Journal of health law最新文献

At the end of the twentieth century, bar scholars and regulators were reexamining two traditionally improper aspects of legal practice. The first was the multidisciplinary practice of law, which would permit lawyers to offer accounting and other professional services to their clients, and allow lawyers to share fees with non-lawyers. The second was the multijurisdictional practice of law, which would permit a lawyer licensed in one jurisdiction to practice law in other jurisdiction in which he was not admitted to the bar. Enron and other corporate scandals deflated the movement towards multidisciplinary practice, but the movement to allow multijurisdictional practice bore some limited, yet important, results. This Article argues that the American Bar Association's new Model Rules 5.5 and 8.5, which broaden the ability of healthcare lawyers to practice outside of the states in which they are admitted, are a suitable accommodation to today's mode of practice, while still preserving the states' ability to regulate lawyers and protect clients.

This Article examines and proposes solutions for the following compliance problems under the Health Information Portability and Accountability Act's Privacy Rule: (a) determining compliance requirements when multiple provisions of the Privacy Rule allow a use or disclosure of protected health information; (b) managing minimum necessary for disclosures to noncovered entities; (c) managing interaction between organized healthcare arrangements and noncovered providers; (d) processing joint health and life/disability insurance applications; (e) reconciling family coverage explanations of benefits and family member's confidential communication demands; and (f) explaining denial of protected health information access based on endangerment. In the course of the analysis, the Article presents a Privacy Rule Compliance Tool that summarizes the compliance requirements associated with each Privacy Rule provision that allows protected health information use or disclosure.

For the past decade, federal judges have been obligated to serve as gatekeepers and keep scientifically unreliable and irrelevant expert testimony out of the courtroom. The exacting evidentiary standards set forth in the landmark Daubert decision have had a significant impact on numerous areas of legal dispute. Toxic tort litigation, in particular, has been transformed by the standards. This Article reviews the Supreme Court's adoption of the scientific method as the standard for admissibility of expert testimony. It analyzes how a court's proper understanding of the scientific method can guide it in evaluating the different types of causation evidence presented in toxic tort litigation, both with respect to general and specific causation. Throughout this discussion and in the concluding section, the Article reflects the authors' firm's experience as national defense counsel in a series of product liability cases involving the prescription drug Parlodel, in which these evidentiary issues have been analyzed extensively.

The Sarbanes-Oxley Act (Act) significantly changed the expected corporate behavior of public companies. The Act governs the relationship between corporate organizations and their in-house or outside counsel. Under Section 307 of the Act, the Securities and Exchange Commission initially proposed expansive rules regarding counsel's duties. After comments and criticism from much of the bar, a final, narrower, version of rules under Section 307 (Final Rule) was adopted. The Final Rule contains alternative reporting procedures, attorney responsibilities, and sanctions for violations. In addition to the Act, the American Bar Association's (ABA) Task Force on Corporate Responsibility(Task Force), which was itself a reaction to Enron, reported on the importance of counsel's role in a corporate setting (Cheek Report). The ABA adopted amendments to its Model Rules of Professional Conduct (Model Rules) 1.6 and 1.13 as proposed in the Cheek Report. The Final Rule and amended Model Rules together suggest that attorneys may owe duties beyond those owed to their clients.

State laws recognize that a competent adult patient has the right to consent to or refuse medical treatment. While the law is clear with regard to the right of competent adults, state statutes are more complicated when the patient is a minor. While the law should, and does, attempt to balance the rights and obligations of parents and guardians against the access and privacy rights of minors, complicated state statutory schemes often fail to simultaneously address those contrasting goals in a consistent and uniform manner. The result is a confusing set of seemingly arbitrary and sometimes conflicting provisions that require the detailed attention of healthcare providers to ensure legal compliance. With the aim of helping healthcare practitioners meet their legal obligations, this Article examines state laws governing minor's consent rights byfocusing on the instances in which a minor's parent, guardian, or other authorized adult is permitted to consent to treatment on behalf of a minor and the instances in which a minor is authorized to act independent of adult intervention.

The Medicare Prescription Drug, Improvement, and Modernization Act of 2003 will profoundly reform an archaic Medicare system that serves more than 41 million Americans who are elderly, disabled, or suffer from end-stage renal disease. The primary driver of this change, in the near- and far-term, will be the Medicare managed care plans that currently serve 4.7 million beneficiaries.

Several recent films have villainized the health-insurance industry as a central element of their plots. This Article examines three of those films: Critical Care, The Rainmaker, and John Q. It analyzes these films through the context of the consumer backlash against managed care that began in the 1990s and shows how these films reflect the consumer sentiment regarding health-insurance companies and the cost controlling strategies they employ. In addition, the Article identifies three key premises about health insurance in the films that, although exaggerated and incomplete, have significant factual support. Ultimately, the author argues that, despite their passionately critical and liberal tone, these films actually put forward solutions that are highly individualist and conservative, rather than inclusive and systemic.

The idea that healthcare quality in America has lagged behind optimal levels has been a central national policy issue since at least 1998. Reform efforts, however, have failed to acknowledge the critical and unique role physicians play in making quality initiatives real. This Article argues physicians are at the core of any effort to propel quality forward in a significant way and, therefore, must be taken into account directly and without apology. The Article examines the quality-accountability context present in this country. It addresses why the physician nexus on these issues is vital for real change to take place and sets forth a clear statement of what is essential to support the doctor-patient relationship in any quality agenda. Finally, it reiterates the author's previously proposed five principles for quality, as well as her unified field theory of quality, all of which are designed to advance quality in a very different way.

This Article examines the new Emergency Medical Treatment and Labor Act (EMTALA) regulations, focusing on the on-call provisions, in light of the practical realities of the on-call physician shortage. It provides an historical account of issues surrounding the delivery of emergency care by on-call physicians and the legal background of EMTALA insofar as it relates to on-call physicians. Ultimately, the author concludes that, although the current shortage of on-call physicians has caused hospitals to anticipate EMTALA liability and advocate for more specific regulations, a closer look reveals that hospitals' fears are overstated. As long as hospitals have proper procedures in place, the new regulations will not put them in violation of EMTALA.