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. Read More

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.

Read More

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. Read More

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?  Read More

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. Read More

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?

Read More

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.

Read More