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Browsing by Author "Orentlicher, David"
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Item Abortion and Compelled Physician Speech(Wiley, 2015) Orentlicher, David; Robert H. McKinney School of LawAs states increasingly impose informed consent mandates on abortion providers, the required disclosures bring two well-established legal doctrines into conflict — the First Amendment’s freedom of speech and the physician’s duty to obtain informed consent. On one hand, the First Amendment precludes the government from forcing individuals to voice the government’s views. On the other hand, legislatures and courts can insist that physicians properly explain to patients about their medical conditions and potential treatments so patients can make informed decisions about their health care. When taking care of patients, doctors assume a duty to speak, as well as a duty to speak responsibly. Ordinarily, the doctrines of free speech and informed consent coexist without much difficulty. But as states have expanded the kinds of information that abortion providers must disclose to pregnant women, First Amendment concerns have become increasingly salient. In this article, I will use several examples of speech mandates for abortion and other health care services to identify principles for distinguishing between legitimate regulation of the informed consent process and illegitimate interference with the freedom of speech. First, speech mandates should be permissible when they provide material information to patients about their health care decisions. If the state is trying to ensure that patients are fully informed, the mandates should be allowed. As a corollary, the information must be truthful and not be misleading. The goal is to inform not to misinform. Second, speech mandates that pertain to moral considerations should not be permitted. Rather than informing the patient’s decision, these mandates force the physician or other health professional to espouse the state’s ideology. Courts and legal scholars have proposed other ways to distinguish permissible from impermissible mandates (e.g., whether the government takes sides, manipulates emotions, or uses graphic images). However, these additional distinctions raise their own concerns and should not be needed. If courts strictly apply the requirements that compelled speech pertain to medical facts about abortion and its alternatives rather than abortion ideology and that the compelled speech be truthful and not misleading, then the interests of pregnant women and their physicians should be protected.Item The Changing Legal Climate for Physician Aid in Dying(2014) Orentlicher, David; Mason, Thaddeus; Rich, Ben A.; Robert H. McKinley School of LawWhile once widely rejected as a health care option, physician aid in dying is receiving increased recognition as a response to the suffering of patients at the end of life. With aid in dying, a physician writes a prescription for a life-ending medication for an eligible patient. Following the recommendation of the American Public Health Association, the term aid in dying rather than "assisted suicide" is used to describe the practice. In this Viewpoint, the authors describe the changing legal climate for physician aid in dying occurring in several states.Item Clinical Criteria for Physician Aid in Dying(2016) Orentlicher, David; Pope, Thaddeus Mason; Rich, Ben A.; Physician Aid-in-Dying Clinical Criteria CommitteeMore than 20 years ago, even before voters in Oregon had enacted the first aid in dying (AID) statute in the United States, Timothy Quill and colleagues proposed clinical criteria AID. Their proposal was carefully considered and temperate, but there were little data on the practice of AID at the time. (With AID, a physician writes a prescription for life-ending medication for a terminally ill, mentally capacitated adult.) With the passage of time, a substantial body of data on AID has developed from the states of Oregon and Washington. For more than 17 years, physicians in Oregon have been authorized to provide a prescription for AID. Accordingly, we have updated the clinical criteria of Quill, et al., based on the many years of experience with AID. With more jurisdictions authorizing AID, it is critical that physicians can turn to reliable clinical criteria. As with any medical practice, AID must be provided in a safe and effective manner. Physicians need to know (1) how to respond to a patient's inquiry about AID, (2) how to assess patient decision making capacity, and (3) how to address a range of other issues that may arise. To ensure that physicians have the guidance they need, Compassion & Choices convened the Physician Aid-in-Dying Clinical Criteria Committee, in July 2012, to create clinical criteria for physicians who are willing to provide AID to patients who request it. The committee includes experts in medicine, law, bioethics, hospice, nursing, social work, and pharmacy. Using an iterative consensus process, the Committee drafted the criteria over a one-year period.Item Concussion and Football: Failures to Respond by the NFL and the Medical Profession(2012) Orentlicher, David; David, William S.The National Football League (NFL) has come under sharp criticism for its approach to the problem of concussion, and many former players have filed a lawsuit against the league. In reviewing the response of NFL to concussion, one can easily think that the league was too slow to worry about the medical consequences of head trauma. Despite concerns being raised for many years about the risk to player health, it took until December 2009 for the NFL to advise its teams that players should not return to play or practice on the same day that they suffer a concussion. But the NFL was not alone in viewing concussion as a relatively mild problem. Physicians also did not worry very much about the medical consequences of concussions. For decades, neurologic experts disagreed as to whether concussions could cause permanent injury, with many attributing patient symptoms to psychological issues or to the incentives created by compensation programs for people with disabling conditions. While the NFL may have responded slowly to problems from concussion, the extent to which its response was unreasonable is unclear. If many medical experts did not worry about concussions, it is difficult to fault the NFL for not worrying either. Still, one can question the NFL’s failure to adopt concussion guidelines in the late 1990’s when they were being issued by medical experts.Item Concussions and Sports: Introduction(2014) Orentlicher, David; Robert H. McKinney School of LawWhile it has become clear that concussion is a serious problem in football and other sports, it is not clear how best to respond to the problem. When athletes suffer concussions — or injuries that might be a concussion — what steps should be taken? More importantly, has the response to concussion focused too much on management of concussive injury and not enough on prevention of harm? This article provides an introduction to a symposium that sheds light on a number of questions about concussions and sports, from both theoretical and empirical perspectives. The papers inform our understanding about the adoption, implementation, and effectiveness of state statutes and other policies designed to reduce the harm from concussions. Ultimately, we must ask whether some sports are so dangerous that they should no longer be played. It is one thing to assume risks to health when there are meaningful benefits to be gained. But there are many ways to exercise, develop teamwork skills, or gain the other benefits of competitive athletics without playing football or other sports that lead to concussion. Ultimately, the social value of violent sports seems to rest heavily on the entertainment they offer to spectators. And that should lead us to ask whether there is any legitimate role for the levels of physical violence that we tolerate in sport.Item Cost Containment and the Patient Protection and Affordable Care Act(2010) Orentlicher, DavidFor decades, the U.S. health care system has grappled with two key problems – inadequate access to coverage and increasingly unaffordable health care costs. Paradoxically, the U.S. spends far more of its gross domestic product (GDP) on health care than do other economically-advanced democracies, yet provides health care insurance to fewer of its citizens. During the debate that led to the enactment of the Patient Protection and Affordable Care Act, public officials recognized the need to address the problems of both access and cost, but in the end, the Act does far more about increasing access than it does about cutting costs. This result is not surprising. As a matter of politics, it is much easier to sell the public on more benefits than greater sacrifice, so cost control was largely left to another day. To be sure, taking a wider-coverage-first, cost-containment-second approach is not unique to the Affordable Care Act. Health care reforms typically expand access initially and envision cost containment as the next step. That was the approach of Medicare and Medicaid in 1965; it also was the strategy for Massachusetts when it passed its health care reform in 2006. Still, we are left with the question whether future Congresses will implement the measures necessary to tame health care cost inflation or whether uncontrolled costs will cause the Affordable Care Act to unravel.Item Deactivating Implanted Cardiac Devices: Euthanasia or the Withdrawal of Treatment(2013) Orentlicher, DavidItem Economic Inequality and College Admissions Policies(2016) Orentlicher, David; Robert H. McKinley School of LawItem Employer-based Health Care Insurance: Not So Exceptional After All(2014) Orentlicher, David; Robert H. McKinley School of LawFor some time, it has been common for policy experts to criticize the U.S. health care system’s reliance on employer-sponsored insurance. For individuals, access to health care coverage before enactment of the Affordable Care Act (ACA) often depended on employment with companies that provided good benefits. For companies, the connection between employment and health care coverage is thought to impose a competitive disadvantage with overseas counterparts, who do not have to provide health care coverage as an employee benefit. But the problems with employer-based coverage have been overstated and misfocused. While the United States may be unusual in its reliance on employer-sponsored insurance, U.S. employers are not exceptional in terms of their role in financing health care spending. Employers in France, Japan, and the Netherlands also shoulder a high percentage of their countries’ health care costs. Moreover, American businesses likely would not see a decrease in their share of health care spending even if the United States overcame political obstacles and adopted a government-operated, single-payer system. Instead of contributing to the cost of their employees’ private health care coverage, employers would have to contribute to the cost of the payroll or other tax that would fund single-payer care. There is less benefit than meets the eye for employers from an elimination of employer-sponsored coverage. The adoption of ACA diminishes even further the incentives to discard employer-sponsored coverage. Experts rightly criticized the effect of employer-sponsored coverage on workplace mobility. But the "job lock" problem largely disappears under ACA. Now, the entrepreneur will be assured of access to federal subsidies for the purchase of affordable, community-rated insurance. If there is an argument for abandoning employer-based coverage, it lies in concerns about cost containment. While U.S. employers may not bear a disproportionate share of health care costs compared to their overseas counterparts, their total employment costs may be driven up because health care spending is so high in the United States. But even if individuals were to purchase their policies directly from insurers or receive their coverage from the government, concerns about costs would exist. What is more important is that governments in other countries play a much bigger role than does the U.S. government in limiting health care spending. In other words, the role the government plays in regulating health care prices — whether paid by private or public insurers — is much more important than whether employers play a major role in the health care system.Item The FDA’s Graphic Tobacco Warnings and the First Amendment(2013) Orentlicher, DavidIn the past, the government enjoyed broad authority to regulate tobacco or pharmaceutical advertising. Protection for commercial speech was weak, and state power to protect the public health was strong. But the U.S. Supreme Court has changed course. Corporate speech rights have become robust, and the justices exhibit less deference when the state exercises its public health authority. As a result, government is much more susceptible to challenge when it tries to regulate the promotional activities of cigarette manufacturers or pharmaceutical companies. This "Perspective" piece illustrates the evolution of First Amendment doctrine for public health regulations with a discussion of the Food and Drug Administration's graphic warnings for cigarette packages. Even though textual warnings for cigarettes have been upheld, and even though the U.S. Court of Appeals for the Sixth Circuit recognized a role for some color image warnings, the U.S. Court of Appeals for the D.C. Circuit rejected the FDA's actual graphic warnings (which were developed pursuant to a graphic warnings mandate from Congress). Rather than seek Supreme Court review, the FDA decided to revise its graphic warnings. In the meantime, we are left with some important questions about the factors that distinguish between permissible and impermissible graphic warnings.