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Bar Journal - Spring 2007



The articles in this issue of Bar Journal, “Health care & the Law” illustrate the important  relationship between policymaking and the law. Initially this issue was titled, “Health Care Law,” but that title seemed too confining, suggesting a narrow focus on a single legal niche. Instead the articles in this issue of Bar Journal offer multiple perspectives on the broader issues of the interaction of our health care and legal systems. Thanks go to Suzanne Foster, who launched this enterprise while working for the legal department at the Elliot Health System before relocating to Boston, and Michael DeLucia, chair of the Bar Journal Editorial Advisory Board, who once again capably steered the issue into port.


Andrew Eills leads off with an article on the “Federal Deficit Reduction Act of 2006,” a major part of which focuses on combating fraud in federal and state-funded health insurance programs that are among our largest government programs and have a huge impact on hospitals’ income and physicians’ livelihoods. Eills’ analysis covers, among other topics, the interplay between federal and state law in encouraging “whistleblowers” who may detect fraud conducted by others in the organizations in which they work. Eills does not overlook discussion of the broader aims of these laws, which should concern all of us — curbing the high cost of healthcare.


Speaking of costs, Leslie Ludtke and Tyler Brannen of the New Hampshire Insurance Department, conduct a guided tour of the complicated workings of healthcare pricing, and the valiant efforts by some to develop a means of comparing the “prices” charged by various health organizations for the same procedures. This work, clearly a work-in-progress, is in furtherance of the cause of making healthcare more “consumer-driven.” Again, the ultimate aim is slowing the inflation in the cost of health care.


The next series of articles represent a more traditional focus for Bar Journal:


- Attorneys David Wolowitz and Jeanmarie Papelian analyze the recent Berg case, a decision that challenges old notions of the privilege of confidentiality between therapists and patients, and, even more profoundly, the rights of parents to make decisions on behalf of their minor children.


- Shawn LaFrance, executive director of the Foundation for Healthy Communities, and attorney Melissa Leaver provide an introduction and detailed guide to a new set of laws on advance healthcare directives and Do Not Resuscitate orders. LaFrance, a non-attorney healthcare policy expert, led a group of attorneys, healthcare professionals, and lawmakers in a successful multi-year effort to revise New Hampshire statutes and craft more effective language for healthcare decision-making documents.

      - Attorneys Holly Haines and Kevin Dugan teamed up to examine the implementation and prospects of the new medical malpractice screening law, providing details on why the new process – aimed at speeding resolution of these cases, and the elimination of frivolous claims—has been slow in starting. They argue forcefully that the process won’t meet its goals.  They buttress their case with reports from the experiences of other states that have adopted, and abandoned, similar legislative models. Several constitutional arguments are raised, most of which aren’t ripe for review, that will inevitably need to be confronted.


- Nancy Smith, from the New Hampshire Attorney General’s office, writes an article that could be fodder for a dark science fiction novel as she navigates the difficult territory of how the state would enforce its public safety responsibilities in the face of a potential (and considered highly likely) widespread outbreak of a highly contagious and medication-resistant flu epidemic, while still observing due process protections. The article also moves beyond the policy realm and offers practical suggestions for law firm managers to consider – contingency planning to deal with disaster-scenarios in the event that significant numbers of employees at law firms cannot go to work. A companion article by State Epidemiologist Dr. Jose Montero looks at the prospects for a flu pandemic and other aspects of public health planning in this area.


The remaining articles deal with policy-making and implementation in improving the health of New Hampshire’s citizens. Dorothy Bazos and Anna Thomas provide the viewpoint from one city, Manchester, that is working to increase healthcare access, while James Squires and Sandi Van Scoyoc provide statewide perspectives on access and health improvement issues.


Lastly, attorney Cheryl Driscoll explains how practicing attorneys are pursuing the improvement of NH citizens’ health literally on the front lines of the healthcare delivery system. Driscoll is the lead attorney in the Child Health Services Clinic Project  – a collaboration between an independent clinic in Manchester serving children in low-income families and New Hampshire Legal Assistance. Driscoll and other NHLA attorneys are working side-by-side with medical professionals to identify and tackle legal issues that are affecting the health of the clinic’s young patients while also receiving input and insights into problems faced by these vulnerable citizens that NHLA can use in its broader policy, law-changing efforts.


Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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