The American University law review最新文献

The Patient Protection and Affordable Care Act of 2010 (ACA) rewrote the law of private health insurance. How the ACA rewrote the law of civil remedies, however, is a question largely unexamined by scholars. Courts everywhere, including the U.S. Supreme Court, will soon confront this important issue. This Article offers a foundational treatment of the ACA on remedy. It predicts a series of flashpoints over which litigation reform battles will be fought. It identifies several themes that will animate those conflicts and trigger others. It explains how judicial construction of the statute's functional predecessor, the Employee Retirement Income Security Act of 1974 (ERISA), converted a protective statute into a uniquely effective piece of federal litigation reform. Ultimately, it considers whether the ACA--which incorporates, modifies, and rejects ERISA in several notable ways--will experience a similar fate.

In the early years of the twenty-first century, it was widely speculated that massive, multi-purpose hospitals were becoming the "dinosaurs" of health care, to be largely replaced by community-based clinics providing specialty services on an outpatient basis. Hospitals, however, have roared back to life, in part by reworking their business model. There has been a wave of consolidations and acquisitions (including acquisitions of community-based clinics), with deals valued at $7.9 billion in 2011, the most in a decade, and the number of deals increasing another 18% in 2012. The costs of hospital care are enormous, with 31.5% ($851 billion) of the total health expenditures in the United States in 2011 devoted to these services. Hospitals are (1) placing growing emphasis on increasing revenue and decreasing costs; (2) engaging in pervasive marketing campaigns encouraging patients to view hospitals as an all-purpose care provider; (3) geographically targeting the expansion of their services to "capture" well-insured patients, while placing greater pressure on patients to pay for the services delivered; (4) increasing their size, wealth, and clout, with two-thirds of hospitals undertaking renovations or additional construction and smaller hospitals being squeezed out, and (5) expanding their use of hospital-employed physicians, rather than relying on community-based physicians with hospital privileges, and exercising greater control over medical staff. Hospitals have become so pivotal in the U.S. healthcare system that the Patient Protection and Affordable Care Act of 2010 (PPACA) frequently targeted them as a vehicle to enhance patient safety and control escalating health care costs. One such provision--the Hospital Readmissions Reduction Program, which goes into effect in fiscal year 2013--will reduce payments ordinarily made to hospitals if they have an "excess readmission" rate. It is estimated that adverse events following a hospital discharge impact as many as 19% of all discharged patients. When hospitals and similar health care facilities fail to adequately manage the discharge of their patients, devastating medical emergencies and sizeable healthcare costs can result. The urgency to better manage these discharges is compounded by the fact that the average length of hospital stays continues to shorten, potentially increasing the number of discharged patients who are at considerable risk of relapse. Also exacerbating the problem is a lack of clarity regarding who, if anyone, is responsible for these patients following discharge. Confusion over who bears responsibility for discharge-related preparation and community outreach, concerns about compensation, a lack of clear institutional policies, and the absence of legal mandates that patients be properly prepared for and monitored after discharge all contribute to the potential abandonment of patients at a crucial juncture. Although the PPACA establishes financial incentives for hospitals an

Ass'n for Molecular Pathology v. U.S. Patent & Trade Office sent shockwaves through the legal community, when the U.S. District Court for the Southern District of New York rejected a series of patents held by Myriad Genetics, Inc. The court invalidated all of Myriad's compositional patents for human genes and its method patents for diagnosing genetic predispositions to breast cancer. While commentators have discussed the ethical implications of allowing patent rights to human genes in great detail, the Court's ruling on Myriad's method claims went by comparatively unnoticed. The ability to test a patient's genetic profile for predisposition to cancer and other diseases is an incredible achievement in the field of personalized medicine. Whether these tests deserve patent protection is a hotly debated issue that involves weighing the interests of both incentivizing research and making these tests available to the general public. This Comment analyzes the legal framework established by the Supreme Court and U.S. Court of Appeals for the Federal Circuit to decide patent eligibility for genetic diagnostic tests. It concludes that, while the world was spellbound by the ethical quandary of compositional claims on human genes, the recent Supreme Court and Federal Circuit decisions have surreptitiously eliminated genetic diagnostic tests as patentable subject matter under § 101 of the United States Patent Act.

The First Amendment protects the speech of health care providers. This protection can limit states' abilities to protect patients from harmful therapies involving speech, such as sexual orientation change efforts. Because providers' speech is more similar to commercial speech than traditional political discourse, it is possible to create a First Amendment review analysis that better balances states' police powers with providers' First Amendment rights. Under a "single-prong" approach, the first prong of Central Hudson can be used to identify quackery, which is analogous to false or misleading commercial speech and would therefore be outside the protection of the First Amendment. Because health care must be tailored to individual patients, restrictions on speech that survive the first prong of Central Hudson would be subject to strict scrutiny in order to leave the therapeutic decision to the provider and her patient, and maintain consistency with current jurisprudence. This Comment examines litigation from California's attempted ban on sexual orientation change therapy to illustrate the conflicts created by the current approach to First Amendment review of health care provider speech. This Comment then demonstrates the benefit of the proposed single-prong approach, including how it simultaneously protects patients from harm while protecting health care providers' speech.