Supreme Court of Mexico.

How Does the Mexican Constitution Regulate Crisis?

By David García Sarubbi

When the Mexican Constitution was issued in 1917, one of its main concerns was to regulate how democracy must deal with crisis, that is, with exceptional situations that demand the exercise of powers outside the Constitution’s regular limits to suppress potential dangers.

There is not an “off switch” available for political powers to put the Constitution to rest while solving urgent issues. Instead, there are complex rules to govern decisions in extraordinary circumstances.

The Constitution’s Article 29 has a Suspension Clause, which contains a detailed regulation for such cases. Moreover, in Article 73, Section XVI, there is another regulation relating to pandemics like the one we are experiencing currently.

Thus, from the founding era, the Mexican constitution has upheld the value of the rule of law, even in extraordinary circumstances.

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Medicine doctor and stethoscope in hand touching icon medical network connection with modern virtual screen interface, medical technology network concept

Regulation of Access to Clinical Data in Chile’s New Constitution

By Gabriela Y. Novoa and Alexis M. Kalergis

As Chileans prepare to vote on whether or not to create a new Constitution, an issue worth considering relative to this reform concerns access to clinical data.

The Political Constitution of the Republic of Chile dates back to 1980, and, in the past decades, has undergone several amendments, including key reforms in August 1989, August 2005, and August 2019. As part of this last modification, it was agreed to organize a plebiscite to democratically decide whether or not to elaborate an entirely new constitutional text. If the alternative of generating a new constitution is adopted, it will consist of a constitution written from square one, rather than a modification to the existing text.

As part of the public discussion relative to the potential approval of the need for a new constitution, an open debate has taken place about which issues should or should not be incorporated into this new text.

Among several important themes, the need to regulate the access to clinical data of patients, also called “interoperability,” arises as a major one. Such an issue is linked to the rights to life, to health and privacy protection, individual honor and personal data and property, which are currently established as constitutional guarantees by Article 19 of the current Constitution. Further, the legal framework dealing with this issue is currently mainly found in Law No. 20,584, which regulates the Rights and Duties of individuals in connection with actions associated to their health care, and in Law No. 19,628 (on the protection of the privacy of individuals).

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Map of United States made up of pills.

The Opioid Multidistrict Litigation, Federal Rule 23, and the Negotiation Class

By Laura Karas

A recent Sixth Circuit decision dashed hopes of a faster resolution to the federal opioid multidistrict litigation (MDL).

The MDL (In re National Prescription Opiate Litigation, Docket No. 1:17-md-02804) consolidated many thousands of suits against opioid makers and distributors.

Thus far, action in the MDL has presaged the enormity of corporate responsibility for the opioid crisis. Roughly one year ago, the first bellwether trial in the MDL, involving two Ohio counties, was averted due to a last-minute settlement by Teva Pharmaceuticals and the “Big Three” drug distributors (AmerisourceBergen, Cardinal Health, and McKesson). A $465 million verdict last year against Johnson & Johnson “abated” one year’s worth of damage to the state of Oklahoma from the opioid crisis, which was held to be a public nuisance under Oklahoma law. And another bellwether trial involving pharmacy chains including Walgreens and CVS is scheduled to take place next year, despite the pharmacy chains’ strong pushback.

As part of the MDL, the U.S. District Court for the Northern District of Ohio had certified a new kind of class, distinct from a litigation or settlement class — a “negotiation class” of cities and counties throughout the United States — under Federal Rule of Civil Procedure 23, the Federal Rule that governs class actions.

But on September 24, a decision by the U.S. Court of Appeals for the Sixth Circuit reversed this decision.

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WHO flag.

A Dose of Perspective on World Patient Safety Day

By John Tingle

The second World Health Organization (WHO) World Patient Safety Day was held on September 17th, 2020.

WHO made a call for global support, commitment, and collective action by all countries and international partners to improve patient safety. The theme for the year is “health worker safety: a priority for patient safety.”

The annual WHO World Patient Safety Day campaign is a welcome one, especially in the context of the COVID-19 pandemic.

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Man in hospital.

Following the Yellow Brick Road Toward Hospital Price Transparency

By Laura Karas

The Center for Medicare and Medicaid Services (CMS) scored a victory on the price transparency front in June of this year with the D.C. Circuit decision in American Hospital Association v. Azar, No. 1:19-cv-03619-CJN.

The CMS final rule at issue in the suit requires price transparency for hospital items and services. The legal victory will begin to remedy the information asymmetry that has kept patients in the dark about hospital prices for far too long.

As the final rule states, its aim is to empower patients to become “active consumers” of health care “so that they can lead the drive towards value.” The rule is part of a federal effort to improve the ability of patients to make informed choices based on price and gain leverage to negotiate unreasonable hospital charges.

The American Hospital Association, the Association of American Medical Colleges, and several other groups brought suit to contest the CMS final rule mandating that hospitals make public and update annually certain “standard charges” for hospital “items and services.”

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Santiago, Chile - Crosswalk in long-exposure.

Chile’s New Constitution, the Right to Health, and Health System Reforms

By Marco Antonio Nuñez

During these months of the COVID-19 pandemic in Chile, the need to align the constitutional process with long-postponed structural reforms to the health system has become evident among public health experts.

Capitalizing on this moment might avoid the possibility of a constitutional right to health becoming a dead letter or being reduced only to the prosecution of particular cases, postponing again the aspirations of the majority of Chileans.

Although the Chilean Constitution promulgated under the dictatorship in 1980 and subsequently reformed in several of its chapters recognizes “The right to the protection of health,” it has been tainted by authoritarianism from its origin, and promotes a subsidiary role of the state in health.

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gavel and stethoscope on white background

The Right to Health in the Upcoming Constitutional Debate in Chile

By Veronica Vargas

At this unprecedented COVID moment, health has been revealed as one of our most precious possessions and protecting it has become imperative. The right to health was articulated by the WHO in the Declaration of Alma-Ata of 1978. The upcoming constitutional debate in Chile is an opportunity to re-examine this concept.

The Chilean constitution specifies the right to “free and egalitarian access” to health care. Simultaneously, the constitution guarantees that “each person has the right to choose the health system they wish to join, either public or private.”

These provisions have championed a prospering private health sector, with corporate clinics and a private insurance system that represents almost half of total health spending.

However, this private sector serves less than 20 percent of the population. Nearly 80 percent of the population utilizes public sector insurance. Although the public sector has been expanding its coverage of health services, and health indicators for those with public insurance have been improving, the public sector is chronically underfunded. Public sector health care spending represents only 4% of the GDP.

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Santiago, Chile.

Pragmatism and the Chilean Constitutional Moment

By Sebastián Soto

Chile is heading into a constitutional change.

After 40 years, the Chilean 1980 Constitution, enacted under Pinochet’s rule, but subsequently amended over fifty times, will probably be replaced. On October 25th, a referendum will decide whether or not to call a constitutional convention to change the Constitution.

If the referendum passes, in April 2021 the convention will be called and will have nine months (extendable for three more, if needed) to write a new constitution. If the convention reaches an agreement on a new constitution by 2/3 of its members, a new referendum to approve it will be called during the first semester of 2022.

Social rights are expected to be one of the most contested topics discussed during the process.

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Buenos Aires, Argentina.

Concerns Mount About Rule of Law in Argentina During COVID-19

By Roberto Gargarella

From the first time that I wrote about the COVID-19 situation in Argentina, June 8, until the date I am writing this, September 7, things have changed significantly.

First, the number of people who have died of COVID-19 in Argentina has risen to nearly 10,000; the 16th highest death toll in the world. The total number of cases is 500,000; which places Argentina among the top 10 countries for infections worldwide.

These alarming statistics are particularly worrying in Argentina, given a number of additional facts mentioned in my original blog.

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Empty classroom.

Who’s to Blame for COVID-19 Outbreaks at Colleges and Universities?

By Sravya Chary

For many U.S. colleges and universities that opted for in-person instruction this fall, the return to campus during the COVID-19 pandemic has proven disastrous, and prompted the question: who’s to blame for these new outbreaks?

Although administrators are quick to blame student behavior, in this post, I will argue that the administrations are ultimately at fault – their negligence has put students’ health at risk and exacerbated the public health catastrophe.

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