of legal transplants, it emphasizes that legal change is frequently a consequence of learning from other jurisdictions. And like those who have argued that rational, self-interested lawmakers responding to incentives such as reelection are the engine of legal change, this Article treats incentives as critical motivators of human behavior. But in place of the cutting-and-pasting of black-letter legal doctrine it highlights the cross-border flow of social norms, and rather than material …
Hipaa-Cracy, Carl E. Schneider
Hipaa-Cracy, Carl E. Schneider
Articles
The Department of Health and Human Services has recently been exercising its authority under the (wittily named) "administrative simplification" part of the Health Insurance Portability and Accountability Act to regulate the confidentiality of medical records. I love the goal; I loathe the means. The benefits are obscure; the costs are onerous. Putatively, the regulations protect my autonomy; practically, they ensnarl me in red tape and hijack my money for services I dislike. HIPAA (a misnomer-HIPAA is the statute, not the regulations) is too lengthy, labile, complex, confused, unfinished, and unclear to be summarized intelligibly or reliably. (Brevis esse laboro, …
The (Legal) Pains Of Vioxx: Why Product Liability Can Make Products More Dangerous, Omri Ben-Shahar
The (Legal) Pains Of Vioxx: Why Product Liability Can Make Products More Dangerous, Omri Ben-Shahar
Articles
Comparing the experience of Vioxx and Celebrex leads Omri Ben-Shahar to think that stiff product liability has the perverse effect of inducing manufacturers of defective products to leave these products on the market, rather than withdraw them.
Hard Cases And The Politics Of Righteousness, Carl E. Schneider
Hard Cases And The Politics Of Righteousness, Carl E. Schneider
Articles
The law of bioethics has been the law of cases. Interpreting the common law and the Constitution, judges have written the law of informed consent, abortion, and assisted suicide. Reacting to causes célèbres, legislatures have written the law of advance directives and end of life decisions. The long, sad death of Terri Schiavo eclipsed even the long, sad deaths of Karen Ann Quinlan and Nancy Beth Cruzan in the duration and strength of the attention and passions it evoked. What are Schiavo’s lessons? Hard cases, lawyers say, make bad law. Why? First, hard cases are atypical cases. They present abnormal …
Consumer-Directed Health Care And The Chronically Ill, John V. Jacobi
Consumer-Directed Health Care And The Chronically Ill, John V. Jacobi
University of Michigan Journal of Law Reform
Insurance plans with consumer-controlled spending accounts are advocated as tools for reducing health costs and empowering consumers. This Article describes their recent development and argues that they are likely to fail. Instead of focusing on the small number of consumers with chronic illnesses who account for the bulk of health spending they focus on the majority of relatively well consumers. This Article proposes market-based and regulatory changes focused on high-cost patients. To best serve cost and quality goals, health finance responsibility should be divided between consumers and their employers for predictable and routine costs, and government for chronic and catastrophic …
Reaching Disclosure, Carl E. Schneider
Reaching Disclosure, Carl E. Schneider
Articles
It is easy to forget but crucial to remember that when lawmakers decide to regulate an activity, they must select a method. The law of bioethics particularly favors one method-requiring disclosure of information. The doctrine of informed consent obliges doctors to tell patients their treatment choices. The administrative law of research ethics insists that researchers warn subjects of the risks of experiments. The Patient Self-Determination Act compels medical institutions to remind patients about advance directives. The federal government's new privacy regulations instruct medical institutions to describe their privacy regime to patients. Not just the law of bioethics, but health law …
The Common Law Power Of The Legislature: Insurer Conversions And Charitable Funds, Jill R. Horwitz, Marion R. Fremont-Smith
The Common Law Power Of The Legislature: Insurer Conversions And Charitable Funds, Jill R. Horwitz, Marion R. Fremont-Smith
Articles
New York's Empire Blue Ccoss and Blue Shield conversion from nonprofic cofor profic form has considerable legal significance. Three aspects of the conversion ma.ke checase unique: the role of the scace legislature in directing the disposicion of the conversion assets, che face chac it made itself che primary beneficiary of chose assets, and the actions of che scace attorney general defending the state rather than che public inceresc in che charitable assets. Drawing on several cenruries of common Law rejecting the Legislacive power to direct the disposition of charitable funds, chis article argues chat the legislature lacked power cocontrol che …
Do Different Types Of Hospitals Act Differently?, Jill R. Horwitz
Do Different Types Of Hospitals Act Differently?, Jill R. Horwitz
Other Publications
This essay is based on testimony delivered before the U.S. House of Representatives Committee on Ways and Means on May 26, 2005.
Liability For Life, Carl E. Schneider
Liability For Life, Carl E. Schneider
Articles
Marshall Klavan headed the Obstetrics and Gynecology Department of the Crozer-Chester Medical Center. He deeply feared strokes, perhaps because his father had been savaged by one. In 1993, Dr. Klavan wrote an advance directive which said that (as a court later put it) "he 'absolutely did not want any extraordinary care measures utilized by health care providers.'" On April29, 1997, Dr. Klavan tried to kill himsel£ He left suicide notes and a note refusing resuscitation. The next morning, medical center employees found him unconscious and took him to the emergency room, where he was resuscitated. By May 2, Dr. Klavan …
Euthanasia In America - Past, Present, And Future: A Review Of A Merciful End And Forced Exit, Edward J. Larson
Euthanasia In America - Past, Present, And Future: A Review Of A Merciful End And Forced Exit, Edward J. Larson
Michigan Law Review
Nearly 170 years ago, in the classic first volume of his Democracy in America, Alexis de Tocqueville observed, "Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question." De Tocqueville viewed this as a peculiarly U.S. development. He attributed it to the authority of the judiciary in the United States to review governmental enactments and establish individual rights based on judicial interpretation of the federal and state constitution. "Whenever a law that the judge holds to be unconstitutional is invoked in a tribunal of the United States, he may …
Why Don't Doctors & Lawyers (Strangers In The Night) Get Their Act Together?, Frances H. Miller
Why Don't Doctors & Lawyers (Strangers In The Night) Get Their Act Together?, Frances H. Miller
Michigan Law Review
Health care in America is an expensive, complicated, inefficient, tangled mess - everybody says so. Patients decry its complexity, health care executives bemoan its lack of coherence, physicians plead for universal coverage to simplify their lives so they can just get on with taking care of patients, and everyone complains about health care costs. The best health care in the world is theoretically available here, but we deliver and pay for it in some of the world's worst ways. Occam's razor ("Among competing hypotheses, favor the simplest one") is of little help here. There are no simple hypotheses - everything …
Liberty, Justice, And Insurance For All: Re-Imagining The Employment-Based Health Insurance System, Carolyn V. Juárez
Liberty, Justice, And Insurance For All: Re-Imagining The Employment-Based Health Insurance System, Carolyn V. Juárez
University of Michigan Journal of Law Reform
This Note examines the history of employment-based health insurance and the inherent historical limitations that have led to an erosion of health insurance coverage. Based on a review of several studies, this Note argues that the number of uninsured Americans has reached crisis proportions. State reform efforts, legislative proposals, and other proposed solutions have failed to repair the system. Nonetheless, this Note argues that employment-based health care is integral to the structure of national health care. Furthermore, health insurance coverage can be increased by combining employment-based health care with three reforms: large employer mandates, refundable tax credits, and purchasing pools. …
Balancing The Demands Of The Workplace With The Needs Of The Modern Family: Expanding Family And Medical Leave To Protect Domestic Partners, Kimberly Menashe Glassman
Balancing The Demands Of The Workplace With The Needs Of The Modern Family: Expanding Family And Medical Leave To Protect Domestic Partners, Kimberly Menashe Glassman
University of Michigan Journal of Law Reform
This Note addresses the importance of expanding the federal Family and Medical Leave Act and state family and medical leave laws to protect domestic partners. Congress passed the Family and Medical Leave Act to allow workers to balance their work lives and family lives by granting workers the right to take leave time to care for an immediate family member in times of medical necessity. The term 'family member," however, is generally limited to relation y blood, adoption, or marriage, and does not include an individual's domestic partner. The concept of family has evolved in our legal system and is …
Enough: The Failure Of The Living Will, Angela Fagerlin, Carl E. Schneider
Enough: The Failure Of The Living Will, Angela Fagerlin, Carl E. Schneider
Articles
Enough. The living will has failed, and it is time to say so. We should have known it would fail: A notable but neglected psychological literature always provided arresting reasons to expect the policy of living wills to misfire. Given their alluring potential, perhaps they were worth trying. But a crescendoing empirical literature and persistent clinical disappointments reveal that the rewards of the campaign to promote living wills do not justify its costs. Nor can any degree of tinkering ever make the living will an effective instrument of social policy. As the evidence of failure has mounted, living wills have …
Why We Need The Independent Sector: The Behavior, Law, & Ethics Of Not-For-Profit Hospitals, Jill R. Horwitz
Why We Need The Independent Sector: The Behavior, Law, & Ethics Of Not-For-Profit Hospitals, Jill R. Horwitz
Law & Economics Working Papers Archive: 2003-2009
Among the major forms of corporate ownership, the not-for-profit ownership form is distinct in its behavior, legal constraints, and moral obligations. A new empirical analysis of the American hospital industry, using eleven years of data for all urban general hospitals in the country, shows that corporate form accounts for large differences in the provision of specific medical services. Not-for-profit hospitals systematically provide both private and public goods that are in the public interest, and that other forms fail to provide. Two hypotheses are proposed to account for the findings, one legal and one moral. While no causal claims are made, …