Medical Malpractice: Impact of the Crisis and Effect of State Tort Reforms

Reviews research on the malpractice crisis and examines data on how volatile malpractice environments affect healthcare delivery and how state tort reforms affect premiums, frequency of claims, payouts, and physician supply. Considers policy implications

Understanding Medical Malpractice Insurance: A Primer

Analyzes the causes of and potential solutions to address malpractice crises, and discusses how medical malpractice insurance works, why premiums change, and what can be done about it

Administrative Compensation for Medical Injuries: Lessons From Three Foreign Systems

Examines "no-fault" systems in New Zealand, Sweden, and Denmark, in which patients injured by medical negligence can file for compensation through governmental or private adjudicating organizations. Considers lessons for U.S. medical malpractice reform

Legal Strategies for Reining In Unconscionable Prices for Prescription Drugs

Policy discussions about the affordability of prescription drugs in the United States are infused with the theme that drug prices are unconscionably high. Many of the policy interventions proposed in Congress, the White House, and the states adopt this frame, authorizing regulatory action when prices exceed particular thresholds or otherwise constitute “price gouging” on the part of drug companies. Unsurprisingly, such initiatives have prompted legal challenges by the biopharmaceutical industry. State laws in particular are vulnerable to challenges on a number of grounds. In this Article, we focus on one avenue of challenge that has received little scholarly attention in the context of drug pricing: void-for-vagueness claims under the Due Process Clause. These challenges allege that the law’s definition of “excessive” or “unconscionable” drug prices is so ambiguous as to fail basic requirements of procedural due process. To better understand how federal and state legislation can be designed to survive vagueness challenges, we review and extract lessons from four adjacent areas of law in which a standard of “excessive” or “unconscionable” price has been operationalized: (1) price gouging laws relating to times of emergency; (2) contract law; (3) consumer lending law; and (4) public utilities rate regulation. We analyze the approaches taken in each field and their potential applicability to the prescription drug context. We conclude that consumer lending law offers the most promising model, particularly if advanced via federal legislation, and offer a series of recommendations for drafting legislation aimed at identifying and curbing excessive drug prices

National and Global Health Law: A Scholarly Examination of the Most Pressing Health Hazards

The health of individuals, families, and communities has deep, intuitive meaning. So much of what we aspire to be as individuals or as members of society relies on health. Our shared intuitions about the value of health manifest themselves in public and political concerns. The media widely reports threats to the public\u27s health, such as a traveler with multi-drug resistant tuberculosis, E-coli from contaminated spinach, miners\u27 deaths, unsafe children\u27s toys, and dangerous pharmaceuticals. Election years predictably spur new, or refashioned, proposals for health care reform. And there remain enduring, intractable health hazards, such as tobacco, obesity, motor vehicle crashes, and endemic diseases such as HIV/AIDS. The public hears much less about the health of the world\u27s poorest people, except perhaps during extreme events, such as a refugee crisis or a tsunami. But the world\u27s poor suffer multiple, compounding disadvantages that well surpass the burdens experienced by those in richer countries-poverty, famine, tropical diseases, and often the atrocities of war and dislocation, to name a few

Empirical Health Law Scholarship: The State of the Field

The last three decades have seen the blossoming of the fields of health law and empirical legal studies and their intersection--empirical scholarship in health law and policy. Researchers in legal academia and other settings have conducted hundreds of studies using data to estimate the effects of health law on accident rates, health outcomes, health care utilization, and costs, as well as other outcome variables. Yet the emerging field of empirical health law faces significant challenges--practical, methodological, and political. The purpose of this Article is to survey the current state of the field by describing commonly used methods, analyzing enabling and inhibiting factors in the production and uptake of this type of research by policymakers, and suggesting ways to increase the production and impact of empirical health law studies. In some areas of inquiry, high-quality research has been conducted, and the findings have been successfully imported into policy debates and used to inform evidence-based lawmaking. In other areas, the level of rigor has been uneven, and the best evidence has not translated effectively into sound policy. Despite challenges and historical shortcomings, empirical health law studies can and should have a substantial impact on regulations designed to improve public safety, increase both access to and quality of health care, and foster technological innovation

Rationalizing Noneconomic Damages: A Health-Utilities Approach

Studdert et al examine why making compensation of noneconomic damages in personal-injury litigation more rational and predictable is socially valuable. Noneconomic-damages schedules as an alternative to caps are discussed, several potential approaches to construction of schedules are reviewed, and the use of a health-utilities approach as the most promising model is argued. An empirical analysis that combines health-utilities data created in a previous study with original empirical work is used to demonstrate how key steps in construction of a health-utilities-based schedule for noneconomic damages might proceed

La formulation du critère de la faute médicale à l’ère de la médecine fondée sur les faits

La comparaison de certaines institutions fondamentales de la responsabilité  professionnelle avec les outils développés par la « médecine fondée sur les faits », paradigme émergent en matière de pratique clinique, permet de mettre en lumière l’unité conceptuelle variable de certaines notions partagées par la médecine et le droit. Ces observations prennent une acuité particulière alors que la faute, telle que généralement conçue par le champ de la responsabilité médicale, pourrait se révéler perméable aux conceptions de la « bonne pratique clinique » sous-tendues par  la médecine fondée sur les faits. Cette perspective pourrait se révéler utile à l’analyse de ce que l’auteur Daniel Jutras a qualifié de « crise conceptuelle » de la responsabilité médicale.Comparing the core institutions of the professional liability legal system with the tools developed by the “evidence-based medicine” movement exposes fluctuations in the conceptual unity of some notions ingrained both in medicine and law. These observations allow construing the standard of medical malpractice as imprinted by the various conceptions of “good clinical practice” underpinning the evidence-based medicine movement. This perspective intends to be beneficial to a new insight in the medical liability “conceptual crisis” as frameworked by the author Daniel Jutras

William H. Sorrell, Attorney General of Vermont, et al. v. IMS Health Inc., et al. - Amicus Brief in Support of Petitioners

On April 26, 2011, the US Supreme Court will hear oral arguments in the Vermont data mining case, Sorrell v. IMS Health Inc. Respondents claim this is the most important commercial speech case in a decade. Petitioner (the State of Vermont) argues this is the most important medical privacy case since Whalen v. Roe. The is an amicus brief supporting Vermont, written by law professors and submitted on behalf of the New England Journal of Medicin