HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Friday, June 16, 2006

Breast Feeding Debate

On Tuesday, the New York Times had a focus on the wonders of breast feeding.  I was surprised how much the government appears to be encouraging breast feeding.  The article states,

There is no black-box label like that affixed to cans of infant formula or tucked into the corner of magazine advertisements, at least not yet. But that is the unambiguous message of a controversial government public health campaign encouraging new mothers to breast-feed for six months to protect their babies from colds, flu, ear infections, diarrhea and even obesity. In April, the World Health Organization, setting new international bench marks for children's growth, for the first time referred to breast-feeding as the biological norm.

"Just like it's risky to smoke during pregnancy, it's risky not to breast-feed after," said Suzanne Haynes, senior scientific adviser to the Office on Women's Health in the  Department of Health and Human Services. "The whole notion of talking about risk is new in this field, but it's the only field of public health, except perhaps physical activity, where there is never talk about the risk."

A two-year national breast-feeding awareness campaign that culminated this spring ran television announcements showing a pregnant woman clutching her belly as she was thrown off a mechanical bull during ladies' night at a bar — and compared the behavior to failing to breast-feed.

"You wouldn't take risks before your baby's born," the advertisement says. "Why start after?"'s Sydney Speisel has slightly different point of view and believes that breast feeding and its benefits may be overstated.  He states,

Nursing is credited with preventing infants from getting cancer, allergic diseases, Crohn's disease, cavities, SIDS, and with improving IQ. For mothers, it's also asserted to prevent diabetes, certain cancers, and postpartum depression. In most cultures, however, vast differences—economic, educational, ethnic, psychological, biological—separate women who choose to breast-feed from women who choose formula-feeding. These differences are exaggerated when researchers compare, as they commonly do, the babies of women who breast-feed exclusively for six months and those who exclusively formula-feed for that length of time. The difficulty of doing research on humans thus poses a particular problem for studies of breast-feeding. Breast-fed babies may on average have higher IQ scores, say, but is the difference because of the breast-feeding or some other factor, like coming from a family with a higher income level or more education or fewer siblings? In the studies that have been done to date, untangling the observed effects is a nearly impossible exercise in subjective judgment. That's especially the case for evaluating subtle effects like IQ level, or the much later development of childhood cancer, allergies, or tooth decay.

Other benefits of breast-feeding seem pretty clear and incontrovertible. Large-scale studies in the developing world have reported a striking drop in infant mortality as formula-feeding is replaced by nursing. But while the role of breast-feeding in preventing infection is real, it is also widely misunderstood.

When you ask a bunch of doctors about how breast-feeding prevents infection, they get it wrong—I know they do, because I've asked the question. Doctors tell you that colostrum (produced in the first three days or so after a baby is born) and breast milk are full of maternal antibodies. Next, doctors say that these maternal antibodies are absorbed into the infant's blood circulation and thus serve to protect infants from disease.

That's the correct description of the immunology of breast-feeding for most mammals. It's also true that human colostrum and milk are rich in maternal antibodies—colostrum is pretty much antibody soup. And babies take in these antibodies as they nurse. But human babies are never able to absorb maternal antibodies from milk or colostrum into the bloodstream, except perhaps in the minutest amounts. Maternal antibodies in milk and colostrum protect against infection—but only locally, working inside the baby's gastrointestinal tract. . . .

None of this is my discovery. It was well-known, even commonplace, in the immunological literature of 40 years ago. But as the field turned to other matters, these findings just sort of fell out of fashion (though I've certainly come upon plenty of modern papers whose authors understand the idea). Because of the modern aversion to looking at older research, a surprisingly large number of doctors, especially nonimmunologists, have either forgotten this aspect of human immunity or never knew about it. And perhaps nobody wanted to bring the older findings to light for fear that doing so might discourage breast-feeding. (I can assure you that I feel some trepidation as I write this.)

What should we make of the facts about the immunobiology of lactation? First, it bears repeating that even if the immunological benefits are often overstated, there is clear and obvious benefit to breast-feeding in most of the developing world. Second, though it is harder to demonstrate in a scientifically satisfying way, there are probably other biological benefits. And there are surely economic reasons to give babies human milk instead of formula, which costs between $1,500 and $3,000 a year. In the developing world, the economic case against formula-feeding might be as potentially lifesaving as the immunological one: Money stolen from a poor family's budget for formula will not be available for food, housing, education—or even soap.

In the end, though, I find myself falling back on the same logic (or lack of logic) that appealed to me when my babies were born. Biologically speaking, it seems as if breast-feeding ought to be better for babies. At the same time, I am strongly convinced that there are two kinds of nutrition, physical and psychological, and that both are equally important. This conviction persuades me that it's better for a mother to formula-feed her baby pleasurably than to breast-feed and hate it. Fortunately, the majority of mothers enjoy nursing. But not all. Some women don't like to nurse, and others, even with the best help, find it physically difficult or daunting or intolerably uncomfortable. Sometimes, also, babies just aren't good nursers. In the end, I always encourage a mother to choose the feeding method that is most satisfying to her.


June 16, 2006 | Permalink | Comments (0) | TrackBack (0)

Chinese Prisoners and Organ Donors

CNN's Anderson Cooper had a story on last night concerning the Chinese use of prisoners as organ donors.  From the Anderson Cooper website:

There are 90,000 people waiting for organs in the United States. Many of them will die before they ever get close to a transplant. Eric DeLeon of San Mateo, California, did not want to be one of them.

Eric was diagnosed with liver cancer last year. Because he had nine tumors, he was taken off the U.S. transplant list. Doctors considered him a poor candidate for survival.

"I just knew that cancer was going to grow and spread throughout my body and I thought I would be another statistic," Eric told me recently.

So Eric and his wife Lori searched the Internet to check out other transplant options. He found a transplant service in China that promised to find him a healthy liver in a matter of weeks. Eric mortgaged his home and paid $110,000 for a new liver. Two weeks later, he arrived in Shanghai. A couple weeks after that, he had his new liver.

Eric is not alone in looking to China for a new organ. We're told that tens of thousands of foreigners are paying for transplant surgery in China. The problem is those organs may be cut from an executed death row prisoner without consent. That's not all. Some organs are said to have been removed before the prisoner took his last breath in order to keep the organs as fresh as possible.

According to a recent editorial, the Chinese government has defended its program.  Thanks to TalkLeft for the heads up on this story.  Truly the wrong answer to the organ shortage. 

June 16, 2006 | Permalink | Comments (0) | TrackBack (0)

Thursday, June 15, 2006

Colombo on Hospital Property Tax Exemption in Illinois

Courtesy of Paul Caron & TaxLawProf blog:

Jcolombo_5John D. Colombo (Illinois) has published  Hospital Property Tax Exemption in Illinois: Exploring the Policy Gaps, 37 Loy. U. Chi. L.J. 493 (2006).  Here is the Conclusion:

The analysis presented in Part IV of this Article illustrates that the question of what doctrinal tests the court should employ to govern property tax exemption for hospitals and other health care providers is far more complex than popular press accounts might lead one to believe or than the Illinois courts may have realized. One can hardly blame the courts, however, for lacking the expertise in health care or tax policy to appropriately recognize the pitfalls inherent in interpreting property tax exemption rules. Even the Internal Revenue Service, whose job it is to think more comprehensively about tax policy and its far-reaching effects, has fallen into a similar trap.

But the policy problems identified above are real, and they demand the serious attention of the legislature, rather than piecemeal attention by courts followed by a spasm of legislative action when newspaper headlines roar. Without such consideration, the process of individual adjudication by litigation almost certainly will result in ill-conceived tax and health policy as a by-product of defining charitable property tax exemption. The people of Illinois (and other states where these issues may arise) and the uninsured who are directly affected by these policy decisions deserve better.


June 15, 2006 | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 14, 2006

AMA: Policing Salt

The American Medical Association wants the food instrustry to reduce the amount of sodium in processed foods by at least 50 percent and and wants the Food and Drug Administration to place warning labels on foods that are high in salt.  According to an article at

On a voice vote, AMA delegates adopted the policy at their five-day annual meeting, which ends Wednesday. Getting the food industry to gradually reduce sodium content in foods by at least half over the next decade is the goal of the new policy.

The policy also calls for the AMA to ask the FDA to revoke the "generally recognized as safe" (GRAS) status of salt.  . . . .

The American Heart Association recommends limiting sodium intake to less than 2,300 milligrams daily, or less than about one teaspoon, but the average daily intake among U.S. adults is nearly double that amount, the report said.

The AMA report said there is overwhelming evidence that excessive sodium intake is a risk factor for hypertension and may be an independent risk factor for other cardiovascular problems.

More than 30 percent of U.S. adults have high blood pressure, and cardiovascular disease is the nation's leading cause of death.

For an overview of some of the other policy positions the AMA adopted at its annual conference, including increasing mental health services on college campuses, promoting new methods to increase organ donation, and a temporary moratorium on direct-to-consumer advertising on new prescription drugs, click here. [bm]


June 14, 2006 | Permalink | Comments (0) | TrackBack (0)

Emergency-Care Shortage

The Institute of Medicine issued several reports on its recent major investigation concerning the nation's emergency-care system and concluded the system is "at its breaking point."  From the Institute's website:

The Institute of Medicine's Committee on the Future of Emergency Care in the United States Health System was convened in 2003 to examine the state of emergency care in the U.S., to create a vision for the future of emergency care, including trauma care, and to make recommendations to help the nation achieve that vision.  Their findings and recommendations are presented in three reports::

  1. Hospital-Based Emergency Care: At the Breaking Point explores the changing role of the hospital emergency department and describes the national epidemic of overcrowded emergency departments and trauma centers.
  2. Emergency Medical Services At the Crossroads describes the development of Emergency Medical Services (EMS) systems over the last forty years and the fragmented system that exists today.
  3. Emergency Care for Children: Growing Pains describes the unique challenges of emergency care for children.

The Associated Press summary of the reports states:

That ERs are overburdened isn't new. But the probe by the IOM, an independent scientific group that advises the government, provides an unprecedented look at the scope of the problems — and recommends urgent steps for health organizations and local and federal officials to start fixing it.

Topping that list is a call for coordinating care so that ambulances don't waste potentially lifesaving minutes wandering from hospital to hospital in search of an ER with room. The idea is to set up regionalized systems that manage the flow much like airports direct flight traffic. That also should direct patients not just to the nearest ER but to the one best equipped to treat their particular condition — making sure stroke victims go to stroke centers, for example.

Other recommendations:

_Congress should establish a pool of $50 million to reimburse hospitals for the unpaid emergency care they provide to the poor and uninsured.

_Congress should ensure that more of the nation's disaster-preparedness funding goes to the hospitals and emergency workers who will provide that care. Typical government grants to hospitals for bioterrorism preparation are $5,000 to $10,000 — not enough to equip one critical-care room. When it comes to getting ready for a bird flu outbreak, few hospitals even have the ventilation equipment needed to isolate patients. And emergency medical services received only 4 percent of the $3 billion distributed by the Department of Homeland Security in 2002 and 2003 for emergency preparedness.

_The board that accredits the nation's hospitals should establish strong guidelines to reduce crowding and ambulance diversion.

The report states that the demand for emergency care has increased dramatically over the past decade while the number of ambulance services, hospital capacity and emergency workers dropped.

I am not hopeful that Congress will act on this report -- seems that flag burning prevention is a bigger priority  -- but perhaps I will be pleasantly surprised.  [bm]

June 14, 2006 | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 13, 2006

Health News for Alcohol and Coffee Lovers

Scientists published a study in this  Monday's Archives of Internal Medicine demonstrating that coffee may help offset liver damage caused by alcohol abuse.  Heavy drinkers of alcoholic beverages who also drank lots of coffee were less likely to develop cirrhosis.  According to an AOL news report:

In a study of more than 125,000 people, one cup of coffee per day cut the risk of alcoholic cirrhosis by 20 percent. Four cups per day reduced the risk by 80 percent. The coffee effect held true for women and men of various ethnic backgrounds.

It is unclear whether it is the caffeine or some other ingredient in coffee that provides the protection, said study co-author Dr. Arthur Klatsky of the Kaiser Permanente Division of Research in Oakland, Calif.

Of course, there is a better way to avoid alcoholic cirrhosis of the liver, Klatsky said.

"The way to avoid getting ill is not to drink a lot of coffee, but to cut down on the drinking" of alcohol, he said.

The participants ranged from teetotalers, who made up 12 percent of the total, to heavy drinkers, who made up 8 percent. The researchers calculated the risk reductions rate for the whole group, not just the drinkers.

NPR's morning edition reports further on this study  Researchers are attempting to find out what about coffee provides protection for the liver and to discover why certain heavy drinkers are more likely to develop the liver disease than others.  Finally, the researchers warn that coffee drinking does not eliminate all the harms of heavy drinking. [bm]

June 13, 2006 | Permalink | Comments (0) | TrackBack (0)

Selecting and Ranking Physicians

    Kent Sepkowitz, a physician writing for, discusses magazine rankings of doctors that seem to be growing in popularity.  Although perhaps not as controversial as the US News and World report rankings of law schools, he provides some critique of the ranking process for physicians and also then gives his own commonsense selection critieria when looking for a doctor.  He states,

About this time every year, doctors across New York City begin to cast a wary eye at local newsstands. When the bundle of New York magazine's "Best Doctors" issue drops onto the pavement, torture commences for the city's prim and laconic physician class. (Other cities get their chance at other times of year.) It's high school all over again, a life lived at the mercy of cruel arbiters of who is up and who is down. To their credit, I suppose, the compilers of the Best Doctors list define worthiness with more objectivity: They poll local doctors and ask whom they would refer a family member to. With this quasi-statistical information in hand, they go behind closed doors and construct the dreaded list.

To my expert eye, every year the New York survey gets it about half right: Half of the selections are first-rate doctors, no doubt about it. Another 25 percent are people whom I don't know well (though I have my doubts), and 25 percent are certifiable duds—doctors who (hopefully) haven't seen a patient in years but have risen to the lofty realm of high society and semi-celebrityhood. . . .

What's so bad about this sort of thing? After all, Who's Who and its progeny operate a similar scam. I would argue, though, that by adopting the guidebook approach, Best Doctors (or Best Lawyers or Best Dentists) fails the public by making a false promise. The real problem at hand—how do you find a reliable professional whose services you very much need—can't be solved as readily as picking a restaurant or health club. You can't run a Zagat-style survey and get worthwhile results. Nor can you pay people to crash the car and then rate the product. The Best Doctors approach—asking other doctors to name the colleagues they trust enough to send a family member to—sounds like it ought to work. But it doesn't.

To begin with, the list is heavily influenced by backslapping, back-stabbing, and old-fashioned old-boyism. Powerful medical departments are too generously represented while oddball offices or people are gone with the wind. Even if that weren't the case, however, the list would be mostly useless.

How do I know? Friends and family are always asking me for the name of a good doctor. I think long and hard. I consider their ages, sexes, the doctor's experience and office location and background, the doctor's and the putative patient's outside interests, the ages of their respective children and the careers of their respective spouses, their hair color, office color, office furniture. I think of everything I can think of.

And still, almost every time, my friends and relatives rue my choice. The endeavor is like setting up a blind date. It should work, right? You know the guy a long time, your wife knows the woman a long time; everybody likes everybody. But then comes the date and splat!—a disaster—plus the original friendships become frayed with silent accusation: You thought I would like her?

The doctor-patient relationship is just that, a relationship, full of all the nonsense and idiosyncrasy that defines the genre. It's why good doctoring has a magic quality, like a good friendship. The intricacy of this symbiosis also is why a "best doctor" can't be determined by asking a bunch of professors whom they might send their brother-in-law to.

Which is not to say the search for a solid doctor is hopeless—just that the guidebook approach has made the task more complicated than it needs to be. Below is my simple one-two-three approach. It's even in glossy-magazine format.

1) Trust your instincts: There are lots of rotten doctors, really really lousy ones, wretched souls you wouldn't want to know as people, much less trust with your health. But they aren't any harder to suss out than the schmucks you meet in everyday life. If your gut says run, then run.

2) Don't trust your instincts if a scalpel is involved: Subjective impression is meaningless when selecting a surgeon. Craft should trump your desire to like them; in fact, it's OK to hate your surgeon. You simply need him to cut and sew very intelligently. So always select the surgeon who has already done the most iterations of whatever procedure you need. Stated in Zagat-ian terms: Which restaurant do you want to go to—the one with the line or the one that sits empty?

3) Shop around: Diagnosticians, sensitive (and craftless) souls that we are, succeed only if we connect. A doctor who is beloved by one person can be a disaster for the next. Think of who ended up marrying whom—there simply is no accounting for taste. So look before you buy. Yes, it takes time, it takes money, it is humiliating and ridiculous and maybe just a sinister plot to give doctors more business. Do it anyway, and do it when you are well.

Magazine "best" lists are a good read for choosing things that don't much matter, like fitness clubs and pizza and a summer vacation spot. But when it comes to the basics—health, education, and welfare—no one but a best-list maniac would seek counsel from the printed page. And for the maniacs, well, we can only hope that someone out there is polishing up a survey on the 10 best ways to cure a best-list addiction.


June 13, 2006 | Permalink | Comments (0) | TrackBack (0)

Monday, June 12, 2006

50-State Legislative Survey

Here's the current issues survey of state legislative activities of interest to state medical boards, courtesy of the Federation of State Medical Boards.  Covered issues:

  • Continuing Medical Education
  • Criminal Background Checks
  • Laser Regulation
  • Medical Director Overview by State
  • Medical errors/patient safety
  • Pain management
  • Physician profiling
  • Regulation of office-based surgery
  • Resident Licensure and Post Graduate Training Programs
  • Telemedicine licensure


June 12, 2006 | Permalink | Comments (0) | TrackBack (0)

The Donut Hole

No, not the yummy kind, unfortunately the donut hole in the Medicare Part D program (as you may recall, the program provides coverage for a subscriber's prescription drugs until he reaches a certain dollar limit, then it pays nothing (the hole), the program does start paying again but only after the subscriber has paid several thousand dollars of his own money to cover the costs of his prescription drugs) is about to become apparent to many new subscribers -- I don't think the result will be a pleasant one.  The New York Times has an article by Robert Pear on the impact of the donut hole  on Texas residents -

On May 2, Mr. Flores paid $20 for Plavix, a blood thinner used to reduce the risk of heart attack and stroke, and Medicare paid $109.62. But when he refilled the prescription at the end of May, he was in the coverage gap, so he had to pay the full amount, $129.62.

Mr. Flores is angry with Medicare, with his drug plan and even with the pharmacists who try to help him. He says no one told him about the coverage gap when he signed up.

Vanessa M. Recio, a pharmacist at Saenz Medical Pharmacy in Mission, Tex., said: "All I do all day is talk to angry patients. I process insurance claims and try to solve problems with Medicare."

The Times piece points out some of the other difficulties that individuals continue to have with Part D - including immigrants and pharmacists who have problems processings claims.  The Washington Monthly has a further examination of the politics of the  donut hole issue.  [bm]   

June 12, 2006 | Permalink | Comments (0) | TrackBack (0)

Sunday, June 11, 2006

Hospital Disaster Preparedness Hearings

It's not technically new, but it's new to me: from the Subcommittee on Oversight and Investigations of the House Committee on Energy and Commerce, hearings on January 26 on "Hospital Disaster Preparedness: Past, Present and Future."  No transcript available yet, but the link will appear on the hearing page when it is; meanwhile, filed testimony is available.  Interesting stuff for you public health law classes.  [tm]

June 11, 2006 | Permalink | Comments (0) | TrackBack (0)