July 2, 2005
Bell v. Thompson
Nearly lost amid the discussion of the
“Ten Commandments” cases was the Supreme Court’s June 27 5-4 ruling in Bell
v. Thompson (Case No. 04-514).
In 1985, Gregory Thompson abducted a Tennessee woman from a parking lot, forced her to drive to a remote location, then stabbed her to death. Thompson’s attorneys offered no evidence during the guilt phase of his trial, and they did not focus on his mental problems during sentencing. Thompson was convicted and sentenced to death, and his state appeals failed. His federal habeus attorneys retained a psychologist, Dr. Sultan, who concluded that Thompson suffered from serious mental illness when he committed the crime. Thompson's habeas counsel failed to include Dr. Sultan’s deposition and report in the record, however. The district court dismissed Thompson’s habeus petition, the Sixth Circuit Court of Appeals upheld the dismissal, and the Supreme Court denied certiorari.
Justice Breyer’s dissent also is striking for its emphasis on a psychotic disorder’s potential importance in mitigating a death sentence. This is especially relevant following the Supreme Court’s decision in Atkins v. Virginia (2002), which barred execution for a class of individuals based on a psychiatric diagnosis — mental retardation. The impact of mental retardation on a person’s functional capacities was the basis for the majority’s reasoning in Atkins. At least three law review articles (listed below) have suggested that Atkins may pave the way for additional exemptions from capital punishment based on psychiatric conditions.
Christopher Slobogin, What Atkins Could Mean for People with Mental Illness, 33 N.M. L. Rev. 293 (2003).
John H. Blume and Sheri Lynn Johnson, Killing the Non-willing: Atkins, the Volitionally Incapacitated, and the Death Penalty, 55 S.C. L. Rev. 93 (2003).
Douglas Mossman, Atkins v. Virginia: A Psychiatric Can of Worms, 33 N.M. L. Rev. 293 (2003).
July 1, 2005
Medicaid Reform Part Two
Kevin Drum of the Washington Monthly has a short piece on the Senate's efforts to close Medicaid loopholes. It is a rather partisan piece - but - it does point out some of the problems with closing these loopholes that many of the middle class are depending on when it comes to providing long term care for their loved ones. [bm]
A vareity of news sources report that Justice O'Connor has announced her retirement. For excellent coverage of this news, see SCOTUSblog, TalkLeft (here, here, here and here (plus more - just visit and read, the site provides reactions to the retirement from a number of organizations)), Washington Monthly (here and here), and How Appealing. And here I was thinking that it would be a nice, peaceful summer . . . . [bm]
Euthanasia in the Netherlands: A New Perspective
Stephen Drake, a research analyst with the Not Dead Yet organization has an article in the current issue of the Hastings Center Report. According to Drake, his article provides a significantly different analysis of euthanasia in the Netherlands and the motivations behind the proposals than what usually appears in bioethics journals. His article states,
However, there is significant evidence that at least some medical professionals in the United States would embrace legalization of infanticide based on disability. It wasn't that long ago that passive euthanasia of infants with Downs Syndrome and spina bifida was an accepted practice here, and it's still unclear to what extent the practice persists.
The sentiment for facilitating the deaths of infants with disabilities is evident in numerous research studies. For example, in 2001, Streiner and colleagues published a study in Pediatrics comparing the attitudes of parents and health care professionals in "quality of life" assessments of premature infants. The study found that neonatologists and neonatal nurses were both more pessimistic about pediatric outcomes, and also more likely to judge death to be the best outcome, than were the parents or siblings of the same children. This study, conducted in Canada, is consistent with earlier U.S. studies that have demonstrated a bias on the part of medical professionals in devaluing the lives of infants with severe disabilities. No one should mistake this bias for anything other than what it is an over-valuation of physical and mental norms, which is bigotry.
That prejudice is often mistaken for objectivity in bioethics discussions. It's one reason most public discussion of euthanasia is tainted by misinformation. For example, the Associated Press story on the Groningen protocol misinformed readers that the protocol applied to "euthanizing terminally ill newborns." This is a gross distortion: Verhagen and Sauer made no attempt to hide that they were talking about newborns with "serious medical conditions."
It's both puzzling and disturbing that this misinformation was met with total silence from the bioethics community. You would think that bioethicists, eager to claim expertise and promising to bring clarity to public debates, would have jumped all over the Associated Press report. This silence reinforces the cynical view that the righteous anger bioethicists express at outspoken disability advocates has less to do with providing clarity than protecting turf.
The entire article is worth a read as it makes us reflect on how we view the disabled in our society. To access the article in pdf format, please click here. You may also find the article in html format here. [bm]
June 30, 2005
Canada cannot be the drugstore for the United States," Health Minister Ujjal Dosanjh told reporters at a news conference.
With the cost of prescription medicine rising in the United States, many people, including some senior citizens on fixed incomes, have traveled to Canada to buy medications. The Canadian government controls prices charged by drug companies.
"In light of potential American legislation legalizing the bulk import of Canadian prescription and other medications, our priority must be the health and safety of all Canadians and the strength of our health care system," he said.
"We must be proactive in making sure that the supply of affordable prescription medications remains stable and sufficient to meet the needs of Canadians," he said.
I was wondering when this might happen. I figured that drug companies would not happily continue to supply Canada with sufficient drugs for not only their citizens but also our citizens for very long. Larry Lessig has an additional thought-provoking and information article about this topic in Wired magazine.
Thanks to Neil Wehenmen (new UC College of Law student) for this post. [bm]
Tom Cruise Update
Here is a follow-up to our June 25 posting. As you will recall, actor Tom Cruise appeared on the June 24 "Today" show to plug his new movie, "War of the Worlds." Host Matt Lauer later asked the actor about his recent criticism of actress Brooke Shields, who has publicly described taking the antidepressant medication Paxil to treat her postpartum depression.
Mr. Cruise, who ascribes to Scientologist beliefs, responded with a tirade of criticism for psychiatry and pharmacologic treatment. After calling the psychiatry a "pseudoscience," Mr. Cruise stated, "There is no such thing as a chemical imbalance ... These drugs are very dangerous. They're mind-altering, antipsychotic drugs."
The American Psychiatric Association, an organization of nearly 36,000 mental health physicians (full disclosure: I’m a member), has responded by calling Mr. Cruise's behavior "irresponsible." A June 27 statement issued by APA President Dr. Steven Sharfstein criticizes Mr. Cruise for using "his movie publicity tour to promote his own ideological views and deter people with mental illness from getting the care they need. ... Rigorous, published, peer-reviewed research clearly demonstrates that treatment works. It is unfortunate that in the face of this remarkable scientific and clinical progress that a small number of individuals and groups persist in questioning its legitimacy."
You can read a transcript of the Today show interview with Mr. Cruise at:
(His comments about psychiatry appear in the second half of the interview.)
You can find the American Psychiatric Association's response at:
This excellent post is from Douglas Mossman, Professor and Director of the Division of Forensic Psychiatry, Wright State University School of Medicine, an adjunct professor at the University of Dayton School of Law, and, much to my great benefit, a current visiting professor at the University of Cincinnati College of Law, and administrative director of the Weaver Institute for Law and Psychiatry. Dr. Mossman's e-mail is: email@example.com. His webpage is available here.
June 29, 2005
Scrushy Not Guilty
I won't even try to explain this story. It is unbelievable! CNN reports that Richard Scrushy, former CEO of HealthSouth has been found not guilty of all charges. Their website states,
Scrushy was the first chief executive charged with violating the 2002 Sarbanes-Oxley Act, a corporate reform measure passed after a wave of corporate scandals that followed the collapse of Enron. Five former chief financial officers testified against him.
A federal jury in Alabama began deliberating about six weeks ago and appeared deadlocked until last week, when U.S. District Judge Karon Bowdre replaced one juror on the 12-member panel.
As the verdict was read in the early afternoon, defense lawyers were crying while the prosecutors sat stone-faced, according to an eyewitness who was in the courtroom. Scrushy hugged his wife and his pastor.
Speaking to reporters outside the federal courthouse in Birmingham, Scrushy lashed out at prosecutors.
The 52-year-old founder and ex-CEO of HealthSouth faced 36 counts, including fraud, money laundering, and conspiracy charges. Prosecutors accused Scrushy of masterminding the fraud in order to inflate the company's stock price and to finance a lavish lifestyle consisting of real estate, luxury cars, and diamond jewelry.
Scrushy did not take the stand in his own defense, but his lawyers argued at trial that other former HealthSouth executives committed the fraud without Scrushy's knowledge. Other executives faced with similar charges, including former WorldCom CEO Bernard Ebbers, have used the same defense and were convicted.
Thanks to Jim Tomaszewski for the article. [bm]
Supreme Court Accepts Abortion Protest Case
Yesterday, the Supreme Court granted cert. in Scheidler v. Now & Operation Rescue v. Now Certiorari granted: 06/28/05 Nos. 04-1244 & 04-1352 (Consolidated) Courts below: 396 F.3d 807 (7th Cir. 2005) Full text: . The issue in the case involves whether Violation of the Acts or Threats of Violence Language in the Hobbs Act May Serve as Independent Predicate Grounds for Injunctive Relief? Here is a summary of the case from the Willamette Law Onlinet: The National Organization for Women (NOW) and two health clinics that perform abortions filed a class action law suit against Joseph Scheidler, Pro-Life Action Network, and other individuals and organizations that oppose abortions (Anti-abortion Groups). NOW alleged that the Anti-abortion groups engaged in conduct in violation of the Hobbs Act. A jury in the United States District Court for the Northern District of Illinois (District Court) found that the Anti-abortion groups had committed numerous violations of both state and federal extortion law, and also had committed four acts or threats of violence to persons or property. The United States Supreme Court (the Court) granted limited certiorari to address whether the Anti-abortion groups had committed extortion within the meaning of the Hobbs Act and whether NOW, as private litigants, could obtain injunctive relief under RICO. However, the Court did not ultimately reach the question of availability of private injunctive relief under RICO because it held that the Anti-abortion groups did not commit extortion. On remand to the United States Court of Appeals for the Seventh Circuit (Court of Appeals), NOW argued that they had not petitioned for a writ of certiorari on the four acts involving violence, and therefore it remained to be decided whether these acts could serve as a predicate for injunctive relief. The Court of Appeals remanded the matter to District Court. [Summarized by Kianna B. Bradley.] [bm]
Yesterday, the Supreme Court granted cert. in Scheidler v. Now & Operation Rescue v. Now Certiorari granted: 06/28/05 Nos. 04-1244 & 04-1352 (Consolidated) Courts below: 396 F.3d 807 (7th Cir. 2005) Full text:http://caselaw.lp.findlaw.com/data2/circs/7th/993076pv4.pdf
. The issue in the case involves whether Violation of the Acts or Threats of Violence Language in the Hobbs Act May Serve as Independent Predicate Grounds for Injunctive Relief?
Here is a summary of the case from the Willamette Law Onlinet:
The National Organization for Women (NOW) and two health clinics that perform abortions filed a class action law suit against Joseph Scheidler, Pro-Life Action Network, and other individuals and organizations that oppose abortions (Anti-abortion Groups). NOW alleged that the Anti-abortion groups engaged in conduct in violation of the Hobbs Act. A jury in the United States District Court for the Northern District of Illinois (District Court) found that the Anti-abortion groups had committed numerous violations of both state and federal extortion law, and also had committed four acts or threats of violence to persons or property. The United States Supreme Court (the Court) granted limited certiorari to address whether the Anti-abortion groups had committed extortion within the meaning of the Hobbs Act and whether NOW, as private litigants, could obtain injunctive relief under RICO. However, the Court did not ultimately reach the question of availability of private injunctive relief under RICO because it held that the Anti-abortion groups did not commit extortion. On remand to the United States Court of Appeals for the Seventh Circuit (Court of Appeals), NOW argued that they had not petitioned for a writ of certiorari on the four acts involving violence, and therefore it remained to be decided whether these acts could serve as a predicate for injunctive relief. The Court of Appeals remanded the matter to District Court. [Summarized by Kianna B. Bradley.]
Teaching Public Health Law in the Standard-Issue Survey Course
For a variety of reasons, I have decided to add a public-health component to my health law survey course this fall. One reason is that it provides a nice counterpart to the relentlessly individualistic informed-consent and right-to-die stuff. (My decision to put "right to die" back into the survey course, after having relegated it for years to my 3-hour bioethics course, is a story for another time.) Another reason is to provide an antidote to the students' general confusion over "the police power" in our system of dual federalism. And a third reason is that federal, state, and local preparations for bioterror have made it imperative that health lawyers acquire at least a passing acquaintance with the tools of the public health agencies. In some ways, the Raich case (medical marijuana) and the upcoming Gonzales v. Oregon (assisted suicide) have crystalized my thinking about the interrelationship of the traditional state role in defining the scope of medical practice, self-determination and autonomy, the regulation of end-of-life medical choices, and the respective public-health roles of federal and state actors. I am looking forward to ending the course this fall with Raich and Oregon, and part of the set-up for all of this will be some public-health law basics at the beginning of the semester.
Health law casebooks have made it easy do this, by providing judiciously edited sections on public health law. As memory serves (I am writing this in San Diego, 1000 miles from my books in Dallas), at least the casebooks by Furrow et al. (West), Hall et al. (Aspen), and Areen et al. (Foundation) -- and possibly others -- have been revised in recent years to include some public-health law materials.
A great resource, to which I recur with pleasure and profit on a regular basis, are the public-health law pages on the CDC's website. Their weekly newletter is e-mailed for free every Wednesday, and they've put up a lot of archival material that is worth visiting, especially the "26 readings in public health law" and 15 presentations on a variety of current public-health law topics. [tm]
June 28, 2005
To help keep everyone up-to-date on the Bird Flu, please check out the new Flu Wiki. A description from the creators follows:
Here is their description of this new Wiki:
A Wiki is a form of collaborative software that allows anyone to edit (change) any page on the site using a standard web browser like Explorer, Firefox or Safari.The purpose of the Flu Wiki is to help local communities prepare for and perhaps cope with a possible influenza pandemic. This is a task previously ceded to local, state and national governmental public health agencies. Communications technology has now become sufficiently available to allow a new form of collaborative problem-solving that harvests the rich fund of knowledge and experience that exists among those connected via the internet, allowing more talent to participate.
What the Flu Wiki is not:
It is not:
- a news filter
- a discussion board
- a place to promote commercial products
- a soap box
- a place to advance pet theories
There is nothing wrong with these things. Many of us have blogs that do some or all of them. The wiki is not a replacement or competition for any existing blog or site. We hope existing sites will continue to grow, flourish and generally continue to carry out the important functions they have already done so well.
What we hope the wiki will be:
- a reliable source of information, as neutral as possible, about important facts useful for a public health approach to pandemic influenza
- a venue for anticipating the vast range of problems that may arise if a pandemic does occur
- a venue for thinking about implementable solutions to foreseeable problems
No one, in any health department or government agency, knows all the things needed to cope with an influenza pandemic. But it is likely someone knows something about some aspect of each of them and if we can pool and share our knowledge we can advance preparation for and the ability to cope with events. This is not meant to be a substitute for planning, preparation and implementation by civil authorities, but a parallel effort that complements, supports and extends those efforts.
The open nature of the wiki format has shown itself able to develop surprisingly effective and sophisticated products, as in the Wikipedia. Whether it will work to fashion new solutions to a complex public health problem remains to be seen. This is in the nature of a grand experiment. We hope you will join us in it.
The initial offerings are small and illustrative, in keeping with the limited resources of those of us who are turning the keys in the ignition for the first time. While we will continue to administer and maintain the Wiki, we are turning the wheel over to the community, to take it where the road leads us. There is a bit of a learning curve to driving this rig. We hope you will find the instructions sufficient to get started. You'll soon be learning on your own. There is a "sandbox" page you can use to play with if you wish.
Regularly updated content will be forthcoming in the days and weeks to come, both by us and by you. That's what wikis arefor.
Melanie Mattson (Just a Bump in the Beltway), DemFromCT (The Next Hurrah), Revere (Effect Measure).
New Bird Flu Warning
Forget terrorism, according to the Independent (UK), bird flu is as a big a threat if not bigger than international terrorism in Britain. The article reports,
Bird flu is now as much of a danger to Britain as terrorism, ministers have been told by the Government's official emergency body.
Top officials from the Civil Contingency Secretariat (CCS), part of the Cabinet Office, told a cabinet subcommittee last week that a flu pandemic - which it believes could kill 700,000 Britons - is now one of the most serious threats facing the country.
Plans are being made to close schools and cancel sporting fixtures in an attempt to limit the spread of the virus, and official advice on how to try to avoid being infected will be ready for publication this summer.
Cobra, Britain's emergency committee, will co-ordinate attempts to fight the virus. But the Government accepts that, if the flu reaches Britain, there is no hope of stopping an epidemic, and that the only hope is to mitigate its effects.
The top-level warning comes as alarming evidence emerges from Asia that the virus, which has killed more than half of those known to have caught it, is spreading. Patchy reports from China and Vietnam suggest that the disease is affecting larger clusters of people, raising concern that it is mutating into a highly infectious strain that will sweep through the world. The World Health Organisation has warned that "the world is now in the gravest possible danger of a pandemic", while the Food and Agriculture Organisation calls it a "sword of Damocles" hanging over the globe.
For more information on the Bird Flu, please see Effect Measure, an excellent public health blog, which provides updated information as well as interesting commentary on this potential pandemic. Indeed, they have formed a Flu Wiki to help keep everyone up-to-date with the latest information. [bm]
FDA and Politics
The FDA has been under attack by a number of forces recently, and perhaps in some respect deservedly so given the problems with some drugs that won FDA approval and have now been pulled from the store shelves as well as allegations of politics infecting their decisions on drug safety. Matthew Holt at Health Care blog has a nice post on some of the FDA's current problems. He writes,
The FDA has barely had a full time official commissioner since the start of the Bush Administration. Mark McClellan was officially head for a brief while in 2003, but he barely had time to look embarrassed on 60 Minutes when asked why Canadian drugs weren't safe enough for Americans before he nipped off to the rather more rarefied atmosphere of CMS -- where he's much better suited.
Meanwhile before, after (and basically during) McClellan's time at FDA, the acting commissioner has been Lester Crawford. Some cynics have noticed that there are a few clouds over Crawford. He was involved in some pretty close to the wind activities when he was in charge of Food Safety (ironically this weekend, there's more suspicion about the Administration covering up a second case of Mad Cow). But more recently there's been much fuss over both his personal affairs (i.e. was he or wasn't he abusing his power to forward the career of a female colleague with whom he was having a close relationship) and, much more importantly, about his being behind the non-approval of Barr Labs' Plan B emergency contraceptive.
Robert Steeves has written convincingly on Why Plan B went down. Essentially Crawford overruled a scientific committee which voted overwhelmingly that Plan B (an emergency morning-after contraceptive) was safe and effective. So it won't go on the market. Of course, any time you hear anything to do with "safety" in reproductive health care in this country, your ears should prick up. There are allegations that information was withheld from the Senate Panel investigating this. Whether that's true or not, David Hager the physician who apparently has Crawford's ear and was a one of the few dissenters on the panel, appears to be a certifiable loon. Yup, he attributes all his research skills and influence to God and is not shy about telling the world about it. However, his ex-wife is not shy about telling the rest of the world about Hager's at the least inhumane and at most criminal treatment of her -- including paying her (at first) and then forcing her into types of sex that many on the Christian right probably think of as against God's law and should be banned (although they all probably indulge in private...OK that's my last direct slam on the Fundamentalists in this piece).
At any rate, it's good to know that the future of contraception in this country is in such stable and rational hands. And overall of course the whole thing is a payback from Crawford to the Christian right for supporting his appointment.
The whole article is an interesting read with some helpful links. [bm]
June 27, 2005
A Short History of Vaccines and Immunizations
There's a nice piece in the May/June issue of Health Affairs by Alexandra Minna Stern and Howard Markel entitled, "The History Of Vaccines And Immunization: Familiar Patterns, New Challenges." The authors' thesis:
Human beings have benefited from vaccines for more than two centuries. Yet the pathway to effective vaccines has been neither neat nor direct. This paper explores the history of vaccines and immunization, beginning with Edward Jenner’s creation of the world’s first vaccine for smallpox in the 1790s. We then demonstrate that many of the issues salient in Jenner’s era—such as the need for secure funding mechanisms, streamlined manufacturing and safety concerns, and deep-seated public fears of inoculating agents—have frequently reappeared and have often dominated vaccine policies. We suggest that historical awareness can help inform viable long-term solutions to contemporary problems with vaccine research, production, and supply.
Cost of Health Insurance
MyDD, a liberal blog, has an undate on how expensive health insurance has become for the American family. [bm]
Today's New York Times has an article discussing potential reforms for the Medicaid program, which has been growing and growing in cost. One popular set of ideas is to remove from Medicaid those who are "poor" so that they qualify for Medicaid as a means to pay for long term care. The article states,
Congress is holding hearings. The governors have a plan. The Bush administration has named a commission. Insurance companies have weighed in, and so have lawyers and the AARP.
The idea is to restrain the explosive growth in the taxpayers' contribution to the cost of long-term care for middle-class Americans in frail old age by making it harder to qualify for government benefits and shifting costs to individuals and private insurers.
Lawmakers, health policy experts and stakeholders in the long-term-care industry are rushing forward with proposals to remove from the Medicaid rolls people who are not poor by standard definitions, but who rather have exhausted a lifetime of resources or used legal strategies to give their money away.
There is plenty of argument about which proposals are best, but the broad consensus is that none, alone or in combination, will do much to cut government spending or provide older Americans an affordable and ethical way to pay for long-term care. And the need for a solution is critical; Medicaid, a government program created for the poor, is straining to cover two-thirds of the nation's 1.6 million nursing home residents, many of them real estate rich but cash poor.
How to care for our elderly who need long term care is a problem that this country has avoid dealing with for quite some time. I am a little worried about shifting people out of Medicaid - nursing homes are expensive. However, I also agree that having people game the system to qualify for Medicaid doesn't seem to be helpful either. The article mentions that long term care insurance has taken off and as a person with aging parents, I can tell you that one reason may be the extremely high cost. [bm]
June 26, 2005
Orthopedic Surgeons Pushing For Better Data Reporting On Medical Devices
According to Barry Meier of the New York Times, doctors get less information about products that are implanted in bodies than consumers get on the safety and performance of cars. A group of orthopedic surgeons has suggested that the government create a database that shows how competing products performed by adding additional information to the claim form. The data base would also serve as an early warning system to show when a device is repeatedly failing. The government pays hundreds of millions a year on hip and knee replacements for Medicare patients. The problem is in part a consequence of manufacturers not regularly disclosing why products are failing, no systemic reporting of how many implanted devices break down while in use, and regulators and manufacturers not disclosing the the data they do gather. The FDA requires makers of defibrillators and pacemakers to report detailed performance annually, but it does not make those reports public.
Dr. Steve Phurrough, a Medicare official, says that "this would require an overhaul of Medicare forms and computer software. " Also, because data comparing competing products are not necessary for payment, Congress does not allow CMS to collect them.
Dr. Robert Haralson, a top official of the American Academy of Orthopaedic Surgeons says that they have "little information on which one of these devices perform better than others." Dr. Robert Hauser, a cardiologist at Abbott Northwestern Hospital in Minneapolis, voluntarily maintains a database in which several hospitals report problems with pacemakers and defibrillators.
Currently, doctors and hospitals do not routinely include in their records the make or model of a device used in a procedure as they do for drugs. This makes it almost impossible to track over time how long a product lasts or what kind of flaws develop over time. Instead doctors rely on product performance reviews issued by manufacturers who report the "survival rate" of a device, which is not an accurate tell of how well the device functions. Some physicians argue that if manufacturers were required to publicly disclose more collected safety data, the industry would be forced to produce better products and improve safety. Thanks to Lindly Bain for her assistance in preparing this post. [tm]
Milk from Cloned Animals - Yummy!
The Financial Times reports on a new item that will appear shortly on your grocery shelves - milk and food from cloned animals - I can hardly wait. According to the Financial Times,
Meat and milk from cloned farm animals is about to be declared safe for human consumption by the US Food and Drug Administration, one of the world's most powerful regulatory bodies.
A favourable risk assessment from the FDA is expected to start the commercial exploitation of cloning to improve livestock quality around the world.
FDA officials told the BIO 2005 biotech industry conference they had completed a four-year assessment process and concluded that cloned animals and their progeny would be as safe to eat as conventionally bred animals. They also found that cloning was acceptable from the viewpoint of animal welfare.
Scientists said the first pork and beef from cloned animals could reach the market next year. John Matheson, senior regulatory scientist at the FDA, said uncertainty in the US government about the ethics of animal cloning had delayed publication of the assessment.
I think that vegetarianism looks more and more attractive. [bm]