2013

New Medicine into Old Bottles, Quality and the US Medical System

March 12, 2013
Healthcare, Healthcare Reform, Public Health

by Eric Nielson, UMN Law Student, MJLST Staff

This entry discusses some of the challenges identified in Grout et al.’s article Mistake-Proofing Medicine: Legal Considerations and Healthcare Quality Implications from Volume 14.1 of the Minnesota Journal of Law, Science, and Technology. If you don’t have any health problems, have family with health problems, or pay taxes then the problem probably doesn’t impact you. The rest of this paragraph is about me establishing my credentials on the subject, if you don’t care, feel free to skip ahead. I have worked as an R&D engineer developing medical devices for more than 15 years. I have a Masters in Medical Engineering from the University of Washington. I am an inventor on several medical device patents. I have worked for a very large company and for several startups. I have conducted market research, physician training, product design, FDA filing preparation, process development, product development, and implementation, etc. I have worked at nearly every stage of medical device development. Devices I have worked on are in literally millions of people in the United States.

The medical delivery system in the United States is fundamentally unchanged in its approach to quality management since the sixties, with the notable exception of anesthesiology (consider how, malpractice pressure forced reform of anesthesiology in the 80s). The public sector of our economy had to make major revisions when foreign competition in the eighties meant that domestic manufacturing could not compete with other countries. American automotive manufacturers took it in the chops because they could not effectively compete with Japanese and Korean companies. Only in the last decade have the automotive manufactures achieved economic efficiencies similar to their competitors (and finally shed some of their legacy costs). Hospitals and private practices never had this wave of foreign competition and so have never had to reinvent themselves to stay in business. Hospitals are heavily subsidized both directly by the taxpayer and through the federal system. The result has been local monopolies with limited real competition, just like the big three automakers before the Japanese entered the picture.

Japan did not invent quality manufacturing. Japanese industry was known for cheap, poor quality goods well into the sixties. What changed is that Japan got serious about producing quality products as a way to compete internationally and move up the value chain. To do this they relied on the work of several notable Americans: Demming, Juran (University of Minnesota graduate), and Crosby. These three together with Taguchi constitute the key founders of the discipline of Quality Management. There are some key concepts that I want to explore in relation to medical providers.

1) “Quality is free.” It is inherently cheaper to do it right the first time than to have to fix it. It is cheaper to spend more on the process to make it so reliable that you don’t have to continue to monitor the output. Your current business is probably externalizing the costs or hiding them and thus minimizes the real cost of defects in the products you make. Time and money are spent to prevent customers from knowing what the actual quality of health care provided by hospitals.

2) Nobody understands the problem better than all of us together. To find the best solution, you need to understand the system from the point of view of everyone who interacts with it. This requires that line personal have the ability to discuss problems and solutions without fear of negative job impact. This does not exist in modern hospitals. Nurses and staff doing the work are not free to identify problems or concerns with physicians. Decisions are not made with consensus but are top down, command and control by people with very limited information. This prevents identification of effective, realistic solutions and instead encourages ineffective window dressing committees.

3) Quality improvement depends on good information and systematic effort. Bluntly Medical providers have systematically hidden outcomes information in an effort to prevent the consuming public from being aware of how bad a job they’ve done. This includes not gathering the information, not publishing information they have, and playing malpractice claims to keep quiet. Take a typical medical procedure and go find the published complication rate. Then take those numbers and talk with specialists in that field about those numbers. What you’ll find is that the published data invariably understates the prevalence of complications at top flight institutions. This is generally a result of selection bias, where only data sets with exceptional outcomes are submitted for publication (so as not to reflect poorly upon the institution). In the absence of good information, these Potemkin village studies underestimate the scope and cost of the problem and encourage administrators and staff to ignore the problem. Nobody ever says Institution X published a study with only a 3% complication rate for procedure Y, we need to get our numbers to that level. They instead say, I wonder what their real rate is or I wonder how they selected their patients for that study.

4) Management needs to lead or it will not happen. This is a system problem. This is not a problem of people not doing their jobs. It is not about people not trying to do their best. The highly complex medical delivery system does not hold anyone responsible for the error rate. It doesn’t not impact salaries, reputation, or stock price the way it does at private companies. Look at the response from hospitals that are killing people every day compared with Toyota’s response to the “sudden acceleration” fiasco. Is the executive team involved? Are resources focused on the problem? Etc. FDA holds management personally, legally responsible for failures of the quality systems at medical device companies. The same standard hasn’t been applied to medical delivery systems. Maybe it’s time to apply this principle outside of Anesthesiology.

21st Century Problem: Authentication of Prisoner Facebook Status Updates

March 6, 2013
Criminal Law, Internet, Social Media

by Eric Maloney, UMN Law Student, MJLST Staff

Facebook has become a part of everyday life for people around the world. According to Mark Zuckerberg and Co., over one billion people (yes, with a “B”) are active on Facebook every month, with an average of more than 600 million active users every day in December 2012. Disregarding bogus or duplicate accounts, that means roughly one-seventh of the entire human population is active on Facebook every month (with the world population currently sitting somewhere in the neighborhood of seven billion people).

Apparently, Facebook has become so commonplace and ingrained in the daily routine of some that they feel the need to use the social networking service from the privacy of their prison cells.

A Harlem gang member named Devin Parsons has decided to cooperate with the government against fellow members of his gang, and is currently incarcerated while trial is pending. Instead of having the usual prison contraband smuggled in, he obtained a mobile phone and used it to post Facebook status updates under an assumed name. According to Trial Judge William H. Pauley III:

In some posts, Parsons reflected on his life in jail:

“everybody wanna live but don’t wanna die”;
“Life is crazy thay only miss yu ifyu dead or in jail”; and
“G.o.n.e”

In others, Parsons posted about his cooperation:

“I’m not tellin on nobody from HARLEM but I can give up some bx n****s that got bodys”; and
“be home sooner then yaH hereing 101[.]”

While not exactly “Letter from Birmingham Jail,” Parsons was surprisingly bold about disclosing the fact of his cooperation and about the risk of getting caught with a banned cell phone by the prison administration. The gang against which Parsons is testifying is charged with multiple counts of narcotics trafficking and murder, among other things.

One of the defendants in the case, Melvin Colon, sought to compel the disclosure of these postings under the Brady rule, which requires the government to release evidence to the defense before trial if the evidence is favorable to the defendant. Judge Pauley held that the government was not obligated to turn these postings over to Colon; for various reasons, the government was never in actual possession of the Facebook statuses and therefore had no duty to disclose under Brady.

This case highlights the continually growing relevance that Facebook and other social media data has in legal proceedings. In fact, this is not even the first ruling about Facebook in this case; the defendant Colon had earlier moved to suppress his own Facebook postings which the prosecution sought to introduce. Judge Pauley denied this motion as well, holding that Colon’s sharing of the postings with his Facebook “friends” meant he lacked a reasonable expectation of privacy in them.

A background issue in this case was the idea of authenticity of the Facebook poster; because Parsons was posting under a fake name, both sides were unaware of his conduct until after the account had already been deactivated. While not contested here, ensuring that the Facebook information originated from the user is an increasingly important evidentiary consideration as more and more of this data is used in both civil and criminal contexts.

Professor Ira P. Robbins laid out a possible framework for authenticating social networking evidence in his Minnesota Journal of Law, Science & Technology article “Writings on the Wall: The Need for an Authorship-Centric Approach to the Authentication of Social-Networking Evidence.” While voicing significant concerns about the current lack of a required nexus between the online content and its real-life poster, he proposed detailed admissions criteria for social network postings. He offered several factors to be examined by judges in making rulings about such data, including who owns the account, how secure the account is, and how / when the post in question was created.

As Facebook and other social networking information becomes increasingly important to the outcomes of legal cases, a framework like this is essential to bring our procedures in line with the nature of 21st century evidence and to ensure our system continues to meet Due Process standards. Digital evidence is largely unexplored territory for jurists and scholars alike, and it’s my hope that evidentiary standards like those proposed by Professor Robbins are seriously considered by the legal community.

Will the Good Deed of Respondent John Wiley & Sons, Inc. Go Unpunished?

March 6, 2013
Uncategorized

by David Hanna, MJLST Lead Article Editor, UMN J.D./M.S. in Chemistry Joint Degree Candidate

On February 7, 2013, John Wiley & Sons, Inc. [“Wiley”] announced that it would make 12,200 Online Books available in eighty developing countries through the Research4Life initiatives of HINARI (the World Health Organization’s Health InterNetwork Access to Research Initiative.), AGORA (Access to Global Online Research in Agriculture) and OARE ( Online Access to Research in the Environment). With Wiley’s contribution, Research4Life can now boast an impressive number of almost 30,000 peer reviewed scientific journals, books and databases made available to developing countries for free or for low cost access. With the Supreme Court of the United States [“SCOTUS”] currently deciding the fate for Wiley in a pending case against petitioner Supap Kirtsaeng d/b/a Bluechristine99 [“Kirtsaeng”], could Wiley’s charitable contributions come at a more convenient time?

On October 29, 2012, SCOTUS heard oral arguments on behalf of petitioner Kirtsaeng and respondent Wiley in a case involving the first-sale doctrine in copyright law which enables owners to sell or transfer copyrighted items to other parties without seeking permission from the original copyright holder. In the case, SCOTUS is deciding on the particular issue of whether the first-sale doctrine applies to copies of copyrighted works made and legally acquired outside the United States and then imported into the United States.

How does the “good guy” fit into the picture? Wiley brought a copyright infringement suit against Kirtsaeng, a graduate foreign student currently in the United States who had been receiving textbooks produced by Wiley Asia from his family and friends outside of the United States and then selling them for a profit on eBay. In responding to Wiley’s suit, Kirtsaeng presented the first-sale doctrine as a defense. Both the District Court and Second Circuit denied Kirtsaeng the “first sale” doctrine and ruled that the defense did not apply to foreign-manufactured books.

The Minnesota Journal of Law Science & Technology’s recent publication, “John Wiley & Sons, Inc. v. Kirtsaeng: The Uncertain Future of the First-Sale Doctrine,” identifies the important implications of SCOTUS’s upcoming decision on the U.S. economy. Author Benjamin Hamborg states, “In an already struggling economy, the last thing that the country needs is precedent giving companies a further incentive to move manufacturing plants overseas.”

Will Wiley’s recent contributions cast a positive light on the company while SCOTUS decides whether to uphold the lower courts’ holding which denied a first-sale doctrine defense to Kirtsaeng? Will SCOTUS consider the implications of the case on this country’s disintegrating economy? Now, Kirtsaeng has to worry not only about his pending copyright infringement case before the superior court of the land but also about his opponent’s charitable good deed. Perhaps, Kirtsaeng might find it in his best interest between now and the time SCOTUS releases its decision to make a charitable donation from some of the profits earned from his book buying and selling business.

Will the Good Deed of Respondent John Wiley & Sons, Inc. Go Unpunished?

March 6, 2013
Uncategorized

by David Hanna, MJLST Lead Article Editor, UMN J.D./M.S. in Chemistry Joint Degree Candidate

On February 7, 2013, John Wiley & Sons, Inc. [“Wiley”] announced that it would make 12,200 Online Books available in eighty developing countries through the Research4Life initiatives of HINARI (the World Health Organization’s Health InterNetwork Access to Research Initiative.), AGORA (Access to Global Online Research in Agriculture) and OARE ( Online Access to Research in the Environment). With Wiley’s contribution, Research4Life can now boast an impressive number of almost 30,000 peer reviewed scientific journals, books and databases made available to developing countries for free or for low cost access. With the Supreme Court of the United States [“SCOTUS”] currently deciding the fate for Wiley in a pending case against petitioner Supap Kirtsaeng d/b/a Bluechristine99 [“Kirtsaeng”], could Wiley’s charitable contributions come at a more convenient time?

On October 29, 2012, SCOTUS heard oral arguments on behalf of petitioner Kirtsaeng and respondent Wiley in a case involving the first-sale doctrine in copyright law which enables owners to sell or transfer copyrighted items to other parties without seeking permission from the original copyright holder. In the case, SCOTUS is deciding on the particular issue of whether the first-sale doctrine applies to copies of copyrighted works made and legally acquired outside the United States and then imported into the United States.

How does the “good guy” fit into the picture? Wiley brought a copyright infringement suit against Kirtsaeng, a graduate foreign student currently in the United States who had been receiving textbooks produced by Wiley Asia from his family and friends outside of the United States and then selling them for a profit on eBay. In responding to Wiley’s suit, Kirtsaeng presented the first-sale doctrine as a defense. Both the District Court and Second Circuit denied Kirtsaeng the “first sale” doctrine and ruled that the defense did not apply to foreign-manufactured books.

The Minnesota Journal of Law Science & Technology’s recent publication, “John Wiley & Sons, Inc. v. Kirtsaeng: The Uncertain Future of the First-Sale Doctrine,” identifies the important implications of SCOTUS’s upcoming decision on the U.S. economy. Author Benjamin Hamborg states, “In an already struggling economy, the last thing that the country needs is precedent giving companies a further incentive to move manufacturing plants overseas.”

Will Wiley’s recent contributions cast a positive light on the company while SCOTUS decides whether to uphold the lower courts’ holding which denied a first-sale doctrine defense to Kirtsaeng? Will SCOTUS consider the implications of the case on this country’s disintegrating economy? Now, Kirtsaeng has to worry not only about his pending copyright infringement case before the superior court of the land but also about his opponent’s charitable good deed. Perhaps, Kirtsaeng might find it in his best interest between now and the time SCOTUS releases its decision to make a charitable donation from some of the profits earned from his book buying and selling business.

Improving Healthcare Quality: Electronic Prescribing

February 26, 2013
Healthcare, Healthcare Reform, Pharmaceuticals

by Johanna Smith, UMN Law Student, MJLSTStaff

A new study published online on February 20, 2013 in the Journal of the American Medical Informatics Association found that when hospitals used electronic prescribing, it prevented 17 million drug errors–and if implemented more widely and consistently, it could prevent more than 50 million drug errors. But as of 2008, only about one in three acute care hospitals used electronic prescribing. Although there are various methods suggested to improve healthcare quality, one of the simplest is to make medical errors public. If hospitals, and the general public, were more aware of the safety benefits of electronic prescribing, this could lead to increased use and standardization. Another option to increase the use of electronic prescribing is to connect funding or reimbursement to the use of electronic prescribing.

An article in the January 23, 2013 Journal of the American Medical Association reported that once Medicare and Medicaid stopped reimbursing costs due to certain medical errors, the number of times a foreign item was left in a surgical patient dropped by half. The authors note that this number may not be truly accurate, since the hospitals would have financial incentives to hide the errors. Currently, reporting relies mainly on self-reporting by the hospitals, which is not always accurate. A new article in the Minnesota Journal of Law, Science, and Technology (MJLST) by John R. Grout, John W. Hill, and Arlen W. Langvart entitled “Mistake-Proofing Medicine: Legal Considerations and Healthcare Quality Implications,” discusses how to mistake-proof medicine and looks at healthcare quality on a broader level, including electronic prescribing. The MJLST article highlights that many hospital administrators are concerned more with the finances of the hospital than with patient safety. Connecting these two items increases the probability that patient safety will become a priority for hospitals. Although electronic prescribing is not a complete fix for incorrect prescriptions, it is an important part of improving the process. Compared to the cost of medical errors–including incorrect prescriptions–mistake-proofing is generally less expensive.

And the Patent Goes To…… The First to File

February 19, 2013
Patents

by Emily Puchalski, UMN Law Student, MJLST Notes & Comments Editor

In just about one month the most monumental provision of the America Invents Act (AIA) will take effect. As of March 16, 2013 patents will be awarded to the first to file rather than the first to invent. This first to file system will bring the United States in accord with many other countries of the world. However, it is important note that the first to invent rule will still apply to patent applications filed before March 16th 2013.

Many patent lawyers and their clients have already began thinking about what the first to file system will mean for the American patent system. For example, a group of patent attorneys have already outlined some strategies that could be employed by inventors and predictions for how the new system will operate. Patent lawyers are not the only ones thinking about what the new systems will look like. Universities, for example, which can derive significant revenues from the patented inventions of its faculty, have implemented strategies for dealing with the new system. The University of North Dakota, for example, has stressed that the changes in the law as of March 16th govern towards immediate disclosure of any invention to the school’s intellectual property office to make sure that it can obtain patent rights on the invention, if desired, by filing an application as soon as possible with the Patent and Trademark Office.

Despite the prominence of the first to file provision of the AIA, it is important to remember that the AIA has many other important provisions aimed at changing the American patent law system. The AIA has also significantly changed the review available after a patent has been granted. The AIA both strengthens existing review procedures and creates new ones as well. In her article published in Issue 14.1 of the Minnesota Journal of Law, Science & Technology, “The Post-Grant Problem: America Invents Falling Short,” author Kayla Fossen provides an in-depth description of the post-grant review process under the America Invents Act. Fossen also takes a look at whether the new post-grant proceedings can effectuate change on the American patent system where patents are frequently invalidated in infringement litigation. Interestingly, Fossen proposes a pre-grant review process that could be used in addition to the post-grant proceedings under the America Invents Act to ensure that patents issued are strong enough to survive validity challenges in any infringement litigation. Even though March 16, 2013 will mark a big change in US patent law, it is important to evaluate the big changes that the America Invents Act has already made, one of them being post-grant review. Luckily, Fossen’s article does just that.

Time for a New Approach to Cyber Security?

February 18, 2013
Cyber Security, Internet, Law Enforecement

by Kenzie Johnson, UMN Law Student, MJLST Managing Editor

The recent announcements by several large news outlets including the New York Times, Washington Post, Bloomberg News, and the Wall Street Journal reporting that they have been the victims of cyber-attacks have yet again brought cyber security into the news. These attacks reportedly all originated in China and were aimed at monitoring news reporting of Chinese issues. In particular, the New York Times announced that Chinese hackers persistently attacked their servers for a period of four months and obtained passwords for reporters and other Times employees. The Times reported that the commencement of the attack coincided with a story it published regarding mass amounts of wealth accumulated by the family of Chinese Prime Minister Wen Jiabao.

It is not only western news outlets that are the targets of recent cyber-attacks. Within the past weeks, the United States Department of Energy and Federal Reserve both announced that hackers had recently penetrated their servers and acquired sensitive information.

This string of high-profile cyber-attacks raises the need for an improved legal and response structure to deal with the growing threat of cyber-attacks. In the forthcoming Winter 2013 issue of Minnesota Journal of Law, Science, and Technology, Susan W. Brenner discusses these issues in an article entitled “Cyber-Threats and the Limits of Bureaucratic Control.” Brenner discusses the nature, causes, and consequences of cyber-threats if left unchecked. Brenner also analyzes alternative approaches to the United States’ current cyber-threat control regime, criticizes current proposals for improvements to the current regime, and proposes alternative approaches. As illustrated by these recent cyber-attacks, analysis of these issues is becoming more important to protect sensitive government data as well as private entities from cyber-threats.

States Move to Implement Health Insurance Exchanges

February 13, 2013
Healthcare Reform, Public Health

by Brianna Rohne, UMN Law Student, MJLST Articles Editor

Proponents of the Affordable Care Act breathed a collective sigh of relief in June 2012 when the U.S. Supreme Court upheld most of the law in its decision in National Federation of Independent Business v. Sebelius. As Minnesota Lawyer reports, the health care law will have a major impact in 2013 as state and federal agencies rush to implement the ACA’s key features.

Chief among those features are the Health Insurance Exchanges, which are insurance marketplaces designed to help carry out the ACA’s key feature–the individual mandate–by simplifying the process for purchasing health insurance for consumers and small businesses in every state. As Kathleen Sebelius comments, the Exchanges will provide “one stop shopping for health insurance with better information about plan benefits, quality and cost.” The Exchanges, which will be administered at the state level, must be ready for open enrollment in October 2013 and full operation on January 1, 2014.

Department of Health and Human Services rulemaking has stressed flexibility in the creation and operation of the Exchanges, encouraging each state to take the lead in shaping their Exchange in a way that best accommodates local needs and market conditions. For example, states may choose the type of entity to operate the Exchange, limit the insurance plans eligible to participate, and partner with other states to establish regional Exchanges. HHS also offers support in the way of formal partnership, grant funding, technical assistance, and guidance on key topics.

HHS also allows states to opt out of Exchange planning altogether, leaving it up to the federal government to implement Exchanges in those states. As of early January, the New York Times reported that 23 mostly Republican-run states had indicated that they will not set up their own Exchanges. Another 17 states and the District of Columbia are moving to set up their own Exchanges and seven states have asked to collaborate with the federal government.

Ensuring health coverage and subsequently affordable health care for millions of uninsured and under-insured Americans is an ambitious undertaking, fraught with challenges that states and the federal government are just beginning to work through. In a recently published article from the current issue of the Minnesota Journal of Law, Science and Technology titled Developing a Durable Right to Health Care, Erin C. Fuse Brown discusses the momentous shift in policy accomplished by the ACA’s statutory right to health care. She goes on to warn that the ACA’s right to health care is fragile–especially early in its lifespan–and faces significant political and market challenges. Ultimately, the success or failure of the ACA’s most ambitious goals may become apparent as the federal government and states begin its roll-out over the next few years.

Chimeras in DNA Forensic Testing: What to do?

February 13, 2013
Criminal Law, DNA Evidence, Forensic Evidence, Forensics

by Ryan J. Connell, UMN Law Student, MJLST Staff

The answer as suggested in an essay titled Chimeric Criminals by David H. Kaye in the current issue of the Minnesota Journal of Law, Science and Technology is not to worry about it too much.

The article criticizes the book Genetic Justice: DNA Databanks, Criminal Investigations, and Civil Liberties by Sheldon Krimsky and Tania Simoncelli. The book has latched on to a particular genetic anomaly referred to as chimerism. Chimerism denotes the presence of two genetically distinct cell lines in the human body. The authors of Genetic Justice want to use this rare condition to show that the supposed assumption that DNA profiling is infallible is incorrect.

Think for a moment about what DNA evidence has done in criminal law. Do not just think of the convictions, but think of the acquittals, and think of those freed from incarceration by innocence projects around the country that can be attributed to the use of DNA evidence. To call DNA evidence into question over such a rare and insignificant condition such a chimerism stretches the confines of reasonableness. Genetic Justice proffers that there is a 1/2400, 1/10, 1/8, and 1/1 incidence of chimerism. Other estimates are no better. A 2010 article in the Globe and Mail entitled “The Dark Side of DNA” called DNA evidence into question and offered that chimerism may be present in anywhere from a tiny population to ten percent of the population. If an entire science is going to be called into question some better statistics might be advisable first.

This book and other sources, such as “Expert evidence: the genetic chimerism and its implications for the world of law” by Daniel Bezerra Bevenuto assume that if genetic evidence is gathered and then does not match the defendant’s DNA that the courts and lawyers will simply dismiss the case. I think courts can handle whatever problems chimerism presents. If DNA is recovered at a crime scene and identifies person X and said person is chimeric and the reference sample he provides doesn’t match the sample recovered at the crime scene the court will rightly be concerned. The natural and simple remedy to this solution is just to test again. Normally chimeric cells are isolated so a second reference sample taken from the suspect should resolve the anomaly.

Chimerism does not preset the problem that the authors of Genetic Justice suggest. It is a rare occurrence that a DNA sample recovered at a crime scene doesn’t match the DNA of the suspect it identifies. And even in those rare circumstances where the DNA doesn’t match it is an easy fix. For a more detailed analysis of this issue please read the article by David H. Kaye in the Minnesota Journal of Law Science and Technology.

The full issue of MJLST in which David Kaye’s article appears can be found here.

The Bayou Corne Sinkhole: A New Test for the Gulf Region’s Post-Deepwater Strategy?

January 25, 2013
Environment

by Chris Evans, UMN Law Student, MJLST Executive Editor

Less than 200 miles from the site of 2010’s Horizon Deepwater blowout, another environmental disaster threatens a community in the Gulf Coast region. In early August, 2012, a massive sinkhole opened up beneath the Bayou Corne near a small residential community in Assumption Parish, Louisiana. Filled with brine, oil, and natural gas, the sinkhole has since grown to 8 acres, forcing the evacuation of 300 residents, and officials apparently don’t know when (or if) the area will again be habitable.

Below the Bayou Corne, the country’s largest independent brine (used in a variety of industrial processes) producer, Texas Brine, had been removing brine from an underground salt cavern for over twenty-five years up until June 2011, when it plugged the cavern. Texas Brine also, with the permission of Louisiana Department of Natural Resources, deposited naturally-occurring radioactive material in the cavern. The USGS has determined the collapse of the cavern caused the sinkhole. Although Texas Brine has been working with authorities to monitor and remedy the disaster, the company sought an injunction against an order to drill new wells to install additional monitoring equipment. Texas Brine dropped that lawsuit when Louisiana agreed to instead require the company to perform 3D seismic imaging to evaluate the cavern.

This unprecedented disaster and the torpid response by state officials and Texas Brine is an example of what Daniel Farber called the Gulf region’s “witch’s brew of chronic environmental harm, acute pollution, and threatened communities.” In The BP Blowout and the Social and Environmental Erosion of the Louisiana Coast, Farber described the threats to the region posed by both the Deepwater oil spill and the chronic unpreparedness of the region for such catastrophes.

Farber notes hopefully that “the acute crisis of the spill has helped mobilize attention to the Gulf, which may help catalyze responses to the Gulf’s chronic ills.” Indeed, in October 2010, President Obama established the Gulf Coast Ecosystem Restoration Task Force to develop a regional response to the Deepwater spill, which it released in December 2011. The strategy–one of several post-Deepwater reforms discussed by Farber–is built around four main goals: restore and conserve habitat, restore water quality, replenish and protect living coastal and marine resources, and enhance community resilience.

The Bayou Corne sinkhole has remained mostly unnoticed by national media, so despite its impact on the local community and lack of historical precedent, this disaster is unlikely to mobilize new attention to the Gulf region. But Bayou Corne presents a useful test for the Restoration Task Force’s strategy: can this framework help mitigate the effects of the sinkhole? The strategy’s focus on the coast, the Gulf, tourism, fishing, and oil and natural gas drilling make it a less than optimal source of salvation for the unusual problem of the Bayou Corne sinkhole. But displaced residents would be wise to tap any available Deepwater-related resource aimed at the region. Even if the Deepwater-inspired reforms provide no relief for Bayou Corne, local pressure will improve the state, regional, and federal framework for dealing with (or preventing) the next disaster

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