Medical Malpractice or General Negligence? A Redux

By Alex Stein

Whether a tort action sounds in “medical malpractice,” as opposed to “general negligence,” or vice versa, is often critical. Medical malpractice actions must satisfy special requirements that include shortened limitations periods, statutes of repose, expert affidavits, and merit certificates. Suits sounding in ordinary negligence need not satisfy those requirements. Filing and prosecuting those suits is therefore not as onerous and expensive as filing and prosecuting medical malpractice actions.  Continue reading

Health Class and Personal Preferences

By Nathaniel Counts

High school health classes that are effective in preventing high-risk behaviors employ two educational models: the social influences model and the life skills model.  The social influences model teaches children about social norms and techniques for resisting social influences.  The life skills focuses on developing child autonomy, self-esteem, and self-confidence to help children resist social influences and gain a sense of self.  There are two explanations for why health classes premised on these models would be effective: either they replace the preferences the children were likely to develop with different preferences or they help children develop their own preferences which, for some reason, consistently disfavor high-risk behaviors.

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Mental Therapist’s Duty to Prevent Patient’s Crime

By Alex Stein

A clinical social worker hears from his patient about the patient’s interest in child pornography, but does nothing to solve the problem. Later on, the police raids the patient’s house to find evidence that he illegally downloaded, viewed and possessed child pornography. The patient now faces criminal charges.

Can he sue the social worker for malpractice? Would a similar suit be available against a psychiatrist? Continue reading

New Joint Project on Law and Applied Neuroscience

The MGH Center for Law, Brain and Behavior and Harvard Law School’s Petrie-Flom Center announce joint “Project on Law and Applied Neuroscience” for 2014-2016

The MGH Center for Law, Brain and Behavior and the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School will collaborate on a joint venture – the Project on Law and Applied Neuroscience – beginning in Fall 2014. The collaboration will include a Senior Fellow in residence, public symposia, and an HLS Law and Neuroscience Seminar.

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Sex Selection or Gender Selection? Queering the Ratio Question

I am at a fantastic event at Yale I co-organized on Intersections in Reproduction: Perspectives on Abortion, Assisted Reproductive Technologies, and Judicial Review with some amazing scholars present and excellent papers being presented. Like many people who have thought about sex selection, I would have imagined I have thought through most of the issues from most perspectives. What I love about these gatherings is that they always prove me wrong.

Today two very interesting questions were raised about a common argument raised about sex selection, the risk that it will result in unbalanced sex ratios. Our discussion, I would say, “queered” the typical claim in two interesting ways, and I am curious what others think (to be clear these were my thoughts on questions raised, not putting words in their mouths).

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Worth Reading This Week

By Nicolas Terry

Art Caplan on “Pediatric Euthanasia in Belgium: Disturbing Developments”

Art Caplan has coauthored a new piece in JAMA on problems with Belgium’s new law allowing terminally-ill children and their families to choose euthanasia. From the article:

The Belgian pediatric euthanasia law seeks to respect the moral status of children as agents who possess the nascent capacity for self-determination. Specifically, the law requires the medical team to demonstrate a patient has the “capacity for discernment,” indicating that he or she understands the consequences of a choice for euthanasia.

What the law does not consider, however, is that adults choose euthanasia for reasons that go beyond pain. For adults, the decision to end their life can be based upon the fear of a loss of control, not wanting to burden others, or the desire not to spend their final days of life fully sedated. These desires might be supported by the experience they have had witnessing a loved one express a loss of dignity or because they understand what terminal sedation is and wish to refuse it. Children, however, lack the intellectual capacity to develop a sophisticated preference against palliative interventions of last resort. Instead, in the case of the new Belgian law, children seem to be asked to choose between unbearable suffering on the one hand and death on the other.

This possibility causes the Belgian euthanasia law to fall short of the standard required for valid assent. The criterion related to the “capacity for discernment” runs the risk of ignoring the fact that children and adolescents lack the experiential knowledge and sense of self that adults often invoke—rightly or wrongly—at the end of their lives.

Read the full article.

Halbig and the ACA’s Peculiar Legislative History

By Jeremy Kreisberg

Professors Nicholas Bagley and Jonathan Adler had a very interesting discussion on Halbig v. Sebelius — the case challenging the legality of offering premium tax credits through federally facilitated exchanges (about which I have written previously here and here) — in a recent Federalist Society Podcast.  One particularly intriguing question that emerged concerned the peculiar legislative history of the ACA, and what role that should play in how courts read the text of the law.

As Professor Abbe Gluck has summarized well, the text of the ACA features some sloppy drafting errors, largely due to the manner in which the bill became law:

[T]he ACA is a very badly drafted statute.  And it’s badly drafted for a simple reason that turns out to be important to understanding how the pending litigation should be resolved:  Because Senator Ted Kennedy died in the middle of the legislative process and was replaced by Republican Scott Brown, the statute never went through the usual legislative process, including the usual legislative clean-up process. Instead, because the Democrats lost their 60th filibuster-preventing vote, the version that had passed the Senate before Brown took office, which everyone initially had thought would be a mere first salvo, had to effectively serve as the final version, unchangeable by the House, because nothing else could get through the Senate.  In the end, the statute was synthesized across both chambers by an alternative process, called “reconciliation,” which allows for only limited changes but avoids a filibuster under Congress’s rules.

I think it’s fairly clear that the D.C. Circuit in Halbig (and the 4th Circuit in King) are encountering one such sloppy drafting error.  Without any meaningful legislative history suggesting that tax credits would be denied to citizens in states with a federally facilitated exchange, the ACA authorizes tax credits for individuals purchasing insurance on an “Exchange established by the State.”  While the provision of the law instructing HHS to create federally facilitated changes requires the Secretary to “establish and operate such Exchange within the State” (i.e., the state exchange), the challengers argue that the words “established by the State” in the tax-credit provision preclude an interpretation of the law that allows for tax credits to flow through federal exchanges as well.

The reason I call this “sloppy drafting” rather than a purposeful command is that, aside from the striking lack of historical support for an interpretation denying tax credits on federally facilitated exchanges, this interpretation would be nonsensical when read into the law as a whole.  To take only one of many examples, section 1312 of the ACA defines qualified individuals (i.e. those people who can purchase health insurance through an exchange) as individuals “who . . . resides in the State that established the Exchange.”  If “established” holds the exclusive meaning that the challengers in Halbig say it does, there could never be a qualified individual in the states with federally facilitated exchanges because the State didn’t “establish the Exchange” in the State in which these individuals reside.  In other words, nobody could purchase insurance through a federally facilitated exchange because nobody would be qualified.  This would leave the federally facilitated exchanges with no purpose.  As Judge Friedman found in federal district court, conventional canons of statutory interpretation should preclude such an absurd reading of the law.

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Lax Enforcement of Vaccine Laws Put Young Adults at Risk

The news about the return of dangerous “childhood” illnesses gets worse and worse. Columbus, Ohio reports an outbreak of 225 cases—with over 50% students at Ohio State University.   It is probably no coincidence that Ohio State recommends but does not require students (outside of those in healthcare settings) be vaccinated in order to attend class.   It’s not just Mumps.  We are seeing cases of preventable diseases like measles and mumps and whooping cough because of parental decisions not to immunize their children but there is increasing evidence that the immunizations most adults received as infants or young children wear off—leaving the population at large vulnerable to infection once an outbreak occurs. Science Daily just reported a confirmed case of a fully vaccinated young woman contracting measles.  The CDC has not yet recommended that adults get booster shots for Mumps and Measles—although they have in some circumstances for Whooping Cough and Polio.  But the more likely it is for a person to be exposed to these diseases, the more important it is to be fully vaccinated.

So why is the law to blame here?  Continue reading

Introducing New Contributor Katherine Record

Katherine Record is the Senior Fellow at Harvard Law School’s Center for Health Law and Policy Innovation (CHLPI). Her work, in part, focuses on healthcare reform implementation, compliance training for healthcare providers related to consent for HIV testing and disclosure, domestic and global mental health law and policy, and implementing state electronic health record databases in compliance with federal and state privacy laws.  Prior to joining CHLPI, Katherine worked at the O’Neill Institute for National & Global Health Law at Georgetown University.  There she focused on public health law reform, firearms control, global preparation for pre-exposure prophylaxis to prevent the transmission of HIV (PrEP), and the development of the legal portion of a genetics database. Katherine received her JD, cum laude, and masters in Psychology at Duke University, her MPH from Harvard’s School of Public Health, and her BA, magna cum laude, from Georgetown University.  She is licensed to practice law in the State of New York, serves as a collaborating mentor for Boston Children’s Hospital’s Strategic Training Initiative for the Prevention of Eating Disorders, on the board of directors for Our Bodies Ourselves, as the liaison to the AIDS Coordinating Committee of the American Bar Association on behalf of the Health Law Section, and on the Harvard College Global Health Review’s Board of Advisors.

Recent Publications:

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FOR HARVARD STUDENTS: TOMORROW: Dallas Buyers Club: Free Film Screening and Discussion

Image by christian razukas from Wikimedia Commons.

Dallas Buyers Club: Free Film Screening and Panel Discussion

April 16, 2014 6:00 PM
Wasserstein Hall 1010, 1585 Massachusetts Ave.

Students from across Harvard are invited to view a free screening of the Academy-award winning film Dallas Buyers Club and participate in a panel discussion about issues addressed in the film related to access to health care for the HIV community.  The panel discussion will address the following issues: the history of access to care and treatment for HIV; ongoing issues with fair pricing of HIV medications; the role of the FDA in access to experimental medicines; and the portrayal of HIV and LGBTQI individuals in the media as it impacts access to individual and public health resources. Panelists include:

  • Robert Greenwald, Director, Center for Health Law & Policy Innovation; Clinical Professor of Law, Harvard Law School
  • Christopher T. Robertson, Visiting Professor of Law, Harvard Law School; Faculty Affiliate, Petrie-Flom Center
  • Grace Sterling Stowell, Executive Director, BAGLY: Boston Alliance of Gay, Lesbian, Bisexual and Transgender Youth

This event is open to students from all Harvard schools.  No pre-registration is required.

This event is co-sponsored by the Center for Health Law & Policy Innovation; the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics; and Lambda at Harvard Law School.

Harvard Effective Altruism (HEA): Thursday, April 17th: Critch on Aversion Factoring & Career Choice

A communication from Harvard Effective Altruism:

Aversion Factoring & Career Choice

with Dr. Andrew Critch

Thursday, April 17th 7-8:30 PM

Emerson 305

We often limit ourselves by avoiding things we find bothersome or scary.  But for almost anything you find bothersome, there’s someone out there who doesn’t!  How does that work?  Can you copy their enjoyment-powers?  If so, you have many more options for growth, career choice, and general do-gooding.  This presentation is based around a technique Dr. Critch teaches at the Center for Applied Rationality for using aversions as a source of creativity, and then getting over them.

Dr. Critch’s interest in rationality began as a teenager growing up in Newfoundland, Canada, where he says he “just had a lot of time to think about it”. When he was 14, he made his first attempt to extrapolate his instinctive preferences into a function whose expected integral he wanted to maximize. (In college he found out that some economists had been crazy enough to think humans worked this way automatically). He also won numerous national awards in mathematics and public-speaking competitions.

 

Research Round-Up: New Publications from the PHLR SciVal Experts Community

In honor of last week’s National Public Health Week, we have a lot of fresh, new PHLR. The latest crop of papers from public health law researchers touch on a number of important points and issues including transportation safety, implementation, tobacco control, and media presentation of public health law. Check out Scott Burris’s brief summaries after the jump!

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CONFERENCE – CLASHING RIGHTS & REPRODUCTIVE AUTONOMY

Join us at Northeastern University School of Law at 1 p.m. on April 25, 2014 as leading academics and practitioners discuss the tensions between free speech and reproductive rights.

For more information, see http://www.northeastern.edu/law/academics/institutes/health-law/events/clashing-rights/

You can’t put a price tag on Sovalid (unless it’s over $84K)

Gilead Sciences has developed a new drug (Sovaldi) that cures hepatitis C.

This is a huge deal: about 150 million people world wide are chronically infected with the hepatitis C virus (HCV); according to the CDC 60-70% of people with chronic HCV will go on to develop chronic liver disease, 5-20% will develop cirrhosis over 20-30 years, and 1-5% will eventually die from the direct consequences of chronic infection (liver cancer or cirrhosis).

Sovaldi, which cures patients about 90% of the time with minimal side effects, could change all of this. John Castellani, President of Pharmaceutical Research and Manufacturers of America says that this breakthrough is so valuable, that “you just can’t put a price tag on it.”

But of course, a price tag has been put on it: $84,000 for the 12-week course of treatment (or $1,000) per day.

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Worth Reading This Week

By Nicolas Terry

FOR HARVARD STUDENTS: 4/16: Dallas Buyers Club: Free Film Screening and Discussion

Image by christian razukas from Wikimedia Commons.

Dallas Buyers Club: Free Film Screening and Panel Discussion

April 16, 2014 6:00 PM
Wasserstein Hall 1010, 1585 Massachusetts Ave.

Students from across Harvard are invited to view a free screening of the Academy-award winning film Dallas Buyers Club and participate in a panel discussion about issues addressed in the film related to access to health care for the HIV community.  The panel discussion will address the following issues: the history of access to care and treatment for HIV; ongoing issues with fair pricing of HIV medications; the role of the FDA in access to experimental medicines; and the portrayal of HIV and LGBTQI individuals in the media as it impacts access to individual and public health resources. Panelists include:

  • Robert Greenwald, Director, Center for Health Law & Policy Innovation; Clinical Professor of Law, Harvard Law School
  • Christopher T. Robertson, Visiting Professor of Law, Harvard Law School; Faculty Affiliate, Petrie-Flom Center
  • Grace Sterling Stowell, Executive Director, BAGLY: Boston Alliance of Gay, Lesbian, Bisexual and Transgender Youth

This event is open to students from all Harvard schools.  No pre-registration is required.

This event is co-sponsored by the Center for Health Law & Policy Innovation; the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics; and Lambda at Harvard Law School.