Journal of Health Politics, Policy and Law current issue

Editor's Note

Sparer, M. S. — 2008-07-10

The Form and Context of Federalism: Meanings for Health Care Financing

France, G. — 2008-07-10

This article examines the meaning of federalism for health care financing (HCF) and is based on two considerations. First, federal institutions are embedded in their national context and interact with them. The design and performance of HCF policy will be influenced by contexts, the workings of the federal institutions, and the interactions of these institutions with different elements of the context. This article unravels these influences. Second, there is no unique model of federalism, and so we have to specify the particular form to which we refer. The examination of the influence of federalism and its context on HCF policy is facilitated by using a transnational comparative approach, and this article examines four mature federations: the United States, Australia, Canada, and Germany. The relatively poor performance of the U.S. HCF system seems associated with the fact that it operates in a context markedly less benign than those of the other national HCF systems. Heterogeneity of context appears also to have contributed to important differences between the United States and the other countries in the design of HCF policies. An analysis of how federalism works in practice suggests that, while U.S. federalism may be overall less favorable to the development of well-functioning HCF policies, the inferior performance of these policies is to be principally attributed to context.

Health Economists' Views of Health Policy

Morrisey, M. A., Cawley, J. — 2008-07-10

This article reports the views of a national survey of U.S. health economists on a series of questions ranging from mergers among health care providers to the profits of pharmaceutical manufacturers to fundamental health care reform. We find a high degree of agreement on issues of fact but considerable disagreement on issues that depend on values. Additional research may help to resolve some remaining disagreement about issues of fact but may do little to resolve disagreement over values. Results from this fall 2005 survey are compared with those from surveys conducted in 1989 and 1995.

Administrative Compensation of Medical Injuries: A Hardy Perennial Blooms Again

Barringer, P. J., Studdert, D. M., Kachalia, A. B., Mello, M. M. — 2008-07-10

Periods in which the costs of personal injury litigation and liability insurance have risen dramatically have often provoked calls for reform of the tort system, and medical malpractice is no exception. One proposal for fundamental reform made during several of these volatile periods has been to relocate personal injury disputes from the tort system to an alternative, administrative forum. In the medical injury realm, a leading incarnation of such proposals in recent years has been the idea of establishing specialized administrative "health courts." Despite considerable stakeholder and policy-maker interest, administrative compensation proposals have tended to struggle for broad political acceptance. In this article, we consider the historical experience of administrative medical injury compensation proposals, particularly in light of comparative examples in the context of workplace injuries, automobile injuries, and vaccine injuries. We conclude by examining conditions that may facilitate or impede progress toward establishing demonstration projects of health courts.

Administrative "Health Courts" for Medical Injury Claims: The Federal Constitutional Issues

Elliott, E. D., Narayan, S. A., Nasmith, M. S. — 2008-07-10

Our article analyzes whether the federal government may constitutionally supplant a traditional system of common-law trials before state judges and juries with new federal institutions designed by statute for compensating victims of medical injuries. Specifically, this article examines the federal constitutional issues raised by various proposals to replace traditional medical malpractice litigation in state courts with a federal system of administrative "health courts." In doing so, we address the following constitutional issues:

Is there federal authority to preempt state law (the commerce clause and spending clause issues)?

May jurisdiction be created in non - article 3 tribunals, and may claims be decided without trial by jury (the separation of powers and Seventh Amendment issues)?

Would pilot programs that require some claims to be pursued in a federal administrative forum while other claimants are left to pursue traditional state tort law remedies be constitutional (the equal protection issue)?

The article concludes that a federal compensation system through administrative health courts should be constitutional provided the statute is appropriately drafted and that appropriate factual findings are made concerning the benefits to patients and the public as well as to doctors and their insurers.

Federal Administrative Health Courts Are Unconstitutional: A Reply to Elliott, Narayan, and Nasmith

Widman, A., Hochberg, F. A. — 2008-07-10

This commentary responds to the essay by Elliott, Narayan, and Nasmith wherein they propose that the federal government may preclude plaintiffs with medically inflicted injuries from bringing state common-law tort claims against those whose negligence caused their injury. The administrative system championed by Elliott and other proponents is a radical departure from the current civil justice system. Specifically, we argue that the administrative health courts, as proposed, violate the commerce clause, the spending clause, the Seventh Amendment, and separation of powers principles. The commentary concludes that such a system is fatally flawed and cannot withstand constitutional scrutiny. Moreover, we are not persuaded that Congress will be able to ground such a radical constitutional restructuring in any sound public policy, as the majority of studies do not evidence Elliott, Narayan, and Nasmith's presumption that the civil justice system has failed in the medical malpractice context.

Comment on Marie Gottschalk's "Back to the Future? Health Benefits, Organized Labor, and Universal Health Care"

Robins, L. — 2008-07-10

Inclusion: The Politics of Difference in Medical Research

Fearnley, A. M. — 2008-07-10

Universal Health Insurance in France. How Sustainable?

Ham, C. — 2008-07-10

Health Care at Risk: A Critique of the Consumer-Driven Movement

Hall, M. A. — 2008-07-10

Books Received

2008-07-10

Contributors

2008-07-10