Health Law and Policy Commons^™

Primum Non Nocere: The Expanding "Honest Services" Mail Fraud Statute And The Physician-Patient Fiduciary Relationship, Gregory D. Jones

Vanderbilt Law Review

In one case, a physician refers a patient to a certain hospital in return for an undisclosed referral fee from the hospital. In another, a physician decides not to refer a patient to a specialist for further examination. The physician, however, does not disclose to the patient that part of the cost of sending the patient to the specialist would come out of the physician's potential earnings. In the previous examples, has the physician breached her fiduciary duty to the patient by not disclosing her own financial interest in the patient's treatment? If so, the physician could be guilty of …

Toward A Fair And Practical Definition Of "Willfully" In The Medicare/Medicaid Anti-Kickback Statute, Tamsen D. Love

Vanderbilt Law Review

Health care fraud takes on a variety of forms-from billing insurance companies for services not provided, to falsifying injuries for tort plaintiffs, to practicing medicine without a license.' All these types of fraud contribute to the astronomical cost of health care in the United States. As federal policymakers have focused on ways to contain these costs, health care fraud has become an increasing object of scrutiny. At the same time, the health care industry is experiencing significant institutional change, particularly with the emergence of health maintenance organizations ("HMOs") and other managed care systems. The Medicare/Medicaid anti-kickback statute, which prohibits payments …

Legislative "Subterfuge"?: Failing To Insure Persons With Mental Illness Under The Mental Health Parity Act And The Americans With Disabilities Act, Christopher A. Jones

Vanderbilt Law Review

The two primary problems with providing health care in the United States are cost and access., The cost of health care rose dramatically during the 1970s and 1980s and continues to increase, making coset containment crucial to the availability of care. In addition, many Americans are either entirely without health insurance or are underinsured for catastrophic illness. While individually these two issues are important, equally problematic is the tension that exists between them. Providing greater access to additional services results either in a cost increase or the loss of other services. Ultimately, however, a general plan to contain costs can …

The Early And Periodic Screening, Diagnostic, And Treatment Program And Managed Medicaid Mental Health Care: The Need To Reevaluate The Epsdt In The Managed Care Era, John A. Flippen

Vanderbilt Law Review

For a majority of Medicaid recipients, managed health care is fast becoming a reality. As state governments seek to control Medicaid costs in a world of limited resources, unlimited reimbursement for any treatment a doctor deems necessary is no longer feasible. One major tool for cost containment has been the privatization of the delivery of Medicaid coverage into managed care organizations. The shift to a managed plan means that services will be rationed. This rationing occurs because capitated rates, for example, require that private managed care organizations ("MCOs") bear the risk of providing services to the Medicaid population and attempt …

Introduction: Current Issues In Mental Health Care - Special Edition, Tamsen D. Love

Vanderbilt Law Review

Today we think we know a lot more about mental health care than our country's founders did. Yet in many ways we are in no better position than our eighteenth-century predecessors. Certainly, the decisions we as a society face about mental illness are just as difficult. The vocabulary we employ is more complex--"behavioral health organization," "psychopharmacology," "cost containment"--but the issues are the same: Who should pay for mental health care? How much care is appropriate? And, more fundamentally, what exactly is mental health?

This year's Special Project addresses these issues. The Notes focus on particular legal issues in the mental …

From Cash Crop To Cash Cow, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

The 1990s have witnessed a blizzard of anti­smoking efforts. Hillary Clinton and a variety of supporters of the Clinton health care plan urged dramatically higher cigarette taxes to pay for expanded health insurance efforts. And many state and local governments have imposed smoking restrictions or have undertaken antismoking ad campaigns. Those antismoking efforts recently culminated with a pro­ posed $368.5 billion settlement to address many liability and regulatory issues. The focal point of the bargain was the settlement of a series of lawsuits filed by the states against cigarette companies to recoup smoking-related Medicaid costs. Several state attorney generals composed …

Tax Exemption And The Health Care Industry: Are The Challenges To Tax-Exempt Status Justified?, Kevin B. Fischer

Vanderbilt Law Review

The provision of health care has traditionally been deemed a charitable function.' Therefore, hospitals and other health care institutions have been afforded the benefits of tax exemption. As a standard for determining which entities merit the tax exemption and which do not, the Internal Revenue Service ("IRS" or "Service") developed what has come to be known as the community benefit test. At the federal level, this test has been the basis for awarding tax- exempt status to hospitals and other health care entities State legislatures have traditionally followed the federal government's standards for tax exemption and have thus allowed health …

Ireland's Abortion Information Act Of 1995, Keith S. Koegler

Vanderbilt Journal of Transnational Law

On May 12, 1995, the Supreme Court of Ireland upheld an act making it legal to disseminate information concerning abortion services abroad, provided that the information does not advocate or promote the termination of the pregnancy. While the Abortion Information Act of 1995 is likely to make it easier for an Irish woman to obtain an abortion overseas, it does not change the circumstances under which a woman may obtain an abortion in Ireland. Under the Eighth Amendment to the Irish Constitution, as interpreted by the Irish Supreme Court, abortion is illegal except where the pregnancy poses a substantial risk …

Firing The First Lady: The Role And Accountability Of The Presidential Spouse, Carl D. Wasserman

Vanderbilt Law Review

The First Lady is asked by her husband to head a task force to assist him in developing health care policy. The fear of outside influence sparks the task force to meet in secrecy. The Federal Advisory Committee Act, however, forbids closed meetings of this type unless all members of the committee are officers or employees of the federal government. May the meetings be kept secret despite the First Lady's presence?

Immediately after leaving the White House, the First Lady is hired to lobby for Columbia/HCA, a major health care corporation. Illegal?

The chairman of a large corporation meets with …

The Protection Of Privacy In Health Care Reform, Paul M. Schwartz

Vanderbilt Law Review

Legal regulation of the privacy of medical information is now at a critical stage. Americans are highly concerned about the processing and use of their personal data. Over three-quarters of the public currently believes that the individual has lost control of how personal information is circulated and applied by companies., Indeed, a recent poll reveals that those who know the most about the current protection of medical information-physicians, heads of medical societies, health insurers, and hospital CEOs-are also the most concerned about threats to personal privacy.

Social concern about the threat to informational privacy has resulted in strong approval for …

In Search Of A Bright Line: Determining When An Employer's Financial Hardship Becomes "Undue" Under The Americans With Disabilities Act, Steven B. Epstein

Vanderbilt Law Review

The employment provisions of the Americans with Disabilities Act have been fully effective since July 26, 1994. These provisions require all employers with fifteen or more employees to reasonably accommodate the disabilities of job applicants and employees. Reasonable accommodation can be very expensive: one in every twenty accommodations now being made costs more than $5,000. Although the ADA permits employers to refuse to make accommodations that would cause an "undue hardship," neither the statute nor its implementing regulations provide meaningful guidance regarding how great an accommodation expense must be before the point of "undue hardship" is attained. Consequently, neither employers …

Carcinogen Regulation: Risk Characteristics And The Synthetic Risk Bias, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

In this paper, I will explore the decision to regulate natural and synthetic chemicals. To what extent are regulatory decisions driven by the severity of the risk as opposed to the character of the risk exposure? The striking result is that the risk severity plays a very small role. Instead.it is whether the chemical is synthetic or natural that is the driving force behind regulatory decisions.

The Emerging Trend Of Corporate Liability: Courts' Uneven Treatment Of Hospital Standards Leaves Hospitals Uncertain And Exposed, David H. Rutchik

Vanderbilt Law Review

Under the doctrine of hospital corporate liability, a hospital has a nondelegable, direct duty to provide adequate care to all of its patients.' This duty is not a product of a master-servant or a principal-agent relationship, nor is hospital tort liability predicated on a showing of vicarious liability, because the hospital's liability flows directly from the hospital to its patients. Consequently, a hospital may be liable for the negligent act of an independent staff physician, even if that physician is an independent contractor. The corporate liability, or corporate negligence, doctrine thus extends potential liability beyond the sphere of respondeat superior. …

Human Health Risk Assessments For Superfund, W. Kip Viscusi, James T. Hamilton

Vanderbilt Law School Faculty Publications

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) is scheduled for reauthorization in the spring of 1995, and Congress must decide either to continue the Superfund program in its current form or to modify it in some manner. Congress cannot sensibly decide how to reauthorize CERCLA without understanding the program's progress toward one of its fundamental missions: the reduction of risks to human health and the environment from uncontrolled hazardous waste sites... This article is structured in six sections. Section I provides background on how risk assessment data are used at Superfund sites.Section II details the construction and organization …

Reverse Informed Consent: The Unreasonably Dangerous Patient, A. Samuel Oddi

Vanderbilt Law Review

Latrogenic injuries'-those caused by health care professionals (HCPs) in the course of treating patients-raise significant ethical, legal, and public policy issues.' With the advent of the AIDS epidemic, these issues become even more difficult when the iatrogenic injury results not from the patient's having received treatment below the professional standard of care (which is the usual grist for the malpractice mill) but from an infectious condition of the HCP. Considerable public attention has been directed to patients who have been exposed to the risk of AIDS by HIV-positive HCPs.6 It is difficult to be unmoved by the tragic example of …

Help! We've Fallen And We Can't Get Up: The Problems Families Face Because Of Employment-Based Health Insurance, Jeffrey R. Pettit

Vanderbilt Law Review

Steve Tilghman of Birmingham, Alabama knows first-hand the health insurance problems American families face.' Steve's family had adequate health insurance until Steve decided to change careers. After expiration of the eighteen-month extension period COBRA provides, Steve's family could not afford the one thousand dollar monthly premiums necessary to maintain their policy. Steve's epileptic son further complicated his ability to find adequate health insurance. After having no insurance for two months, Steve ultimately was able to find health insurance for only part of his family. Steve had to acquire a separate, unrated policy for his epileptic son. Steve is uncertain about …

Tobacco Proves Addictive: The European Community's Stalled Proposal To Ban Tobacco Advertising, Jennifer A. Lesny

Vanderbilt Journal of Transnational Law

This Note examines the recent initiative to ban tobacco advertising within the European Community. The Note first addresses the European Commission's proposed directive, exploring the Commission's stated justifications as well as the opposing member states' procedural and legal objections. This Note then analyzes the European Community debate by comparing it to the United States movement to ban tobacco advertising. The author concludes that, like its United States counterpart, the European proposal is ill-fated, and that failure to reach a consensus on controversial proposals such as the tobacco advertising ban seriously undermines completion of a true internal market envisioned in the …

Cigarette Warnings: The Perils Of The Cipollone Decision, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

In Cipollone v Liggett Group, Inc., a splintered Court concluded that cigarette smokers who are injured through their consumption of tobacco may bring some state law tort claims against the manufacturers of the cigarettes. Other claims, however, are preempted by federal legislation requiring cigarette packages and advertising to bear warning labels, the specific wording of which is dictated by statute. After a detailed examina- tion of the economics of hazard warning systems, Professor Viscusi argues that the most important economic issues in the Cipollone case were cor- rectly resolved in Justice Stevens'plurality opinion, which contained little overt economic reasoning. The …

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

SYSTEMS OF CONTROL IN INTERNATIONAL ADJUDICATION AND ARBITRATION

By W. Michael Reisman

Durham and London: Duke University Press, 1992. Pp. 174.

LEGISLATIVE RESPONSES TO TOBACCO USE

By World Health Organization Dordrecht, The Netherlands: Martinus Nijhoff Publishers, 1991.Pp. 226.

IMPORT AND CUSTOMS LAW HANDBOOK

By Michael J. Horton

New York, New York: Quorom Books, 1992. Pp. 308. $55.00.

THE LAW AND ECONOMIC DEVELOPMENT IN THE THIRD WORLD

Edited by P. Ebow Bondzi-Simpson

New York, New York: Praeger Publishers 1992. Pp. 200. $49.95.

The Pariah Patient: The Lack Of Funding For Mental Health Care, Wayne E. Ramage

Vanderbilt Law Review

In all the furor over the provision of health care in the United States-especially over who will pay for the skyrocketing costs of medical treatment-one class of patient appears to have been overlooked: the mentally ill. This oversight is not new; Anglo-American society historically has viewed the mentally ill as outsiders. In England, for example, inmates at the infamous "Bedlam" hospital for the insane often were displayed for the amusement of the paying public.' Society's disdain of the mentally ill still exists and has led to public neglect of these unfortunates, especially in the provision of mental health care.

Since …

The Oregon Basic Health Services Act: A Model For State Reform?, Eric L. Robinson

Vanderbilt Law Review

Americans currently spend $733 billion, or 12.3 percent of the Gross National Product (GNP), per year on health care. This is nearly twice what Americans spent on health care just seven years ago. Health care is also one of the fastest growing major items in the federal and state budgets. Not surprisingly, governments, businesses, and individuals all are having difficulty finding resources to meet the increasing costs of health care. As a result, the health care delivery system has cut costs by denying some people access to adequate health, care services. Currently, an estimated thirty-seven million Americans are uninsured. In …

Introduction: Caring For The Nation--Current Issues In Health Care Reform, Susan E. Powley

Vanderbilt Law Review

Health care reform is once again on the "front burner" of American politics. With health care costs in the United States rising at three times the rate of inflation and an increasing portion of the population falling through the cracks of the current health care delivery system,' legislators, health care professionals, and the population at large now have little difficulty agreeing that the system is badly in need of reform. This consensus, however, falls apart when discussion turns to what needs to be fixed and how to fix it. Federal legislators currently have over twenty health bills pending before them, …

The Disfranchisement Of Fertile Women In Clinical Trials: The Legal Ramifications Of And Solutions For Rectifying The Knowledge Gap, L. Elizabeth Bowles

Vanderbilt Law Review

Twice as many women as men receive treatment for clinical depression, yet men benefit more than women from antidepressant drug treatment. Likewise, women use more prescription drugs than men, but suffer proportionally more side effects.' Such disparities stem from the traditional attitude of pharmaceutical companies and researchers to- ward the use of women in clinical trials. In general, researchers have tested drugs on young white males without regard for gender differences, often assuming that data extrapolated from studies on males are readily applicable to females. Even medical treatments designed exclusively for women are developed and tested based on a male …

Screening And Treatment Of Newborns, Ellen Wright Clayton

Vanderbilt Law School Faculty Publications

With the advent of new genetic technologies and the Human Genome Initiative, interest in the problems posed by genetic diagnostics in general, and by genetic screening in particular, has surfaced. Many recent works focus on the problems posed by the "new genetics" in the contexts of prenatal diagnosis, carrier detection, employment, and insurance. In the midst of all this discussion, the routine testing of newborns for genetic disorders seems relatively uncomplicated and has, in fact, become "a part of common practice and accepted public policy with little thought having been given to the implications." The relative lack of concern about …

Medicaid, State Cost-Containment Measures, And Section 1983 Provider Actions Under "Wilder V. Virginia Hospital Association", Michael D. Daneker

Vanderbilt Law Review

After the Civil War, Congress enacted a statutory private right of action to ensure the protection of an individual's federal civil rights." This right of action, now codified at Title 42, Section 1983 of the United States Code, creates liability for anyone who, acting under a state law, program, or policy, infringes on an individual's federal rights. Although the authors of Section 1983 intended the statute to serve primarily as a mechanism for the protection of federal constitutional rights, the United States Supreme Court has recognized that Section 1983 is a valid tool for enforcing a wide variety of statutorily …

Pricing Environmental Health Risks: Survey Assessments Of Risk-Risk And Risk-Dollar Trade Offs For Chronic Bronchitis, W. Kip Viscusi, Wesley A. Magat, Joel Huber

Vanderbilt Law School Faculty Publications

This study develops a methodology for measuring the values that individuals place on morbidity risk reductions and applies it to the measurement of the benefits from reducing the risks of contracting chronic bronchitis. The survey methodology involves the use of an iterative computer program that presents respondents with a series of pairwise comparisons which are individually designed to measure respondents' marginal rates of substitution for chronic bronchitis risk reduction. The approach is innovative in that it measures the rates of trade-offs for chronic bronchitis risk reduction in terms of the risk of an automobile accident fatality (risk-risk trade-off), as well …

Age Variations In Risk Perceptions And Smoking Decisions, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

The results of a national survey of smoking risks and smoking behavior are analyzed. Smoking risk perceptions follow the expected patterns given age differences in risk information acquired and differences in information associated with smoking status. Risk perceptions are greater as one moves to younger age cohorts, where overall lung cancer risks are substantially overestimated. These risk perceptions in turn have a negative effect on smoking decisions, where younger individuals behave no differently in terms of the manner in which they incorporate risk perceptions into their smoking decisions.

The Constitutionality Of Pregnancy Clauses In Living Will Statutes, Elizabeth C. Benton

Vanderbilt Law Review

In 1976 the New Jersey Supreme Court allowed parents to remove a life support system from the body of their daughter after doctors deemed her vegetative state irreversible." The case, In re Quinlan, received extensive national media attention and pitted concerns about the quality of life and personal autonomy against respect for the sanctity of life. This conflict has intensified as medical technology has progressed so that patients who otherwise would die faster, natural deaths now are sustained indefinitely. Some patients and families see this life support as medical heroism, while others view it as painful,futile prolongation of death. One …

Aids, Rape, And The Fourth Amendment: Schemes For Mandatory Aids Testing Of Sex Offenders, Paul H. Macdonald

Vanderbilt Law Review

Few subjects are as emotionally troubling as AIDS' and rape. The latter, of course, has plagued society throughout human history, but AIDS only recently has imposed itself upon our social and medical consciousness. Ever since AIDS became a familiar sight in the headlines nearly ten years ago, society has reacted to it with a mixture of anxiety, confusion, and despair. One consequence of the new societal awareness is the increased hesitancy with which individuals approach intimate contact. When intimate contact is involuntary as in the case of rape, fear of exposure to the disease is especially pronounced. Society,however, seems ill-prepared …

Effectiveness Of The Epa's Regulatory Enforcement: The Case Of Industrial Effluent Standards, W. Kip Viscusi, Wesley A. Magat

Vanderbilt Law School Faculty Publications

The EPA water pollution regulations-the focus of this study- represent an interesting departure from past patterns of regulatory failure. First, the nature of the regulations-discharge limits-relates directly to the policy objective of controlling pollution, and there is no potential for offsetting behavioral responses. If the pollution standards are binding and enforced, they should improve water quality. Second, the enforcement effort is so extensive that enforcement should affect firms' compliance. In the pulp and paper industry, which we will analyze, the EPA averages roughly one inspection annually per major pollution source. In addition, firms are required to file monthly discharge monitoring …