HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Saturday, May 17, 2008

Olympic Dreams for Disabled Runner

The New York Times reports the good news that a disabled Olympian runner will be permitted to compete. Joshua Robinson and Alan Schwartz write,

     When an international court ruled Friday that a double-amputee sprinter from South Africa was eligible to compete in this summer’s Olympic Games in Beijing, the stage was set for disabled athletes to meet their own trailblazer.   

The watershed ruling made the runner, Oscar Pistorius, the first amputee to successfully challenge the notion that his carbon-fiber prosthetics gave him an unfair advantage and assured his right to race against able-bodied athletes in the Olympics, should he qualify. Previously barred from competing in such races by track and field’s world governing body, Pistorius will continue to stoke the debate over the competitive issues created by evolving technology in sports. . . .

In overturning a ban imposed by the International Association of Athletics Federations, track and field’s governing body, the court deemed that there was not enough evidence to prove that Pistorius’s flexible j-shaped blades, attached below his knees, gave him an advantage . . . .

“In the world of prosthetics, with so many variables, they need a stipulation for down the road, when we come to the day and age when bionics come to the fore,” Frasure said. “If they say it’s O.K. for all amputees to compete in the Olympics, they would be setting themselves up for even more controversy, more than Oscar dealt with, in the future.”

The I.A.A.F. thought it had made that stipulation when it barred Pistorius in January, despite clearing him to compete with able-bodied athletes last spring; he ran at international meets in Rome and Sheffield, England. . .  .

Pistorius was born without the fibula in his lower legs and with defects in his feet, and his legs were amputated below the knee when he was 11 months old. He went on to set Paralympic world records in the 100, 200, and 400 meters, but did not draw attention until he started competing with able-bodied athletes in South Africa in 2004.

So last November, the track and field governing body’s cooperation with Pistorius was uncharted territory. The I.A.A.F. sponsored three days of testing on Pistorius, who gave his consent, in Cologne, Germany, under the supervision of Peter Brüggemann, a professor at the German Sport University.

Brüggemann found that the Cheetah prosthetics were more efficient than a human ankle. He also found that they could return energy in maximum speed sprinting and that Pistorius was able to keep up with a few able-bodied sprinters while expending about 25 percent less energy.

Pistorius’s lawyers, however, argued that the results of the study did not provide enough evidence to make a decision, and they lodged an appeal in February. Jeffrey Kessler, a lawyer with the New York-based firm Dewey & LeBoeuf, who agreed to take the case on a pro bono basis, led Pistorius’s defense.

“The I.A.A.F. had not at all followed proper procedures in conducting any of its review,” Kessler said. “Many of its results were in many respects pre-ordained.”

To test how much mechanical energy a runner uses, researchers study forces on the ankle, knee and hip joints. They do this with video cameras to record the joints’ motions and plates along the running path that record the force on the joints. When the athlete’s foot, or prosthesis, touches a plate, it measures the forces in three directions: up and down, right and left, and front and back.

The measurements, combined with oxygen consumption, are a reliable indicator of the runner’s economy — and whether the prosthetics are providing an advantage, said Roger Enoka, a biomechanics researcher at the University of Colorado.

The researchers who examined Pistorius were instructed to study only his performance while running on a straightaway — when he was at his fastest. That approach was deemed unfair by the court. In its published opinion, the court censured the I.A.A.F. for its handling of the case, saying that from the outset, it had its mind made up.

“The manner in which the I.A.A.F. handled the situation of Mr. Pistorius in the period from July 2007 to January 2008 fell short of the high standards that the international sporting community is entitled to expect from a federation such as the I.A.A.F.,” the panel said.

May 17, 2008 | Permalink | Comments (0) | TrackBack (1)

Friday, May 16, 2008

Costs of Preventive Health and Health Reform

Erza Klein points out an interesting article by Neal Halfon discussing health reform and its costs.  He notes the power of preventive health and positive public health efforts and how small changes add up to quite a bit of savings not to mention better health for the entire population.  Ezra Klein writes,

Reading Neal Halfon's article on "The Primacy of Prevention" reminded me of a point that I don't make enough. Health reform, which is what we mainly talk about, is about economic security more than it's about health improvement. It's about ensuring people don't go bankrupt when they need care, and ensuring the country doesn't go bankrupt in 30 years beneath the burden of health costs.

Conversely, the real gains to be made in population-health (the term researchers use for the aggregate health of the country) will come from public-health efforts. That's a broad category. It can include everything from vaccinations to stripping lead from walls to encouraging better nutrition to making educational interventions. A better integrated health system would encourage this as it would make it far easier to reach the relevant populations, but it would not, on its own, radically change the health outcomes of anyone but the uninsured or severely underinsured, and it would not necessarily be reliant on individual medical care. Rather, it'll probably require broader policy changes that make it easier for whole populations to live healthier lives almost without meaning to. That means more walkable, bikable cities. It means less pollution and lead in the walls and water. It means more access to fresh, affordable, fruits and vegetables in poor and urban areas. It means food subsidies targeted towards healthy foods rather than foods with powerful interest groups. It means more anti-smoking programs. . . . .

May 16, 2008 | Permalink | Comments (0) | TrackBack (0)

Thursday, May 15, 2008

Education Level and Death Rates

Newsweek post a blog about a recent PLoS study on death rates and the relationship of education level.  Sharon Begley reports,   

Last month I blogged about a study that underlined how we truly are Two Americas (though the idea never gained traction for John Edwards this primary season). That study found that, since the early 1980s, death rates in wealthy counties of the United States have fallen—but those in poorer ones have stagnated or risen, despite the huge strides in disease prevention and treatment. Those are just not reaching the poor. Now another study uses a different proxy for “haves” or “have-nots”—education—and reaches another shameful conclusion: the gap in death rates between Americans with less than a high school education and college graduates has soared since 1993, they will report tomorrow in the May 14 issue of PLoS One.

The scientists analyzed death certificates (which indicate the last year of schooling that the person completed, as well as cause of death) for blacks and whites between the ages of 25 and 64. The age cut-off was chosen because, for older generations, education is not as strong a proxy for socioeconomic status—class—as it is for younger ones.

The numbers are shocking. Among white men who did not graduate from high school, there were 837 deaths per 100,000 of them in 1993; that same year, only 285 white men with college degrees died per 100,000 in this age group. But it gets worse. In 2001, those respective rates were 931 and 213—the death rate for less-educated white men had risen, while that for college grads had fallen. Do the math: white men who did not graduate from high school were dying at a rate 2.9 times that of college grads in 1993—and at a rate 4.4 times higher in 2001. For black men, the comparable mortality rates were 2.1 times higher in 1993 and 3.4 times higher in 2001.

For white women who never graduated from high school, the death rate was 422 per 100,000 in 1993, and for white women with a college degree it was 165. In 2001? It rose to 553 per 100,000 in the first group, and dropped to 146 in the highly-educated group. Breaking that down, the death rate from cancer among white women with only 12 years of education rose 1.1 percent per year during the period studied; for heart disease and stroke, it rose 1.8 percent per year among these women. All three of these diseases have become more preventable and more treatable—but, apparently, only for some.

Conclusion: the widening death gap was due to sharp decreases in mortality from all causes—but especially in heart disease, cancer and stroke, all of which have benefited from new forms of prevention and treatment—among the most educated. The less educated have benefited hardly at all from medical progress.

Why are the death rates from the major causes of death falling among the educated but rising among the less educated? Think of lower educational attainment as a marker of social and economic class—which has become a big issue in the presidential campaign, as Clinton grabs the votes of those lower on the socioeconomic ladder and Obama gets the votes of the higher-ups. The have-nots are not only poorer; they also are less likely to have health insurance or stable employment, which means little to no preventive care, and lower health literacy. The last factor means less likelihood of knowing when some small symptom means big trouble, and greater difficulty navigating the medical system. Those with less education are also more likely to smoke, be obese, get little exercise, and suffer from high blood pressure due to the stress of unemployment.

“Risk factors are higher in less well-educated groups, and they have less access to preventive medicine and treatment,” says Ahmedin Jemal of the American Cancer Society, who led the study. . . .

May 15, 2008 | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 14, 2008

In Defense of Vaccines

Pandagon's Amanda Marcotte supports vaccines and has a spirited defense of them.  She writes,

Anti-vaccination cranks make me see red, in no small part because there’s no excuse for the levels of ignorance they demonstrate about the real value of vaccines. It would be more understandable if the invention of the polio vaccination, for instance, was so far in the past that there were no survivors of the disease hanging around being reminders of how terrible it really is. But there are plenty of people who had the disease that are around, suffering the lifelong effects of even the minor cases that would have allowed you to reach middle age after suffering that disease in your youth. I for one am incredibly grateful to have never known anyone with small pox, tetanus or even the . . . mumps my whole life. . . . .

Maybe what bothers me the most is that the opposition to vaccinations tends to play into this knee-jerk Luddite mentality. Not that I don’t think new technologies shouldn’t be carefully examined to see if they do more good than harm, and that things that prove to be problems like cars should be seriously reconsidered. But a lot of people don’t want to do the hard work of taking each new technology and its issues and problems on for itself, and instead just want this general “new is bad/old ways were better” rule that they can apply indiscriminately. . . .  Anti-vaccination crankery doesn’t make much sense outside of this knee-jerk hostility to innovation and science.

The irony here is that scientists really aren’t trying to conquer the imperfect body at all. Vaccination technology actually makes more sense if you realize it came from a place of great respect for the the complexity of life, and the careful study of defenses that had evolved in the body. Which is why I love vaccinations. They work with the pre-existing environment. The real wow factor is that the body responds so well and so predictably to the vaccination. In one sense, it’s a bit alarming that I extended my arm the other day to be shot up with a syringe-full of dead bacteria that would, if alive, kill me pretty . . . dead, but it was no big deal at all, because I trusted my body’s immune system to kick into action and do its job. So who’s the one that’s really trusting nature to do what it does best?

May 14, 2008 | Permalink | Comments (0) | TrackBack (0)

Oregon's Autism Cases

Reuters's Maggie Fox reports on the autism cases argued in federal court in Oregon.  She writes,

The parents of two 10-year-old boys who believe vaccines caused their sons to develop autism brought their case to U.S. federal court on Monday, arguing a mercury preservative in the shots caused a rare reaction.  Their case is the second of three being heard by a special court trying to determine if autism might sometimes be caused by vaccines. Although most medical experts say there is no link, the court can rule there is a plausible association and allow parents of children with autism to get federal compensation from a special vaccine fund. . .

"The debate is over. There is no controversy," government attorney Lynn Ricciardella retorted in her opening arguments.  "The credible scientific community has already spoken on this issue and has rejected it."  Some autism activists have seized on the case of Hannah Poling, a girl from Georgia who won a case claiming a vaccine caused autism-like complications from a rare disorder.  The activists say it proves the federal courts gave in on the argument, but the government says Poling's case, which was removed from the special process and heard separately, was an exception and cannot be used as a precedent.

The court is hearing three different theories on how vaccines might cause autism. One is that a combination vaccine for measles, mumps and rubella, or MMR, plus a mercury-containing preservative called thimerosal, can cause autism. The court heard those arguments last year and has not ruled.  On Monday, the court began hearing arguments that thimerosal in various vaccines might have caused autism in William Mead and Jordan King, both 10 and both from Portland, Oregon.


"What we will conclude ... is that thimerosal-containing vaccines belong on the list of environmental factors ... when one is evaluating what might have caused autism in a child when all of the other theories have been ruled out," attorney Tom Powers told the court in opening arguments.  He said the boys had conditions that made them especially vulnerable to the mercury in thimerosal.  "The evidence is indirect and it is circumstantial but it is supportive of the general theory of causation," he said.  No one knows what causes autism, which can severely disable a child with symptoms ranging from severe social avoidance to repetitive behaviors and sometimes profound mental retardation.  The U.S. Centers for Disease Control and Prevention estimates that about one in every 150 children has autism or a related disorder such as Asperger's syndrome.

Doctors agree there is a genetic link, and probably that something in the environment, possibly even conditions in the womb, can cause the brain effects that lead to symptoms.  While many studies have shown the thimerosal in vaccines has not caused autism, a vocal group argues the government and other experts are ignoring or covering up the evidence. Thimerosal has now been removed from most childhood vaccines. . . .

May 14, 2008 | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 13, 2008

Oral Cancer and HPV: Gardasil for Boys?

The New York Times reports today on a study concerning a link between oral cancers and human papillomavirus.  Nicholas Bakar writes,

The sexually transmitted virus called HPV, for human papillomavirus, is well known to lead to cervical cancer in women — which is why the federal government recommends that all girls be vaccinated for HPV at 11 or 12, before they become sexually active.  Now researchers are finding that many oral cancers in men are also associated with the virus.

A clinical trial testing therapies for advanced tongue and tonsil cancers has found that more than 40 percent of the tumors in men were infected with HPV. If there is good news in the finding, it is that these HPV-associated tumors were among the most responsive to treatment.  Of an estimated 28,900 cases of oral cancer a year, 18,550 are in men.

“The high risk of HPV-associated cancers in men suggests that vaccinating all adolescents is something that should strongly be considered,” said the lead researcher, Dr. Francis P. Worden, a clinical assistant professor of medicine at the University of Michigan.

HPV can enter the mouth during oral sex. A study published in February by researchers at Johns Hopkins estimated that 38 percent of oral squamous-cell cancers are HPV related, and suggested that their increasing number might be a result of changing sexual behaviors.

The new study, published in two papers in The Journal of Clinical Oncology, included 51 men and 15 women with cancers of the tonsils or the base of tongue. The researchers were able to examine biopsies of 42 of the subjects before treatment. After tests for HPV, the researchers found that 27 tumors, nearly two-thirds, were positive for the virus. Of the 51 men, researchers found 22 with HPV. . . .

“Clearly,” Dr. Gillison added, “it should give people optimism that the vaccine that was approved largely for women and for cervical cancer could have broader implications, and also for other cancers that occur in both men and women. All of our clinical trials now will be designed for either HPV-positive or HPV-negative patients. Right now, these patients are treated the same way.” . . .

“Patients who have HPV infections are at higher risk for these cancers,” Dr. Worden said. “But the good news is that if that’s the cause of their cancer, they’re more likely to survive treatment. We still don’t know what the ideal treatment regimens are. For example, these patients may benefit from less intense chemotherapy and radiation.”  Although the researchers acknowledge that the number of patients in their study was small, they conclude that especially in patients with HPV-positive tumors, chemotherapy followed by combined chemotherapy and radiation appears to be an effective treatment.

An author of the papers has an interest in a company that is developing an HPV detection method.

I wonder how people will respond to recommendations or mandates for boys to be prescribed Gardasil.

May 13, 2008 | Permalink | Comments (1) | TrackBack (0)

Detained Immigrant Health Care

The Diane Rehm Show focuses on the health care, or lack of it, provided to detained immigrants in the United States.  The overview of the show states,

The number of immigrants detained in the United States each year has tripled since the September eleventh attacks, but medical spending has not kept pace. A Washington Post investigation raises questions about dozens of deaths and the treatment of sick immigrants in custody.


Dana Priest, investigative reporter for "The Washington Post" and author of "The Mission: Waging War and Keeping Peace with America's Military"

Amy Goldstein, national social policy reporter for "The Washington Post"

Gary Mead, acting director of detention and removal operations for U.S. Immigration and Customs Enforcement.

Tom Jawetz, immigration detention staff attorney at the American Civil Liberties Union's National Prison Project

May 13, 2008 | Permalink | Comments (0) | TrackBack (0)

Monday, May 12, 2008

Employee Health Incentive Plans and Cheating

The Chicago Tribune has been following the recent development of monitoring employee incentive plans and punishing those employees who cheat.  The Tribune's Barbara Rose reports on the troubles at Whirlpool and writes,

Whirlpool Corp.'s suspension of 39 production workers at an Indiana plant who were seen smoking after declaring themselves eligible for a $500 annual tobacco-free insurance discount may signal the end of the honor system that rules most corporate wellness programs, experts said Tuesday. The action also underscores the difficulty of enforcing so-called voluntary programs when fines or incentives grow big enough to encourage cheating and snitching, they said.

"Employers have been using the honor system ever since wellness programs started, and you have to be a little naive to think that people are going to admit they smoke when they know they're going to be penalized," said Lewis Maltby, president of the non-profit National Workrights Institute in Princeton, N.J. "Sooner or later, employers are bound to start checking up. This may be the beginning of the trend."

The workers were suspended after they continued to smoke in designated locations outside the Evansville plant despite enrolling for health insurance in October as non-smokers, 
avoiding the penalty.  The company routinely asks employees to confirm their status as a tobacco user or a non-tobacco user as part of the annual benefits-enrollment process," Whirlpool said in a statement. The company added that it "investigates" employees when there appears to be a discrepancy in their enrollment status and their behavior.

"Falsifying company documents is a serious offense," Whirlpool said. "Those found to have done so are subject to disciplinary action, which could include suspension and termination."
The statement added, "The investigation into this situation is ongoing. Out of respect for the process and Whirlpool employees, the company has no further comment at this time." . . .

Get-tough regimes raise a host of legal as well as ethical issues. Employers are allowed to offer incentives or fines as part of voluntary wellness programs as long as the amount is not more than 20 percent of employees' total cost of insurance, according to federal guidelines that went into effect in January for calendar-year plans. . . .   "This is the first instance I've seen where people said they didn't smoke so they wouldn't get hit with the penalty and then got caught and punished," Maltby said. "My sense is, most employers are still using the honor system" and not checking up. . . .

But, he added, "employers didn't set up the penalty just for the fun of it. They set up penalties because they intend to enforce it. This is a very heavy-handed way to help people get healthy and cut medical costs."  Maltby questions the net savings of having smokers pay more, after employers factor in the cost of enforcement and hidden costs such as the impact on morale.  Jerry Filipiak, a senior vice president in Chicago at consulting firm Hays Benefits, said the Whirlpool action underscores the pressure employers face to control health expenses.  "To me it's a sign of how serious health-care costs are to an employer," he said. . . .

Reporter Barbara Rose further writes about the use of smoking policies in general -Smoking is a lightning rod for controversy, as is the question of whether workers who smoke should have to pay more for their health insurance.

It's no wonder then that Whirlpool Corp. made headlines last week for suspending 39 workers who were seen smoking outside their Evansville, Ind., factory despite enrolling for insurance as non-smokers.  Whirlpool's smokers pay $500 a year more for their employer-provided health insurance—a penalty big enough to increase the likelihood of cheating—but how would the company find out? Internet message boards buzzed last week with speculation about spy cameras and company snitches.   

But truth sometimes is stranger than fiction. It wasn't management surveillance or finger-pointing co-workers that outed the smokers. It was the employees themselves.  A little history is in order.

The workers' union challenged the smoker fees in 2006, citing a state law, and an arbiter ruled the company had to pay back the surcharges collected during a 28-month period through June 2006. The amount was expected to be about $1,000 per employee, according to the Evansville Courier & PressLast month, Whirlpool's suit to overturn the ruling was dismissed in a sealed settlement, setting the stage for rebates.  The suspended workers drew attention to their smoking when they asked for the rebates, prompting the company to check to see whether they had paid the fees. Apparently they hadn't.

Whirlpool declined to comment about what happened. Last week's statement confirming the suspensions said "falsifying company documents is a serious offense" punishable by suspension or termination. Workers are represented by Local 808 of the International Union of Electronic, Electrical, Salaried, Machine and Furniture Workers-Communication Workers of America, but the union also declined to comment. . . .

Nobody anticipated the trouble that would ensue from the union's 2007 grievance over the fees. The sheer number of employees suspended last week was unusual. Managers were forced to call back laid-off workers to keep the plant running.  . . .

Some no doubt will say the workers deserve to be punished if they lied on their enrollment forms. I'm tempted to say that companies ought not to ask questions about employees' health-related habits in the first place. Don't ask, don't tell.  On the other hand, I know that some companies help workers lead longer, healthier and more productive lives by offering programs that include questions about smoking and rewards for those who don't. The best of the corporate wellness programs that have been around for more than a decade include incentives for healthy behaviors. . .

The pendulum may be swinging toward the notion that employees who smoke ought to pay more for employer-provided insurance because their health-care costs are higher. Still, a minority of companies have adopted the practice.  A survey by consulting firm Mercer found that only 5 percent of employers with 500 or more workers varied health-care premiums based on smoker status in 2007. Among large employers, those with 20,000 or more employees, the number was 16 percent.  Charging smokers more inevitably raises issues of testing and enforcement. Most companies rely on the honor system. At Whirlpool's Evansville plant, that system seems to have failed.

May 12, 2008 | Permalink | Comments (0) | TrackBack (0)