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Contents - JLME - 2010 Volume 38: 1
Table of Contents
  1. Table Of Contents
Letter From The Editor
  1. Letter From The Editor
Symposium Articles
  1. Introduction
  2. The Hippocratic Bargain and Health Information Technology
  3. Health IT and Solo Practice: A Love-Hate Relationship
  4. The Impact of Web 2.0 on the Doctor-Patient Relationship
  5. Health Information Technology and the Idea of Informed Consent
  6. The Physician-Patient Relationship and a National Health Information Network
  7. Health Information Exchange in Memphis: Impact on the Physician-Patient Relationship
  8. Ethics, Information Technology, and Public Health: New Challenges for the Clinician-Patient Relationship
  9. Dreams and Nightmares: Practical and Ethical Issues for Patients and Physicians Using Personal Health Records
  10. Prescription Data Mining and the Protection of Patients' Interests
  11. Aligning Ethics with Medical Decision-Making: The Quest for Informed Patient Choice
  12. Television Food Marketing to Children Revisited: The Federal Trade Commission Has the Constitutional and Statutory Authority to RegulateTelevision Food Marketing to Children Revisited: The Federal Trade Commission Has the Constitutional and Statutory Auth
  13. The Management of Incidental Findings in Neuro-Imaging Research: Framework and Recommendations
  14. State Tort Reforms and Hospital Malpractice Costs
Independent Articles
  1. Physicians' "Right of Conscience" - Beyond Politics
  2. The 2008 Declaration of Helsinki - First among Equals in Research Ethics?
Columns
  1. Currents in Contemporary Ethics
  2. Teaching Health Law
  3. Recent Case Developments in Health Law
Table of Contents
Table Of Contents
Letter From the Editor
Letter From The Editor
ASLME - [PDF]

The fundamental ideas that underpin the concept of health information technology (HIT) are relatively simple ones: that by using computers, electronic databases, and the internet, medical professionals will be better prepared to serve patients by having a uniform, easily accessible, and universally used method for keeping patients' medical records. And the time appears to be right for medical recoding-keeping to move into the 21st century, as both the health care reform movement and 2009's American Recovery and Reinvestment Act
Symposium Articles
Introduction
Melissa M. Goldstein and Mark A. Rothstein - [PDF]

Information technology is considered a potentially transformative element in the field of health care by purchasers, regulators, providers, vendors, and consumers alike. Emerging technologies, such as electronic health records (EHRs), personal health records (PHRs), and electronic health information exchange (HIE), offer the possibility of securely providing accurate health information to both patients and providers when and where it is needed. Although health information technology (HIT) adoption is in its earliest stages, with diffusion of the technology still relatively limited,1 there is growing belief in its potential to affect the operation of the entire health care system as a result of the vast amount of information that will become available to both health professionals and patients.
The Hippocratic Bargain and Health Information Technology
Mark A. Rothstein - [PDF]

Since the fourth century, B.C.E., the Oath of Hippocrates has been the starting point in analyzing the obligations of physicians to protect the privacy and confidentiality interests of their patients. The pertinent provision of the Oath reads as follows: "What I may see or hear in the course of the treatment or even outside of the treatment in regard to the life of men, which on no account must be spread abroad, I will keep to myself, holding such things shameful to be spoken about."
Health IT and Solo Practice: A Love-Hate Relationship
Joseph Heyman - [PDF]

On April 1, 2001, I joined the world of Health Information Technology. I started a solo gynecology practice with no income and only expenses. I hired a medical assistant to be my front desk person and my clinical helper. I rented a smaller space than most physicians could use for this purpose because my plan was to use technology to avoid both chart storage as well as the people needed to maintain a medical record library.
The Impact of Web 2.0 on the Doctor-Patient Relationship
Bernard Lo and Lindsay Parham - [PDF]

roger jenkins is a 52-year-old with diabetes mellitus. He measures his glucose at home twice a day and enters his measurements into his personally controlled health record (PCHR). He also enters into the PCHR data about his functional status, quality of life, weight, and exercise habits. These data are transmitted to his physician and to a nurse in a chronic disease management program, who provides individualized advice on diet, exercise, and other steps that Mr. Jenkins can take to achieve his health goals. Moreover, the PCHR reminds him to refill his prescriptions, schedule his annual visit to the podiatrist and ophthalmologist, or come in for recommended blood tests. Mr. Jenkins' podiatrist and ophthalmologist have offices separate from the small group practice of his internist. However, the PCHR gives them access to his test results, medication list, and his internist's notes. The PCHR record also offers Mr. Jenkins links to websites that provide trustworthy health information. Furthermore, he can link to social networking groups of people with diabetes.
Health Information Technology and the Idea of Informed Consent
Melissa M. Goldstein - [PDF]

As policy makers place great hope in health information technology (HIT) as a means to lower costs and achieve improvements in health care quality, safety, and efficiency, organizations at the forefront of building health information exchange (HIE) networks attempt to weave the concept and function of informed consent into an evolving information-driven health care system. The vast amount of information that will become available to both health professionals and patients in the new HIT-driven environment can reasonably be expected to affect the relationship between them in many ways, particularly in the area of informed consent. During this early stage of HIT adoption, it is critical that we engage in discussions regarding informed consent's proper role in a heretofore unknown health care environment - one in which electronic information sharing holds primary (and possibly rightful) importance. The central and largely unexamined question of whether and how the legal and ethical underpinnings of informed consent will fit into the context of HIT-enabled treatment is critical to both public policy and clinical practice.
The Physician-Patient Relationship and a National Health Information Network
Leslie Pickering Francis - [PDF]

The United States, like other countries facing rising health care costs, is pursuing a commitment to interoperable electronic health records. Electronic records, it is thought, have the potential to reduce the risks of error, improve care coordination, monitor care quality, enable patients to participate more fully in care management, and provide the data needed for research and surveillance. Interoperable electronic health records on a national scale - the ideal of a national health information network (or NHIN) - seem likely to magnify these advantages. Thus, the recent economic stimulus package contains considerable funding for the development of "health information technology architecture that will support the nationwide electronic exchange and use of health information in a secure, private, and accurate manner."
Health Information Exchange in Memphis: Impact on the Physician-Patient Relationship
Mark E. Frisse - [PDF]

Introduction Patients and their physicians frequently make important health care decisions with incomplete information. Memory fails; records are incomplete; the onset of significant events is confused with other life stories; and even the most basic information about medications, laboratory tests, allergies, and problems is often the result of guesswork. As providers and as patients, we suffer because information vital to health care is not available when and where it is needed.1 Data required for care are dispersed across various settings and represented in a range of formats; incentives to bring these data together do not exist.
Ethics, Information Technology, and Public Health: New Challenges for the Clinician-Patient Relationship
Kenneth W. Goodman - [PDF]

One of the largest, oldest, and most interesting challenges in health care is the balancing act in which clinicians have generally uncontroversial duties both to individual patients and to communities. Physicians and nurses must - so we teach them - put patients first, and at the same time recognize that individuals are members of communities. Individuals affect the health of communities, and communities affect the health of individuals. Thus, the moral and professional duties that result are sometimes in conflict.
Dreams and Nightmares: Practical and Ethical Issues for Patients and Physicians Using Personal Health Records
Matthew Wynia and Kyle Dunn - [PDF]

Introduction and Definitions The term "Electronic Health Records" (EHR) means something different to each of the stakeholders in health care, but it always seems to carry a degree of emotional baggage. Increasingly, EHRs are advertized as a nearly unmitigated good that will transform medical care, improve safety and efficiency, allow better patient engagement, and open the door to an era of cheap, effective, timely, and patient-centered care.1 Indeed, for some EHR proponents the benefits of adopting them are so obvious that adoption has become an end in itself.2 But for others - and especially for a number of skeptical practitioners and patients - EHR is a code word that portends the corporate transformation of health care delivery, the loss of patient privacy, the demand that patients bear more responsibility in health care, and the unreflective takeover of the health care system by people who do not understand medical care or how health care relationships unfold.
Prescription Data Mining and the Protection of Patients' Interests
David Orentlicher - [PDF]

Pharmaceutical companies have long relied on direct marketing of their drugs to physicians through one-on-one meetings with sales representatives. This practice of "detailing" is substantial in its costs and its number of participants. Every year, pharmaceutical companies spend billions of dollars on millions of visits to physicians by tens of thousands of sales representatives.
Aligning Ethics with Medical Decision-Making: The Quest for Informed Patient Choice
Benjamin Moulton and Jaime S. King - [PDF]

Medical practice should evolve alongside medical ethics. As our understanding of the ethical implications of physician-patient interactions becomes more nuanced, physicians should integrate those lessons into practice. As early as the 1930s, epidemiological studies began to identify that the rates of medical procedures varied significantly along geographic and socioeconomic lines.1 Dr. J. Alison Glover recognized that tonsillectomy rates in school children in certain school districts in England and Wales were in some cases eight times the rates of children in other districts, with the only significant predictive factors being the current chief medical officer in the area and the socioeconomic well-being of the child's parents.
Television Food Marketing to Children Revisited: The Federal Trade Commission Has the Constitutional and Statutory Authority to RegulateTelevision Food Marketing to Children Revisited: The Federal Trade Commission Has the Constitutional and Statutory Auth
Jennifer L. Pomeranz - [PDF]

In response to the obesity epidemic, much discussion in the public health and child advocacy communities has centered on restricting food and beverage marketing practices directed at children.1 A common retort to appeals for government regulation is that such advertising and marketing constitutes protected commercial speech under the First Amendment. This perception has allowed the industry to function largely unregulated since the Federal Trade Commission (FTC)'s foray into the topic, termed KidVid, was terminated by an act of Congress in 1981.2 The FTC has since focused on self-regulation as a potential solution to such concerns.3 However, this method of control has proven ineffective to protect children,4 and has led to growing recognition that federal regulation may be necessary.
The Management of Incidental Findings in Neuro-Imaging Research: Framework and Recommendations
Erica K. Rangel - [PDF]

With improved diagnostic capability and accuracy, the fields of medicine, neuroscience, psychiatry, and psychology have benefitted remarkably from the dramatic advancements in neuroimaging technology. Not only can surface and subsurface structures of the brain be mapped with incredible anatomical detail (with magnetic resonance imaging), now neural activity can be imaged across time as the brain responds to different stimuli (with functional magnetic resonance imaging). These sophisticated techniques have been a vital element in the recent increase in neuroimaging- based research.
State Tort Reforms and Hospital Malpractice Costs
Charles R. Ellington, Martey Dodoo, Robert Phillips, Ronald Szabat, Larry Green, and Kim Bullock - [PDF]

Medical liability remains a major concern among U.S. physicians, and according to the American Medical Association (AMA) the United States is currently experiencing its third full-blown medical liability crisis with many physicians limiting their practices as a result of rising malpractice costs.1 The AMA, many in the medical community, and several prominent politicians including former president George W. Bush have called for medical liability reform including caps on non-economic damages. Some researchers argue that the medical liability crisis has been overdrawn.
Independent Articles
Physicians' "Right of Conscience" - Beyond Politics
Azgad Gold - [PDF]

Recently, the discussion regarding the physicians' "Right of Conscience" (ROC) has been on the rise. This issue is often confined to the "reproductive health" arena (abortions, birth control, morning-after pills, fertility treatments, etc.) within the political context.1 The recent dispute of the Bush-Obama administrations regarding the legal protections of health workers who refuse to provide care that violates their personal beliefs is an example of the political aspects of this dispute.
The 2008 Declaration of Helsinki - First among Equals in Research Ethics?
Annette Rid and Harald Schmidt - [PDF]

The World Medical Association's (WMA) Declaration of Helsinki is one of the most important and influential international research ethics documents. Launched in 1964, when ethical guidance for research was scarce, the Declaration comprised eleven basic principles and provisions on clinical research. The document has since evolved to a complex set of principles, norms, and directions for action of varying degrees of specificity, ranging from specific rules to broad aspirational statements.
Columns
Currents in Contemporary Ethics
Mark A. Rothstein - [PDF]

There is widespread concern among public health and emergency response officials that there could be a shortage of health care providers in a public health emergency. At least the following three factors could cause an inadequate supply of physicians, nurses, and other health care providers: (1) the severity of the emergency might greatly increase the demand for health services and outstrip the available supply; (2) health care providers might become unavailable because of their own high rates of illness, as was the case in the SARS epidemic; and (3) many health care providers might not report for duty for personal, family, or professional reasons.
Teaching Health Law
Elizabeth Pendo - [PDF]

Last summer, I was thinking about a public service project for my disability discrimination law course. I teach the course in fall, and try to incorporate a project each year. Integrating a public service project into a traditional doctrinal course fits within the trend toward expanding teaching techniques beyond the case method in order to better prepare students for the practice of law.
Recent Case Developments in Health Law
Stacy Clark - [PDF]

In September 2009, the First Circuit Court of Appeals decided Blue Cross & Blue Shield v. AstraZeneca Pharmaceuticals LP, part of the class action suit known as In re Pharmaceutical Industry Average Wholesale Price Litigation.1 The First Circuit upheld a Massachusetts District Court finding that AstraZeneca violated Massachusetts' consumer protection laws by manipulating the "average wholesale price" of its physician-administered injectable cancer drug Zoladex, leading to overpayment by the government, third-party payers, and consumers.2 This case, which highlights the persistent tension between pharmaceutical pricing flexibility and consumer protection, has important implications for similar pending class actions.