Health Law and Policy Commons^™

Benumbed, Carl E. Schneider

Articles

I originally intended to write a column on tort liability and research ethics, and I still plan to do so. But this column is a cri de coeur as I finish another semester teaching law and bioethics. This year, I asked with growing frequency, urgency, and exasperation, "Must law's reverence for autonomy squeeze out the impulse to kindness? Where is the beneficence in bioethics?" These questions assail me every term. Why? Consider Steele v. Hamilton County Community Mental Health Board. Mr. Steele was involuntarily "hospitalized after his family reported that he was 'seeing things and trying to fight imaginary …

Where Is The "There" In Health Law? Can It Become A Coherent Field?, Mark A. Hall, Carl E. Schneider

Articles

Gerturde Stein complained of Oakland, "There is no there there." Churchill complained of his pudding that "it has no theme." And everybody complains of health law that it lacks an organizing principle. Health law scholars bemoan the "pathologies" of health law and its contradictory and competing "paradigms'. which form a "chaotic, dysfunctional patchwork." But it should not surprise us that any field which grows by accretion lacks a unifying idea or animating concern. And health law certainly grew by accretion. It began in the 1960s, when the Law-Medicine Center was established, concerned with medical proof in litigation, physicians' malpractice, and …

Introduction: The New Economy And The Unraveling Social Safety Net, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.

Disentitlement? The Threats Facing Our Public Health-Care Programs And A Rights Based Response, Sidney D. Watson

All Faculty Scholarship

In the battle over the future of American health policy, the lines are drawn. On one side are those who seek to turn health care financing and delivery over to private markets that are individualized—where patients strike their own bargains rather than relying on employers or government insurers—and free from governmental mandates. On the other side are those who support a continuing role for government in assuring access to health insurance and health services and in controlling costs and monitoring the quality of care. The lines are hard, fast, and ideological.

The most recent skirmish ended November 24, 2003, when …

Five Easy Pieces: Motifs Of Health Law, Sandra H. Johnson

All Faculty Scholarship

The film Five Easy Pieces is named for a selection of five piano compositions that the Jack Nicholson character played in a childhood recital. Here, its namesake refers to five motifs of teaching and practicing health law. Like playing the piano pieces, some of these motifs sound difficult to teach but are quite easy, and others sound easy but are quite difficult.

First, whether it is the lawyers shaking their heads about the doctors or the doctors stunned by the ignorance of the lawyers, these two professions have difficulty reaching common understandings. Health law’s defining characteristic is that it attempts …

Mission, Margin, And Trust In The Nonprofit Health Care Enterprise, Thomas L. Greaney, Kathleen Boozang

All Faculty Scholarship

The law governing charitable corporations remains neglected and thoroughly muddled. Still unsettled are central issues regarding the accountability of directors and management, legal standards governing organic changes by nonprofit institutions, and mechanisms to ensure fidelity to the organization's charitable mission. For nonprofit corporations in the health care sector, which represent a large proportion of all health services supplied nationwide, particularly charity care, these shortcomings have had serious repercussions. The central issue addressed in this Article is how fidelity to the mission of the charitable health care corporation should be monitored. It advances the normative perspective that the law should maximize …

Images Of Health Insurance In Popular Film: The Dissolving Critique, Elizabeth Pendo

All Faculty Scholarship

Several recent films have villainized the health insurance industry as central elements of their plots. This Article examines three of those films: Critical Care, The Rainmaker, and John Q. It analyzes these films through the context of the consumer backlash against managed care that began in the 1990s and shows how these films reflect the consumer sentiment regarding health insurance companies and the cost controlling strategies they employ. In addition, the Article identifies three key premises about health insurance in the films that, although exaggerated and incomplete, have significant factual support. Ultimately, the author argues that, despite their passionately critical …

Faith, Confidence And Health Care: Fostering Trust In Medicine Through Law, Robert Gatter

All Faculty Scholarship

This Article responds to the work of Professor Mark A. Hall, who has written an accompanying essay in reply, published in the same issue of the Wake Forest Law Review.

This Article identifies an emerging medical trust movement and challenges its normative claim that, as a matter of policy, the law should be used to preserve, if not promote, trust in medicine. Key to this challenge is the fact that the emerging movement defines medical trust in emotional terms as a kind of faith that goes beyond rationally based confidence. First, because the movement defines medical trust as faith, it …

Monopsony As An Agency And Regulatory Problem In Health Care, Peter J. Hammer, William M. Sage

Faculty Scholarship

The article is organized as follows. Part I returns to the source, explaining the controversy in Kartell, examining Breyer's opinion, and summarizing its impact on other courts. Part II looks at Kartell through the lens of classic monopsony theory involving suppliers, producers, and consumers, and focuses on the opinion's oversimplification of the relationship between health insurers and insured individuals. It further considers whether lower input prices result in lower consumer prices in the endproduct market, and, therefore, whether monopsony power can be welfare-enhancing. Part III evaluates Kartell's disregard of other important principal-agent problems in health care that arguably influence the …

Regulating Teenage Abortion In The United States: Politics And Policy, Carol Sanger

Faculty Scholarship

Thirty-four US states currently require pregnant minors either to notify their parents or get their consent before having a legal abortion. The Supreme Court has upheld the constitutionality of theses statutes provided that minors are also given an alternative mechanism for abortion approval that does not involve parents. The mechanism used is the 'judicial bypass hearing' at which minors persuade judges that they are mature and informed enough to make the abortion decision themselves. While most minors receive judicial approval, the hearings intrude into the most personal aspects of a young woman's life. The hearings, while formally civil in nature, …

Divorcing Marriage From Procreation – Goodridge V. Department Of Public Health Case, Jamal Greene

Faculty Scholarship

Public debate about same-sex marriage has spectacularly intensified in the wake of the Massachusetts Supreme Judicial Court's decision in Goodridge v. Department of Public Health. But amid the twisted faces, shouts, and murmurs surrounding that decision, a bit of old-fashioned common-lawmaking has been lost. Some have criticized the Goodridge court for its apparently result-oriented approach to the question of whether, consistent with the Massachusetts Constitution, the commonwealth may deny marriage licenses to same-sex couples. Others have defended the decision, both on the court's own rational basis terms and on other grounds, including sex discrimination and substantive due process. This …

On Kamisar, Killing, And The Future Of Physician-Assisted Death, Norman L. Cantor

Michigan Law Review

Tens - perhaps hundreds - of thousands of trees could have been spared over the last forty-five years had opponents of physician-assisted death only been content to let Yale Kamisar be their exclusive spokesperson. Their movement would have lost no significant substance or persuasive force, for Kamisar's 1958 article - Some Non-Religious Views Against Proposed 'Mercy-Killing' Legislation - presaged the shape and content of the subsequent forty-five year debate over legalizing physician-assisted death ("PAD" ). Kamisar's article preceded by years the development of a whole jurisprudence relating to the withholding/withdrawing of life-sustaining medical treatment ("LSMT") and the administration of pain-relief …

Children’S Health And Human Rights, Norie Nogami

Human Rights & Human Welfare

One of the first international attempts to improve the health of children was by Ms.Eglantyne Jebb, a founder of Save the Children, during the aftermath of the WWI. She drafted the Geneva Declaration of the Rights of the Child, the first international children’s rights document adopted by the League of Nations in 1924. Today, in the Convention on the Rights of the Child (1989) we have a more comprehensive and near universal legal instrument for children’s rights.

Steering And Rowing In Health Care: The Devolution Option?, Colleen Flood, Joanna Erdman, Duncan Sinclair

Articles, Book Chapters, & Popular Press

Publicly funded health care systems are often the subject of heated policy debates. All too often (particularly in Canada), these debates focus on the prohibitive costs, the resultant taxation levels, and the questionable efficiency and outcomes associated with a publicly funded system. Moreover, the institutionalization of the system and the entrenchment of its many stakeholders make effecting change particularly difficult. In this article, the authors begin with an assessment of the drawbacks of the Canadian health care system in the federal-provincial context and its resulting gaps in governance (steering), in management (rowing), and in overall accountability (apart from that offered …

The Boundaries Of Medicare: Tensions In The Dual Role Of Ontario's Physician Services Review Committee, Colleen Flood, Joanna Erdman

Articles, Book Chapters, & Popular Press

In this research, we describe and analyse the Physician Services Committee (PSC) in Ontario, focusing on its role in determining what physician services are publicly funded and what services are de-listed (i.e. no longer eligible for public funding). We explain how the PSC's role in determining the boundaries of Medicare is in tension with its role as a medium for labour relations between the government and the medical profession. We suggest that while the values of privacy, secrecy and a lack of transparency may enhance the PSC's fulfillment of its labour relations mandate, they impede the Committee's successful fulfillment of …

Shooting Ourselves In The Foot: Why Mandatory Reporting Of Gunshot Wounds Is A Bad Idea, Merril Pauls, Jocelyn Downie

Articles, Book Chapters, & Popular Press

A recent position statement by the Ontario Medical Association’s Section on Emergency Medicine called on the Ontario government to pass a law requiring physicians to report gunshot wounds to police. The Ontario government quickly passed a motion to “introduce legislation to require hospitals and physicians to report gunshot wounds and knife injuries to their local police service.” The goals behind the position statement are laudable: “to assess and reduce immediate public risk and to collect data to inform future prevention strategies.” However, mandating that physicians report gunshot wounds is an ill-conceived response to the problem of gun-related violence. It will …

Revisioning The Oversight Of Research Involving Humans In Canada, Jocelyn Downie, Fiona Mcdonald

Articles, Book Chapters, & Popular Press

When individuals are asked to participate in research they should be able to assume that the research "is well designed and well executed, that the investigator is competent to undertake the study, that the study will be run efficiently, safely, and ethically and that the deviations from good practice will be identified and corrected." The central question that we focus on in this paper is whether the governance mechanisms that are currently in place to regulate the conduct of research involving humans are adequate to enable those who are approached to participate in research to make these assumptions. This review …

Licensing Health Care Professionals: Has The United States Outlived The Need For Medical Licensure?, Gregory Dolin

All Faculty Scholarship

With an expanding market for what is now known as "complimentary and alternative" medicine (CAM), states are increasingly facing the issue of who can and who should be allowed to practice medicine. Of necessity, this question also concerns whom patients may see to treat their ailments.

This paper will argue that the struggle to define who is and who is not licensed to practice medicine is rather fruitless and will always leave patients with less choice than they desire. Part II will review the history of licensure in the United States. Parts III and IV will focus on benefits and …

Time To Enter A "Do Not Resuscitate" Order On The National Resident Matching Program's Chart, Gregory Dolin

All Faculty Scholarship

This article focuses on the NRMP system and argues that the process is neither efficient nor pro-competitive. This article argues that Congress erred in bestowing an antitrust exemption on the NRMP and the participating institutions.

This article suggests that although the system may have been necessary to check the problem of early recruiting that was pervasive in the 1950s (similar to the one that plagued the federal judiciary until just two years ago), the system has outlived its usefulness. Part II will explain the Match's history and function and will discuss how the system makes participation in the Match inevitable …

Finding Cures For Tropical Diseases: Is Open Source An Answer?, Stephen M. Maurer, Arti K. Rai, Andrej Sali

Faculty Scholarship

No abstract provided.

Smart Growth For Community Development, Wendy Collins Perdue

Law Faculty Publications

The built environment has a profound effect on public health. For instance, community transportation policy influences pollution levels, which in turn contribute to levels of illness and death. The panelists for this session elaborate on this concept with perspectives drawn from varied experiences.

Finding Cures For Tropical Diseases: Is Open Source An Answer?, Stephen M. Maurer, Arti K. Rai, Andrej Sali

Faculty Scholarship

Only about 1% of newly developed drugs are for tropical diseases, such as African sleeping sickness and dengue fever. While patent incentives and commercial pharmaceutical companies have made Western health care the envy of the world, the commercial model works only if companies can sell enough patented products to cover their R&D costs. The model thus fails for diseases found largely in the developing world, where markets for patented products are tiny. Any solution to the problem of tropical diseases must recognize the need for rigid cost-containment. An open source approach to identifying promising drug candidates would keep costs down …

Politics, Power, And Public Health: A Comment On Public Health’S New World Order, Laurence R. Helfer

Faculty Scholarship

No abstract provided.

Letters To The Editors Of Health Matrix, Ken Wing

Faculty Articles

Professor Wing presents this letter to the editor concerning the health law in the U.S. He argues that there is no severable body of principles, or even a set of issues, defined by either circumstances or type of controversy in the teaching of health law. Would health law involve the legal issues that arise in the delivery of patient care? Well, that begins to define the subject, but that is only part of what's called health law. Legal issues related to health care? To health? Those definitions may work, but what is the point of such a broad and meaningless …

Extremely Preterm Birth And Parental Authority To Refuse Treatment: The Case Of Sidney Miller, George J. Annas

Faculty Scholarship

Disputes between physicians and patients over medical care have tended toward resolution in both the courts and ethics committees, with each of these bodies ultimately deciding that the informed, competent patient must be the final decision maker. Parents, too, have the authority to make medical decisions for their children, but these decisions can be challenged if physicians do not believe they are medically reasonable. One bioethical issue, however, is as intractable today as it was 30 years ago, when it began to be publicly discussed: the extent of parental authority to refuse life-sustaining medical treatment for an extremely premature infant. …

Forcible Medication For Courtroom Competence: The Case Of Charles Sell, George J. Annas

Faculty Scholarship

The right to refuse treatment is firmly recognized in U.S. law. Competent persons have the legal right to refuse treatment, even life-sustaining treatment, and incompetent patients can also refuse treatment through an advance directive, by naming a health care agent to make decisions for them or by having a person who knows their wishes express them.

Politics, Morals And Embryos, George J. Annas, Sherman Elias

Faculty Scholarship

Bioethics in the United States reflects US culture and tends to be pragmatic, market-oriented and insular. Add embryo politics to this mix and, over the past few years, the result has been a bioethics that has become so narrow and selfabsorbed as to be virtually irrelevant to the rest of the world. Not all the blame for this can be placed on President George W. Bush’s political agenda for his President’s Council on Bioethics, now in its third year of operation, but much can. The council has made public bioethics the servant of politics by pursuing a narrow, embryo-centric agenda. …