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 →
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.
We are pleased to announce that Rachel Sachs will be joining the Petrie-Flom Center later this summer as an Academic Fellow for the 2014-2016 fellowship term. In 2013, Rachel earned her J.D. magna cum laude from Harvard Law School, where she was the Articles Chair of the Harvard Law Review and a student fellow with both the Petrie-Flom Center and the John M. Olin Center for Law, Economics, and Business. Rachel has also earned a Masters in Public Health from the Harvard School of Public Health, during which she interned at the United States Department of Health and Human Services. She also holds an A.B. in Bioethics from Princeton University. After law school Rachel clerked for the Honorable Richard A. Posner of the United States Court of Appeals for the Seventh Circuit. Rachel’s primary research interests lie at the intersection of patent law and public health, with a particular focus on problems of innovation and access and the ways in which law helps or hinders these problems. Her past scholarship has examined the interactions between patent law and FDA regulation in the area of diagnostic tests, and explored the mechanisms behind the passage of patent-related legislation. Her current scholarship applies this focus on innovation and access to the intersection of patent law and drug reimbursement policies.
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 →
Richard H. Thaler and Cass R. Sunstein’s book Nudge: Improving Decisions About Health, Wealth, and Happiness brought behavioral economics to the masses, beginning a discussion of libertarian paternalism and the many ways that “choice architects” can help nudge people to make better choices for themselves without forcing certain outcomes on anyone. Some of their examples fall in the realm of health policy, as is also the case of Daniel Kahneman’s recent book, Thinking, Fast and Slow, which examines various cognitive errors people make in their judgments, choices, and conclusions, as well as how we might correct them. But the conversation has only just begun.
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.
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).
The Atlantic has just published a new piece profiling Harvard Law School Professor Cass Sunstein, “Our Nudge in Chief,” exploring “How, and why, Cass Sunstein believes laws and public policies should help save us from our irrational impulses.”
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.
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.
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 measlesand mumps and whooping coughbecause 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.
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.
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
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.
Biostatistics is the application of statistics — the study of the collection, organization, analysis, interpretation and presentation of data — to a wide range of topics in life sciences. Biostatistics informs the Food and Drug Administration’s regulatory decision-making processes for premarket review of investigational drugs and devices and post-market surveillance of medical products, including decisions to require safety labeling changes and withdraw approval. Recent developments, such as Congress’s creation of a new federal infrastructure for the dissemination of comparative effectiveness information, point to the need for a fresh look at the way in which biostatistical principles inform federal health care policy, particularly at the FDA. This one-day symposium will give attendees the foundational knowledge they need to understand how biostatistics applies in FDA regulation, and will also address closely related issues residing at the intersection of statistical analysis and life sciences litigation. The full conference agenda is available on the website.
Registrationis required in order to attend this event. Please register here.