Proponents of the 2010 Patient Protection and Affordable Care Act (PPACA) justify the Act's mandate that uninsured individuals either purchase a minimally defined health insurance policy (“Maintain Minimum Essential Coverage”) or pay a fine, as a necessary and proper exercise of Congress's express constitutional power to regulate interstate and foreign commerce. The United States Supreme Court will decide the correctness of that highly debatable position during its spring 2012 session.

Assuming, without by any means predicting, that the validity of all parts of the PPACA—including the individual insurance mandate—is upheld, the Court's (likely multiple) opinions will constitute a major development in the evolution of American constitutional jurisprudence, even if Congress subsequently repeals specific sections of the legislation. Several commentators have expressed concern about the ramifications of a judicially validated PPACA for attempts by the government, especially through the mechanism of Comparative Effectiveness Research (CER), to limit or ration particular forms of potentially beneficial medical care for some or all patients.

The Patient Protection and Affordable Care Act of 2010 (PPACA) purportedly assures almost all Americans of the right to health insurance coverage. The long-term success of this legislation in improving the public’s health in the United States will likely hinge in no small part on the degree to which statutorily establishing a right to health insurance coverage translates into actual timely, meaningful access to health services, particularly physician services, for specific individuals.

Thirty years ago when I, an attorney, took a tenure-track faculty position at an innovative, newly opened medical school, I was an oddity — truly, a stranger in a strange land. Today it is not uncommon for American medical schools to employ an attorney as a tenured or tenure-track member of its faculty. Over these last three decades, the educational roles and responsibilities of health law faculty who teach in law schools have become increasingly well defined, with numerous health law courses and textbooks now generally accepted as part of the typical law school curriculum. However, the roles and responsibilities of attorney faculty members who teach in medical schools remain less clearly defined and likely are more individualized to the particular medical schools in which they teach. This essay explores some of the challenges and the opportunities which are given to attorney faculty members who teach in medical schools.

Health care for the elderly, already a major social concern in the United States, is fated to become even more dominant on our social, political, and legal agendas. The effect on the nursing home industry and nursing home law will border on the revolutionary.

In a review of the “prospects for an ageing population,” Jacob Brody observed that:

A report of the Congressional Office of Technology Assessment (OTA) notes the same trend and gives a sense of the numbers involved:

Although in its 1986 Report on medical malpractice, the General Accounting Office found “No Agreement on the Problem or Solution,” it is readily apparent to any participant in or informed observer of health care delivery in the United States today that problems do exist regarding both the occurrence of medically-induced patient injuries and the management and resolution of medical liability claims. Public policymakers, on both the federal and state levels, have devoted a great amount of attention and energy in the past several years to attempts to devise solutions to these troubling patient injury and provider liability difficulties, difficulties that arguably impact negatively on the quality of medical care, its accessibility, its costs, the physician/patient relationship, and the progress of medical innovation. Private organizations have also undertaken initiatives in this area.

The authors present a case study to illustrate how a mentally impaired but socially intact nursing home resident, who had no one to act as an advocate for her, was denied appropriate treatment for an acute illness which ultimately resulted in her death. The case raises important questions about advocacy for the mentally-impaired, acutely-ill institutionalized patient. This Article explores the role of the advocate, how advocates are selected, what qualities and talents they should possess, and what responsibilities should be assigned to them. The authors suggest that nursing home residents should be encouraged to engage in self-advocacy to the greatest extent possible. The competent elderly should be urged to name their preferred advocates. Individuals who serve in advocacy roles should be advised to seek information regarding the patient's wishes from those who know the patient well. Furthermore, there is a need for quality education and training of those who serve in advocacy roles on behalf of nursing home residents, and state laws need to specify the responsibilities of persons who serve as advocates.