The State\u27s Interest in the Preservation of Life: From Quinlan to Cruzan

This article considers the kinds of limits on withholding that each of these policies might plausibly support, compares these limits to the judicial approaches taken in the refusal of treatment cases, and explores how apparent conflicts between these state goals and the interests of the patients might be resolved. Because this article focuses exclusively on the state\u27s interests, however, it necessarily isolates and considers only one portion of a complex problem involving the interests of patients, families, providers, and others. No comprehensive examination of the nature and weight of the patient\u27s interests or those of other involved parties is attempted. Thus, no final conclusions about the ultimate shape of the patient\u27s rights or about the constitutional stature of those rights are offered. Instead, this Article explores the nature, weight, and implications of the many meanings hidden beneath the state\u27s multi-faceted interest in “the preservation of life

Breaking Down the Boundaries of Malpractice Law

Historically, courts have treated professional malpractice cases as unique. When disputes that would otherwise have been governed by tort rules of general application have arisen in the context of medical treatment, courts have routinely constructed special rules for the resolution of those disputes. Recent evidence suggests that this penchant for special rules may be weakening and that malpractice law may be slowly melting back into the sea of tort doctrine. The three Missouri health care la cases noted in this issue are the latest evidence that courts today are more willing to resolve medical negligence actions using tort rules of general application than they once were. These three cases also typify the halting, labored nature of common law shifts of this kind. All three of these cases involved bright-line “no duty” rules that had been specifically fashioned for medical negligence cases. One case involved the duty of “on-call” physicians. Traditionally, on-call specialists have not owed patients a duty to arrive at the hospital quickly unless a prior “physician-patient” relationship existed with the patient. The second case reexamined a similar no-duty rule that excuses pharmacists from a duty to warn their customers of drug risks such as improper dosages and incompatible drugs. The third case considered the viability of the “learned intermediary” doctrine, a no-duty rule that excuses pharmaceutical manufacturers from the duty to warn patients of the risks associated with their prescription drugs. Rules like these erect tidy, bright spheres of obligation in malpractice law that are atypical of modern tort doctrine—a body of law that usually defines obligations with vague, but flexible, concepts such as foreseeability and reasonability

The Ambiguous Meaning of Human Conception

Nearly all of the state and federal laws that treat embryos as persons contain a fundamental ambiguity. Contrary to common belief, there is no moment of conception. Instead, conception is a forty-eight hour process, during which the haploid genomes of the sperm and egg are gradually and precisely transformed into the functioning diploid genome of a new human embryo. During that two-day period, many common clinical and laboratories activities take place, including the culling of unsuitable embryos, the freezing of others, and the testing of embryos for genetic abnormalities. The legal status of these activities will turn on the point in the two-day process of conception that is chosen to trigger the life-begins-at-conception laws. In this article, I argue that laws triggered by conception should not take effect until the process of conceiving a new diploid embryo is complete. This occurs when the embryonic genome begins to function, roughly forty-eight hours after insemination, at the eight-cell stage. Prior to that, a new human life is being conceived, but has not yet been conceived. Although many people will find this a surprising conclusion, it is consistent with both the gradual nature of the transformation from gametes to embryo and with the goals that the authors of these laws sought to accomplish

On the Cusp of the Next Malpractice Insurance Crisis

Medical malpractice claims are dwindling. Total payouts are far lower than during the 2002 crisis. Yet, insurance industry profits have been sinking for a decade and are nearly in the red. After a dozen years with a “soft” insurance market, we are now on the cusp of yet another malpractice insurance crisis.How can profits be in peril if claims have dwindled and payouts are historically low?Answering that question requires an understanding of the insurance cycle. The cycle periodically transforms gradual increases in costs and gradual decreases in revenue into explosive increases in premiums.The industry’s financial statistics today eerily resemble those leading into the 2002 crisis. However, some important differences also exist. Perhaps most importantly, the coronavirus pandemic introduces a variable that makes the current transition from a soft market to a hard one unique. In addition, industry representatives have recognized the signs of a hardening market earlier in the transition than they have in the past and that may enable them to engineer a less painful transition from a soft market to a hard one.The stakes are high. After each of the three prior crises, physicians, hospitals, and insurers descended on state capitals and lawmakers responded with waves of restrictive tort reform.This Article explains how we have come to sit on the cusp of a fourth medical malpractice crisis and examines the factors that will determine how soft our landing will be

On the Cusp of the Next Medical Malpractice Insurance Crisis

Medical malpractice claims are dwindling. Total payouts are far lower than during the 2002 crisis. Yet, insurance industry profits have been sinking for a decade and are nearly in the red. After a dozen years with a “soft” insurance market, we are now on the cusp of yet another malpractice insurance crisis.How can profits be in peril if claims have dwindled and payouts are historically low?Answering that question requires an understanding of the insurance cycle. The cycle periodically transforms gradual increases in costs and gradual decreases in revenue into explosive increases in premiums.The industry’s financial statistics today eerily resemble those leading into the 2002 crisis. However, some important differences also exist. Perhaps most importantly, the coronavirus pandemic introduces a variable that makes the current transition from a soft market to a hard one unique. In addition, industry representatives have recognized the signs of a hardening market earlier in the transition than they have in the past and that may enable them to engineer a less painful transition from a soft market to a hard one.The stakes are high. After each of the three prior crises, physicians, hospitals, and insurers descended on state capitals and lawmakers responded with waves of restrictive tort reform.This Article explains how we have come to sit on the cusp of a fourth medical malpractice crisis and examines the factors that will determine how soft our landing will be

The Role of Jury in Modern Malpractice Law

This article explores the policy issues raised by the choice between a custom-based standard of care and a jury-determined reasonability standard. The author examines not only traditional legal arguments but also the recent findings of cognitive psychology, jury performance studies, and health industry research. Not surprisingly, this analysis reveals that both options are imperfect. However, the author cautiously recommends the reasonable physician standard. The revolutionary transformation of the health care industry in last quarter of a century has transferred considerable power from physicians to the health insurance industry, an industry that has not yet earned the privilege of self-regulation. Unlike the custom-based standard, the reasonable care standard assigns the task of standard-setting to representatives of the community and not to the regulated industry. And because the reasonable physician standard precludes unilateral establishment of the standard of care by the health care industry, it is also more likely to force the health care industry to engage the community in a conversation about health care cost and quality. For these reasons, it worth taking the risk that juries will be more resistant to cost control measures than health policy analysts would recommend

When Physicians Balk at Futile Care: Implications of the Disability Rights Laws

Part I of this article reviews the factual background of the futility debate. Part II introduces the antidiscrimination laws. Thereafter, Parts III, IV, and V examine the three components of the proposal suggested above

Health Care Rationing and Disability Rights

This article explores the extent to which federal disability rights law limits the use of effectiveness criteria to allocate health care, either alone or as a part of cost-effectiveness analyses. To be more precise, it considers the circumstances in which disability-based classifications by health plans which would otherwise violate the anti-discrimination laws can be legally and ethically defended by proof that the excluded treatments are less effective than those which are provided. Part I introduces the expanding use of effectiveness analysis in health care, explains its discriminatory potential, and reviews the Oregon experience. Part II outlines the current federal law protecting the rights of disabled persons to health care. The remaining portions of this article examine, first, whether measures of effectiveness that do not take quality of life into account, such as survival rates, violate the rights of disabled persons (Part III), and, second, whether the additional issues raised by quality of life considerations preclude their use (Part IV). While the arguments for prohibiting the use of measures of effectiveness such as survival or success rates are surprisingly powerful, they are not sufficient to outweigh the ethical and legal arguments for permitting their use in proper circumstances. Quality of life considerations are more troublesome. When used to rank life-sustaining care, they would place a lesser value on the life of a disabled person than on the life of a person who could be restored to full function. If used in that way, quality of life considerations will probably be held to violate the existing disability rights laws. But because quality of life is relevant, even in the context of life-extending care, it is time to begin discussing the circumstances in which to authorize its use. The objective of this essay is to make a preliminary exploration of the legal and ethical legitimacy of using medical effectiveness as a criterion for the allocation of health resources. The vulnerability of health-care plans which take the effectiveness of treatments into account, however, will also depend upon the resolution of several other crucially important legal issues not addressed here. For example, some court opinions appear to suggest that plans which favor one disability over another are less vulnerable to challenge than those which treat people without disabilities more favorably than persons with disabilities. Also, considerable confusion currently exists as to the vulnerability of exclusions which have a disproportionately unfavorable impact on disabled patients but which do not make facial classifications on the basis of disability (e.g., a limit on blood transfusions that disproportionately affects hemophiliacs). Health insurers have also suggested, so far unsuccessfully, that the anti-discrimination statutes do not apply to coverage restrictions placed on private health insurance. The resolution of each of these issues could have a profound impact on the freedom of health plans to prioritize health services and deserves separate and extended analysis. In addition, the discussion which follows examines rationing at the level of health benefit plans. Bedside rationing by physicians raises many of the same issues, but it also poses additional issues which justify separate consideration and which may limit the application of my conclusions in that setting

Hindsight Bias and Tort Liability: Avoiding Premature Conclusions

Cognitive psychologists know that judgments made in hindsight are distorted by two cognitive heuristics-hindsight bias and outcome bias. Hindsight bias makes bad outcomes seem more predictable in hindsight than they were ex ante. Outcome bias induces us to assume that people who cause accidents have been careless. Because of these biases, individuals who know that a bad outcome has occurred tend to evaluate prior conduct more harshly than they would if they were unaware of the actual outcome. In negligence actions, defendants are supposed to be judged by the reasonableness of their conduct, not by its outcome. Jurors are asked to put themselves in the shoes of the defendant at the time of the challenged conduct. However, the findings of cognitive psychology warn us that jurors who know the outcome will find it very difficult to assume a foresight perspective