Article Review
Several articles that may interest a medical humanities audience have appeared on SSRN. Even better, most have full-text links. Topics below the fold include: mental health in the penal system, purchase of human tissue for stem cell research, ERISA preemption and Massachusetts' mandatory health insurance, and a ground-breaking study on the actual effects of physicians' insurance limits on malpractice payouts (in Texas).
What is the True Prevalence of Mental Illness in Jails and Prisons?
Steven K. Erickson (Yale University), John Crilly (Univ. of Rochester), J. Steven Lamberti (Univ. of Rochester Medical Center), Rani Desai (Yale University)
Abstract:
Current discussions regarding persons with severe mental illnesses often center around the criminalization hypothesis and the purported high rates of mental illnesses among jail and prison inmates. Indeed, researchers, advocacy groups, and policymakers alike have suggested that there is an emergent crisis in our criminal justice system because large numbers of inmates are afflicted with mental illnesses such as schizophrenia and related psychotic disorders. Many of these claims center around several studies reporting high rates of mental illness among inmates compared to the general population. However, upon closer inspection, these pioneering studies have several limitations that raise serious questions about the validity of the mental health crisis in America's jails and prisons. Most of these studies are methodologically flawed and include alcohol and drug abuse as well as antisocial personality disorder within their definition of mental illness. Once these confounding factors are removed, the data suggests that the rates of severe mental illness among inmates is nearly identical to the general population. This article reviews these prevalence studies and posits that criminogenic risk factors better explain the risk of incarceration among persons with severe mental illnesses.
*Full-Text Available
This sounds like a fascinating paper. Though the penal system is rich fodder in general, one of my own interests, tracking disability studies, is the role mental illness plays in shaping penal experiences and phenomena. The prevalence of such illness bears (but does not exhaust) on the relationship.
Buying and Selling Human Tissues for Stem Cell Research
Russell B. Korobkin (UCLA - Law)
Abstract:
A series of expert committee reports and legislative proposals suggest an emerging consensus in the medical research and public policy communities that compensation of donors of tissues for stem cell and other biomedical research should be prohibited. Professor Korobkin challenges this consensus by outlining, analyzing, and ultimately rejecting, the leading arguments in favor of no compensation rules: that compensation is coercive, that it inappropriately commodifies the human body, that it will reduce the opportunity for altruistic donations, and that it will increase the cost of important medical research. He then evaluates second-best alternatives to allowing cash compensation for tissues and concludes by comparing the issues raised by compensation for research tissues with those raised by compensation for transplant organs.
*Full-Text Available
The New Massachusetts Health Law: Preemption and Experimentation
Edward A. Zelinsky (Cardozo Law School)
Abstract:
Major features of the new Massachusetts health law are ERISA-preempted as forbidden regulation of employer-provided health care.
This is a regrettable conclusion but one mandated by the ERISA Section 514 and the controlling case law. ERISA preempts the new law's mandate requiring covered Massachusetts employers to sponsor medical plans for their employees and to make "fair and reasonable" contributions to such plans. ERISA also preempts the new law's requirement that Massachusetts residents maintain "minimum creditable coverage" for health care as that requirement effectively mandates for Massachusetts employers the substantive medical coverage they must offer their employees.
Employer-provided medical coverage is today central to health care in the United States. ERISA Section 514(a) precludes the states from experimenting with alternative approaches to health care, like the new Massachusetts health law, which impact employer-provided health care.
At a minimum, Congress should amend ERISA Section 514 to validate the new Massachusetts health law. More comprehensively, Congress should amend Section 514 to permit all states to experiment with health care reform insofar as such experiments "relate to" employer-provided health care. Ideally, Congress should repeal Section 514 and thus abolish altogether the jurisprudence of ERISA preemption.
*Full-Text Available
While concentrating in health law and policy during law school, I was fortunate to take some classes with Mary Anne Bobinski, who is an expert on ERISA in the context of health care, and a serious interest in this technical area of the law was born. As complex as ERISA is, virtually any analysis of U.S. health care is impoverished without a rudimentary understanding of how it impacts health care delivery and quality. As numerous commentators have remarked, ERISA is what happens when intricate mechanisms in bills are amended at the last moment. Unintended consequences, indeed. This looks to be a worthwhile article, and Zelinsky joins the chorus of voices calling upon Congress to abolish ERISA preemption. I wonder -- there are entrenched interests with ample monies that have an interest in maintaining the status quo on this point.
*Full-Text Available
Physicians' Insurance Limits and Malpractice Payments: Evidence from Texas Closed Claims 1990-2003
Kathryn Zeiler (Georgetown - Law), Charles Silver (Univ. of Texas - Law), Bernard Black (Univ. of Texas - Business), David Hyman (Univ. of Illinois - Law), and William Sage (Univ. of Texas - Law)
Abstract:
Physicians' insuring practices influence their incentives to take care when treating patients, their risk of making out-of-pocket payments in malpractice cases, and the adequacy of compensation available to injured patients. Yet, these practices and their effects have rarely been studied. Using Texas Department of Insurance data on 9,525 paid malpractice claims against physicians that closed 1990-2003, we provide the first systematic evidence on levels of coverage purchased by physicians with paid liability claims and how those levels affect out-of-pocket payments and patient compensation. We find that these physicians carried much less insurance than is conventionally believed, that their real primary limits declined steadily over time, that policy limits often act as effective caps on recovery, and that personal contributions by physicians to close claims were rare. Our findings call into question a number of common assumptions about the relationship between physician insuring practices and the medical malpractice liability system.
This is obviously an important paper for anyone with any interest in malpractice and insurance, and we've noted before on this blog the larger significance of malpractice in context of the medical humanities.
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