Health Law and Policy Commons^™

The Three Faces Of Retainer Care, Frank A. Pasquale

ExpressO

Retainer care arrangements allow patients to pay a fee directly to a physician’s office in order to obtain special access to care. Practices usually convert to retainer status by concentrating their attention on a small panel and dropping the majority of their patients. Proponents call retainer care a triumph of consumer-directed health care; opponents deride it as “boutique medicine.” Both sides are deploying a variety of legal tactics in order to attain their goals.

After surveying these conflicts, this article clarifies what is at stake by analyzing the three key features of retainer care: preventive care, queue-jumping, and amenity-bundling. Most …

The Process Paradigm: Rethinking Medical Malpractice, Roger B. Dworkin

Articles by Maurer Faculty

No abstract provided.

The Role Of Religion In The Schiavo Controversy, Barbara A. Noah

Faculty Scholarship

The brief life of Theresa Marie Schiavo and the dispute over her end-of-life care captured public awareness in a way that few such cases have done. The reasons for the nearly unprecedented public attention to her case are two-fold. The decision by various religious groups and governmental entities to intervene in the dispute surrounding her care in order to promote conservative causes (some of them only tenuously related to her particular medical circumstances) prompted unusually intense media coverage. In addition, the ensuing publicity surrounding Theresa's tragic condition--an unexpected cardiac arrest left her in a permanent vegetative state at the age …

Law And Public Health: Beyond Emergency Preparedness, Wendy K. Mariner

Faculty Scholarship

This Article examines three questions: What is public health? What is public health law? What roles can lawyers play in public health? It first describes the breadth of public health, highlighting six trends shaping its future: social determinants of health; synergy between medicine and public health; shifts in focus from external (e.g., environmental and social) to internal (behavioral) risks to health; federalization of public health law; globalization of health risks and responses; and bioterrorism. Because the domains of law that apply to public health are equally broad, the Article next offers a conceptual framework for identifying the types of laws …

Ending The Exploitation Of The Vulnerable: The Promise Of The Intersection Of American Bioethics, Human Rights, And Health Law, Ruqaiijah Yearby

All Faculty Scholarship

Traditionally, American bioethics has served as a safety net for the rich and powerful, for they are not forced to act as research subjects to obtain access to general health care for themselves or their children. However, American bioethics has failed to protect the vulnerable, i.e. indigent minorities. The vulnerable are not treated the same as the rich. They do not have access to health care. They are exploited in clinical trials that promise monetary gain or access to health care and their autonomy rights are often ignored. Some of the vulnerable most affected by these disparities are African-Americans. African-Americans …

Telling Stories About Health Insurance: Using New Films In The Classroom, Elizabeth Pendo

All Faculty Scholarship

In keeping with the Symposium theme, "The Mass Media's Influence on Health Law and Policy," this essay is designed to share my experience using clips from three recent popular films as a method of enhancing coverage and discussion of legal and policy issues surrounding the private health insurance system, and to provide some practical advice for others interested in doing the same. Specific topics include the erosion of employer-sponsored health insurance, continuation of private coverage under COBRA and HIPAA, public health care programs, physician incentives, the uninsured and access to care and legal remedies for claim denial. This essay builds …

The Impact Of Hsas On Health Care Reform: Preliminary Results After One Year, Edward J. Larson, Marc Dettmann

Scholarly Works

With over one year having passed since the Medicare Modernization Act ("MMA") authorized the creation of the first individual Health Savings Accounts ("HSA"), this Article reviews the context, structure, promise, and impact of this new type of tax-advantaged account. The Article begins by briefly reviewing the context of this reform, documenting what both Presidents Clinton and Bush noted about rising costs and decreasing access. The Article then reviews the HSA legislation itself, H.R. 2596, and summarizes how HSAs operate. Part IV of this Article reviews the claims made for HSAs when H.R. 2596 passed as part of the MMA. Part …

The Insurance Aspects Of Damages, Robert H. Jerry Ii, Douglas R. Richmond

UF Law Faculty Publications

"[I]t is difficult ... to imagine an event or transaction that does not involve insurance in some way." So it is with the most salient event in the lives of Tony and Donna Sabia, whose son Tony John Sabia, or "Little Tony," was born with profound disabilities. In the final analysis, the ability of Tony and Donna to pay for the future medical care and living expenses needed by their son depends on whether they can reach the liability insurance coverage possessed by the health care providers who attended Donna and Little Tony at the time of his birth. It …

Bioethics? The Law And Biomedical Advance, Roger B. Dworkin

Articles by Maurer Faculty

No abstract provided.

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 …

Can't We All Get Along? The Case For A Workable Patent Model, Srividhya Ragavan

Faculty Scholarship

The global move towards a trade regime has been impeded by challenges of poverty and health crisis for the developing nations. Until now, the developed nations have touted the establishment of a trade regime as envisaged under TRIPS as the solution for the national challenges. This paper examines the effectiveness of TRIPS as a mechanism to move towards a trade regime. It argues that the patent policy in TRIPS cannot gear the world towards patent harmonization but can potentially adversely impact the developed nations and the post-world war trade structure. The impediments affecting the effectiveness of TRIPS as a harmonizing …

Increasing The Supply Of Organs In Transplantation Through Paired Organ Exchanges, Michael T. Morley

Scholarly Publications

No abstract provided.

Sex, Marriage, Medicine, And Law: 'What Hope Of Harmony?', Thomas Wm. Mayo

Faculty Journal Articles and Book Chapters

This essay offers a critique of the Kansas Supreme Court's decision in In re Estate of Gardiner, 42 P.3d 120 (Kan. 2002), and similar cases that hold that for purposes of the opposite-sex marriage rule, an individual's sex is determined at birth, is genetically fixed, and cannot be changed through surgery or hormone therapy. The result for transgendered individuals is a legal regime that is hostile to medical care that brings external sex characteristics into line with sexual identity. The result for society is a legal rule that is at odds with scientific opinion. Finally, the result for the opposite-sex …

A Jurisprudential Analysis Of Government Intervention And Prenatal Drug Abuse, Susan Saab Fortney

Faculty Scholarship

This article addresses the serious public health problem of substance abuse among pregnant women. Part I of this article introduces the national problem of prenatal drug abuse. Part II discuses the appropriateness of government intervention. The article explains the medical consequences of prenatal drug abuse, and then, describes the justification of government intervention. The article details both existing criminal law and new legislation regarding prenatal drug abuse. Part III addresses constitutional concerns and the conflict between a woman’s right on the one hand and the state interest and “fetal rights” on the other. Part IV considers the moral and legal …

Proxy Consent To Organ Donation By Incompetents, Michael T. Morley

Scholarly Publications

No abstract provided.

Bio-Ethics And Physician Liability: The Liability Effects Of Developing Pain Management Standards, Steven E. Stark

St. Thomas Law Review

As the legal and regulatory environment related to health law becomes more complex, a health care provider's exposure to potential civil liability claims from patients and their families, possible disciplinary charges from regulatory agencies, and state and federal criminal charges has expanded as well. It is often stated that the law is intended to define and enforce legal duties, not moral or ethical obligations. Nevertheless, bioethical debates help shape the development of accepted professional standards which, if violated, often form the basis for imposition of civil, criminal, and administrative penalties. Developing ethical debates result in "prevailing professional standards" that lead …

Genetic Enhancement, Distributive Justice, And The Goals Of Medicine, Mark A. Hall

San Diego Law Review

In this brief Essay, I focus on chapter 4 of the book’s discussion of the distinction between treatment and enhancement.

This distinction is at the core of many of the most challenging problems of ethics and public policy raised by genetics. This is also the place where there appears to be disagreement or ambivalence among these authors

and where fault

lines appear in their otherwise remarkably united front.

Punishing Reproductive Choices In The Name Of Liberal Genetics, Alexander Morgan Capron

San Diego Law Review

When the four American moral philosophers who individually have already made the most significant contributions to the ethical analysis of contemporary health care and medicine collaborate, it should come as no surprise that their joint effort is a lucid and powerful analysis of the principles that a just and humane society would employ in setting policies about how the new tools of molecular genetics should be used for human betterment. In From Chance to Choice: Genetics and Justice, Allen Buchanan, Dan W. Brock, Norman Daniels, and Daniel Wikler aimed to steer a middle course between two extreme models. The first …

How Not To End Disability, Janet Radcliffe Richards

San Diego Law Review

When advances in genetic technology offer the chance of preventing or curing disease and disability, it is one thing to recommend caution on the grounds that these obvious benefits may be outweighed by associated harms. It is quite another to deny even that there are benefits to be outweighed, and that attempts to prevent disability by these means should be resisted outright. That, however, is a view that is increasingly widespread in the disability rights movement.

Is Moral Theory Perplexed By New Genetic Technology?, Richard J. Arneson

San Diego Law Review

From Chance to Choice: Genetics and Justice

intelligently addresses difficult issues at the intersection of medical ethics and the theory of justice. The authors Allen Buchanan, Dan W. Brock, Norman Daniels, and Daniel Wikler repeatedly emphasized their opinion that advances in genetic technology force upon us entirely new ethical questions that previous moral theories lack the resources to resolve.

The claim that

new scientific discoveries render previous moral theories obsolete should be regarded with suspicion. Suspicion should be further aroused when readers note another feature of the authors’ theorizing that neatly fits the claim that we stand at the dawn …

The Ethics Of Genetic Intervention: Human Research And Blurred Species Boundaries, Rebecca Dresser

San Diego Law Review

From Chance to Choice: Genetics and Justice1

is a well-written and tightly argued analysis. This Essay addresses two topics meriting more attention than they received from these authors. First, this Essay considers in greater detail a topic the book briefly addresses—the human research necessary to support clinical use of genetic interventions. What appears as simply a step along the way to clinical benefits may actually present serious impediments. Second, this Essay expands on a point the authors mentioned only in passing. They noted that developments in

genetics are blurring traditional species boundaries. Blurred boundaries between humans and other species raise …

Does Technological Enhancement Of Human Traits Threaten Human Equality And Democracy?, Michael H. Shapiro

San Diego Law Review

This Article outlines some of the moral, legal, and general policy difficulties that societies and individuals will face if technological enhancements via germ line and somatic mechanisms become possible. It identifies and analyzes some of the conceptual structures necessary to explain the nature of these difficulties, suggests some alternative basic scenarios—such as greater or lesser scarcity of technological enhancement resources, impacts on how we perceive each other, and different remediation patterns—and then maps and reverse maps the projected technological developments against the value and legal structures. This Article also describes and comments on what may seem to be, from our …

Will Price Control Legislation Satisfactorily Address The Issue Of High Prescription Drug Prices?: Several States Are Waiting In The Balance For Phrma V. Concannon, Shawna Lydon Woodward

Seattle University Law Review

Section II of this Note will discuss Canada's prescription drug pricing scheme and why prescription drugs cost significantly more in the United States. Section III will discuss PhRMA v. Concannon, in cluding an analysis of the parties' arguments on price controls for pre- scription drugs. Section IV will illustrate that Washington's current role in the battle on prescription drug pricing is inadequate to provide accessible and affordable prescription drugs for its citizens. Section V concludes with the proposal that Washington adopt new legislation modeled after the Maine Act to Establish Fairer Pricing for Prescription Drugs, which created the Maine Rx …

Legal Issues In Hiv/Aids Prevention And Treatment In The Russian Federation – Summary And Conclusions Of The Boston University Hiv/Aids Project, Wendy K. Mariner

Faculty Scholarship

The Russia Federation faces an urgent need to control the spread of HIV. Although infection has been concentrated primarily among high risk groups so far, the risk that it will spread rapidly throughout the general population is growing daily. Controlling the HIV epidemic requires leadership and strategies that are somewhat different from traditional infectious disease control models because there is no vaccine yet available to prevent disease and people spread infection by engaging in activities that are hidden from public view and not susceptible to simple prohibitions.

Boston University conducted several studies as part of USAID’s HIV/AIDS Strategy to assist …

Are Medical Ethics Different From Legal Ethics?, Mervin H. Needell

St. Thomas Law Review

In this paper I shall compare and contrast some relevant ethical positions of legal and medical precepts and practices which seem to suggest or predispose to a professional bias. I derive these conclusions from official positions contained in institutional accounts, such as case law or treatises. Even if such comparisons do not make a convincing case for professional bias, they should still provide some insight into the ways in which the thought processes of lawyers and doctors do or do not differ. Although the words "moral" and "ethical" are often used interchangeably, if a distinction must be made here, I …

End-Of-Life Care In Florida: Should The Law Follow The Lobbyists Or The People's Wishes, Alison Cossetti

St. Thomas Law Review

One of the hottest topics on the minds and lips of many Floridians is end-of-life care. This is understandable since the state of Florida contains the largest percentage of elderly individuals, the third highest amount of people afflicted with the AIDS virus, and the fourth largest number of deaths per year from chronic obstructive pulmonary disease and heart disease in the nation. The Florida Legislature realizes that the state is extremely diverse in the areas of ethnicity, race, cultural customs, and religious beliefs, and believes that a person's experience with death, the process of dying, and their choices pertaining to …

The Girl Who Cried Pain: A Bias Against Women In The Treatment Of Pain, Diane E. Hoffmann, Anita J. Tarzian

Faculty Scholarship

In general, women report more severe levels of pain, more frequent incidences of pain, and pain of longer duration than men, but are nonetheless treated for pain less aggressively. The authors investigate this paradox from two perspectives: Do men and women in fact experience pain differently - whether biologically, cognitively, and/or emotionally? And regardless of the answer, what accounts for the differences in the pain treatment they receive, and what can we do to correct this situation?

Quality Control, Enterprise Liability, And Distintermediation In Managed Care, Nicole Huberfeld, John V. Jacobi

Law Faculty Scholarly Articles

In this article, the authors examine the potential of enterprise liability in light of current health-care finance realities. The article begins by addressing background issues of medical malpractice theory and the development of proposals for a form of plan-based enterprise medical liability centered on managed care organizations (MCOs). The authors then describe recent trends in the evolution of more loosely structured MCOs, including the emergence of "disintermediated," or patient-directed, plans. The authors examine the extent to which these developments weaken the rationales for plan-based enterprise liability. The article concludes nevertheless that plan-based enterprise liability best serves the goal of reducing …

Pulliam V. Coastal Emergency Services Of Richmond, Inc.: Reconsidering The Standard Of Review And Constitutionality Of Virginia's Medical Malpractice, Elizabeth Keith

Scholarly Articles in Law Reviews & Journals

Consider the following scenario. A plaintiff is injured in a devastating automobile accident and a jury finds the other driver negligent. As a result of that driver's negligence, the plaintiff is now a quadriplegic. The jury, after careful deliberation and calculation, awards $4.5 million to the plaintiff consisting of both economic damages for past and future medical expenses, as well as non-economic damages for pain and suffering and loss of enjoyment of life. Now consider a similar scenario. The plaintiff is a patient who is injured during a low-risk surgical procedure and a jury finds the surgeon negligent. As a …

Adverse Drug Reactions: Harnessing Experiential Data To Promote Patient Welfare, Barbara A. Noah

Faculty Scholarship

Part I of this Article evaluates the pre-approval and post-approval regulatory framework governing prescription drugs, and the FDA's spontaneous reporting system for adverse events, as it contrasts that system with the regulatory mechanisms used to monitor risks associated with other products. Part II summarizes the recent series of prescription drug marketing withdrawals prompted by reports of unexpected adverse reactions. Finally, Part III offers some possible solutions designed to improve the efficiency of postapproval surveillance so that fewer patients will suffer the consequences of unexpected adverse drug reactions and interactions. This Article concludes that the existing regulatory system requires fundamental reprioritization …