Health Law and Policy Commons^™

Liability For Managed Care Decisions: The Employee Retirement Income Security Act (Erisa) And The Uneven Playing Field, Wendy K. Mariner

Faculty Scholarship

As managed care organizations expand their programs of quality assurance and physician evaluation, more medical malpractice lawsuits may be brought against managed care organizations on the ground that, like hospitals, they are legally responsible for negligent corporate acts that injure patients. However, the federal Employee Retirement Income Security Act (ERISA) shields managed care organizations from liability when they are part of an employee group health plan governed by ERISA. Unlike patients with other types of insurance, patients in ERISA health plans do not have a malpractice remedy for a managed care organization's negligence. A few federal appeals courts recently recognized …

Gender Matters: Implications For Clinical Research And Women's Health Care, Karen H. Rothenberg

Faculty Scholarship

No abstract provided.

Mediating Bioethical Disputes, Diane E. Hoffmann, Naomi Karp

Faculty Scholarship

No abstract provided.

Women Of Childbearing Potential In Clinical Research: Perspectives On Nih Policy And Liability Issues, Karen H. Rothenberg, Eugene G. Hayunga, Vivian W. Pinn

Faculty Scholarship

No abstract provided.

Are The Antitrust Agencies Overregulating Physician Networks?, Clark C. Havighurst

Faculty Scholarship

No abstract provided.

Racist Health Care?, Barbara A. Noah

Faculty Scholarship

During the past few years, rationing has become an explicit feature in decisions concerning optimal delivery of health care services, and it poses difficult choices for health care providers and policymakers. Insurers and patients increasingly must balance the desire for access to every possible treatment against concerns about affordability. Costdriven treatment decisions are becoming an unavoidable reality for most patients. Apparently, however, another more pernicious type of rationing occurs in this country. It does not depend on factors such as the likelihood of an optimal outcome, the comparative efficacy of different available treatment modalities, or even the ability to pay …

Nicotine Withdrawal: Assessing The Fda's Effort To Regulate Tobacco Products, Lars Noah, Barbara A. Noah

Faculty Scholarship

At a press conference held on August 23, 1996, just one year after initially revealing his plans, President Clinton announced sweeping federal regulations to combat the underage use of tobacco products. The Food and Drug Administration (FDA) subsequently published a lengthy preamble to accompany the final regulations, detailing the Agency's assessment of the problem and responding to numerous public comments to its notice of proposed rulemaking (NPRM). Characterizing the growing use of tobacco products as a "pediatric disease," FDA Commissioner David Kessler previously had vowed to alter the smoking habits of the newest generation of tobacco users in order to …

The Promised End: Constitutional Aspects Of Physician-Assisted Suicide, George J. Annas

Faculty Scholarship

The debate over physician-assisted suicide has dramatically shifted to a discussion of constitutional issues. This spring, within a month of each other, U.S. Circuit Courts of Appeals on both coasts ruled that state prohibitions of assisted suicide are unconstitutional when applied to physicians who prescribe lethal medication for terminally ill, competent adults who wish to end their lives. The Ninth Circuit includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington, and the Second Circuit includes New York, Connecticut, and Vermont. Both courts reached the same conclusion but for different legal reasons.

The Dangers Of Directives Or The False Security Of Forms, Diane E. Hoffmann, Sheryl Itkin Zimmerman, Catherine J. Tompkins

Faculty Scholarship

No abstract provided.

Introductory Remarks Of Panel Ii: Legal, Medical, And Ethical Considerations For The Future Of Physician-Assisted Suicice Symposium: Physician-Assusted Suicide: Legal Rights In Life And Death: Introductory Remarks Of Panel Ii: Legal, Medicial, And Ethical Considerations For The Future Of Physician-Assisted Suicide, Tanya K. Hernandez

Faculty Scholarship

Once the Supreme Court issues it decision in the cases of Quill v. Vacco1 and Compassion in Dying v. Washington2 regarding the constitutionality of outlawing physician-assisted suicide for competent and terminally ill persons, the tension surrounding legal, medical, religious and ethical issues concerning end of life decision making will not be resolved.

Why Mandatory Hiv Testing Of Pregnant Women And Newborns Must Fail: A Legal, Historical, And Public Policy Analysis Special Issue: Mandatory Hiv Testing Of Newborns And Their Mothers, Elizabeth B. Cooper

Faculty Scholarship

The debate surrounding mandatory HIV testing of newborns and pregnant women requires an understanding of the historical context of women in the epidemic. Although the epidemic first was recognized in gay men in 1981, anecdotal reports reveal that women already were dying from what seems to have been HIV-related symptomatology. Indeed, in Gena Corea's book, The Invisible Epidemic, we learn that, as early as 1981, not insignificant numbers of drug-using and former drug-using women were falling ill and not recovering from conditions that normally are not fatal, including bacterial pneumonia. Yet, because we did not necessarily expect these populations to …

The Law And Ethics Of Organ Sales, Keith N. Hylton

Faculty Scholarship

The proposed solutions to my hair supply hypothetical, transfer of property and reliance on altruism, are essentially the only two solutions formally adopted in response to the real world "organ supply" problem.' Because of the shortcomings of these solutions, a number of commentators, myself among them, ² have suggested the allowance of some limited commerce in body parts. This solution can be seen as a compromise between the extremes of transferring property rights and relying entirely on altruism. Property rights are maintained under the market system because anyone who wants the body part of another must gain the consent of …

Facilitating Choice: Judging The Physician's Role In Abortion And Suicide, George J. Annas

Faculty Scholarship

When I was invited to give this talk I thought, "I'll just give my standard slide show on death in America." I thought I would just talk about the right to die, something I can do in my sleep, and everybody would be happy. And you probably would, since it's a pretty good speech. I am going to give it at a Pennsylvania Judges Conference in a couple of weeks, and they will like it. But it is not very challenging, either for me or for you. So, what I want to explore with you today is how judges have …

Cowboys, Camels, And The First Amendment: The Fda's Restrictions On Tobacco Advertising, George J. Annas

Faculty Scholarship

The Marlboro Man and Joe Camel have become public health enemies number one and two, and removing their familiar faces from the gaze of young people has become a goal of President Bill Clinton and his health care officials. The strategy of limiting the exposure of children to tobacco advertisements is based on the fact that almost all regular smokers begin smoking in their teens. This approach is politically possible because most Americans believe that tobacco companies should be prohibited from targeting children in their advertising.

The Politics Of Human-Embryo Research: Avoiding Ethical Gridlock, George J. Annas, Arthur Caplan, Sherman Elias

Faculty Scholarship

[...]abortion is about more than politics; it is fundamentally about ethics, morals, equality, and religion, and how we think about abortion reveals much about how we are likely to think about other life-and-death issues in contemporary American medical practice. Because politics as currently practiced seems so unprincipled, there have been sporadic attempts to redefine abortion-related issues as ethical questions and to set up national panels and advisory groups to examine various practices and make recommendations about their ethics.

Questing For Grails: Duplicity, Betrayal And Self-Deception Postmodern Medical Research, George J. Annas

Faculty Scholarship

Contemporary physicians and scientists often describe their experi-
ments as part of a search for the "Holy Grail." Sometimes this quest is
expressed more specifically, as when the Human Genome Project is de-
scribed as a search for the "Holy Grail of biology."1 This rhetoric sug-
gests that experimental work is holy, God's work, and that the results will
prove miraculous and good for everyone. But this type of blind devotion
produces uncritical action that can ultimately destroy values essential to
human dignity.

The Promised End — Physician-Assisted Suicide And Abortion, George J. Annas

Faculty Scholarship

The debate over late term intact dilation and evacuation abortions (so-called "partial birth" abortions) has been an uncomfortable one for those in the pro-choice community.' Although the United States Senate narrowly refused to override President Clinton's veto of a bill criminalizing this procedure, many in Congress agreed with Senator Daniel Patrick Moynihan (D-N.Y.) that it was "as close to infanticide as anything I have come upon." States have a compelling interest in preventing infanticide that is not contradicted by a woman's constitutional right to decide whether to continue a pregnancy. Similarly, states have a legitimate and perhaps even compelling interest …

Medicine And Human Rights: Reflections On The Fiftieth Anniversary Of The Doctors’ Trial, George J. Annas, Michael A. Grodin

Faculty Scholarship

1996 marks the fiftieth anniversary of the commencement of the trial of Nazi physicians at Nuremberg, a trial that has been variously designated as the "Doctors' Trial" and the "Medical Case." In addition to documenting atrocities committed by physicians and scientists during WWII, the most significant contribution of the trial has come to be known as the "Nuremberg Code," a judicial codification of 10 prerequisites for the moral and legal use of human beings in experiments. Anniversaries provide us with an opportunity to reflect upon the past, but they also ena ble us to renew our efforts to plan for …

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

Faculty Scholarship

No abstract provided.

Aids Phobia, Public Health Warnings, And Lawsuits: Deterring Harm Or Rewarding Ignorance?, Wendy K. Mariner

Faculty Scholarship

Courts in more than a dozen states have decided cases in which a person has claimed money damages for his or her fear of getting acquired immunodeficiency syndrome (AIDS). Although most courts have rejected such claims in the absence of actual exposure to the human immunodeficiency virus (HIV), their reasoning has varied slightly from state to state. This article argues that negligence law should not permit people who are HIV negative to recover damages for an unfounded fear of AIDS. Public health statements intended to educate the public about preventing HIV transmission may have encouraged some fear-of-AIDS lawsuits against health …

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 …

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 …

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 …

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.