In this issue, Raphael Cohen-Almagor reviews some of the terms used in the discussion of bioethical issues at the end of a patient's life; he argues that they are “valueladen” and serve “primarily the physicians, at times at the expense of the patients’ best interest.” Each of the following terms comes under scrutiny: “death with dignity,” “persistent vegetative state,” “futility,” “double effect,” and “brain death.” He argues that these concepts, developed in recent decades, “have generated an unhealthy atmosphere for patients, which might lead to undesirable actions at the end of patients’ lives.” He issues a plea to discontinue the use of the term “persistent vegetative state” because it is dehumanizing, to explain “double effect” and “futility” in detail and with sincerity, and to clarify the motivation for using these terms and others. He warns physicians not to use terminology that is offensive to patients and loved ones or that weakens their patients’ will to live.

As the shield preempting state suits under the Employee Retirement Income Security Act (ERISA) has been successfully pierced (see California Div. Of Labor Standards Enforcement v. Dillingham Constr. N.A. Inc., 519 U.S. 316 (1997) and Duke v. U.S. Healthcare, Inc., 57 F.3d 350 (3rd Cir. 1995)), plaintiff attorneys have begun to use the ERISA statute itself to further litigation against managed care organizations. The court in Shea v. Esensten, 107 F.3d 625 (8th Cir. 1997), held in a landmark decision that an HMO's failure to disclose financial incentives that discourage a treating physician from providing essential health care referrals for conditions covered under the plan benefit structure is a breach of ERISA's fiduciary duties.

The U.S. Supreme Court held 7-2 that an individual harmed by an overt act that is not tortious under the Racketeer Influenced and Corrupt Organizations Act (RICO) does not have a civil cause of action under RICO. Therefore, an individual terminated from his job in furtherance of a racketeering conspiracy does not have a civil cause of action, since such termination is not an “independently wrongful” act under RICO.

The plaintiff, Robert Beck, was the president, CEO, director, and shareholder of Southeastern Insurance Group (SIG). The defendants, including Ronald Prupis, were senior officers and directors of SIG. In 1998, the plaintiff discovered that the defendants were engaged in racketeering. The racketeering activities included refusing to qualify contractors for SIG surety bonds unless they paid fees to SIG; diverting corporate funds for their personal use; and providing regulators, shareholders, and creditors with false financial statements.

The United States Court of Appeals for the Eighth Circuit held that ERISA did not preempt a Minnesota tort claim alleging fraud and negligent misrepresentation against primary-care physicians who failed to disclose their financial incentives to minimize specialist referrals. The original action (“Shea I”) was filed in state court after the plaintiff's husband died of heart failure, alleging that his family doctors had assured him that referral to a cardiologist was unnecessary. The plaintiff filed a wrongful death suit against the doctors, their clinic, and her husband's HMO. Her complaint against the HMO alleged that certain financial incentives built into the HMO-physician contract were designed to minimize referrals to specialists. The HMO removed the case to the District of Minnesota, contending that ERISA preempted the plaintiff's wrongful death claim.

Recent medical studies have indicated that medical professionals discriminate in their treatment practices on the basis of race and gender. Among the many concerns stemming from this realization are questions about the possibility of legal actions and the availability of individual compensation for the denial of equal care. By meeting legal evidentiary standards, the recent statistical data pointing to discriminatory trends have created the potential for legal recourse through Title VI of the Civil Rights Act which prohibits recipients of federal funding from treating people differently on the basis of race or national origin.

On December 7,1999, a divided Oklahoma Supreme Court held in Nealis v. Baird that a claim may be brought under Oklahoma's wrongful death statute on behalf of a nonviable fetus born alive. The decision represents a departure from the traditional notion that “viability”—the ability of a fetus to sustain life outside the womb with or without medical assistance—is the standard for wrongful death recovery. In replacing the “viability” standard with a “live birth” standard, the majority maintained that live birth is the “unassailable point at which legal rights must be said to attach to the human person. “ By holding a nonviable fetus a legal “person” for the purpose of a wrongful death claim, the court's decision emphasizes the limited application of the United States Supreme Court's holding in Roe v. Wade that a fetus is not a person for the purposes of the Fourteenth Amendment.

The United States Court of Appeals for the Third Circuit held that when quitam relators file a multi-claim complaint under the Fraudulent Claims Act (FCA), their share of the proceeds must be based on an individual analysis of each claim. More importantly, the court held that relators are not entitled to any portion of the settlement of a specific claim if that claim was subject to dismissal under section 3730(e)(4) Relator Merena filed a quitam suit against his employer, SmithKline Beecham (SKB), claiming, among other things, that SKB defrauded the government by billing for laboratory tests that were not performed, paying illegal kickbacks to health care providers, and participating in an “automated chemistry” scheme. Soon thereafter, additional relators filed suit.

The recent high-profile financial difficulties of Harvard Pilgrim Health Care, the largest HMO in Massachusetts and consistently rated as one of the top ten HMOs in the nation, shed light on many problems common to health insurers throughout the country. This article explores those difficulties in the context of the short but complicated history of Harvard Pilgrim, and its regulatory and competitive environments. The state legislation which made a receivership proceeding possible for Harvard Pilgrim offered some protection for subscribers, but failed to provide the means for achieving a long term solution. The statute merely presented a method for staving off immediate collapse by temporarily protecting the plan from dissolution, and forcing the plan's contracting providers to continue delivering care even if owed money by the plan. The article concludes by drawing lessons for understanding and ideally avoiding similar managed care nearfatalities in the future.

The Office of the Inspector General issued an advisory opinion in April announcing that an arrangement to provide various services free of charge to patients with terminal illnesses who have a prognosis of one year or less to live (the “Program”) does not constitute grounds for sanctions under either the anti-kickback statute, section 1128(b) of the Social Security Act, or under section 1128A(a)(5) of the Act, which prohibits offering of inducements to beneficiaries to influence their selection of a provider for Medicare or Medicaid covered services.

The Hospice Foundation of Martin & St. Lucie, Inc., is a Florida nonprofit organization that acts as the supporting foundation for the Hospice of Martin & St. Lucie, Inc., a nonprofit organization that provides various end-of-life services.

In December 1998, the Office of Inspector General (OIG) and the Health Care Financing Administration (HCFA) solicited comments from health care providers regarding the federal anti-patient dumping statute, the Emergency Medical Treatment and Active Labor Act (EMTALA) (42 USCA §1395dd). EMTALA is a federal health care law of unprecedented breadth—the first universal benefit guaranteed by the federal government. It requires Medicare-participating hospitals with public emergency rooms, emergency physicians, and ancillary surgical and medical specialists to render adequate stabilizing treatment to whoever requests it. The 1998 Special Advisory Bulletin (63 FR 67486-01) sought input on four principal dimensions of EMTALA: (1) the statutory obligation to furnish adequate medical screening to anyone who visits an emergency room; (2) the responsibilities of health care providers towards enrollees of managed care organizations (MCOs); (3) the prior authorization and payment rules for Medicare and Medicaid; and (4) what practices would promote hospital compliance with EMTALA.

In Kimber v. Thiokol Corp., 196 F.3d 1092 (10th Cit. 1999), the U.S. Court of Appeals for the Tenth Circuit upheld a U.S. District Court's grant of summary judgment against an employee's claim that an employeroperated disability insurance plan, which offered different levels of compensation for disabilities due to mental and physical conditions, violated Title I of the Americans with Disabilities Act (ADA). The Court of Appeals found that (1) the Thiokol plan administrator's interpretations of the plan were not arbitrary and capricious, and that (2) the plan's different treatment of disabilities caused by physical and mental conditions did not violate the ADA.

On March 29,2000, in U.S. v. Wood, the U.S. Court of Appeals for the Tenth Circuit held that a physician cannot be convicted of murder simply for adopting, in an emergency setting, a risky course of treatment intended to prolong life that, when carried out, effectively hastened death. Finding the government's evidence flawed, based on several evidentiary errors and an erroneous denial of a motion for judgment of acquittal on murder charges, the court reversed the conviction of involuntary manslaughter and ordered a new trial.

Virgil Dykes, an 86-year-old man, was suffering from severe abdominal pain when he arrived at the Veterans Administration hospital in Muskogee, Oklahoma, on February 5, 1994.