HealthLawProf Blog

Medical Ethics Breached on Guantanamo

According to an article in today's New York Times, "The International Committee of the Red Cross has charged in confidential reports to the United States government that the American military has intentional used psychological and sometimes physical coercion 'tantamount to torture' on detainees at Guantanamo Bay, Cuba."  The Red Cross' inspection team "of humanitarian workers, which included experienced medical personnel, also asserted that some doctors and other medical workers at Guantánamo were participating in planning for interrogations, in what the report called 'a flagrant violation of medical ethics.'"  The charges, which are denied by the Administration, include providing interrogators access to medical files as part of the interrogation process.  It is unclear from the article whether the Red Cross also accused the military doctors of consultating with interrogation teams to calibrate the level of pain to be administered to prisoners.

Yet Even More on Raich and the Oral Arguments

Tony Mauro from The Legal Times weighs in on the oral argument yesterday in Raich v. Ashcroft.  In his opinion, the justices were not receptive to the arguments of those supportive of medicinal marijuana statutes.

The article states,

"The Supreme Court on Monday appeared ready to accept Bush administration arguments that California's medical marijuana law interferes too much with federal efforts to combat illicit drugs.

In spite of the conservative majority's interest in strengthening state powers, most justices seemed skeptical of the argument that California could defy the federal Controlled Substances Act by allowing purely in-state, noncommercial distribution of marijuana for medical use. Ten states have followed the lead of California, whose voters in 1996 passed Proposition 215 to allow marijuana use in cases of medical necessity.

"We face a mess," said Justice Stephen Breyer at one point, lamenting the prospect of states and federal governments having to distinguish between marijuana that was grown and used locally for medical purposes from that which crossed state lines and is subject to federal regulation.

Rather than enacting medical marijuana laws state by state, Breyer said, the Food and Drug Administration should be petitioned to reclassify marijuana in a way that would allow doctors to prescribe it.

"That seems to be the obvious way to get this done," Breyer said. "Medicine by regulation is better than medicine by referendum."

For more information and viewpoints, see the scotusblog.

NJ Posts Med Mal Histories of Doctors

Under  a recently enacted New Jersey law, a state government Web site publishes  doctors' malpractice histories.   The Web site was authorized by the New Jersey Health Care Consumer Information Act, N.J.S.A. 45:9-22.21, and includes malpractice payments in the past five years as well as the medical school, licensing history, hospital privilege restrictions, disciplinary actions and other information about the state's more than 32,500 doctors, osteopaths and podiatrists.

Some lawyers report that the increased publicity may be having a chilling effect on settlements. "Doctors do not want to settle at all now that it has to be reported to the databank for any payment whatsoever," says defense lawyer Richard Amdur, who claims that he used to settle about a third of his cases but estimates that he now that number has declined to between 10 to 15 percent.   Other lawyers claim that the publicity makes no difference.  According to one defense attorney, the issue for doctors becomes the potential for an increase in premiums that follow a malpractice payout.


The Web sites missing information on some doctors appears to be a larger problem, however, for those who may choose to use and rely on it.   According to a report in the New Jersey Law Journal, "The effect of the data gap is compounded by the comparison of each doctor's records with those of other doctors in the same specialty. Each doctor's malpractice experience is rated as average, above average or below average, so without complete data, a doctor might be categorized as above average because of missing data on peers."   

It should be interesting to see how this web site eventually works or does not work.  It may provide the consumer (and plaintiff's attorney) with some helpful information but it may also increase the cost of medical malpractice claims if individual doctors prefer to go to trial rather than have a new addition to their medical malpractice history.

More on Raich Oral Arugment

Add to yesterday's early reports on the Supreme Court oral argument in Ashcroft v. Raich these excellent accounts:

• Linda Greenhouse in The New York Times
• PBS' News Hour report

VBAC Under Attack

On another obstetrical front, The New York Times on Monday ran a story about hospitals that have prohibited obstetricians from performing vaginal deliveries for women who have previously had Caesarean sections.  Although the recent shift in attitude is explained early in the article by reference to recent studies that have increased the predicted rate of uterine rupture and catastrophic blood loss from 0.5 percent to 1 percent, "[s]ome doctors and hospitals freely acknowledge that fear of being sued has driven their decisions," in addition to "concern for patients' safety":

Hospitals say they cannot comply with guidelines issued in 1999 by the American College of Obstetricians and Gynecologists, which call for a doctor to be available "immediately" throughout active labor during such a birth, to perform an emergency Caesarean if needed. Previous guidelines had called for them to be "readily" available.

I guess they can call this a liability question if they want, but if the leading accrediting college for OBs has had this as a standard of care for the past 5 years, does "risk management" add anything to the debate (unless ACOG's standard was driven by liability concerns and not by science)?  The article does not tar ACOG with that brush:

Dr. Charles Lockwood, chairman of the department of obstetrics, gynecology and reproductive sciences at Yale and an author of VBAC guidelines issued by the American College of Obstetrics and Gynecology, said alarms began to sound in the late 1990's.

"What precipitated this were reports in the literature and reports that came to the college itself about women who had ruptured their uterus, particularly in rural settings, with no doctor and no anesthesiologist around," Dr. Lockwood said. "Babies died, and women lost the uterus in some cases."

That prompted the obstetrics college to change its formal recommendations for vaginal births after Caesareans in 1999, saying a doctor should be immediately available during labor to perform an emergency Caesarean.

And yet the med-mal demon immediately reappears in the article:

"[The ACOG standard] had a chilling effect," Dr. Lockwood said, particularly on hospitals in rural areas that did not have anesthesiologists available around the clock, and on doctors in solo practices who could not stay with a patient throughout her labor.

"I think the real death knell to VBAC's was the malpractice crisis," Dr. Lockwood said.

Med Mal Saga, Political and Personal, in Post

Saturday's Washington Post ran a long front-page article that detailed a 16-year-old obstetrical med mal case and its relationship to the political battle currently brewing in Maryland over tort reform.

Much is being written -- in journals, accreditation standards, and hospital policies -- about admitting errors and the potential power and pitfalls of apologizing for bad outcomes.  The contradictory strands of this debate are well illustrated by this story, which involves a 42-week gestation-age newborn who became stuck in the birth canal and whose delivery resulted in shoulder dystocia and injury to one eye.  Four paragraphs, in particular, summarize the medico-legal problem from the perspectives of the mother, Donnette Dennis, and her physician, Kevin Kearney:

Kearney visited Dennis the next morning. By then, he had seen the lack of tone in Richard's right arm.

"He just told me what had happened in the delivery room, that he was sorry for what he had done," she said. "He was sorry about what happened to Richard's arm."

Kearney said he left the hospital heartbroken. He doesn't remember apologizing to Dennis but said that if he did, it wasn't to convey that he "goofed." In fact, he felt certain he handled the procedure correctly.

It may be the most vexing aspect of shoulder dystocia, he said. If the baby is born with an injury, there is no way to know whether it occurred during delivery or during the baby's descent. The only certainty, Kearney believes, is that the doctor handling the delivery will be sued.

The defense presented evidence that shoulder dystocia occurs because of naturally occuring pressure within the birth canal before an obstetrician ever touches the infant.  Despite this apparently strong evidence attacking the causation element of the plaintiff's case, a jury found that Dr. Kearney's decision against a C-section fell below the standard of care in such cases.  For advocates of apologies to patients, the description of the trial must be somewhat chilling:

Along with medical testimony, attorneys from Schochor's firm presented two other pivotal pieces of evidence. The first, from Kearney's deposition, suggested that he panicked during the birth. He told attorneys he pulled down hard on Richard's head -- harder than during typical deliveries. The second critical detail: Kearney's apology. Why would he seek forgiveness if he had done nothing wrong?

One of the proposals pending in the Maryland legislature would, in Kearney's view, "make apologies inadmissible in court [and] have kept his words from being twisted."

Catherine Morris has assembled a good on-line bibliography on "Acknowledgement, Apology and Forgiveness."  I particularly recommend Lee Taft's article in The Yale Law Journal, Apology Subverted: The Commodification of Apology, 109 Yale L.J. 1135 (2000) (WestLaw password required).

Oral Argument in Medical Marijuana Case

Early news reports focus on (1) Justice Breyer's comment this morning that patients who want relief from the federal government's stance against the medical use of marijuana should take their pleas to federal drug regulators before coming to the Court, as well as (2) several justices' references to America's large problem with drug addiction.  Souter and Scalia were also described as skeptical of the patients' arguments.

Some of the sources:

• Associated Press (ABC News)
• Reuters
• Bloomberg News
• N.Y. Times

New Article on ADA and Mental Illness

If you find that you have some spare time on your hands (i.e., perhaps the thought of drafting your exam is too much after a lovely Thanksgiving break),  you may want to review  Elizabeth Emen's interesting article, "The Sympathetic Discriminator: Mental Illness and the ADA."  She examines the fact that individuals with mental illness often experience discrimination because others (including fellow co-workers) often feel negative emotions around them.   She contends that an open recognition of that emotional costs will help the courts better understand the tension in the ADA when applied to mentally disabled individuals and promote a less contradictory application of the ADA to those individuals. 

A portion of the abstract follows: 

 
"Discrimination against people with mental illness occurs in part because of how those with mental illness can make other people feel. A psychotic person may make others feel agitated or afraid, for example, or a depressed person may make others feel sad or frustrated. Thus, a central basis for discrimination in this context is what I call hedonic costs. Hedonic costs are affective or emotional costs: an influx of negative emotion or loss of positive emotion. In addition, the phenomenon of emotional contagion, which is one source of hedonic costs, makes discrimination against people with mental illness peculiarly intractable. Emotional contagion is a largely unconscious process by which we absorb the emotions of nearby others. Research on emotional contagion indicates that people with mental illness are likely to prompt others to absorb their negative emotions, and that emotional contagion increases the more we like someone. Contrary to the much-vaunted contact hypothesis that workplace integration increases liking and decreases discriminatory animus, then, integration of people with mental illness may instead give coworkers and employers more reason to want to avoid people with mental illness."

The full article is available on the SSRN website and will be appearing in the Georgetown Law Journal next year.

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Happy National Family History Day!

We hope that you had a terrific Thanksgiving!  If, however, you are feeling guilty about that extra helping of turkey or pumpkin pie, you might want to celebrate next year in the manner of the U.S. Surgeon General. 

The U.S. Surgeon General Richard H. Carmona has launched a national public health campaign, called the U.S. Surgeon General's Family History Initiative to help focus attention on the importance of family health history and to encourage all American families to learn more about their family health history.

The Surgeon General reports on what many health professionals have long known  -- that many common diseases such as heart disease, cancer, and diabetes - and even rare diseases - like hemophilia, cystic fibrosis, and sickle cell anemia, can run in families. He wants Americans to be more aware of the illnesses suffered by their  parents, grandparents, and other blood relatives so that they can help their doctor predict the disorders to which they may be at risk and to take action to keep them  and their family healthy.

To celebrate this new initiative, Surgeon General Carmona declared Thanksgiving 2004 to be the first annual National Family History Day.

So next year you might want to spend time getting to know your family better rather than eating that second helping of stuffing.   Ok, it was only a suggestion . . . .

Complete release at http://www.hhs.gov/familyhistory/

Medical Marijuana Case Argued Today.

Just a reminder that the Supreme Court hears oral argument today in the case of Ashcroft v. Raich, No. 03-1454, the case that challenged John Ashcroft's attempt to nix the California medical marijuana law by playing the pre-emption trump card of the Controlled Substances Act.  Here's a quick catalog of on-line resources:

• California's "medical marijuana law" (Health & Safety Code § 11362.5);
• Controlled Substances Act;
• complaint (PDF);
• 9th Circuit opinion (PDF);
• cert. petition of U.S. (PDF);
• Supreme Court's docket sheet in No. 03-1454; and
• petitioner's and respondent's principal merits briefs and government's reply brief (PDF)

Commentary:

• Today's Washington Post neatly summarizes the case. 
• See also summary posted by Medill School of Journalism, Northwestern Univ.
• Google News search for "medical marijuana" (includes link to PBS' "Religion & Ethics Newsweekly" story (Nov. 19, 2004) and to good overview in the Nov. 29 issue of the Christian Science Monitor)