Volume 13 (2003-2004)
Annals of Health Law
The Health Policy and Law Review of Loyola University Chicago School of Law
Volume 13 (2003-04)
Editor-in-Chief:
Elissa Koch
Managing Editor:
Scott Noto
Colloquium Editor:
Melissa January
Senior Editors:
Elizabeth Gaffney
Kristen Kobayashi
John-David Treumann
Andrew Vrabel
Elizabeth Wiszowaty
Members:
Jennifer Arnold
Kerri-Ann Baker
Leatrice Berman-Sandler
Lee Black
Amanda Craig
Stacey Fahrner
Sylvia Foggetti
Katherine Geraghty
Brianne Gruszka
Sarah Guyton
Mattew Hamilton
Gretchen Harris
Christina Jackie
Agnieshka Korzeniowski
Nicole Koviak
Katherine McCarty
Lisa Meinhardt
Roberty Nanny
Melaina Prest
Katherine Richards
Danielle Rickards
Vania Suh
Valerie Witmer
Alexis Wood
Issue 1 (Winter 2004)
Articles
"Just Say No!": The Right to Refuse Psychotropic Medication in Long-Term Care Facilities
Author: George P. Smith, LL.M., L.L.D.
This article examines the rights of patients, particularly incompetent patients, in long-term care facilities to refuse psychotropic medication. In exploring this topic, the author focuses on the provisions of the Omnibus Budget Reconciliation Act of 1987 which was part of a Congressional solution to afford greater protection to residents of long-term care facilities. Because the legislation has not lived up to expectations, the author advocates for further legislative action to protect the dwindling bundle of rights of the elderly.
The Relation Between Autonomy-Based Rights and Profoundly Mentally Disabled Persons
Author: Norman L. Cantor, J.D.
A chapter from his forthcoming book "Deciding for the Profoundly Mentally Disabled," Professor Norman Cantor argues persuasively for the right of incompetent persons to have a surrogate make critical medical decision on their behalf, particularly in the context of refusing life-sustaining treatment. While abusive surrogate decision-making is always a concern, Professor Cantor recommends both substantive and procedural protections in order to preserve intrinsic human dignity for the profoundly disabled.
Damned if They Do, Damned if They Don't: The Need for a Comprehensive Public Policy to Address the Inadequate Management of Pain
Author: Amy J. Dilcher, LL.M., J.D.
Amy Dilcher examines the need for a comprehensive pain policy and argues that opioids - highly effective drugs for pain management - should be legally and practicably accessible to medical professionals and their patients, as and when needed to provide relief from pain. The article synthesizes a number of perspectives regarding the regulation of pain management and demonstrates that the inadequate treatment of pain stems from a multitude of barriers. After reviewing Congressional action on the topic, Ms. Dilcher concludes with recommendations for a more comprehensive pain policy that would enhance the management of pain.
An EMTALA Primer: The Impact of Changes in the Emergency Medicine Landscape on EMTALA Compliance and Enforcement
Author: Tiana Mayere Lee, J.D.
Tiana Lee's article provides an overview and update on the latest in the Emergency Medical Treatment and Active Labor Act (EMTALA). Reviewing the history of the statute, explaining some of the relevant regulations, and exploring government enforcements efforts to date, Ms. Lee highlights the benefits and drawbacks of the statute and recommends ways to ameliorate EMTALA's weaknesses.
Considerations in Medicare Reform: The Impact of Medicare Preemption on State Laws
Author: Michael J. Jackonis, LL.M., J.D.
This article explores the key issues involved in understanding the impact of Medicare preemption on state laws affecting the federal purchase of managed care products, as a consideration in future Medicare reform. Author Commander Jackonis argues that any further Medicare reform must address the impact of federal preemption on quality and quantity of care purchased in order to ensure the existence of a market of product providers, as well as to ensure protection of patient rights and benefits.
Independent Medical Review: Expanding Legal Remedies to Achieve Managed Care Accountability
Author: Leatrice Berman-Sandler
Author Leatrice Berman-Sandler reports on independent medical review (IMR), a state-based statutory remedy used to resolve disputes over coverage between patients and their health plans. Ms. Berman-Sandler explores the connection between ERISA preemption and IMR, and opines that in light of recent Supreme Court decisions, the stage has been set for expansion of IMR. Accordingly, Ms. Berman-Sandler concludes that there are strong legal and policy reasons for state legislatures to broaden the application of IMR and for the Court to continue to narrow ERISA preemption in order to increase accountability in the managed care arena.
Comparing Ethics Education in Medicine and Law: Combining the Best Of Both Worlds
Authors: Erin A. Egan, M.D., J.D., Kayhan Parsi, J.D., Ph.D., & Cynthia Ramirez
This article compares various models of ethics education and how these models are employed by both medical schools and law schools. The authors suggest ways in which each profession can enhance their ethical teaching and argue that ethics education in both medicine and law should combine the best elements of each education model, thereby producing graduates who are more knowledgeable and appreciative of ethical issues in practice.
Issue 2 (Summer 2004)
Articles
Federal Tax-Exemption Requirements For Joint Ventures Between Nonprofit Hospital Providers and For-Profit Entities: Form Over Substance?
Author: Gary J. Young, J.D., Ph.D.
This article discusses the IRS rule on hospital joint ventures and related legal developments. The central thesis is that the IRS's emphasis on operational control is misplaced from both a legal and a policy perspective, and reflects a decidedly strong preference for the form of a joint venture's governance over the substance of its charitable and community service activities. More specifically, the article challenges the IRS position that the rule is a corollary of existing tax law principles. Additionally, social science research is presented to demonstrate that the rule is not likely to promote, and may in fact undermine, United States health policy objectives.
A Dutch Perspective: The Limits of Lawful Euthanasia
Author: Ubaldus de Vries, Ph.D.
Dutch author Ubaldus de Vries reviews the current state of the euthanasia law in the Netherlands. The legislation, enacted in 2001, creates a medical exception that allows for euthanasia in cases where patients experience "hopeless and unbearable suffering." A brief history of the Dutch approach to euthanasia is set forth, case law is reviewed, and the unique role of the doctor is examined in seeking to understand the extent of one's right to euthanasia in the Netherlands. Because the courts must determine what constitutes "hopeless and unbearable suffering," Professor de Vries analyzes the judicial interpretation of "suffering" and concludes that judicial interpretation has reached its limits, and thus by implication, the limits of lawful euthanasia have been reached.
Breaking the Silence: The Illegality of Performing Resuscitation Procedures on the Newly Dead
Author: Daniel Sperling, L.L.B., L.L.M.
Israeli author Daniel Sperling brings to a light a disturbing practice that is taking place in some teaching hospitals throughout the world - the practice of resuscitation procedures on newly dead patients without the consent of the next-of-kin. Mr. Sperling examines some of the policies and procedures in place to prevent such practice and also looks at the ethical principles that should guide such procedures. The paper also reviews the general issue of consent in the context of medical decision-making and discusses potential legal claims that might be available to persons who have not been consulted or informed before such procedures are performed. The evolving jurisprudence surrounding the treatment of the newly dead is analyzed and Mr. Sperling concludes by suggesting ways to improve upon the procedures currently in place at some teaching facilities.
Will the Supreme Court Finally Eliminate ERISA Preemption?
Author: David L. Trueman, J.D., Ph.D.
David Trueman's article reviews the history of ERISA preemption by analyzing seminal Supreme Court cases and predicts the future of ERISA preemption in his analysis of recent federal case law. Traditionally, the ability to hold a managed care entity responsible for its actions has been hampered by a strict interpretation of the preemption clauses of ERISA but as the Supreme Court's jurisprudence has evolved and loosened, several federal courts have allowed suits against managed care companies to go forward. Conflict among the federal circuits has arisen and the Supreme Court has granted certiorari to two cases from Texas in order to clarify ERISA preemption. Mr. Trueman discusses the future of ERISA preemption in light of these decisions.
Is There an Acceptable Answer to Rising Medical Malpractice Premiums
Author: William P. Gunnar, M.D.
This article explores the key issues involved in the attempts at reform of the present medical malpractice system. Investigating the effects that federal tort reform legislation would have on physicians, patients, lawyers, and the medical malpractice insurers, Dr. Gunnar succinctly outlines the issues surrounding the present "crisis in healthcare" and explores the separate interests involved. The article examines the economic forces influencing the medical malpractice insurance industry, reviews previous tort reform, and predicts the future of federal tort reform legislation. Dr. Gunnar concludes by proposing alternatives for malpractice reform.
Articles from the Third Annual Health Law Colloquium: The Medical Malpractice Crisis: Federal Efforts, States' Roles and Private Responses
Transcript of the Colloquium
The Current Medical Liability Insurance Crisis: An Overview of the Problem, Its Catalysts and Solutions
Author: Christina O. Jackiw
Transcribed Speeches of Professors Barry Furrow and David Hyman
Medical Societies' Self-Policing of Unprofessional Expert Testimony
Author: Russell M. Pelton, J.D.
Transcribed Speech of Mr. Russell M. Pelton
An Institutional Perspective on the Medical Malpractice Crisis
Author: Sarah Guyton
Transcribed Speech of Ms. Barbara Youngberg
The Patient Perspective: Focusing on Compensating Harm
Author: Valerie Witmer
Transcribed Speech of Ms. Susan Schwartz
An Insurance Perspective on the Medical Malpractice Crisis
Author: Nicole Williams Koviak
Transcribed Speech of Mr. Robert Mulcahey
A Physician's Perspective on the Medical Malpractice Crisis
Author: Amanda Craig, R.N.
Transcribed Speech of Dr. Joseph Murphy
Annals of Health Law
The Health Policy and Law Review of Loyola University Chicago School of Law
Volume 13 (2003-04)
Editor-in-Chief:
Elissa Koch
Managing Editor:
Scott Noto
Colloquium Editor:
Melissa January
Senior Editors:
Elizabeth Gaffney
Kristen Kobayashi
John-David Treumann
Andrew Vrabel
Elizabeth Wiszowaty
Members:
Jennifer Arnold
Kerri-Ann Baker
Leatrice Berman-Sandler
Lee Black
Amanda Craig
Stacey Fahrner
Sylvia Foggetti
Katherine Geraghty
Brianne Gruszka
Sarah Guyton
Mattew Hamilton
Gretchen Harris
Christina Jackie
Agnieshka Korzeniowski
Nicole Koviak
Katherine McCarty
Lisa Meinhardt
Roberty Nanny
Melaina Prest
Katherine Richards
Danielle Rickards
Vania Suh
Valerie Witmer
Alexis Wood
Issue 1 (Winter 2004)
Articles
"Just Say No!": The Right to Refuse Psychotropic Medication in Long-Term Care Facilities
Author: George P. Smith, LL.M., L.L.D.
This article examines the rights of patients, particularly incompetent patients, in long-term care facilities to refuse psychotropic medication. In exploring this topic, the author focuses on the provisions of the Omnibus Budget Reconciliation Act of 1987 which was part of a Congressional solution to afford greater protection to residents of long-term care facilities. Because the legislation has not lived up to expectations, the author advocates for further legislative action to protect the dwindling bundle of rights of the elderly.
The Relation Between Autonomy-Based Rights and Profoundly Mentally Disabled Persons
Author: Norman L. Cantor, J.D.
A chapter from his forthcoming book "Deciding for the Profoundly Mentally Disabled," Professor Norman Cantor argues persuasively for the right of incompetent persons to have a surrogate make critical medical decision on their behalf, particularly in the context of refusing life-sustaining treatment. While abusive surrogate decision-making is always a concern, Professor Cantor recommends both substantive and procedural protections in order to preserve intrinsic human dignity for the profoundly disabled.
Damned if They Do, Damned if They Don't: The Need for a Comprehensive Public Policy to Address the Inadequate Management of Pain
Author: Amy J. Dilcher, LL.M., J.D.
Amy Dilcher examines the need for a comprehensive pain policy and argues that opioids - highly effective drugs for pain management - should be legally and practicably accessible to medical professionals and their patients, as and when needed to provide relief from pain. The article synthesizes a number of perspectives regarding the regulation of pain management and demonstrates that the inadequate treatment of pain stems from a multitude of barriers. After reviewing Congressional action on the topic, Ms. Dilcher concludes with recommendations for a more comprehensive pain policy that would enhance the management of pain.
An EMTALA Primer: The Impact of Changes in the Emergency Medicine Landscape on EMTALA Compliance and Enforcement
Author: Tiana Mayere Lee, J.D.
Tiana Lee's article provides an overview and update on the latest in the Emergency Medical Treatment and Active Labor Act (EMTALA). Reviewing the history of the statute, explaining some of the relevant regulations, and exploring government enforcements efforts to date, Ms. Lee highlights the benefits and drawbacks of the statute and recommends ways to ameliorate EMTALA's weaknesses.
Considerations in Medicare Reform: The Impact of Medicare Preemption on State Laws
Author: Michael J. Jackonis, LL.M., J.D.
This article explores the key issues involved in understanding the impact of Medicare preemption on state laws affecting the federal purchase of managed care products, as a consideration in future Medicare reform. Author Commander Jackonis argues that any further Medicare reform must address the impact of federal preemption on quality and quantity of care purchased in order to ensure the existence of a market of product providers, as well as to ensure protection of patient rights and benefits.
Independent Medical Review: Expanding Legal Remedies to Achieve Managed Care Accountability
Author: Leatrice Berman-Sandler
Author Leatrice Berman-Sandler reports on independent medical review (IMR), a state-based statutory remedy used to resolve disputes over coverage between patients and their health plans. Ms. Berman-Sandler explores the connection between ERISA preemption and IMR, and opines that in light of recent Supreme Court decisions, the stage has been set for expansion of IMR. Accordingly, Ms. Berman-Sandler concludes that there are strong legal and policy reasons for state legislatures to broaden the application of IMR and for the Court to continue to narrow ERISA preemption in order to increase accountability in the managed care arena.
Comparing Ethics Education in Medicine and Law: Combining the Best Of Both Worlds
Authors: Erin A. Egan, M.D., J.D., Kayhan Parsi, J.D., Ph.D., & Cynthia Ramirez
This article compares various models of ethics education and how these models are employed by both medical schools and law schools. The authors suggest ways in which each profession can enhance their ethical teaching and argue that ethics education in both medicine and law should combine the best elements of each education model, thereby producing graduates who are more knowledgeable and appreciative of ethical issues in practice.
Issue 2 (Summer 2004)
Articles
Federal Tax-Exemption Requirements For Joint Ventures Between Nonprofit Hospital Providers and For-Profit Entities: Form Over Substance?
Author: Gary J. Young, J.D., Ph.D.
This article discusses the IRS rule on hospital joint ventures and related legal developments. The central thesis is that the IRS's emphasis on operational control is misplaced from both a legal and a policy perspective, and reflects a decidedly strong preference for the form of a joint venture's governance over the substance of its charitable and community service activities. More specifically, the article challenges the IRS position that the rule is a corollary of existing tax law principles. Additionally, social science research is presented to demonstrate that the rule is not likely to promote, and may in fact undermine, United States health policy objectives.
A Dutch Perspective: The Limits of Lawful Euthanasia
Author: Ubaldus de Vries, Ph.D.
Dutch author Ubaldus de Vries reviews the current state of the euthanasia law in the Netherlands. The legislation, enacted in 2001, creates a medical exception that allows for euthanasia in cases where patients experience "hopeless and unbearable suffering." A brief history of the Dutch approach to euthanasia is set forth, case law is reviewed, and the unique role of the doctor is examined in seeking to understand the extent of one's right to euthanasia in the Netherlands. Because the courts must determine what constitutes "hopeless and unbearable suffering," Professor de Vries analyzes the judicial interpretation of "suffering" and concludes that judicial interpretation has reached its limits, and thus by implication, the limits of lawful euthanasia have been reached.
Breaking the Silence: The Illegality of Performing Resuscitation Procedures on the Newly Dead
Author: Daniel Sperling, L.L.B., L.L.M.
Israeli author Daniel Sperling brings to a light a disturbing practice that is taking place in some teaching hospitals throughout the world - the practice of resuscitation procedures on newly dead patients without the consent of the next-of-kin. Mr. Sperling examines some of the policies and procedures in place to prevent such practice and also looks at the ethical principles that should guide such procedures. The paper also reviews the general issue of consent in the context of medical decision-making and discusses potential legal claims that might be available to persons who have not been consulted or informed before such procedures are performed. The evolving jurisprudence surrounding the treatment of the newly dead is analyzed and Mr. Sperling concludes by suggesting ways to improve upon the procedures currently in place at some teaching facilities.
Will the Supreme Court Finally Eliminate ERISA Preemption?
Author: David L. Trueman, J.D., Ph.D.
David Trueman's article reviews the history of ERISA preemption by analyzing seminal Supreme Court cases and predicts the future of ERISA preemption in his analysis of recent federal case law. Traditionally, the ability to hold a managed care entity responsible for its actions has been hampered by a strict interpretation of the preemption clauses of ERISA but as the Supreme Court's jurisprudence has evolved and loosened, several federal courts have allowed suits against managed care companies to go forward. Conflict among the federal circuits has arisen and the Supreme Court has granted certiorari to two cases from Texas in order to clarify ERISA preemption. Mr. Trueman discusses the future of ERISA preemption in light of these decisions.
Is There an Acceptable Answer to Rising Medical Malpractice Premiums
Author: William P. Gunnar, M.D.
This article explores the key issues involved in the attempts at reform of the present medical malpractice system. Investigating the effects that federal tort reform legislation would have on physicians, patients, lawyers, and the medical malpractice insurers, Dr. Gunnar succinctly outlines the issues surrounding the present "crisis in healthcare" and explores the separate interests involved. The article examines the economic forces influencing the medical malpractice insurance industry, reviews previous tort reform, and predicts the future of federal tort reform legislation. Dr. Gunnar concludes by proposing alternatives for malpractice reform.
Articles from the Third Annual Health Law Colloquium: The Medical Malpractice Crisis: Federal Efforts, States' Roles and Private Responses
Transcript of the Colloquium
The Current Medical Liability Insurance Crisis: An Overview of the Problem, Its Catalysts and Solutions
Author: Christina O. Jackiw
Transcribed Speeches of Professors Barry Furrow and David Hyman
Medical Societies' Self-Policing of Unprofessional Expert Testimony
Author: Russell M. Pelton, J.D.
Transcribed Speech of Mr. Russell M. Pelton
An Institutional Perspective on the Medical Malpractice Crisis
Author: Sarah Guyton
Transcribed Speech of Ms. Barbara Youngberg
The Patient Perspective: Focusing on Compensating Harm
Author: Valerie Witmer
Transcribed Speech of Ms. Susan Schwartz
An Insurance Perspective on the Medical Malpractice Crisis
Author: Nicole Williams Koviak
Transcribed Speech of Mr. Robert Mulcahey
A Physician's Perspective on the Medical Malpractice Crisis
Author: Amanda Craig, R.N.
Transcribed Speech of Dr. Joseph Murphy