Last Year Was A Wild One For Health Law — What’s On The Docket For 2015?

By Greg Curfman, Holly Fernandez Lynch and I. Glenn Cohen

This new blog post by Greg Curfman, Holly Fernandez Lynch and I. Glenn Cohen appears on the Health Affairs Blog:

Everywhere we look, we see the tremendous impact of new legal developments—whether regulatory or statutory, federal or state—on health and health care. These topics range from insurance to intellectual property to religion to professionalism to civil rights. They remain among the most important questions facing Americans today.

This post is the first in a series that will stem from the Third Annual Health Law Year in P/Review event to be held at Harvard Law School on Friday, January 30, 2015. The conference, which is free and open to the public, brings together leading experts to review major developments in health law over the previous year, and preview what is to come.

Read the full post here, and register for the Third Annual Health Law Year in P/Review for free here.

Arthur Caplan on Hyperbaric Oxygen Therapy

Art Caplan has a new piece on hyperbaric oxygen therapy over at NBC News:

Hyperbaric oxygen therapy. Have you ever heard of it? The Internet sure has.

Centers and clinics tout the benefits of sitting in a tank breathing 100 percent oxygen at higher than atmospheric pressure for treating autism, infant brain trauma, multiple sclerosis, chronic fatigue, cerebral palsy and many other conditions.

There’s just one problem: There is no solid evidence that hyperbaric oxygen therapy does anything for any of these disorders.

Read the full article here.

The Law & Economics of the VA Fiasco

By Alex Stein

Over at the CATO blog, Roger Pilon discusses the unfolding VA fiasco that involves hospitals covering up their failures to provide acutely needed services to veterans and doctors working in a slowdown mode (as illustrated by an eight-person cardiology department that “sees as many patients in a week as a single private practice cardiologist sees in two days”). He describes this fiasco as a paradigmatic example of government failure and proposes a remedy: the government should steer away from actually  providing medical care; instead, it should give veterans vouchers towards purchasing medical services on the competitive private market.

This proposal does not take into account the economies of scale and scope that the government can realize from centralizing the purchase of medical work, facilities and equipment, and from self-insuring against medical malpractice instead of buying expensive liability coverage. These economies dramatically reduce the cost of medical care and increase its affordability. Our market for medical care sets prices that many people, including veterans, cannot afford. The voucher system cannot bring those prices down.  Making this system work without shortchanging veterans would therefore cost the taxpayers a fortune. Continue reading

Caveat Veterans: Limitations and Repose in Medical Malpractice Actions under FTCA

By Alex Stein

To be able to sue the government under the Federal Tort Claims Act (FTCA), an aggrieved person must first present his claim to the appropriate agency within two years of the claim’s accrual. 28 U.S.C. § 2401(b). When the agency fails to make a final disposition within six months, the claim is deemed denied and the person may sue the government in federal court. 28 U.S.C. § 2675(a). Alternatively, he may continue the process with the agency. If the agency ultimately denies the claim, he would have another six months to file a suit. 28 U.S.C. § 2401(b).

Augutis v. United States — F.3d —-, 2013 WL 5553084 (7th Cir. 2013), features a medical patient that did exactly this. Alas, when he sued the government for medical malpractice, allegedly committed by his doctors at the Veterans Affairs Hospital in Illinois, it was too late. His suit was blocked by the Illinois statute of repose (735 ILCS 5/13–212(a)) that nullifies an aggrieved patient’s right to sue his doctor within four years of the date of the alleged malpractice. The patient argued that this statute was preempted by the abovementioned provisions of FTCA, but the Seventh Circuit disagreed.  Here is why: Continue reading