Health Law and Policy Commons^™

The Guardianship Puzzle: Whatever Happened To Due Process?, Diane E. Hoffmann, Joan L. O'Sullivan

Faculty Scholarship

No abstract provided.

Testing Children For Genetic Predispositions: Is It In Their Best Interest?, Diane E. Hoffmann, Eric A. Wulfsberg

Faculty Scholarship

No abstract provided.

Business Vs. Medical Ethics: Conflicting Standards For Managed Care, Wendy K. Mariner

Faculty Scholarship

The increased competition for a share of the market of insured patients, which arose in the wake of failed comprehensive health care reform, has provoked questions about what, if any, standards will govern new “competitive” health care organizations. Managed care arrangements, which typically shift to providers and patients some or all of the financial risk for patient care, are of special concern because they can create incentives to withhold beneficial care from patients. Of course, fee-for-service (FFS) medical practice creates incentives to provide unnecessary services, and managed care can avoid that type of harm. Still, as Edmund Pellegrino has noted, …

Colloquium - Gender, Law And Health Care: New Perspectives For Teaching And Scholarship: The Role Of Gender In Law And Health Care, Karen H. Rothenberg

Faculty Scholarship

No abstract provided.

Genetic Information And Health Insurance: State Legislative Approaches, Karen H. Rothenberg

Faculty Scholarship

No abstract provided.

Nonprofit Hospital Mergers And Section 7 Of The Clayton Act: Closing An Antitrust Loophole, Laura L. Stephens

Faculty Scholarship

Nonprofit hospitals developed out of the charitable hospital movement, which began in the mid-nineteenth century.' The early voluntary hospitals depended upon local benefactors for financing.² Originally conceived as charitable institutions providing long-term care, these hospitals began to change their focus around the turn of the century.³ A changed mission-providing care to all rather than just poor inpatients with chronic problems-required the latest medical technology.⁴ This in turn demanded increased construction of up-to-date facilities, as well as large operating expenses.

Recent years have seen further pressure on hospital budgets, as the health-care sector of the economy has become …

Genetic Discrimination And Health Insurance: An Urgent Need For Reform, Kathy L. Hudson, Karen H. Rothenberg, Lori B. Andrews, Mary Jo Ellis Kahn, Francis S. Collins

Faculty Scholarship

No abstract provided.

Domestic Violence And Partner Notification: Implications For Treatment And Counseling Of Women With Hiv, Karen H. Rothenberg, Stephen J. Paskey, Melissa M. Reuland, Sheryl I. Zimmerman, Richard L. North

Faculty Scholarship

Current public health policy encourages partner notification to protect those at risk of HIV infection. Provider experiences with partner notification, domestic violence, and women with HIV compel a reassessment of this strategy. In a survey of 136 health care providers in Baltimore, substantial numbers reported knowledge of their HIV-infected patients’ experiences with domestic violence before and after partner notification. Providers believed that fear of physical abuse, emotional abuse, and abandonment are important reasons why many female patients resist partner notification. Provider opposition to partner notification was strong in cases where female patients faced a risk of domestic violence. The realization …

Reframing The Debate On Health Care Reform By Replacing Our Metaphors, George J. Annas

Faculty Scholarship

Metaphors matter, as our sterile debate on the fi-nancing of health insurance demonstrates so well. In that debate the traditional metaphor of American medicine, the military metaphor, was displaced by the market metaphor in public discourse. Metaphors, which entice us to understand and experience “one kind of thing in terms of another . . . play a central role in the construction of social and political reality.” The market metaphor proved virtually irresistible in the public arena and led Congress to defer to market forces to “reform” the financing of health insurance in the United States.

Women And Children First, George J. Annas

Faculty Scholarship

In the lore of the sea there are few events that have so exemplified heroism and self-sacrifice as the acts of the soldiers and sailors of the British ship Birkenhead when it sank in 1852. The soldiers of the 74th Highland Regiment stood at attention on deck (with the band playing) “while the women and children were saved and the captain very properly went down with his ship.” More than 450 lives were lost, and the phrase “women and children first” was introduced into the language as part of the “Birkenhead drill.” As Kipling put it in his poem …

Insurance Risk Classification After Mcgann: Managing Risk Efficiently In The Shadow Of The Ada, Maria O'Brien

Faculty Scholarship

A significant part of the health insurance debate which gripped the country during the first two years of President Clinton's administration focused on the critical shortage of employer-sponsored health insurance for disabled, br high risk, employees. Indeed, President Clinton's promise of universal access in connection with the promotion of his health care plan is apparently designed to ensure that the increasingly popular employer practice of excluding high risk employees becomes obsolete. In the meantime, while the merits of the Clinton plan and its competitors are debated, individuals like John McGann-working and insured--continue to discover that like their health, their insurance …

The Health Of The President And Presidential Candidates: The Public's Right To Know, George J. Annas

Faculty Scholarship

In July 1995, presidential candidate Robert Dole celebrated his 72nd birthday by releasing a detailed nine-page summary of his medical records. His personal physician told the press that despite the serious wounds Dole received during World War II, which left his right arm paralyzed and required the removal of one kidney, and despite his 1991 surgery for prostate cancer, his health was “excellent.” Dole was also photographed on his treadmill.

Medicine, Death, And The Criminal Law, George J. Annas

Faculty Scholarship

Errors in medicine are common and are at least partly responsible for the deaths of 180,000 patients a year. There is increasing concern about medical errors and the steps that should be taken to prevent them.Until recently, hospitals have addressed errors after the fact, through mortality and morbidity conferences, incident reports, and the like, rather than before the fact, through attention to systems defects and prevention. Likewise, medical-malpractice litigation can be filed only after an injury has occurred. Malpractice litigation is intended to create incentives to improve the quality of medical care by making physicians and hospitals accountable for their …

Mediating Life And Death Decisions, Diane E. Hoffmann

Faculty Scholarship

No abstract provided.

Something Old, Something New: The Challenge Of Tuberculosis Control In The Age Of Aids, Karen H. Rothenberg, Elizabeth C. Lovoy

Faculty Scholarship

No abstract provided.

Patients' Rights After Health Care Reform: Who Decides What Is Medically Necessary?, Wendy K. Mariner

Faculty Scholarship

President Clinton's Health Security Act entitles individuals not to unlimited health care, but to a package of defined insurance benefits with specific exclusions and limitations. Like virtually all reform proposals, it would limit covered benefits to services that are medically necessary. If health reform is to control costs, not all medically necessary care can be covered. In the absence of a generally accepted definition of medical necessity, many services will not be guaranteed to all patients unless they are explicitly covered in the federal legislation or regulations. Without a federal definition of medical necessity or regulations listing covered services, health …

Patients' Rights To Care Under Clinton's Health Security Act: The Structure Of Reform, Wendy K. Mariner

Faculty Scholarship

Like most reform proposals, President Clinton's proposed Health Security Act offers universal access to care but does not significantly alter the nature of patients' legal rights to services. The act would create a system of delegated federal regulation in which the states would act like federal administrative agencies to carry out reform. To achieve uniform, universal coverage, the act would establish a form of mandatory health insurance, with federal law controlling the minimum services to which everyone would be entitled. Because there is no constitutionally protected right to health care and no independent constitutional standard for judging what insurance benefits …

A World That Won't Stand Still: Enterprise Liability By Private Contract, William M. Sage, James M. Jorling

Faculty Scholarship

The purpose of this article is to help health care providers and insurers create such an approach by explaining the benefits and risks of voluntarily reassigning liability for medical injury along an enterprise liability model, and by outlining the legal and contractual elements that are required to do so successfully.

The Maryland Health Care Decisions Act: Achieving The Right Balance?, Diane E. Hoffmann

Faculty Scholarship

No abstract provided.

Gestational Surrogacy And The Health Care Provider, Karen H. Rothenberg

Faculty Scholarship

No abstract provided.

Working And Poor: The Increasingly Popular Practice Of Excluding Disabled Employees From Health Care Coverage, Maria O'Brien

Faculty Scholarship

One might think, since passage of the Americans With Disabilities Act of 1990 (ADA),' that the employment story for disabled employees or would-be disabled employees was cheerful, or at least improving. This may be true in so far as obtaining and retaining employment is concerned;' however, the ADA, because it permits employers and third-party insurers to continue to utilize traditional risk management techniques, has resulted in reduced or (in some cases) non-existent employee benefits for the disabled. At the same time, more and more employers are opting to self-insure under the Employee Retirement Income Security Act of 1974 (ERISA),3 in …

Forward: Ed Sparer's Legacy, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.

The Americans With Disabilities Act And The Reproductive Rights Of Hiv-Infected Women, Taunya L. Banks

Faculty Scholarship

No abstract provided.

The Good Mother: The Limits Of Reproductive Accountability And Genetic Choice, R. Alta Charo, Karen H. Rothenberg

Faculty Scholarship

No abstract provided.

Outcomes Assessment In Health Care Reform: Promise And Limitations, Wendy K. Mariner

Faculty Scholarship

If the fundamental goals of the health care reform effort are to ensure universal access to an acceptable quality of health care at an affordable cost, then the threshold question for reform is: What health care services should be provided in an efficient, equitable system?

Answering this question requires weighing a complex mix of medical and social policy factors, a process not attempted in this article. But the starting point for that process should be determining what health care services “work” and what they cost. Outcomes assessment holds considerable promise in finding answers to these subsidiary questions, because it is …

The Empire Of Death: How Culture And Economics Affect Informed Consent In The U.S., The U.K., And Japan, George J. Annas, Frances H. Miller

Faculty Scholarship

Historically, most Americans have treated health care as a private commodity whose price, and therefore availability, is primarily determined by market forces. In such a context, the law not unsurprisingly places a high premium on information disclosure by physicians. Personal autonomy-an individual's power to choose among medical options-enjoys its most zealous protection under U.S. jurisprudence.⁷ The dominant U.S. version of informed consent is grounded on principles of patient/consumer autonomy, and seems to enhance market choice. But a strong theme of collectivism now runs through some discussions of U.S. health policy.⁸ President Clinton was elected at least in part …

Scientific Evidence In The Courtroom: The Death Of The Frye Rule, George J. Annas

Faculty Scholarship

In one of the most anticlimactic cases in recent years, the Supreme Court ruled on the last day of its 1992-1993 term that federal judges should admit all relevant scientific testimony and evidence that is “reliable”. The result was so uncontroversial that both sides in the case said they were satisfied; because the result was also so vague, it will probably be years before its effect can be accurately ascertained. The facts of the case, Daubert v. Merrell Dow Pharmaceuticals, Inc., are somewhat more interesting than its prosaic legal conclusion.

Asking The Courts To Set The Standard Of Emergency Care - The Case Of Baby K, George J. Annas

Faculty Scholarship

Almost two decades ago, Dr. Franz J. Ingelfinger predicted that if physicians kept turning to the courts “to resolve essentially medical matters,” the medical profession's unfortunate “dependence on the lawyer in reaching essentially medical decisions will continue”1. One can argue about what decisions are “essentially medical,” but the trend that worried Dr. Ingelfinger has continued, and now physicians and a hospital have sought legal and judicial guidance about how -- and whether -- to treat an anencephalic infant known as Baby K.

Health Insurance Purchasing Alliances: Monopsony Threat Or Procompetitive Rx For Health Sector Ills?, Frances H. Miller

Faculty Scholarship

No abstract provided.

Informed Consent, Cancer, And Truth In Prognosis, George J. Annas

Faculty Scholarship

Barbara Tuchman records that during the Black Death epidemic in the early 14th century, “doctors were admired, lawyers universally hated and mistrusted”. The great plagues and wars of the Middle Ages produced a “cult of death,” including a vast popular literature that had death as its theme. As the 20th century closes, our emphasis is on the denial of death, and the honest discussion of death remains rare both in popular literature and in conversations between physicians and patients. This is one reason why Shana Alexander shocked a national conference of bioethicists last year by saying, “I trust my lawyer …