Health Law and Policy Commons^™

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 …

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.

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.

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

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 …

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.

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.

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 …

Federalism And Health Care Reform: Is Half A Loaf Really Worse Than None?, Richard Briffault

Faculty Scholarship

Health care reform dominates the domestic agenda of the Clinton Administration. Policy analysts, media pundits, and ordinary citizens are abuzz with the once-arcane terminology of health reform – "managed competition," "single-payer," "regional alliances," "global budgets" – as they ponder the merits and demerits of the leading reform alternatives. At the center of the public debate are questions concerning the role of government in constraining health care costs, maintaining quality, and widening access. But in our federal system there are two governments that can address most domestic problems – the national government and the states – and, although considerable ink has …

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 …

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 …

When Should Preventive Treatment Be Paid For By Health Insurance?, George J. Annas

Faculty Scholarship

In the national debate about who should have health insurance, surprisingly little attention has been focused on what medical services health insurance itself should cover. Historically, discussions of this topic have centered on concepts such as basic health care or medically necessary care. When the power of medical diagnosis and treatment was limited, these terms had boundaries as well. As physicians' diagnostic prowess has increased, however, especially in the area of genetics, such terms have become open-ended. To avoid predictable conflicts over benefit coverage, much more precise definitions will be required, so that patients and health care providers can understand …

Death By Prescription, George J. Annas

Faculty Scholarship

Society and physicians in the United States remain unable to accept death and thus unable to deal with the physical, psychological, and spiritual approach of death. The hour of death itself “is commonly tranquil,” but “the serenity is usually bought at a fearful price -- and the price is the process by which we reach that point” -- a process that has been described as “a purgatory that may last for weeks.” Suicide has been seen as a rational way to avoid that purgatory, especially as a response to end-stage cancer and AIDS, and proposals to “legalize” physician-assisted suicide in …

Malpractice Liability And Physician Autonomy, Frances H. Miller, Anthony Harrison

Faculty Scholarship

Opinion. Discusses legal modifications concerning liability for medical negligence evolving in similar ways in the United States and Great Britain. Parallel and divergent trans-Atlantic trends; Ailing and increasingly costly health care systems; Traditional relationships among doctors, hospitals and other health sector players.

Partner Notification And The Threat Of Domestic Violence Against Women With Hiv Infection, Karen H. Rothenberg, Richard L. North

Faculty Scholarship

No abstract provided.

Evaluating Ethics Committees: A View From The Outside, Diane E. Hoffmann

Faculty Scholarship

No abstract provided.

Control Of Tuberculosis -- The Law And The Public's Health, George J. Annas

Faculty Scholarship

In their history of tuberculosis, The White Plague, Rene and Jean Dubos note that the first national movement to control tuberculosis in the United States came from the Medico-Legal Society of the City of New York, a group of lawyers, scientists, and physicians devoted to solving social problems. At a meeting in 1900 to organize an American Congress on Tuberculosis, the group drafted legislation designed to prevent the spread of the disease. Even though almost every state eventually passed tuberculosis-control laws, it was not the passage of legislation, or even the development of effective treatment, that led to the decline …

Life Style, Health Status, And Distributive Justice, Robert L. Schwartz

Faculty Scholarship

The newest and most original scapegoat upon which we can place the blame for the high cost of health care are those whose life style choices puts their health or lives at risk. Of course, if our health care cost and access problems are a consequence of unhealthy choices made by autonomous individuals, we are relieved of the obligation of figuring out how to reform our health care delivery system. In that case, the solution to our health care problem is obvious - we merely need to impose appropriate penalties on those who make costly, immoral and unhealthy life style …

The Supreme Court's Narrow View On Civil Rights, Jack M. Beermann

Faculty Scholarship

The right to choose abortion, although recently significantly curtailed from its original scope,' is a federally protected liberty interest of women, and is at least protected against the imposition of "undue burdens" by state and local government.² Some of the most serious threats to women's ability to choose abortion have come not from government regulation, but from private, national, organized efforts to prevent abortions. In addition to seeking change through the political system, some of these organizations, most notably Operation Rescue, have focused on the providers of abortion, and have attempted to prevent abortions by forcibly closing abortion clinics …

Detention Of Hiv-Positive Haitians At Guantanamo, George J. Annas

Faculty Scholarship

Speaking for the United States, Secretary of State Warren Christopher told the June 1993 World Conference on Human Rights in Vienna that human rights are universal and that “we cannot let cultural relativism become the last refuge of repression”. The universality of human rights was first recognized internationally in the 1948 United Nations Declaration of Human Rights. But the fact that these rights are recognized and even seen as universal does not ensure that they will be respected, even by their strongest supporters. The lack of an international tribunal with jurisdiction to hear complaints about human-rights violations and provide remedies …

Physician-Assisted Suicide — Michigan's Temporary Solution, George J. Annas

Faculty Scholarship

Lewis Thomas has noted that doctors “are as frightened and bewildered by the act of death as everyone else”. “Death is shocking, dismaying, even terrifying,” Thomas has written. “A dying patient is a kind of freak . . . an offense against nature itself”. It is thus not surprising that many physicians have difficulty talking candidly with dying patients and caring for them, a reaction that often results in undermedication for pain and expensive and ineffective overtreatment.

American patients know this, and although death is a culture-wide enemy, many Americans fear the process of dying in an impersonal modern hospital …