Saturday, June 4, 2005
The Washington Post reports this morning that the conservative U.S. Court of Appeals for the 4th Circuit yesterday ruled that Virginia's ban on partial-birth abortions is unconstitutional because it fails to make an exception to protect the health of the mother. The majority opinion in Richmond Medical Center for Women v. Hicks was written by Judge M. Blane Michael and joined by Judge Diana Gribbon Motz (both Clinton appointees), with Judge Paul Niemeyer (appointed by Bush 41)dissenting. The 2003 Virginia law (Va. Code § 18.2-71.1), resembles the federal partial-birth abortion ban (Pub. L. No. 108-105), which was passed the same year and also fails to provide an exception to protect the health of the mother. Three district courts (in Nebraska, San Francisco, and New York) have held the federal law to be unconstitutional, relying principally upon the Supreme Court's decision in Stenberg v. Carhart, which struck down Nebraska's partial-birth abortion ban primarily for its failure to provide an exception to protect the health of the mother.
The ruling could hardly have come as a surprise, considering the previous 4 losses such statutes have racked up from the Supreme Court to the District Courts. But, as the Post story makes clear, the ruling is grist for the political mill at a time when all of Washington officialdom is gearing up for the confirmation battle(s) in the wake of Chief Justice Rehnquist's expected resignation at the end of this Term. Here's an example of the preliminary skirmish:
Supporters of the Virginia law said they were disappointed in the ruling and probably would introduce an amended version during the next General Assembly session, in January. State Sen. Ken Cuccinelli (R-Fairfax) linked the Virginia decision to the national dispute over President Bush's judicial nominees in anticipation of a possible vacancy on the U.S. Supreme Court.
"We've got a major problem and it's not with the legislature, it's with the courts," Cuccinelli said. "Because of these sorts of rulings . . . we get a bunch of judges that want to write their own policy into the Constitution." The panel wrote that its decision was based on U.S. Supreme Court decisions and noted that its obligation was to that precedent. Citing a previous decision, the panel wrote: "But even if 'abortion [is] offensive to our most basic principles of morality . . . that cannot control our decision,' for our obligation is to apply the Supreme Court's definition of personal liberty, 'not to mandate our own moral code.'"
According to Medical News Today, llinois will become the first state to enact a Sorry Works! pilot program as a potential solution to some quality of care issues. The bi-partisan
legislation was backed by The Sorry Works! Coalition, a national organization dedicated to educating doctors and hospitals
about the value of apologies and upfront compensation in reducing lawsuits, liability costs, and medical errors. The Medica News story states,
Under SB 475, the State of Illinois will establish a committee of medical, insurance, and legal experts to administer the Sorry Works! pilot program. The committee will determine if lawsuits and liability costs increase, remain the same, or are reduced with Sorry Works! The State of Illinois will cover the difference in costs between the new norm and the old norm if costs rise; however, if lawsuits and costs go down under Sorry Works, the hospitals will enjoy the savings and the State of Illinois won't incur any costs.
* * * *
Under Sorry Works, doctors and hospital staff conduct root cause analyses after every bad outcome, and if a medical error caused the bad outcome, the doctors and hospital staff members apologize, provide solutions to fix the problem, and offer upfront compensation to the patient, family and their attorney(s). This approach removes anger and actually reduces the chances of litigation and costly defense litigation bills. The program has worked successfully at hospitals such as the University of Michigan Hospital system, Stanford Medical Center, Children's Hospitals and Clinics of Minnesota, and the VA Hospital in Lexington, Kentucky.
Interesting concept. To learn more about The Sorry Works! Coalition, visit http://www.sorryworks.net. [bm]
Friday, June 3, 2005
The American Society of Law, Medicine and Ethics and the Centers for Disease Control and Prevention's Public Health Law Program are sponsoring their fourth annual public health law partnership conference. This year's conference is held in Atlanta, Georgia from June 13-15, 2005. The conference announcement states,
The 2005 conference program will focus on innovative legal tools and strategies for improved public health and will give special emphasis to information conference participants can use in their day-to-day practice. The conference faculty will be multidisciplinary, exploring cutting-edge issues at the intersection of public health and the law and presenting concrete examples of law in use as a public health tool, both domestically and internationally.
Registration information is available here. [bm]
The University of Pennsylvania School of Medicine and School of Nursing recently held a summit entitlted, "Safe Women in an Unsafe World: The"Penn Summit on Global Issues in Women's Health." Some of the participants included: Dr. Esohe Aghatise, Executive Director of Associazione Iroko Onlus, Justice Unity Dow, high court judge in Botswana, Dr. Mary Robinson, former President of Ireland and former UN High Commissioner of Human Rights and Ambassador Lewis, UN Special Envoy for HIV/AIDS in Africa It looks like it was a terrific summit and brief summaries of some of the discussions are here. In addition there is an audiolink providing additional access to some of the panels and their discussions here. [bm]
Thursday, June 2, 2005
Modernhealthcare.com reports that the JCAHO issued its 2006 patient safety requirements and goals for hospitals with three new requirements:
- Hospitals must implement and evaluate the effectiveness of a program to reduce patient falls;
- Hospitals must take mandatory steps for improving caregiver communications by implementing a standardized approach to "handing off" patients between caregivers (including giving caregivers the opportunity to ask and answer questions);
- Hospitals must improve medication safety by labeling all medications and medication containers, such as syringes and solutions, in procedure areas.
Other National Patient Safety Goals (eff. January 1, 2006) are for Ambulatory Care and Office-Based Surgery, Assisted Living, Behavioral Health Care, Disease-Specific Care, Home Care, Laboratory, and Long Term Care Networks and can be found here. [tm]
Professors Christopher H. Schoeder and Rene Ssteinzo have edited a new book entitled, A NEW PROGRESSIVE AGENDA FOR PUBLIC HEALTH AND THE ENVIRONMENT, which has been published by Carolina Academic Press (2005). In a recent review, Michele Morrone, Environmental Health Science, Ohio University notes:
You only have to look as far as the title of this book to realize that the authors have an agenda. If you are a critic of the way in which the Bush Administration is managing environmental issues, reading this book will strengthen and focus your arguments. On the other hand, if you are a supporter of Bush environmental policy, this book will help you understand the positions of your adversaries. The authors, who are legal scholars from various academic institutions across the country, systematically summarize issues and shortcomings with environmental regulations, specifically during George W. Bush’s Administration, and present a plan based on progressive principles to address these shortcomings.
One of the major philosophical shifts that we have made since the inaugural 1970 Earth Day is that environmental laws were originally enacted to protect public health from harms caused by pollution. When the U.S. government first started writing and implementing environmental and public health laws and regulations, there was very little scientific information about what the priorities should be. However, no one doubted that rivers catching on fire and needing headlights in the middle of the day were probably bad signals for the environment and human health. In this short 35-year time span, science has evolved at a fantastic rate, and this evolution may have actually contributed to inadequate environmental protection. One major emphasis of this book is the misuse of science in environmental decision-making, because conservative policymakers have exploited uncertainties in science for political reasons.
* * * *
One of the best sections of the book presents tools that the policymakers can use in regulating the environment. In this section, the authors find technology-based standards and substance bans to be “useful” tools. Instruments such as the Toxic Release Inventory, which requires industry to disclose information and emissions trading approaches to air pollution control, are labeled “neutral” tools. The approaches that are most harmful to the environment are currently being used by the administration. These include spending an excessive amount of time analyzing and gathering additional information before decisions are made and so-called “voluntary” programs. The progressive agenda calls for strategies to eliminate tools such as cost-benefit analysis in lieu of making precautionary decisions.
The New England Journal of Medicine has an interview with Dr. Robert Jay Lifton on the psychological responses of Americans to the collective trauma of war and terrorist attack. It is a supplement to his article entitled, "Americans as Survivors" which is also found in the journal. Dr. Lifton is a member of the Department of Psychiatry at Harvard Medical School, Boston, and at the Cambridge Health Alliance, Cambridge, Mass. The audiofile is available here.
Thanks to Jim Tomaszewski for this post. [bm]
Wednesday, June 1, 2005
I know, I know - many people have been Terri Shiavo'd out but you might want to take the time to read this week's The New York Review of Books, which contains a feature essay by Joan Didion on the Terri Schiavo case. Didion has many criticisms of how the case was handled and of our current use of living wills and other advance directives. She states:
In fact any notion about what Theresa Schiavo wanted or did not want remained essentially unconfirmable, notwithstanding the fact that a Florida court had in effect accepted the hearsay assertions that she had said, at one point, in reference to her husband's dying grandmother and at another while watching a television movie about someone with a feeding tube, "no tubes for me." (Imagine it. You are in your early twenties. You are watching a movie, say on Lifetime, in which someone has a feeding tube. You pick up the empty chip bowl. "No tubes for me," you say as you get up to fill it. What are the chances you have given this even a passing thought?) Most commentators nonetheless seemed inclined to regard Theresa Schiavo's "directive" as a matter of record, even as they undercut their own assumption by reminding us that the "lesson" in the case was "to sit down tonight and write your living will." Living wills, it was frequently said, could be "Terri's legacy."
There was considerable fuzziness here, not least in the reverence accorded the "living will," which seemed increasingly to be another of those well-meant and seemingly unassailable ideas that do not quite work the way we are encouraged to think they work. The chances of being admitted conscious to a hospital without being pressed to produce a living will have become virtually nil, yet any "living will" prepared in advance (as in "advance directive," exactly the document we are pressed to produce) requires us to make specific medical decisions about situations we cannot conceivably anticipate. According to studies cited last year in the Hastings Center Report by a medical researcher and a law professor at the University of Michigan, Angela Fagerlin and Carl E. Schneider, almost a third of such decisions, after periods as short as two years, no longer reflect the wishes of those who made them. The "health care proxy" or durable power of attorney, through which we assign someone we trust to make the decisions we can no longer make, is the better document, but it optimistically presupposes that we will each have with us at end of life "someone we trust."
It is a very interesting read. [bm]
The Los Angeles Times reports that a British man with a degenerative brain condition has filed suit demanding that the state give him nutrition and water to stay alive once he is no longer able to feed himself, even if the quality of his life might seem poor to an outsider. His condition will incapacitate him in 15 to 20 years. The lawsuit is in response to the the General Medical Council, the body that oversees medical licensing, which issued a "guidance" that allows doctors to withhold or withdraw life-prolonging treatment if they deem a patient's condition so severe and his prognosis so poor that artificial feeding would be more of a burden than a benefit. A doctor may do so even against a patient's expressed wishes.
Trial court Judge James Munby ruled for the patient, Leslie Burke, reasoning that a competent patient should be able to make such a decision. According to Bloomberg.com, Burke won the right to have artificial nutrition continued even when he can no longer physically communicate his wishes. The judge ordered the Genral Medical Council to revise the guidelines. On appeal, the Medical Council argued that the judgment could be interpreted to mean that patients had the right to demand treatment doctors didn't believe was in the patients' interests. The Council wants more guidance on how the High Court judgment applies to other forms of life-saving treatment, such as antibiotics or respiratory intervention, and on what basis a doctor can withdraw treatment if a patient has not given any instructions. As reported by the BBC and others, Burke's lawyers argue that the guidelines contradict the European Convention on Human Rights, which protects a person's right to life.
In an interview with the BBC World Service Radio, Sharon Burton -- an advisor at the General Medical Council -- argued that
there should be a partnership decision making between doctors and patients, just as Mr. Burke's lawyer is suggesting...We agree that it is the doctor's role to make the clinical judgments about which treatments are appropriate and should be offered to patients, and it is for patients who are competent and able to make their own choices, to make judgments about any quality of life considerations.
In an editorial in the British medical journal BMJ (extract), Raanan Gillon, a distinguished emeritus professor of medical ethics, opined that the judgment, if not overturned, will likely skew medical care by tilting the balance of medical practice towards non-beneficial and wasteful provision of life prolonging treatment in general. [tm]
Tuesday, May 31, 2005
We are pleased to announce the launch of two new blogs as part of our Law Professor Blogs Network:
These blogs join our existing blogs:
- AntitrustProf Blog (Shubha Ghosh (SUNY Buffalo))
- ContractsProf Blog (Carol Chomsky (Minnesota) & Frank Snyder (Texas-Wesleyan))
- CrimProf Blog (Jack Chin (Arizona) & Mark Godsey (Cincinnati))
- Health Law Prof Blog (Betsy Malloy (Cincinnati) & Tom Mayo (SMU))
- LaborProf Blog (Rafael Gely (Cincinnati))
- Law Librarian Blog (Joe Hodnicki (Cincinnati))
- Law School Academic Support Blog (Dennis Tonsing (Roger WIlliams) & Ellen Swain (Vermont))
- Media Law Prof Blog (Cristina Corcos (LSU))
- Sentencing Law & Policy Blog (Douglas Berman (Ohio State))
- TaxProf Blog (Paul Caron (Cincinnati))
- Tech Law Prof Blog (Jonathan Ezor (Touro) & Michelle Zakarin (Touro))
- White Collar Crime Prof Blog (Peter Henning (Wayne State) & Ellen Podgor (Georgia State))
- Wills, Trusts & Estates Prof Blog (Gerry Beyer (Texas Tech))
LexisNexis is supporting our effort to expand the network into other areas of law. Please email us if you would be interested in finding out more about starting a blog as part of our network.
In a survey of  Pennsylvania physicians representing 6 specialties at high risk of litigation for their practice of defensive medicine, [the authors] found that 93% reported practicing defensive medicine, particularly assurance behaviors such as ordering more tests, prescribing more medications, and performing more procedures to confirm diagnoses [and avoiding risky procedures].
The AP continued: "That means they engaged in unsound practices that exposed patients to potential harm, said Dr. Peter Budetti, a physician-lawyer and public health professor at University of Oklahoma Health Sciences Center. He called the numbers staggering. . . . 'Perhaps the greatest irony is that defensive medicine may be counterproductive and actually might increase malpractice risk,' said Budetti, who wrote an accompanying editorial."
A second study in this week's JAMA, according the AP, "found that caps on malpractice damages and other changes in liability law appear to have less effect on the nation's supply of doctors than ardent supporters of tort reform contend." [tm]
Today's Wall Street Journal ran four articles on various aspects of the individual health insurance market (paid subscription required):
- Individuals Face Hurdles in Health-Policy Search: The individual insurance market is at the center of a debate about how to extend health coverage to more people, a crucial point of disagreement among politicians pushing to solve the issue of the uninsured.
- Insurers' New Target: the Uninsured: Insurers are setting their sights on the 45 million Americans who lack health insurance as their traditional market of selling health insurance to employers shows sluggish growth.
- Many Ailments Can Pose Coverage Problems: Severe medical conditions like cancer, diabetes and HIV can pose formidable, and sometimes insurmountable, barriers to coverage in the individual insurance market.
- Having Insurance Doesn't Guarantee Coverage: Buying individual insurance doesn't mean that coverage of medical treatments is guaranteed. Much depends on state rules and a policy's fine print.
The Kaiser Family Foundation's "Daily Health Policy Report" has a nice summary of the four pieces, including these nuggets:
"It is not clear how expanding the individual insurance market 'would help people whose health isn't perfect and who, arguably, are the most in need of help with medical costs.' There also are 'big holes' in the individual market system, and federal protections do little 'to protect people' from higher premiums and denial of coverage for pre-existing conditions. While state-run high-risk pools might offer some relief for uninsured residents with high medical costs, the pools 'have their own problems,' such as high premiums and a low enrollment threshold."
"'Buying individual insurance doesn't mean that coverage of medical treatments is guaranteed; [m]uch depends on state rules and a policy's fine print.'"
"Patients with chronic medical conditions such as HIV, cancer and diabetes might not be able to obtain health insurance coverage, but even patients with less-severe medical problems can face barriers to getting coverage."
Marty Lederman of SCOTUSblog has been thinking about why the Raich case (the medical marijuana case) has yet to be issued. He states,
As Tom has previously written, only two cases (Raich and Miller-El) remain pending from the "December" sitting; and Justices Stevens and Souter have yet to write majority opinions from that sitting. This is odd, because -- as I wrote on the "Greedy Clerks" board earlier today -- it is unlikely (but not out of the question, cf. Sabri) that the Chief Justice would assign Raich to be written by Justice Stevens or Justice Souter. Even if my earlier prediction is correct -- i.e., that the Government will win Raich 9-0 or 8-1 (depending on whether Justice Thomas writes a dissent or a concurrence hinting that Wickard v. Filburn should be overruled) -- I have a hard time imagining the Chief assigning even a unanimous opinion in the case to JPS or DS, because of the risk that they would write about Lopez and Morrison in a way that could not hold a five-Justice Court.
Therefore, I raised the possibility that perhaps the Chief Justice is actually in dissent, either (i) because he has voted to invalidate the statute as applied, or (ii) because, although the Chief Justice would sustain the law, Justice Stevens (presumably no fan of the policy decision to enforce of the law in this context -- see his concurrence in Oakland Cannibis Buyers' Co-op), has cobbled together five votes for invalidating the Act as applied, and is writing an opinion along the lines of: "I continue to believe that Lopez/Morrison were wrongly decided, but as long as five of my colleagues continue to insist that those cases are the law, their logic leads to the conclusion that the CSA is unconstitutional as applied here . . . ."
As I wrote in that post, I find both of these scenarios implausible (the latter much more than the former) -- which leaves me scratching my head. (Not that that's a bad thing -- this arm-chair speculation is only fun because the Court is not perfectly transparent, and occasionally throws a curveball.)
I am surprised as well that the case has not been decided. June is always an exciting month for court watching -- and this one may be particularly so. [bm]
Newsweek has an interesting article in this week's issue concerning stem cell research by Jonathan Alter.
His article details how politically charged this issue has become and relates his position in support of such research. He states,
As a cancer survivor with an adult-stem-cell transplant under my belt, I'm not exactly neutral on the issue of embryonic-stem-cell research. It may end up being the best chance to save my life. But this column is not about my life or even the lives of millions of others who could be cured of everything from cancer to Parkinson's to Alzheimer's. It's about the political life of this country.
My perspective could be skewed (all politics is local), but I have a gut feeling that President Bush is headed for a serious bruising on this issue, as are at least some of the 180 Republicans and 14 Democrats who voted last week against the stem-cell-research bill that passed the House. These members may look back ruefully on this vote as one that helped get them tossed out of office. After all, every American who has a relative with one of these diseases—which means nearly every American—is beginning to understand the issue in a new way: it's "pro-cure" versus "anti-cure," with the anti-stem-cell folks in danger of being swept into the medical wastebin of history.
Also,on a more humorous note, Jesus' General website provides this helpful living will for those who are opposed to stem cell research and, to be consistent,should also be opposed to being the beneficiaries of such research:
Stem Cell Research Living Will
I hereby certify that neither I, nor any member of my family, including but not limited to: children, grandchildren, cats, dogs, etc. and any "after acquired" family will never, ever, under any circumstances (even with my fingers crossed) take or ingest any form of drug treatment or medical breakthroughs that are in any way associated with or connected to Stem Cell research. I am morally opposed to this type of medical malfeasance that our lord and Savior and Dr. Dobson most assuredly rebuke. I declare that I am of sound mind and body (as so it is hence with respect to the aforementioned family members) as we execute this irrevocable document and thusly said, this document shall not be challenged in a court of law. This is so despite the fact that I or said parties, would either now or in the future, be the beneficial recipient of such a repugnant life enhancing treatment. Only the Devil's greatest tool, i.e. "temptation" could lead us into sinful thoughts of partaking of this reprehensible policy.
Rest of Family
Should be an interesting few weeks in Congress. . . [bm]
Monday, May 30, 2005
ModernHealthCare.com reported that the state of California lost a preliminary ruling in the Sacramento Superior Court against the California Nurses Association. The issue was whether Governor Schwarzenegger and the state Department of Health Services had the authority to relax the state's nurse-to-patient ratios. Judge Judy Hersher ruled that the state had overstepped its authority in November 2004 by issuing an emergency regulation that loosened certain provisions of the staffing laws and delayed for three years a tightening of the medical-surgical ratio to one nurse for every five patients from one for every six. The judge reasoned that the administration "failed to follow the procedures established by law in determining that the regulations were necessary for the immediate preservation of public health and safety." The AP reports that the Schwarzenegger administration protests that this ruling will exacerbate an already critical shortage of nurses in California. The state will appeal this ruling and the preliminary injunction that blocked the regulation.
The emergency order issued by Governor Schwarzenegger incited a strong and intense opposition campaign from the nurses. The campaign consisted of pickets, television commercials, and aerial advertising. The Washington Post reported that the nurses demonstrated at Arnold's appearances, with Arnold responding with "Don't mind the special interest. I kick their butts every day in Sacramento." The AP commented that many political analysts have seen this protest as the mere beginning of Schwarzenegger's declining popularity as he fights special interest groups. The Executive Director of the California Nursing Association, Rose Ann DeMoro, wrote an editorial in the San Jose Mercury News that proposes three ideas for more comprehensive solutions than the Governor's that will be on the ballot in the special election. The three solutions are universal health care, making corporations pay their fair share, and financing campaigns with clean money.
Thanks to my research assistant, Lindley Bain, for help with this post. [tm]
Picking up on Tom's recent post concerning Viagra, the new revelations that Viagra may cause loss of vision and also that state governments were paying for Medicaid for a variety of individuals, including sex offenders. Majikthise has some further analysis considering who should receive Viagra and who should pay for it. You can read the posts here (discussing how states are ending funding of Viagra for sex offenders), here and here (discussing what items should be receive Medicaid coverage). The following is a concluding excerpt:
The fact is that we have clinical solutions for symptoms like impotence and hyperactivity. The question we should be asking is whether it would be a good use of our finite resources to cover these treatments. What constitutes a good use of resources shouldn't depend on whether something is a disease.
The good news is that public health insurance scheme doesn't need to draw sharp a priori distinctions between treating the diseases of individuals vs. conferring other benefits to society. We still have to ask whether it's effective, expedient, or fair to address a particular problem through the health care system. Creeping medicalization is bad, but we don't need an arbitrary standard of disease to combat it. We are only vulnerable if we assume that everything that's a disease must therefore be addressed by medical care for individuals. Even if somethings a disease, it may be more appropriate to address the problem through public health, economic policy, educational reform, or some other means.
Private insurance companies want to draw as many lines as the can. Sophistry is profitable if you can convince your customers not to demand birth control coverage because contraception doesn't treat any diseases. Public health insurance needn't obsess over this boundary. It's convenient and cost-effective to include birth control in a public health insurance program, so it's irrelevant whether this kind health care meets some preconceived definition of medicine.
The same principle applies to Viagra. The drug deserves to be considered for formulary coverage because it's an effective treatment for a troublesome physical symptom. Whether Medicaid covers Viagra should depend entirely on how the costs and benefits of the drug compare to other agents competing for a finite budget.
Very interesting reads. [bm]
According to a story in the AM News, some physicians and other health care professionals have concerns about the supply of flu vaccine for this Fall. They also worry that individuals who decided to forego the vaccine this past year, may not return to get a shot this year. The article states,
According to several presentations at the annual National Influenza Vaccine Summit convened in May by the American Medical Association and the Centers for Disease Control and Prevention in Chicago, physicians, public health officials and influenza vaccine supply experts are concerned that, after such a significant supply disruption, those who took a pass will now be lost for good.
There are multiple reasons why. These patients might not have become ill, leading them to believe they don't really need a flu shot after all. Or last season's message that flu shots be reserved for those most in need could stick beyond its relevance.
"[People] may think 'I stepped aside and didn't die. Do I really need this vaccine?' " said Steve Cochi, MD, MPH, acting director of the CDC's National Immunization Program. "Last year was confusing."
Sunday, May 29, 2005
Members of Congress have been looking more closely at the tax-exempt status of hospitals and this week will hold a hearing concerning those hospitals. Here is a link describing the House Ways and Means hearing. In addition, the Health Care Renewal blog has further commentary about the tax-exempt privilege that some hospitals receive and whether they are truly worthy of such a privilege. [bm].