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. Read More

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.

Read More

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.

Read More

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.

Read More

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.

@koutterson

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.

Read More

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.