Tag: Tenth Amendment

Stethoscope with blue suitcase on a table with American flag as background.

Is a Federal Medical License Constitutional?

Timothy Bonis Leave a comment

By Timothy Bonis

Although three in four doctors support scrapping state medical boards in favor of a single federal license, such sweeping reform is likely far off. It is not just state boards’ political obstructionism standing in the way. Basic constitutional federalism limits Congress’s ability to assume powers traditionally held by the states, leaving medical licensure (a state matter since its 19th-century inception) difficult to federalize.

This post will explore potential constitutional arguments for and against federal licensure, investigate the constitutionality of more moderate legislative approaches, and speculate on how the late Roberts Court might respond to reform attempts.

Read More

Medical staff work in the Intensive Care Unit (ICU) for COVID-19 patients in University Hospital of Liege in Belgium on May 5th, 2020.

The Legality of Pandemic Detection and Prevention Technology

The Petrie-Flom Center Staff Leave a comment

*This article is adapted from a longer paper published in the University of Michigan Journal of Law Reform. To access the original paper, please click here.

By April Xiaoyi Xu  

A test-and-isolate system for detecting and monitoring new pathogens could avert future pandemics, but may face legal challenges in implementation.

The test-and-isolate model is described in a 2020 Scientific American article by biochemist David Ecker. Ecker recommends strategically placing modern, high-speed metagenomic sequencing technology in urban hospitals across the United States to flag previously-unknown pathogens before the infectious agents have the opportunity to spread widely and potentially start a new pandemic.

Under this model, during a time period without any apparent pandemics, the 200 biggest metropolitan hospitals in the U.S. would automatically run diagnostic tests up-front for novel causative agents among patients who visit the emergency room with severe respiratory symptoms that are possibly infectious. If such a system detects a sufficiently serious pathogen, public health agencies will send out diagnostic tests to all residents in the affected geographical area(s) within weeks and isolate those who test positive. This system also will be integrated with contact tracing and more standard outbreak response.

Read More

President Trump’s Tort Reform

astein 3 Comments

By Alex Stein

President Trump’s budget for Fiscal Year 2018 proposes a thoroughgoing reform of our medical malpractice system [Executive Office of the President of the United States, Major Savings and Reforms, Budget of the U.S. Government, Fiscal Year 2018, at 114 (2017) (hereinafter, the “Budget”)]. The reform’s stated goals are “[to] reduce defensive medicine … limit liability, reduce provider burden, promote evidence-based practices, and strengthen the physician-patient relationship.”

To achieve these goals, the reform will introduce the following measures:

  • a cap on non-economic damage awards of $250,000 (adjustable to inflation);
  • a three-year statute of limitations;
  • allowing courts to modify attorney’s fee arrangements;
  • abolition of the “collateral source” rule (to allow judges and jurors to hear evidence of the plaintiff’s income from other sources such as workers’ compensation and insurance);
  • creating a safe harbor for clinicians who follow evidence-based clinical-practice guidelines.

Read More

The DOMA Petition You Should Be Following

kvantassel Leave a comment

By Nicole Huberfeld

You may be thinking “DOMA? Hello, this is HEALTH LAW.”  Please stick with me for a moment.  The Supreme Court appears to be collecting petitions for certiorari regarding the Defense of Marriage Act, likely to determine which circuit’s decision is the best vehicle for considering the constitutionality of this federal law.  One such petition results from the First Circuit’s decision in Massachusetts v. Department of Health and Human Services/Hara v. Office of Personnel Management, which held that section 3 of DOMA violated the Fifth Amendment’s Equal Protection Clause.  The court reasoned that promoting marriage is not rationally related to denying federal benefits to same-sex couples, thereby avoiding the creation of a new category of suspect class.  The twist is that the state of Massachusetts also claims that section 3 of DOMA, which denies federal economic benefits to same-sex couples, exceeds Congress’s Spending Clause authority and infringes the state’s 10th Amendment rights.  While the First Circuit did not agree with the state on these points, it did incorporate federalism concerns into its Equal Protection Clause analysis by noting that states traditionally have defined marriage, therefore the federal government cannot protect the state of Massachusetts from its own definition of marriage by promoting heterosexual marriage. Read More