HealthLawProf Blog

Editor: Katharine Van Tassel
Akron Univ. School of Law

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Saturday, March 19, 2005

House, Senate Reach Agreement on Schiavo Bill

Reuters reports this afternoon that House and Senate members have agreed on a legislative strategy that will produce a bill that will either (pick your version) "restore nutrition and hydration to Miss [sic] Schiavo" (per Tom DeLay) or "put Schiavo's case into federal court") (per "a Democratic aide" - probably Sen. Harry Reid's spokesman, Jim Manley).  A vote in the House -- apparently to approve S. 653 (GPO's PDF version), the bill previously passed in the Senate -- could occur later today.  You can track the action on S. 653 here

Here's the text:

109th CONGRESS
1st Session

S. 653

--------------------------------------------------------------------------------

AN ACT
For the relief of the parents of Theresa Marie Schiavo.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. RELIEF OF THE PARENTS OF THERESA MARIE SCHIAVO.

The United States District Court for the Middle District of Florida shall have jurisdiction to hear, determine, and render judgment on a suit or claim by or on behalf of Theresa Marie Schiavo for the alleged violation of any right of Theresa Marie Schiavo under the Constitution or laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.

SEC. 2. PROCEDURE.

Any parent of Theresa Marie Schiavo shall have standing to bring a suit under this Act. The suit may be brought against any other person who was a party to State court proceedings relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain the life of Theresa Marie Schiavo, or who may act pursuant to a State court order authorizing or directing the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life. In such a suit, the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings. The District Court shall entertain and determine the suit without any delay or abstention in favor of State court proceedings, and regardless of whether remedies available in the State courts have been exhausted.

SEC. 3. RELIEF.

After a determination of the merits of a suit brought under this Act, the District Court shall issue such declaratory and injunctive relief as may be necessary to protect the rights of Theresa Marie Schiavo under the Constitution and laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.

SEC. 4. TIME FOR FILING.

Notwithstanding any other time limitation, any suit or claim under this Act shall be timely if filed within 30 days after the date of enactment of this Act.

SEC. 5. STAY.

Upon the filing of a suit or claim under this Act, the District Court may issue a stay of any State court order authorizing or directing the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain the life of Theresa Marie Schiavo pending the determination of the suit.

SEC. 6. NO CHANGE OF SUBSTANTIVE RIGHTS.

Nothing in this Act shall be construed to create substantive rights not otherwise secured by the Constitution and laws of the United States or of the several States.

SEC. 7. NO EFFECT ON ASSISTING SUICIDE.

Nothing is this Act shall be construed to confer additional jurisdiction on any court to consider any claim related--

(1) to assisting suicide, or

(2) a State law regarding assisting suicide.

SEC. 8. NO PRECEDENT FOR FUTURE LEGISLATION.

Nothing is this Act shall constitute a precedent with respect to future legislation.

SEC. 9. NO AFFECT ON THE PATIENT SELF-DETERMINATION ACT OF 1990.

Nothing in this Act shall affect the rights of any person under the Patient Self-Determination Act of 1990.
Passed the Senate March 17, 2005.

Attest:

Secretary.

March 19, 2005 | Permalink

Dr. Frist's Diagnosis

As reported in today's Washington Post ("Viewing Videotape, Frist Disputes Fla. Doctors' Diagnosis of Schiavo"), Senate Majority Leader Dr. Bill Frist reviewed videotapes from the Schindlers and concluded (as reported in the Congressional Record (pp. S3090-S3091) that the diagnosis of permanent vegetative state is questionable: "Persistent vegetative state, which is what the court has ruled, I say that I question it, and I question it based on a review of the video footage which I spent an hour or so looking at last night in my office here in the Capitol. And that footage, to me, depicted something very different than persistent vegetative state."  Frist also discounted the other physicians who have been involved in the case with these comments:

"I was a little bit surprised to hear a decision had been made to starve to death a woman based on a clinical exam that took place over a very short period of time by a neurologist who was called in to make the diagnosis rather than over a longer period of time. . . . [The "chairman of the Judiciary Committee in Florida"] said the courts have been exhausted, and that all of the court decisions and the court cases had not been based on the facts because the facts were very limited and were the conclusions of one judge and two neurologists, and that was it, and that there were, in terms of the affidavits--I will get the exact number that I read--there were something like 34 affidavits from other doctors, who said that she could be improved with rehabilitation.

Sen. Frist also disagreed with neurologist Ron Cranford's conclusions on patently political grounds: "I should also note that the court sided with the testimony of Dr. Ronald Cranford, who is an outspoken advocate of physician-assisted suicide."  I don't agree with Cranford on the PAS issue, either, but he'd be my first choice if I were looking around for a neurologist to diagnose PVS.

A number of medical and ethics experts express their surprise in the Post article that a physician would proffer a diagnosis (or disagree with one) based on a family's videos and without conducting a physical exam.

As for the allegedly slim basis upon which Terri's diagnosis is based, consider this excerpt from In re Schiavo, 851 So. 2d 182 (2nd DCA 2003) (No. 2D02-5394), rehearing denied (July 9, 2003), review denied 855 So. 2d 621 (Fla. 2003):

On remand, we permitted the parents to present evidence to establish by a preponderance of the evidence that the judgment was no longer equitable. We specifically held:

To meet this burden, they must establish that new treatment offers sufficient promise of increased cognitive function in Mrs. Schiavo's cerebral cortex--significantly improving the quality of Mrs. Schiavo's life--so that she herself would elect to undergo this treatment and would reverse the prior decision to withdraw life-prolonging procedures.

Schiavo III, 800 So. 2d at 645.

In order to minimize disputes between the parties, this court's last opinion also provided guidance to the guardianship court concerning the nature of the hearing to be held on remand. We required an additional set of medical examinations of Theresa Schiavo and the selection of no more than five physicians to provide expert testimony on the issue presented. We instructed that one of the five physicians must be a new, independent physician selected either by the agreement of the parties or, if they could not agree, by the appointment of the guardianship court. We indicated that this physician should be board certified in neurology or neurosurgery, with expertise if possible "in the treatment of brain damage and in the diagnosis and treatment of persistent vegetative state." 800 So. 2d at 646.

On remand, this court anticipated but did not require that Dr. Webber, who had claimed in his affidavit that he might be able to restore Mrs. Schiavo's speech and some of her cognitive functioning, would testify for the parents and provide scientific support for his claim. However, Dr. Webber, who was so critical in this court's decision to remand the case, made no further appearance in these proceedings.  Instead, the parents provided testimony from Dr. William Maxfield, a board-certified physician in radiology and nuclear medicine, and Dr. William Hammesfahr, a board-certified neurologist. Michael Schiavo, Mrs. Schiavo's husband and guardian, selected Dr. Ronald Cranford and Dr. Melvin Greer, both board-certified neurologists, to testify. The fifth physician, selected by the guardianship court when the parties could not agree, was Dr. Peter Bambakidis, a board-certified neurologist practicing in the Department of Neurology at the Cleveland Clinic Foundation in Cleveland, Ohio. He is a clinical professor of neurology at Case Western Reserve University. His credentials fulfilled the requirements of our prior opinion.

Through the assistance of Mrs. Schiavo's treating physician, Dr. Victor Gambone, the physicians obtained current medical information about Theresa Schiavo including high-quality brain scans. Each physician reviewed her medical records and personally conducted a neurological examination of Mrs. Schiavo. Lengthy videotapes of some of the medical examinations were created and introduced into evidence. Thus, the quality of the evidence presented to the guardianship court was very high, and each side had ample opportunity to present detailed medical evidence, all of which was subjected to thorough cross-examination. It is likely that no guardianship court has ever received as much high-quality medical evidence in such a proceeding.

On the issue that caused this court to reverse in our last decision, whether new treatment exists which offers such promise of increased cognitive function in Mrs. Schiavo's cerebral cortex that she herself would elect to undergo this treatment and would reverse the prior decision to withdraw life-prolonging procedures, the parents presented little testimony. Dr. William Hammesfahr claimed that vasodilation therapy and hyberbaric therapy "could help her improve." He could not testify that any "specific function" would improve. He did not claim that he could restore her cognitive functions.  He admitted that vasodilation therapy and hyberbaric therapy were intended to increase blood and oxygen supply to damaged brain tissue to facilitate repair of such tissue.  These therapies cannot replace dead tissue. Although the physicians are not in complete agreement concerning the extent of Mrs. Schiavo's brain damage, they all agree that the brain scans show extensive permanent damage to her brain. The only debate between the doctors is whether she has a small amount of isolated living tissue in her cerebral cortex or whether she has no living tissue in her cerebral cortex.

The evidentiary hearing held on remand actually focused on an issue that was not the issue we anticipated would be the primary issue on remand. The parents contended that Mrs. Schiavo was not in a persistent or permanent vegetative state.  Both Dr. Maxfield and Dr. Hammesfahr opined that she was not in such a state. They based their opinions primarily upon their assessment of Mrs. Schiavo's actions or responses to a few brief stimuli, primarily involving physical and verbal contact with her mother. The three other physicians all testified that Mrs. Schiavo was in a permanent or persistent vegetative state. The guardianship court was most impressed with the testimony of Dr. Bambakidis, who concluded that Mrs. Schiavo remained in a permanent vegetative state.

The guardianship court determined that Mrs. Schiavo remained in a permanent vegetative state. The guardianship court concluded that there was no evidence of a treatment in existence that offered such promise of increased cognitive function in Mrs. Schiavo's cerebral cortex that she herself would elect to undergo it at this time. Having concluded that the parents had failed to meet their burden to establish, by a preponderance of evidence, that the judgment was no longer equitable, the guardianship court denied the motion for relief from judgment and rescheduled the removal of the hydration and nutrition tube.

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March 19, 2005 | Permalink

Saving Medicaid

On Thursday evening, the Senate rejected the $15 illion budget cut that President Bush has proposed for Medicaid and instead passed an amendment protecting the Medicaid program from future budget cuts.  According to the American Health Lawyers Association press reports,

Instead of the cuts, the amendment calls for the creation of a bipartisan commission to conduct a comprehensive review of the Medicaid program to determine how to improve efficiencies in service delivery and quality of care. The commission would have fourteen months in which to hold public hearings, conduct its evaluations and deliberations, and issue its report and recommendations to the President, Congress, and the public.

For further information about the amendment and 2006 budget, please click here. [bm]

March 19, 2005 | Permalink

Dr. Death - Infant Euthanasia

The New York Times has a profile of Dr. Eduard Verhagen, one of the Dutch physicians who has advocated euthanasia for certain disabled infants.   The article tries to explain why the doctor believes as strongly as he does in his viewpoint concerning this issue.  Unfortunately he receive lots of hate mail from America and he finds it astonishing some of things people say about him, especially since they have never met him. 

Speaking of people who are receiving unwanted and mostly negative attention, the New York Times on Thursday ran a front page story on Judge Greer, the judge who has had the Terri Schiavo case for over 7 years.  It is a great story about a thoughtful , interesting  and courageous Judge who has had to leave membership in his church and travel under guard.  [bm]

March 19, 2005 | Permalink

Behind-the Scenes Lobbying Effort on Behalf of Terri Schiavo

This morning's Miami Herald has an interesting story on the efforts of Gov. Jeb Bush (disappointed by the state legislature's inability to enact a law that would provide further legal support for Terri Schiavo's parents) to enlist the aid of Sen. Mel Martinez and conservative political groups:

''I'm not sure we can get it done here in Florida,'' Martinez quoted Bush as saying just after a new Schiavo measure stalled in the Florida Legislature.  "Do whatever you can federally." * * *

Senate Majority Leader Bill Frist and House Speaker Dennis Hastert said Friday evening that they were disappointed with Friday's court decisions allowing the feeding tube to be removed, and they vowed to work through the weekend to prolong Schiavo's life.

The dizzying flurry of congressional activity is largely a response to a relentless push by conservative Christian groups -- using e-mail ''action alerts'' and persistent lobbying -- and the personal involvement of Frist and House Majority Leader Tom DeLay, R-Texas.

''I've never seen anything like this in Congress over an individual case,'' said Jayd Henricks, lobbyist for the Family Research Council, one of the groups battling to keep Schiavo alive by challenging state court orders.

The congressional strategy of House subpoenas and Senate "invitations" to testify didn't deter the trial judge or the physicians and administrators, and late Friday, the Supreme Court denied the House Committee on Government Reform's request for a stay (reported in the press but not yet posted to the Court's on-line 'Orders and Journal' page).  [tm]

March 19, 2005 | Permalink

Notes on Judge Greer

Jeff Spike, associate professor in the Department of Medical Humanities and Social Science at Florida State, sent in a few observations on the trial judge in the Terri Schiavo case, George W. Greer of Pinellas-Pasco Circuit Court, who is currently being vilified by some of the supporters of her parents' efforts to keep her alive:

1.  First, I think Judge Greer has uttered a classic line:  "The fact that you -- your committee -- decided to do something today doesn't create an emergency,"

2.  This Judge has been an exemplar of careful and patient work with this case for six years now.  He is the one who has heard all the testimony and has stood up to tremendous pressure within Florida and now from Congress.

3.  He is a graduate of Florida State undergraduate and law school.  (A plug.)

4.  He is a very religious church-going Baptist, and a Republican.

5.  He had the strangest roommate in college.  A guy named Jim Morrison.  (The latter transferred from FSU to somewhere in Southern California after some legal problems.)

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March 19, 2005 | Permalink

More Academic Commentary on Congress' Schiavo-related Actions

Saturday's New York Times has a good article on the probably unconstitutional, and certainly abusive, subpeonas and "invitations" issued by House and Senate Republican leaders in the day leading up to the removal of Terri Schiavo's feeding tube.  Some of the more notable quotes:

  • "It's simply outrageous," said Charles Fried, a law professor at Harvard who served as the solicitor general in the Reagan administration. "It is abusive and disgraceful. Even a senator has an obligation to use his power honestly and not to engage in subterfuge and pretense."
  • "I can't think of any parallels," said Laurence H. Tribe, a law professor at Harvard who often supports liberal positions.  "McCarthy, for all his abuses, did not reach out and try to undo the processes of a state court," Professor Tribe said, referring to Senator Joseph McCarthy, whose cold war hearings into communism were widely viewed as Congressional overreaching.  "The federal statute that makes it a crime to interfere with witnesses presupposes that there is some valid exercise of legislative power," Professor Tribe said. "It would be hard to think of one here."  He continued: "It's Congress trying to change the decisions of the state judiciary and violating the purposes of federalism. It's Congress trying to deprive someone of an adjudicated right by political edict in violation of due process of law."
  • "[T]he long-term care of incapacitated adults]  is "an absolutely legitimate subject for inquiry," said Patrick O. Gudridge, a law professor at the University of Miami. The "tricky question," he continued, is whether keeping Ms. Schiavo alive would aid that inquiry or even be relevant to it.  "Congress is pushing the outer edge of the envelope here," Professor Gudridge said.
  • "You cannot issue a subpoena that interferes with a constitutional right," said Arthur Miller, an expert on civil procedure at Harvard, referring to what he said was Ms. Schiavo's right to die. "It's a blunderbuss. It smacks of desperation."
  • Arthur L. Caplan, the chairman of the department of medical ethics at the University of Pennsylvania, said the Schiavo case had already received ample scrutiny. "It has to be the most extensively litigated right-to-die case in the history of the United States," Professor Caplan said.

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March 19, 2005 | Permalink

News Updates on Schiavo Case

Bloomberg and Reuters have good updates on the status of the Schiavo saga. 

March 19, 2005 | Permalink

Friday, March 18, 2005

Con Law Profs on the House Subpoena and Senate "Invitation" to Terri Schiavo

As mentioned below, the chair of the House Committee on Government Reform has subpoenaed Terri Schiavo and the chair of the Senate Committee on Health, Education, Labor & Pensions has invited her to testify on health policy and the incapacitated.  The reason appears on Sen. Frist's website: They want to intimidate her physicians and hospice administrators.

Some legal commentary on these moves by Congressional Republicans is starting to surface (AP story, 4:29 p.m., EST):

Several legal analysts doubted courts would have allowed the congressional effort to stand.

``It's of dubious legality,'' said Seth Kreimer, a constitutional law professor at the University of Pennsylvania. . . .

Kreimer said the subpoenas were particularly questionable after the full Congress failed to pass legislation. Congress is charged with passing laws that the courts enforce, not issuing subpoenas that interfere with court orders, he said.

A subpoena ordering the hospice to keep her on life support would really fall under the authority of the courts, while the subpoena to Schiavo may be an improper intimidation tactic since Terri Schiavo clearly is unable to testify, said Laurence Tribe, a Harvard law professor.

``People should remember once we establish precedent where two congressional committees by issuing subpoenas can upset the determinations of a court, it could cut both ways,'' he said. ``A physician administering a unique treatment to keep someone from dying could be stopped if the majority thinks that's unnatural.''

Joseph W. Little, a constitutional law professor at the University of Florida, said it appears GOP leaders are trying to twist the law.

``It certainly extraordinary that an individual case could give rise to this kind of activity,'' he said. ``We have to assume there's some broader political agenda, with little legal grounds behind it.''

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March 18, 2005 | Permalink

Schiavo: Congress Gets Serious

Senate Republicans have invited Terri Schiavo and her husband to testify on March 28.  According to Bloomberg News, "Senate Health, Education, Labor and Pensions Committee Chairman Mike Enzi sent a letter to Schiavo and husband Michael, her legal guardian, asking them to appear at a March 28 hearing to 'review health-care policies and practices.'"  The purpose appears to be to put the physicians and hospital administrators at legal risk if they remove Terri Schiavo's feeding tube, which Florida trial judge George Greer again authorized today (see AP story, 3:29 p.m. today).  As Senate Majority Leader Bill Frist put it on his website today: "Federal criminal law protects witnesses called before official Congressional committee proceedings from anyone who may obstruct or impede a witness’ attendance or testimony.  More specifically, the law protects a witness from anyone who -- by threats, force, or by any threatening letter or communication --influences, obstructs, or impedes an inquiry or investigation by Congress. Anyone who violates this law is subject to criminal fines and imprisonment."

In a similar move, on the House side Speaker Hastert, Majority Leader DeLay, and Government Reform Committee chairman Tom Davis today issued this joint statement:

The Committee on Government Reform has initiated an inquiry into the long term care of incapacitated adults, an issue of growing importance to the federal government and federal healthcare policy. The committee’s inquiry arises out of the case of Terri Schiavo, who is currently being kept alive in a hospice in Florida. Later this morning, we will issue a subpoena, which will require hospice administrators and attending physicians to preserve nutrition and hydration for Terri Schiavo to allow Congress to fully understand the procedures and practices that are currently keeping her alive. The subpoena will be joined by a Senate investigation as well.

This inquiry should give hope to Terri, her parents and friends, and the millions of people throughout the world who are praying for her safety. This fight is not over.

If there's any doubt that Terri Shiavo has become a political football, Peggy Noonan's "OpinionJournal" piece for the on-line Wall Street Journal should dispel it.  Here's just a small portion of what Ms. Noonan heaps up:

In America today all big stories have three dimensions: a legal angle, a public-relations angle and a political angle. In the Schiavo case some of our politicians seem not to be fully appreciating the second and third. This is odd.

Here's both a political and a public-relations reality: The Republican Party controls the Senate, the House and the White House. The Republicans are in charge. They have the power. If they can't save this woman's life, they will face a reckoning from a sizable portion of their own base. And they will of course deserve it.

This should concentrate their minds.

So should this: America is watching. As the deadline for removal of Mrs. Schiavo's feeding tube approaches, the story has broken through as never before in the media.

I wonder what Terri Schiavo would say about that.  [tm]

March 18, 2005 | Permalink

The Federalization of the Schiavo Case: All 3 Branches Weigh In

If the 1,627 hits for "Schiavo" on today's Google News site doesn't prove that this case has taken on a life of its own, how about the simultaneous involvement of all three branches of the federal goverment?

After the House passed its relatively broad bill to provide federal district courts (anywhere) with removal jurisdiction over any suit by or on behalf of incapacitated patients in which the withholding or withdrawal of artifical nutrition and hydration was at issue (see below), the Senate on Thursday passed S.653 by voice vote (the relevant pages of the Congressional Record are not yet available).  The text of the bill is here (PDF).  This much narrower bill gives one federal district court (for the Middle District of Florida) jurisdiction to hear a case brought by Terri Schiavo's parents (who are granted standing to sue) to challenge the lawfulness of a state court decision authorizing the removal of their daughters feeding tube.

Reuters reports that Republican leaders are talking about reconvening on Monday (despite the scheduled start of a two-week recess) to reconcile the two competing bills.  Three House leaders (Speaker Hastert, Majority Leader DeLay, and my college classmate and fraternity brother Tom Davis (chair of the Government Reform Committee)) announced plans to subpoena hospital administrators and attending physicians to explain themselves to Congress.  They also said a Senate investigation is planned.

Across the street, SCOTUS denied the parents' request for a stay (PDF) of the state court's order (allowing removal of Terri's feeding tube) pending their filing and the Court's disposition of a petition for certiorari.

And President Bush offered his own thoughts on the matter in this statement:

The case of Terri Schiavo raises complex issues. Yet in instances like this one, where there are serious questions and substantial doubts, our society, our laws, and our courts should have a presumption in favor of life. Those who live at the mercy of others deserve our special care and concern. It should be our goal as a nation to build a culture of life, where all Americans are valued, welcomed, and protected - and that culture of life must extend to individuals with disabilities.

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March 18, 2005 | Permalink

Free Teleconference on Hospital Infection Reporting

HOSPITAL INFECTION REPORTING:  SCIENCE AND POLICY CONSIDERATIONS

A TELECONFERENCE

Wednesday, March 30, 2005

2:00-3:30 p.m. EST

Presented by

PUBLIC HEALTH LAW ASSOCIATION

PUBLIC HEALTH AND POLICY INTEREST GROUP

HEALTH LAW SECTION

AMERICAN BAR ASSOCIATION

The presenters are leaders addressing the development of laws and
guidelines for the reporting of hospital infections:

Lori H. Spencer, Moderator

Sutherland Asbill & Brennan LLP

President-Elect, Public Health Law Association

Representative Bob McCluskey

Colorado State Rep, District 52

Author, House Bill 1128 (pending)

Discussion: Policy Considerations on Passing Legislation

David Carvalho

Deputy Director, Office of Policy, Planning, and Statistics

Illinois Department of Public Health

Discussion:  Implementation of Mandatory Reporting

Lisa McGiffert

Director, Stop Hospital Infections Project

Consumers Union
Discussion:  Model Legislation for Mandatory Reporting and
the Status of the National Campaign to Stop Hospital Infections

Patrick J. Brennan, M.D.

Professor of Medicine, University of Pennsylvania School of Medicine
Chief, Healthcare Quality and Patient Safety, University of Pennsylvania Health System
Chair, Healthcare Infection Control Practices Advisory Committee

Discussion: Recent Guidelines Issued by CDC’s Healthcare Infection Control Practices Advisory Committee
CLE Credit
1.5 hours of CLE credit in 60-minute states/1.8 hours of CLE credit in 50-minute states have been requested in states accrediting ABA TeleConferences.*
NY-licensed attorneys:

This non-transitional CLE program has been approved for experienced NY-licensed attorneys in accordance with the requirements of the New York State CLE Board for 1.5 total NY CLE credits.

*States currently not accrediting ABA TeleConferences: DE, IN, PA, KS, OH

REGISTER BY MARCH 28TH -- Registration is complimentary

Telephone ports are limited, so please register by March 28th.  Registration ensures that you are guaranteed a telephone port and that you receive any necessary materials prior to the call.  To register, please contact Kate McCarthy, with CDC’s Public Health Law Program, at kmn1@cdc.gov.

Your e-mail address will only be used within the ABA and its entities. We do not sell or rent e-mail addresses to anyone outside the ABA. To change your e-mail address or remove your name from any future general distribution e-mails, complete the form at <<

>>. If you prefer, call us at 800-285-2221 or write to: American Bar Association Service Center 321 N Clark Street, Floor 16 Chicago, IL 60610 To review our privacy statement, go to <<

[bm]

March 18, 2005 | Permalink

Thursday, March 17, 2005

Schiavo: More on the Federal Bill

As good as the electronic services are, it's hard to get late-breaking details on bills when Congress decides to crank the legislative process up into high gear.  Thus, contrary to my previous post on this topic, it appears that the House bill that got passed late Wednesday night (10:29 p.m., to be precise) was H.R. 1332.  The pages of the Congressional Record (H1599-H1604) lay it all out - the text of the bill and the debate.  Here's where the voice vote is recorded.

Here it is:

109th CONGRESS
1st Session


To amend title 28, United States Code, to provide for the removal to Federal court of certain State court cases involving the rights of incapacitated persons, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the `Protection of Incapacitated Persons Act of 2005'.

SEC. 2. REMOVAL OF CERTAIN CASES TO FEDERAL COURT TO PROTECT THE RIGHTS OF INCAPACITATED PERSONS.

    (a) Right of Removal- Chapter 89 of title 28, United States Code, is amended by adding at the end the following:

`Sec. 1453. Protection of rights of incapacitated persons

    `(a) Notwithstanding any other provision of this chapter, not later than 30 days after available State remedies have been exhausted, an incapacitated person, or the next friend of an incapacitated person, may remove any claim or cause of action described in subsection (b) to the United States district court for the district in which the claim or cause of action arose, or was heard.

    `(b) The claim or cause of action referred to in subsection (a) is one in which the State court authorizes or directs the withholding or withdrawal of food or fluids or medical treatment necessary to sustain the incapacitated person's life, but does not include a claim or cause of action in which no party disputes, and the court finds, that the incapacitated person, while having capacity, had executed a written advance directive valid under applicable law that clearly authorized the withholding or withdrawal of food or fluids or medical treatment in the applicable circumstances.

    `(c) In hearing and determining a claim or cause of action removed under this section, the court shall only consider whether authorizing or directing the withholding or withdrawal of food or fluids or medical treatment necessary to sustain the incapacitated person's life constitutes a deprivation of any right, privilege, or immunity secured by the Constitution or laws of the United States.

    `(d) The United States district court shall determine de novo any claim or cause of action considered under subsection (c), and no bar or limitation based on abstention, res judicata, collateral estoppel, procedural default, or any other doctrine of issue or claim preclusion shall apply.

    `(e) As used in this section--

      `(1) the term `incapacitated person' means a born individual who is presently incapable of making relevant decisions concerning the provision, withholding, or withdrawal of food, fluids or medical treatment under applicable law; and

      `(2) the term `next friend' means an individual who has some significant relationship with the real party in interest, and includes a parent.'.

    (b) Clerical Amendment- The table of sections at the beginning of chapter 89 of title 28, United States Code, is amended by adding at the end the following new item:

      `1453. Protection of rights of incapacitated persons.'.

Passed the House of Representatives March 16, 2005.

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March 17, 2005 | Permalink

Sports Medicine Conference

The Center for Health Law Studies and the Saint Louis University Law Journal have a timely conference scheduled to address some major issues in sports medicine.  The title of the conference is "Sports Medicine:  Doping, Disability and Health Quality.  It will be held tomorrow at the Saint Louis School of Law.  The keynote speaker is Richard W. Pound, Q.C., Chairman, World Anti-Doping Agency.   The conference advertisement describes its agenda as follows: 

The delivery of health care to athletes is an increasingly complex topic involving ethicists, lawyers, and regulators in both national and international arenas. This conference concentrates on three controversial medico-legal issues; drug and supplement use by athletes, disabled or injured athletes, and the effect of the complex relationships between amateur or professional teams, their doctors, and their athletes. The conference faculty is without peer, featuring the leading regulators, practitioners, and academics in sports medicine. Our speakers will discuss highly publicized and contentious issues such as off-label use of prescription pharmaceuticals, conflicts of interests between sports medical staff and the athletes they treat, and the legal rights of athletes who suffer injuries or pre-existing disabilities.

If you cannot attend (and I apologize for the late notice), you can receive more information and perhaps materials by contacting jauerma@slu.edu.    An overview of the conference and the many interesting and informative speakers can be found here.  I don't want to be too snarky but I sincerely believe that if you have an interest in this area, this conference may be more informative and thought-provoking that the current congressional hearings concerning steriod use by professional baseball athletes.   [bm]

March 17, 2005 | Permalink

New Article by John Colombo

Jcolombo Professor John D. Colombo, University of Illinois College of Law, has written a new article entitled,""The Role of Access in Charitable Tax Exemption," which appears in volume 82 of the Washington University Law Quarterly (2004).   As you are probably well aware, there have been some recent challenges to the non-profit status of hospitals.  Not only is Professor Colombo an expert in the field of tax-exempt organizations (he has written extensively in this area), but in addition his proposal is a very interesting one and I highly recommend the article.  To read the full article, please click here.

Abstract:     
Why are some activities that have commercial for-profit analogues (e.g., health care, "public interest" law firms, community redevelopment organizations) tax exempt? This article proposes an "access" test for tax exemption that would require nonprofit organizations whose services have commercial analogues to justify exemption on the basis of access to their services: either by providing access to underserved populations or by bringing services to the general population that are undersupplied by the private market. The article begins by exploring a number of Internal Revenue Service rulings and court cases dealing with charitable organizations that provide services that have commercial analogues and concludes that the IRS and courts are actually using access criteria to evaluate tax exemption. The article then relates an access-based test to the major theoretical bases for tax exemption, and then proceeds to propose an access-based doctrinal test for exemption. The article closes by illustrating how an access-based test would apply to current areas of exemption controversy.

[bm]

March 17, 2005 | Permalink

Florida's Legislative Branch Moves Schiavo Bills Along

On March 16, the Florida Senate filed and referred to committee SB 2128, the "Starvation and Dehydration of Persons with Disabilities Prevention Act."  The bill would create a presumption that an incompetent person has instructed his or her care team to initiate and continue artificial nutrition and hydration, and it takes the power to refuse ANH away from an incompetent patient's surrogate decision maker.  The presumption would not apply when (i) it is not medically feasible to provide ANH, or doing so would hasten death, or (ii) there is an advance directive clearly stating that the person would not want ANH under present circumstances, or there is other clear and convincing evidence to that effect. 

Also making its way through the Senate: SB 804 (Judiciary Committee's Substitute 1), which today (March 17) was placed on the Senate's Special Order Calendar.  This bill would make it unlawful to remove ANH from a person in a persistent vegetative state if (i) the purpose is solely to end the person's life, (ii) there is a disagreement over the action between or among family members or even close friends of the person, and (iii) the person has not left an advance directive authorizing the suspension of ANH.

On the House side, there's HB 701 (Committee Substitute 2).  The action is fast and furious over there this morning, but there appears to have been a floor vote at 11:38 a.m. (EST) that passed by a vote of 82-32, which resulted in the adoption of an amendment (#608477).  Various other amendments were then withdrawn and the bill received a third reading at 11:44 a.m. 

Local experts seem to agree that the two houses probably cannot reconcile the different bills before the court order directing the removal of ANH from Terri Schiavo is implemented on Friday.

Meanwhile the U.S. House passed HR 1151 by a voice vote Wednesday night (ABC News).  If passed into law, this bill would give federal courts habeas jurisdiction over the case. [tm]

March 17, 2005 | Permalink

Schiavo Watch: Day 4,323

Jeannie Shawl at Jurist's "Paper Chase" continues that law-news blog's excellent reporting on developments in the Terri Schiavo case with Wednesday's report that the Second District Court of Appeal -

(i) denied her parents' motion to stay the removal of Terri's feeding tube, now scheduled to occur on Friday;

(ii) denied the parents' motion for a new trial;

(iii) granted the motion for expedited consideration of the Florida Department of Children and Family Services' appeal of the trial judge's denial of the department's request to intervene in the case; and

(iv) denied the Florida agency's request for a stay of Friday's removal of the feeding tube.

The court's opinion is here. [tm]

March 17, 2005 | Permalink

Wednesday, March 16, 2005

Life-Support Stopped for 6-Month-Old in Houston

Yesterday Sun Hudson, the nearly 6-month-old at Texas Children's Hospital in Houston, diagnosed and slowly dying with a rare form of dwarfism (thanatophoric dysplasia), was taken off the ventilator that was keeping him alive.  A Houston court authorized the hospital's action, and Sun died shortly thereafter.  Today's Houston Chronicle and Dallas Morning News have most of the details.

Both papers report that this is the first time in the United States a court has allowed life-sustaining treatment to be withdrawn from a pediatric patient over the objections of the child's parent.  (The Dallas paper quotes John Paris, a bioethicist at Boston College, as its source.)  If true, the unique Texas statute under which this saga was played out contributed in no small way to the outcome.  As one of the laws co-authors (along with a roomful of other drafters, in 1999) let me explain.

Under chapter 166 of the Texas Health and Safety Code, if an attending physician disagrees with a surrogate over a life-and-death treatment decision, there must be an ethics committee consultation (with notice to the surrogate and an opportunity to participate).  In a futility case such as Sun Hudson's, in which the treatment team is seeking to stop treatment deemed to be nonbeneficial, if the ethics committee agrees with the team, the hospital will be authorized to discontinue the disputed treatment (after a 10-day delay, during which the hospital must help try to find a facility that will accept a transfer of the patient).  These provisions, which were added to Texas law in 1999, originally applied only to adult patients; in 2003; they were made applicable to disputes over treatment decisions for or on behalf of minors.  (I hasten to add that one of the co-drafters in both 1999 and 2003 was the National Right to Life Committee.  Witnesses who testified in support of the bill in 1999 included representatives of National Right to Life, Texas Right to Life, and the Hemlock Society.  Our bill passed both houses, unanimously, both years, and the 1999 law was signed by then Governor George W. Bush.)

In the Hudson case, the hospital ran through the statutory procedure, but decided nonetheless to get a court order authorizing withdrawal of Sun Hudson's ventilator support.  The hospital undoubtedly had its own sufficient reasons for taking this additional step; the statute doesn't require a court order.  Indeed, the statute was designed to keep these cases out of court, if possible.

I am no great fan of unilateral withdrawals of treatment under the banner of "medical futility." When our drafting team agreed on the key language in chapter 166, I said that I hoped the authority to unilaterally withhold treatment would never have to be invoked, but I knew then what I know even better now: sometimes good, humane medical care requires it.

Since the 2003 change that made the law applicable to minors, I have participated in two cases in which life-support was ultimately withdrawn from infants over parental objections.  In both cases, the hospital extended the 10-day waiting period in order to attempt to restart discussions with the parents before unilaterally withdrawing life-support.  In one case, a previous hospital's ethics committee (on which I also serve) had twice agreed with the attending physician.  The hospital CEO overruled the committee the first time (before the 2003 amendment that added minors to chapter 166), and the second time the child was transferred to our hospital on the 9th day, and we restarted the statutory process from scratch.  In neither case did the hospital resort to a judicial proceeding to settle the treatment dispute.

My experience on five hospital ethics committees, and as co-chair of two, is that in both adult and pediatric cases, most futility disputes never get to this last step of unilateral withdrawal of life-sustaining treatment.  In most cases either the families drop their opposition along the way or the patient dies before the due-process steps required by the statute have been exhausted.  Last fall, ethicists at M.D. Anderson surveyed Texas hospitals' experiences under chapter 166; I hope they will publish their results soon.  It will be extremely interesting to find out how often the statutory process has been followed all the way to the end, including withdrawal of life-sustaining treatment over family objections.

There is no telling how the Houston judge would have decided this case if chapter 166 were not on the books.  On the one hand, it appears that no judge in this country has ever sided with the family in one of these treatment disputes.  On the other hand, the physicians, hospital, and ethics committee appear to agree that Sun's condition was fatal and that his protracted death was not without some suffering.  (I don't know how to square this with newspaper reports that "[t]he hospital's description of Sun [was] that he was motionless and sedated for comfort.") 

But in this case, the judge wasn't writing on a blank slate.  The Legislature had already spoken, twice -- once in 1999 when it enacted chapter 166 and again in 2003 when it amended the law to make it apply to pediatric patients.  All the judge had to do -- and apparently all he did do -- was to find that the law authorizes the hospital to withdraw treatment over the objections of Sun's mother, Wanda Hudson.

The papers also report than another case is making its way through Houston courts: "Another case involving a patient on life support — a 68-year-old man in a chronic vegetative state whose family wants to stop St. Luke's Episcopal Hospital from turning off his ventilator — was scheduled to be heard Tuesday by the Houston-based 1st Court of Appeals. But the case was transferred to the 14th Court of Appeals, which promptly issued a temporary injunction ordering St. Luke's not to remove the man's life support. No hearing date has been set."  More on this case in a future post.  [tm]

March 16, 2005 | Permalink

Special Medical Courts Debate

Nicholas Hengen of Legal Affairs has alerted us to the lively debate occuring at the Legal Affairs website concerning medical malpractice reform.  The debate occurs between Philip K. Howard, Founder and Chair of Common Good and the author of The Death of Common Sense: How Law is Suffocating America and Stephanie Mencimer, a contributing editor of The Washington Monthly who is also writing a book on tort reform.   Philip Howard advocates for "special medical courts" and Stephanie Mencier disagrees and believes that they are a terrible idea.   It is quite a spirited debate that is not only educational (I didn't know the history of special courts) but also quite entertaining.  The debate will continue during this week.  To read the debate thus far, please click here.  [bm]

March 16, 2005 | Permalink

Tuesday, March 15, 2005

Suffolk University Law School Health Law and Policy Forum

For those of you in the Boston area, or those who would like to visit there, Suffolk University Law School will be hosting its annual Health Law and Policy Forum on April 5, 2005 from 12:00pm until 2pm.  The featured speaker is Bruce C. Vladeck, principle in the firm of Ernst & Young LLP.  He will be speaking on "The Future of Medicare."  Suffolk University Law School provides the following description of its program: 

The Suffolk University Law School Health Law and Policy Forum is an annual program which features national and regional leaders in health law, health policy, medicine and ethics. The Forum promotes communication among practitioners and scholars across disciplines and builds on Suffolk University Law School's location and Health Law program.

As a principal at Ernst & Young LLP, Vladeck serves as the East Coast Director of its Academic Medical Center Advisory Services Practice Group. He is chairman of the board of the Primary Care Development Corporation, a member of the New York City Board of Health, and a trustee of the March of Dimes Birth Defects Foundation.

A nationally recognized expert on health care policy, health care financing, and long-term care, Vladeck served as president of the United Hospital Fund of New York and held senior positions at Columbia University, The Robert Wood Johnson Foundation, and Mount Sinai Medical Center. He is the author of Unloving Care: The Nursing Home Tragedy (Basic Books 1980).

From 1993 to 1997, Vladeck was administrator of the Health Care Financing Administration of the U.S. Department of Health and Human Services. He was also appointed by President Clinton to the National Bipartisan Commission on the Future of Medicare.

Vladeck received a bachelor of arts degree magna cum laude from Harvard College and an MA and Ph.D. in Political Science from the University of Michigan.

For additional information on Suffolk University Law School's annual forum as well as its health and biomedical law concentration, please click here.  [bm]

March 15, 2005 | Permalink