Bypassing Damage Caps

By Alex Stein

Damage caps are widespread. A typical cap provision precludes medical malpractice victims from recovering more than a specified sum for pain, suffering and other noneconomic harms. These caps vary between $250,000 (as in California that might soon increase its cap by a referendum) and a $1,500,000-$500,000 scale (as in Florida). Some state supreme courts (e.g., Georgia, Illinois, and Wisconsin) voided the caps as unconstitutional, but many others (e.g., Alaska, California, Louisiana, Mississippi, Nebraska, Ohio and West Virginia) have upheld their constitutionality. In a few states (e.g., Florida and Texas), statutory caps had to be corrected to secure their alignment with state constitutions.

Damage caps are controversial.  Some people believe that they help contain the costs and secure the affordability of medical care. Others believe that caps shortchange malpractice victims and weaken the deterrence of malpractitioners. People falling into the first group generally support tort reforms. People falling into the second group ardently oppose those reforms. For my middle-way position—that supports procedural tort reforms that block away unsubstantiated malpractice suits, while opposing damage caps and other substantive tort reformssee here.

The plaintiffs bar expectedly tries to bypass the caps: see Catherine Sharkey’s important article that identifies the “crossover” dynamic: Facing caps on their clients’ noneconomic recovery, patients’ attorneys boost and vigorously pursue their clients’ claims for economic damages with the jurors’ blessing and approval.

Another, relatively recent, way of bypassing the cap is splitting the “occurrence” or “event” of medical malpractice into several events or occurrences. When successful, this strategy doubles, or more than doubles, the recoverable compensation amount. Continue reading

A year later, state powers remain vital after the ACA decision

By Theodore Ruger

Cross-posted from Constitution Daily.

Last summer, the Supreme Court put its money where its mouth was in terms of federalism doctrine in its landmark decision about the Affordable Care Act (ACA), inNFIB v. Sebelius.

512px-Obama_signs_health_care-20100323By upholding the ACA, with its myriad implementation choices delegated to the states, and by reconfiguring the Act to give states additional discretion over whether to expand their Medicaid programs, the Court did more in NFIB to advance the actual working realities of American federalism than did many of the leading federalism decisions of the prior two decades.

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The Incentives to Arbitrate Medical Malpractice Disputes

By Alex Stein

In my previous post, I outlined the legal framework for arbitrating disputes over medical malpractice.  Here, I consider whether arbitration is likely to become a forum of choice for doctors and patients. I believe that this scenario is unlikely.

Here is why:

Doctor-patient relationships are predominantly formed by adhesion contracts that patients sign at the doctor’s office.  Whether a doctor and her patient will agree to arbitrate thus depends on the doctor’s decision to include an arbitration clause in the contract. For reasons specified below, I believe doctors will do so on very rare occasions. Continue reading

Worth Reading This Week

By Nicolas Terry

Experiment vs. innovative treatment in bacterial transplants

By Nicholson Price

There’s a fascinating and tragic story coming to its conclusion at UC Davis, which points at the fine line between clinical innovation and experimental treatment.  Two neurosurgeons just resigned, following the resignation of the med school’s dean last year.  The neurosurgeons, going off anecdotal evidence that some patients with deadly glioblastomas lived significantly longer when they accidentally acquired post-surgery infections, had deliberately infected three patients with live Enterobacter aerogenes, a bowel bacterium, and withheld antibiotics.  All three patients died, two of untreated sepsis.  It seems quite clear that the doctors were trying to do their best to help the patients; but they also appear to have circumvented procedures and rules to do so.  The consent form was only 300 words, though it included language that “[t]here is no proof that such treatment (for brain cancer) might be beneficial, nor are there animal data to support it” and that resulting harms might include “paralysis, inability to speak or understand speech, inability to swallow, vegetative state, coma or death.”  The Sacramento Bee has an excellent series of articles here.

One does wonder: if it had worked, would the reaction have been the same, or would the surgeons have been hailed as innovators and heroes?  Continue reading

Lethal Injection Drug Shortage Leads to Debate

By Nadia N. Sawicki

A recent article in the New York Times (“Death Row Improvises, Lacking Lethal Mix”) described the challenges that correctional departments in death penalty states face in obtaining the drugs needed for lethal injection. The manufacturers of pancuronium bromide and pentobarbital, for example, have refused to supply drugs for execution purposes, and the U.S. Court of Appeals for the District of the District of Columbia recently ruled that the FDA cannot approve importation of sodium thiopental. States such as Missouri, Arkansas, and California are now struggling to decide how to approach the issue.

The article quotes death penalty supporter Kent Scheidegger, of the Criminal Justice Legal Foundation, who describes the legal challenges to lethal injection drugs as a “conspiracy to choke off capital punishment by limiting the availability of drugs.”  Also quoted is Robert Blecker, a professor of criminal law at New York Law School, who refers to the drug challenges as “an abolitionist tactic to gum up the works … It’s just another tactic.”  Such comments do a disservice to those on both sides of the political spectrum who have legitimate concerns about the methods by which states execute death row prisoners.  Not every challenge to lethal injection techniques is a subversive tactic to overturn the death penalty.  In engaging in debate on this issue, commentators ought to look beyond their own political perspectives and consider that the arguments made by opponents are made in good faith and do not always reflect a predetermined political view.

While many opponents of lethal injection techniques are driven by a moral opposition to the death penalty, the arguments about the problems with these techniques are valid regardless of one’s political position. Surely, even a supporter of the death penalty can believe that the methods used to execute prisoners matter – that lethal injection techniques ought to be effective and efficient, and ought to be designed to avoid the types of errors that have caused complications in the past.  One’s support for the death penalty as a penal tool should not negate human compassion for even the most hardened criminal’s last moments on earth.  While death penalty states may be eager to move forward with executions as quickly as possible, it is foolish for this motivation to drive the adoption of untested and unproven drugs.

While there are very real logistical challenges to testing new execution techniques, death penalty supporters are wrong to describe the arguments presented by opponents of the current system of lethal injection as merely conspiratorial tactics to “gum up the works.” Rather, these arguments reflect legitimate concerns about the end-of-life experiences faced by the 40 to 60 prisoners who are executed every year.  Commentators such as Scheidegger and Blecker, if truly committed to the death penalty, ought to find ways to satisfy critics’ concerns about humane execution methods, rather than dismiss critics as politically-motivated obstructionists.

Of Data Challenges

By Leslie Francis

Cross-posted from the HealthLawProfs blog.

Challenges designed to spur innovative uses of data are springing up frequently. These are contests, sponsored by a mix of government agencies, industry, foundations, a variety of not-for-profit groups, or even individuals. They offer prize money or other incentives for people or teams to come up with solutions to a wide range of problems. In addition to grand prizes, they often offer many smaller prizes or networking opportunities. The latest such challenge to come to my attention was announced August 19 by the Knight Foundation: $2 million for answers to the question “how can we harnass data and information for the health of communities?” Companion prizes, of up to $200,000, are also being offered by the Robert Wood Johnson Foundation and the California Healthcare Foundation.

Such challenges are also a favorite of the Obama administration. From promoting Obamacare among younger Americans (over 100 prizes of up to $30,000)–now entered by Karl Rove’s Crossroads group–to arms control and identification of sewer overflows, the federal government has gone in for challenges big time. Check out to see the impressive list. Use of information and technological innovation feature prominently in the challenges, but there is also a challenge for “innovative communications strategies to target individuals who experience high levels of involuntary breaks (“churn”) in health insurance coverage” (from SAMHSA), a challenge to design posters to educate kids about concussions (from CDC), a challenge to develop a robot that can retrieve samples (from NASA), and a challenge to use technology for atrocity prevention (from USAID and Humanity United). All in all, some 285 challenges sponsored by the federal government are currently active, although for some the submission period has closed. Continue reading

Does Individuality Save Eugenics?

By Dov Fox

So asks medical historian Nathaniel Comfort in today’s Scientific America, echoing Ross Douthat’s New York Times inquiry into Eugenics, Past and Future. Comfort and Douthat are skeptical of the view, articulated by an emerging class of academics, that individual parents should use reproductive technologies to select or enhance certain genetic traits in their children.

“Hitler gave eugenics a bad name,” is how I expressed this view in the first scholarly examination of that ideal, “but there is nothing objectionable as such about the eugenic ambition to produce people of a particular type.” Comfort illuminates two centuries of developments in the medicine, society, and culture of “eugenics.” But he offers little analysis of why individuality fails to “save” the new eugenics, beyond his two assertions, heard often in these debates, that it risks “unforeseeable consequences” and might “dissolve into a species of collective eugenics.” What more might be said in support of this second suggestion, that a political theory that privileges freedom, equality, and fairness cannot accommodate individual choice about offspring characteristics?

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Introducing Contributor Matthew Lawrence

We are pleased to welcome Matthew J.B. Lawrence, who recently joined the Petrie-Flom Center as the 2013-2015 Academic Fellow.

Lawrence earned a J.D. magna cum laude from New York University School of Law in 2009, where he was Managing Editor of the N.Y.U. Law Review and was awarded the Paul D. Kaufman Memorial Prize for writing the most outstanding Law Review note.  After law school he clerked for the Honorable Douglas H. Ginsburg of the United States Court of Appeals for the District of Columbia Circuit, and then became a Trial Attorney at the Federal Programs Branch of the United States Department of Justice.  There he served as attorney of record for the United States defending various federal agency actions against statutory and constitutional challenges in district and appellate court, including numerous high-stakes Medicare cases.  His methodological focus is the operation and design of decision-making processes in light of the actual and theoretically expected behavior of participants at every level, from first mover to final arbiter.  His past work has applied this focus to medical malpractice and civil procedure, and his current work applies this focus to the federally-mandated procedures that govern disputes between insured and insurer about coverage for doctor-recommended care.

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Petrie-Flom Intern’s Weekly Round-Up: 8/8 – 8/20

By Aleeza Hashmi

Agreements to Arbitrate Medical Malpractice Claims: Positive Law

By Alex Stein

Can a healthcare provider make an arbitration agreement with patients for resolving future malpractice disputes?

This question has no straightforward answer. As an initial matter, one needs to separate individual arbitration agreements between doctors and patients from group health plans for employees. A group health plan that obligates employees to arbitrate medical malpractice claims is valid and enforceable: see Madden v. Kaiser Foundation Hospital, 552 P.2d 1178 (Cal. 1976). The plan’s designers—employers on one side and MCOs/HMOs on the other side—have roughly equal bargaining powers and cannot easily take advantage of one another. Their preference for arbitration is part of a well thought-through deal that includes an attractively priced health benefits package for employees (such deals do not always promote the employees’ best interest, but this is a story for another occasion: see here).

With individual arbitration agreements things are markedly different. Continue reading

What Is (Not) Wrong With Doping – Part II

By Cansu Canca

[In Part I, I considered, and rejected, arguments that doping harms the athletes and treats human nature wrongly.]

Spirit of sport

Let us now turn to the third objection: the use of PEDs destroys the spirit of sport. Of course, “spirit of sport” is a rather nebulous concept. Here is what the WADA has to say about it:

The spirit of sport is the celebration of the human spirit, body and mind, and is characterized by the following values: Ethics, fair play and honesty; health; excellence in performance; character and education; fun and joy; teamwork; dedication and commitment; respect for rules and laws; respect for self and other participants; courage; community and solidarity. Doping is fundamentally contrary to the spirit of sport.[1]

Even if one agrees with this not-very-useful definition, it remains a mystery how the WADA deduces that doping (if allowed) is contrary to this spirit so defined.

I think it is better to put the WADA’s statement aside and see if there can be a better use of this concept of the “spirit of sport.” To demystify it, one may ask two questions: what is the purpose/aim of professional sports, and why do we cheer for an athlete. Once we clarify what we mean by the spirit of sport, we can inquire how doping corrupts this spirit.

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What Is (Not) Wrong With Doping – Part I

By Cansu Canca

Sports news has a permanent section now: the doping news. Less than a month ago, Gay and Powell (“the second and the fourth fastest men of all time”) also tested positive for banned substances. What used to be a scandalous piece of news (maybe with its final anti-hero being Lance Armstrong) became more of a curiosity item. The problem of doping became so wide-spread (tainting even curling!) that it is casting doubt on every medal we have ever seen in sports history. The war against doping seems to be a failure and even those who previously fought against doping now start to re-consider their views.[1]

Under the current rules, the ethical problem with doping is obvious: fairness. Those who cheat the system have an unfair advantage. However, the cheating argument is valid only when doping is prohibited. If the use of performance enhancing drugs (PEDs) were allowed, there would be no cheating since every sportsperson would be equally entitled to use them.[2]

Then, why not just allow doping?

Three objections are common:
1. It is dangerous/harmful for the athletes.
2. It treats human nature wrongly.
3. It violates the spirit of sports.

None of these objections are strong.

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Police and Public Health in Partnership

The Global Commission on HIV and the Law recently conducted a web discussion of steps to implement the Commission’s recommendations for better harmonizing law and HIV control.  One of the questions for discussion was:

What are examples of innovative or non-traditional partnerships that can be used to strategically advance human-rights based responses to HIV … ?


Nick Crofts posted an interesting essay elaborating on “three falacies”:

  • that police are merely passive implementers of the law; so that if the law is reformed, police attitudes and behaviours towards MARP communities will automatically fall in line;
  • that police are the enemy, and that their behaviours are not amenable to change without confrontation; and/or
  • that training and sensitization of police is adequate to change behaviours of police towards MARP communities.

I agree with him, and have seen these beliefs hinder action for a long time. Nick has some interesting thoughts about ways to move forward. He also talked about the work of The Law Enforcement and HIV Network (LEAHN) , which is working to bride the gap between police and public health agencies. It’s worth a few minutes to read it.

LEAHN is sponsoring its second global conference next Spring in Amsterdam.

Good News for HIV Prevention Policy: Syringe Access Update

By Scott Burris

In documenting how often public health law research does influence legislation, I’ve used syringe exchange programs as an example of evidence NOT guiding policy.  Despite the consensus in health research that increasing access to sterile syringes has helped reduce HIV, state drug paraphernalia laws, and pharmacy regulations remain a barrier, as does the lack of strong and stable funding for the programs that are working.  The case was just made again in an article in the Annals of Health Law. Rachel Hulkower and Leslie Wolf retell the story of the federal funding ban, going over the evidence yet again, and argue that state inaction would best be overcome with money: replacing the federal ban with a positive endorsement and real funding.  (As long as we are in an optimistic mood, I would add strings – no HIV funding for states that don’t remove legal barriers to syringe access.  This would balance the scales a bit for Congress’ past sin in requiring state recipients of HIV funds to provide for criminalization of exposure and transmission.)

But today I type to tell a happier story. This summer, the state of Nevada passed a statute authorizing syringe exchange and pharmacy sales.  There are now 16 jurisdictions whose laws explicitly authorize syringe exchange programs (CA, CO, CT, DC, DE, HI, MA, MD, ME, NJ, NM, NV, NY, RI, VT, WA) and the number of states that require a prescription for retail purchase without exception has dwindled to ONE (Chris Christie’s New Jersey – Delaware, the other hold out, changed its law this year.)  But the important thing is not the next halting steps in this slow trend, but the quality of Nevada’s legal contribution.  This is going to get a little bit wonky in parts, but let me just take you on a quick tour of this marvelous statute, which drew from a model created several years ago by the Canadian HIV/AIDS Legal Network.

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Empirical proof health law is complex

By Kevin Outterson

I hear complaints from time to time about the complexity of health care law. Now we have some evidence.

Katz and Bommarito (gated, free registration) at Michigan State analyzed the US Code for complexity using a variety of big data techniques. The most complex area of US statutory law? Our friend, Title 42, home to Medicare, Medicaid, and the Social Security Act. Title 42 beat (lost?) to tax law by a substantial margin (tax was #2, noted Paul Caron).

But according to Katz (by email), the underlying data is from 2010, before PPACA was codified into Title 42. So health law is in no danger of losing the lead.


Installation & Use of Child Car Seats and Booster Seats: “Am I doing this right?”

By Kathleen West, B.S. (J.D., expected ’15)

 As the world watched Prince William place the new royal baby, reluctantly snug in his car seat, into a vehicle a few weeks ago, my thoughts were not limited to, “Oh, how cute!” After two months researching and collecting a dataset to capture the U.S. laws and regulations for child passenger restraint systems, I also thought, “I wonder if he took a class and knows how to do that correctly?” Perhaps an odd thought, but misuse and faulty installation of child restraint systems is actually a major concern.

According to the CDC, proper restraint use can reduce the risk of death or injury by more than 50 percent. Yet, ongoing studies by the National Highway Traffic Safety Administration (NHTSA) are finding that as many as 20 percent of drivers with child passengers are not reading any of the instructions regarding proper installation, while 90 percent of drivers of child passengers are reporting that they are confident that they are properly installing and using child restraint systems.

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Worth Reading This Week

By Nicolas Terry

Dov Fox on the Future of Genetic Privacy

Bill of Health contributor Dov Fox has a new op-ed at the Huffington Post on “junk” DNA and the future of genetic privacy in the aftermath of the Supreme Court’s ruling, in Maryland v. King, that police may collect DNA from people under arrest. Fox argues,

The next great controversy over forensic DNA won’t have anything to do with whether police can test “junk” DNA from people whose identity they already know. It will be about whether police can look “more broadly” at the “other stuff” that genetic information can reveal from people who aren’t yet known to them. That our DNA could serve as an eyewitness has powerful implications, beyond individual privacy, for the pervasive role of race in the investigation of crime.

Read the full piece here.