Loyola University Chicago

Beazley Institute for Health Law and Policy

School of Law

Volume 16 (2006-2007)

Annals of Health Law
The Health Policy and Law Review of Loyola University Chicago School of Law

Volume 16 (2006-07)


Jeanna M. Palmer

Publications Editor:
Charisse S. Logarta 

Technical Prod. Editor:
Chetana Rao

Correspondence Editor:
Kevin C. Rasp

Colloquium Editor:
Danielle W. Powers



Senior Editors:
Margaret M. Fitzsimmons
Jonathan Loiterman
Jessica O'Leary

Mary Pozarycki
Christina Wiles


Clemon Ashley
Jennifer Ballard
Katherine Christy
Jacqueline M. Helmrick
Karen Henley
Ligaya Hernandez
Melissa Irving

Brooke Izard
Bethany Kolenic
Karoline Kreuser
Eunice Lee
Rebecca McClintock
Kristin Schleiter
Michelle Miladinov

Megan Simpson
Robert Tateoka
Kostas Tsonis
Jessica Turner
Maura Ward 
Tania Yusaf

Issue 1, Winter 2007



"Just Scanning Around" with Diagnostic Medical Ultrasound: Should States Regulate the Non-Diagnostic Uses of This Technology?
Author: A. Alexander. M.D., J.D., LL.M.

This article examines how the non-diagnostic uses of medical ultrasound may violate the prudent use of this technology and supports the proposal of state-based legislative efforts to protect consumers from abuse. The author identifies the potential health risks to consumers and reviews the existing federal and state regulations, ultimately recommending increased legislation and mandated control of this technology.

Excusable Neglect in Malpractice Suits Against Radiologists: A Proposed Jury Instruction to Recognize the Human Condition
Author: Charles Caldwell, M.D., M.A. & Evan R. Seamone, J.D., M.P.P.

This article unwraps the nature and source of human errors involved in Radiology, revealing unique elements of the specialty that warrant special consideration in medical malpractice cases. The authors compare these errors to negligent practices in other professions and conclude that a general concept of negligence cannot adequately address the complexities of decision-making in Radiology. After analyzing legal precedent, they develop an innovative jury instruction that recognizes particular situations of error in Radiology that occur in the absence of negligence.

Give Them What They Want? The Permissibility of Pediatric Placebo-Controlled Trials Under the Best Pharmaceuticals for Children Act
Author:  Holly Fernandez Lynch, J.D., M. Bioethics  

This article discusses the Best Pharmaceuticals for Children Act and the FDA's request for placebo-controlled studies of drugs to treat OCD and depression in children. First, the article explains the need to test drugs in children and examines the reasons this testing has not occurred. Next, the article describes the legislative and administrative responses to remedy this lack of research and assesses the ethics and legality of their implementation. The article concludes that these initiatives are legally and ethically acceptable until a safe and effective treatment is determined--at which point the use of placebos in pediatric testing must be replaced with active controls.

Releasing Managed Care's Chokehold on Healthcare Providers
Author:  Kristin L. Jensen, J.D.  

This article addresses the imbalance of power between managed care organizations and physicians regarding the content of treatment information given to patients. The author provides a thoughtful discussion surrounding informed consent issues in a managed care environment, and how managed care organizations maintain their control over physicians. The author concludes by offering varied and insightful methods to even out the disparity of power. 

Will Pay for Performance Be Worth the Price to Medical Providers? A Look at Pay for Performance and Its Legal Implications for Providers
Author:  Stacy L. Cook, J.D., LL.M.  

This article explores the legal implications of pay for performance programs from the perspective of healthcare providers. The author provides an informative background on the emergence of pay for performance programs and examines the structure and operation of these programs. She then explores the liability issues of health plans and managed care organizations and delves into evidentiary issues related to pay for performance information. Her article concludes with some practical suggestions for providers in preparing for an expansion of these quality initiatives.


Issue 2, Summer 2007

Defending Hospital Mergers After the FTC's Unorthodox Challenge to the Evanston Northwestern-Highland Park Transaction
  Tom Campbell, J.D.

Examining the Federal Trade Commission's retrospective challenge of a hospital merger in Illinois, the author provides an insightful analysis of one of the agency's major antitrust enforcement initiatives in health care in the last several years.  Because the case produced several departures from antitrust orthodoxy, these departures may affect the trials of future hospital mergers that are challenged.  The author reviews the methodology and evidence of the case, and he identifies theories and best practices that are important for administrators and legal practitioners to implement in future mergers.

HPSA and the Anti-Kickback Safe Harbor:  Are We Sending Doctors to the Right Neighborhoods?
Keri L. Tonn, J.D., M.S. 

This article explores the problems within a niche area of health law, the Health Professional Shortage Area (HPSA) safe harbor of the Anti-Kickback Statute. The author advocates for its removal by discussing how the HPSA designation is being used incorrectly to curb fraudulent behavior and how the current provision serves few hospitals. The author concludes by suggesting innovative solutions to remedy the problems with the current HPSA designation system.

Gavels in the Nursery: An Appellate Court Shuts Out Parents and Physicians    From Care Decisions
Kellie R. Lang, J.D., R.N., Steven Leuthner, M.D., M.A., & Arthur R. Derse, M.D., J.D.

This article explores a recent Wisconsin Court of Appeals decision in a medical malpractice case and its ramifications regarding Wisconsin’s informed consent statute. The authors compare and contrast this decision with previous Wisconsin Supreme Court cases and consider the relevance of applicable federal law. The article presents a thoughtful analysis of how the Wisconsin Court of Appeals should have approached the issue, as well as how it created potential conflicts regarding the ethical duties of healthcare providers treating children.

Electronic Healthcare Data Collection and Pay-For-Performance: Translating Theory Into Practice
Author:  Ramesh C. Sachdeva, M.D., Ph.D., D.B.A., J.D., F.A.A.P., F.C.C.M.

With insight grounded in his work for a national data collection consortium and as Vice President of Quality and Outcomes at the Children's Hospital of Wisconsin, the author connects the theory of pay-for-performance to the realities of its implementation. The author expands the Diagnosing the Data conversation by describing the challenges of collecting meaningful data and by addressing the potential legal issues that data use raises. Drawing on his national and local experience, the author concludes with suggestions for adopting data collection programs that are both clinically relevant and scientifically reliable.

Articles from the Sixth Annual Health Law & Policy Colloquium: Diagnosing the Data

The Adoption of Electronic Health Records: Benefits and Challenges
Karoline Kreuser

Transcribed Speech of Kenneth W. Kizer, M.D., M.P.H.

Privacy Laws and their Effect on Healthcare Organizations
Melissa A. Irving

Transcribed Speech of Stephen J. Weiser, J.D., LL.M.

The Dinosaur in the Office: A Consideration of the Technical and Ethical Issues Surrounding the Adoption of Digital Medical Data and the Extinction of the Paper Record
Kristin E. Schleiter

Transcribed Speech of Arthur R. Derse, M.D., J.D.

Performance Data Collection as a Means to Measure Providers' Quality of Care
Karen L. Henley, R.N., B.S.N.

Transcribed Speech of Paul M. Schyve, M.D.

List of Attendees