HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Saturday, June 28, 2008

Informed Consent or Compelled Speech

The Eighth Circuit has overturned an injunction granted to Planned Parenthood that prevented the South Dakota informed consent abortion statute from going into effect. The ASCBlog reports on the case and states,

An en banc panel of the U.S. Court of Appeals for the Eighth Circuit voted 7-4 to overturn a preliminary injunction against South Dakota’s statute requiring “informed consent” prior to an abortion. Among other things, the statute requires physicians to provide a written statement to a patient declaring “the abortion will terminate the life of a whole, separate, unique, living human being.”

Majority Opinion

The majority opinion in Planned Parenthood Minnesota v. Rounds recognized a higher standard of review for preliminary injunctions that enjoin the enforcement of a state statute. The opinion by Judge Raymond Gruender, instead of using the “fair chance” standard, which requires plaintiffs to show they have a fair chance of prevailing on the merits, now requires district courts to find that “a party is likely to prevail on the merits.” . . .

Dissenting Opinion

The dissent, written by Judge Diana Murphy, argued that the court “bypassed important principles of Constitutional law” as well as “depart[ed] from established practice by not remanding for the district court to have the opportunity to apply the new standard.” The Court characterized [the statute's requirements] saying “the obvious objective of the Act . . . is to use the concept of informed consent to eliminate abortions.”

Judge Murphy concluded the law “more than likely violates constitutionally recognized fundamental rights of women seeking an abortion and of attending physicians.” It “compel[s] doctors to communicate the state’s ideology,” and interferes “with the doctor patient relationship.” . . .

June 28, 2008 | Permalink | Comments (0) | TrackBack (0)

Friday, June 27, 2008

Medicare Delayed

The New York Times reported yesterday on the delay in the Senate's consideration of the Medicare Bill which would have blocked the 10 percent automatic cut in Medicare payments to physicians scheduled to begin in July.  Now, those cuts are back, and Robert Pear reports, no one is terribly happy about it.  He writes,

Doctors face a 10 percent cut in Medicare payments next week, following the Senate’s failure on Thursday to take up legislation that would have averted the cuts. Republican senators blocked efforts by Democrats to call up the bill, which was approved Tuesday in the House by an overwhelming bipartisan vote of 355 to 59. In the Senate, supporters fell two votes short of the 60 needed to close debate. The vote was 58 to 40.


Senator Charles E. Schumer, Democrat of New York, said, “We have to pass this bill to avoid catastrophic cuts to doctors.”  Dr. Nancy H. Nielsen, president of the American Medical Association, said the cuts would force many doctors to “limit the number of new Medicare patients they treat.”   The bill would cancel the 10 percent cut scheduled to occur on Tuesday and would increase Medicare payments to doctors by 1.1 percent in January.

President Bush had threatened to veto the bill, in part because it would reduce federal payments to private Medicare Advantage plans, offered by insurers like Humana, UnitedHealth and Blue Cross and Blue Shield companies. The 10 percent cut occurs automatically because of a statutory formula that reduces Medicare payments to doctors when spending would otherwise exceed certain goals.

Senator Mitch McConnell of Kentucky, the Republican leader, said: “We offered to negotiate. We offered to extend current law.” But, Mr. McConnell said, Democrats refused.  Lawmakers are leaving town this week for the Fourth of July holiday. When they return, they could increase doctors’ payments retroactively. But there is no guarantee.  The Senate majority leader, Harry Reid, Democrat of Nevada, said: “Senate Republicans are playing a dangerous game of chicken. The only losers will be Medicare patients, old people.” . . .

Here is the earlier NYT article discussing the House passage of the Bill earlier this week.

June 27, 2008 | Permalink | Comments (0) | TrackBack (0)

Some Happiness for Your Day

Please click here --- I want that guy's job - fun dancing, travel and opportunity to show how much we all have in common with each other.  More information about Matt and his mission can be found here.

June 27, 2008 | Permalink | Comments (0) | TrackBack (0)

Thursday, June 26, 2008

American Poor and Exotic Illnesses

The LA Times reports on a number of exotic illnesses that strike the poor living in the United States.  Perhaps if they had some health coverage  this wouldn't be happening . . .    Wendy Hansen writes,

Despite plummeting mortality rates for most infectious diseases over the last century, a group of largely overlooked bacterial, viral and parasitic infections is still plaguing the nation's poor, according to a report released this week.  Many of the diseases are typically associated with tropical developing countries but are surprisingly common in poor regions of the United States, according to the analysis, published in the Public Library of Science journal PLoS Neglected Tropical Diseases.

On its list of 24 "neglected infections of poverty" are schistosomiasis, a parasitic infection common in Africa; brucellosis, a bacterial infection from unsanitary dairy products; and dengue fever, a viral infection common in tropical Asia and South America.   

Many of the diseases have become significant public health problems in the United States. In the Los Angeles area, a pork tapeworm infection called cysticercosis which spreads in crowded, unsanitary conditions, accounts for 10% of seizures resulting in emergency room visits, according to the report. Worm cysts in the brain cause the seizures and can lead to permanent epilepsy.  The 24 diseases afflict at least 300,000 Americans, and possibly millions, according to study author Dr. Peter Hotez, chairman of George Washington University's department of microbiology, immunology and tropical disease.  . . .

The diseases are largely concentrated in poverty-stricken regions, including Appalachia, inner cities, the Mississippi Delta and the border with Mexico.  Often the result of poor sanitation or inadequate healthcare, they can hinder child development and worker productivity, exacerbating poverty, the study says.

Yet many of the diseases have received little attention, Hotez said. For example, nearly every hospital screens infants for the genetic disease phenylketonuria, but only two states require screening for toxoplasmosis, a parasitic infection passed from mother to child at birth. Both diseases cause mental retardation. Toxoplasmosis affects 10 times as many newborns as phenylketonuria does, but toxoplasmosis is mostly limited to inner cities and poor Southern areas.

The first step in combating the diseases is more closely monitoring their prevalence and transmission routes, Hotez said.  Though the conditions are often preventable or easily curable, many sufferers never receive medical attention. "We do monitoring for all those diseases," said Dr. Jonathan Fielding, Los Angeles County public health director. "Whether there's 100% reporting is another issue." . . . .

June 26, 2008 | Permalink | Comments (0) | TrackBack (0)

Privacy Standards for Online Health Records

The Wall Street Journal Health Blog has a helpful overview of the new privacy framework agreed to by some internet folks for protecting privacy of online health records.

Google, Microsoft and a bunch of other organizations said yesterday they have agreed to a set of privacy standards for online health records. You can read all about the framework here.

It’s pretty clear that there’s a lot of upside from having peoples’ health records online — less redundancy, fewer missing tests, no more faxing records from one doctor to another. But privacy is a big concern; a recent article in the NEJM pointed out that tech shops such as Google and Microsoft don’t have to abide by HIPAA, the federal law that covers patient privacy. . . .


June 26, 2008 | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 25, 2008

Checklists Adopted by WHO

The New York Times reports on the adoption by the WHO of a series of checklists to help reduce injuries and deaths during surgery.  Lawrence Altman writes,

The World Health Organization issued its first guidelines on Tuesday aimed at reducing complications and deaths from the rising numbers of operations now being performed.  The guidelines are a list of simple safety checks that the health organization said could halve the rate of surgical complications. The list is intended to improve anesthetic safety practices, avoid infections and improve communication among members of surgical teams.  For example, one guideline calls for all members of the masked surgical team to identify themselves and their roles and ask simple questions like, “Does everyone agree that this is Patient X, undergoing a hernia repair?”

Other recommendations call for marking the correct site for surgery to avoid operating on the wrong patient or performing the wrong procedure; giving an antibiotic within 60 minutes of making an incision, to reduce infections; checking for allergies to drugs; inserting two intravenous lines for operations involving substantial blood loss; and counting sponges and needles to ensure that none are left in a patient.

Dr. E. Patchen Dellinger, vice chairman of surgery at the University of Washington, which took part in the W.H.O. research, said that when the checklist was discussed with nonmedical people, “the most common reaction is the question: ‘You mean you haven’t been doing this all along?’ ”

The surgical guidelines grew out of a similar checklist aimed at reducing infections in hospitals. The infection guidelines were developed by Dr. Peter J. Pronovost of Johns Hopkins University, who borrowed the idea from the aviation industry, said Dr. Atul Gawande, of the Harvard School of Public Health.  Dr. Gawande and his team at Harvard had been asked by the W.H.O. to develop a method to reduce surgical deaths, and he said they used the infection guidelines as a model.

Three countries — Britain, Ireland and Jordan — have said they will put the surgery guidelines in force in all hospitals, Dr. Gawande said. Professional groups endorsing checklists include the American College of Surgeons, the American Society of Anesthesiology and the Association of Perioperative Registered Nurses. . . .

These checklists seem to be overdue and hopefully the fear that such helpful lists will create a standard for liability will not deter others from adopting such lists for their practices.

June 25, 2008 | Permalink | Comments (0) | TrackBack (0)

Practicing Medicine without a License

From my local paper,

A Hamilton County grand jury indicted a Fort Mitchell man today, accusing him of treating patients at a medical clinic even though he’s not a doctor.  Jack Lee Readnour, 64, was indicted on one count of possessing criminal tools and four counts of practicing medicine without a license. The charges carry a maximum prison sentence of five years.  Because the charges are the lowest-level felonies in Ohio, the charges carry the presumption of probation unless Readnour has a criminal history.

Readnour, 64, was arrested June 13 after a relative of a Readnour patient became suspicious and called authorities.  Readnour operated the Monfort Heights Family Clinic where police said he performed numerous medical procedures, including immunizations for children, mammograms and colonoscopies. Police don’t believe he performed surgeries.

Ohio’s medical board discovered Readnour never had applied for a medical license. He also doesn’t have a license to practice medicine in Kentucky.  The possession of criminal tools charges stems from the allegation that Readnour used computers, EKG machine and medical equipment to treat patients.

I am always surprised to read that individuals act in this manner.  How do think that they will get away with this?  Although I am also surprised that this individual seems to have been able to pass himself off as a doctor for so long. 

June 25, 2008 | Permalink | Comments (1) | TrackBack (0)

Monday, June 23, 2008

God Committees and Organ Shortages's Sally Satel has a short piece on "God Committees," and the history of how these committees operated and how decisions were and are now being made about the appropriate distribution of human organs among many needy individuals.  Ms. Satel argues for compensation for organs as a potential solution to the lack of organs which continues to exist despite educational efforts and more.    She writes,

According to a recent investigation by the Los Angeles Times, four members of the yakuza, the Japanese mafia, received liver transplants at the UCLA medical center between 2000 and 2004. Two of the four men later gave a $100,000 contribution to the medical center, prompting speculation that a cash promise got them bumped to the head of the transplant waiting list. The story suggested that this revelation could "have a chilling effect on organ donation." That worry already seems well-founded. "I'd say kill the gang members and take their organs to give to law-abiding citizens," read one of the hundreds of hostile posts on the Times' Web site. "You're not getting mine!" said another. "I'm removing my name from the Donor list immediately." A third charged that UCLA actually stands for "Universally Corrupt Liver Auctioneers."

In an op-ed, UCLA tried to defend itself. Dr. Gerald S. Levey, dean of the David Geffen School of Medicine at the university, denied that the men had been whisked in for operations ahead of others. As for the public outcry surrounding the moral standing of the Japanese men, he said, "those who argue that criminals should not get transplants are on shaky ethical ground. Do we want to force caregivers to make a life-or-death decision based on whether a patient is a 'good' or 'bad' person?"

It's a perfect storm of ethical anxieties: good organs going to bad people; medical professionals (perhaps) on the take; and, not least, a shudder of xenophobia. Levey is, of course, on entirely safe ground in arguing that physicians should not withhold vital treatment from their patients. But when resources are scarce—transplantable organs being the classic example—should some institution pass judgment when facts about a patient's criminality are known? No, says the United Network for Organ Sharing, which coordinates procurement and distribution of organs from the newly deceased. As Mark Fox, former head of the UNOS ethics committee, told me, "Once patients have been placed on the waiting list, the list itself is blind to whether you are a saint or sinner, a celebrity or a derelict."

There was a time, however, when character did determine access to scarce treatment. In devising a way to select patients, physicians imagined that the public preferred to think of decision-makers as wise stewards of scarce resources. In 1962, Seattle's Swedish Hospital established what later came to be called the "God Committee." Formally known as the Admissions and Policy Committee of the Seattle Artificial Kidney Center at Swedish Hospital, its task was to decide which terminal patient would get access to scarce dialysis machines, or artificial kidneys, as they were called then . . . .

Critics of the God Committee charged that rationing by measure of human worth was an affront to the ideal of equality. But in the face of scarcity, choices need to be made. . . .  This meant that the selection committees took nonmedical traits into account. For example, some tested IQ, personality, and the vocational skills of dialysis candidates. The Peter Bent Brigham dialysis program considered the likelihood of a return to productivity and cooperation with care. The Los Angeles County Dialysis Center screened for a group of medically, psychologically, and socially optimum candidates and then selected among them by lottery. The Cleveland Clinic allowed patients access to dialysis on a first-come, first-served basis and culled only if some proved unwilling or unable to cooperate once they had begun the therapy. Only a few centers explicitly disqualified candidates because of criminal records, spotty employment, or indigence. But the chances of being chosen if you fell into these categories were not good, because the traits in question suggested a lack of the material and emotional wherewithal to comply with the demands of lifelong dialysis treatment. . . .

No one wants to return to the days of the character biopsy—judging a patient's social value—in deciding who gets access to rare treatments. But the UCLA story and others like it will continue to offend our sense of fairness as long as the nation's dire organ shortage persists. The only way to dispel the ethical quandaries that stem from rationing is to expand the pool of organs so that more people can receive lifesaving transplants.

So far, we have failed on this front. After decades of public education about organ donation, the gap between supply and demand grows ever wider. Last year, more than 6,000 people died waiting for an organ that never came. Out of desperation, some patients travel abroad for transplants. They do so with the sickening knowledge that their new kidneys or livers will come from a poor native exploited by brokers in the underground organ bazaars that flourish across the globe.

It is time for the federal government to acknowledge that altruistic giving has not produced enough organs. Repealing the ban on donor compensation would permit the federal or state governments to devise a safe, regulated system in which would-be donors are rewarded for giving an organ to the next stranger on the list. If only the organ shortage itself provoked as much outrage as the UCLA mobster transplants.

June 23, 2008 | Permalink | Comments (0) | TrackBack (0)

Summer Reading

Perhaps you have some extra time this summer and are looking for an informative book about the corruptin of medical research, your search is over --  Professors Thomas O. McGarity and Wendy Wagner have written a new book entitled Bending Science:  How Special Interests Corrupt Public Health Research.   From the University of Texas Law School website,

Using alarming stories drawn from the public record, The University of Texas law professors Thomas O. McGarity and Wendy Wagner describe in a new book how advocates for special interests employ a range of devious tactics to manipulate or suppress research on potential human health hazards.  Harvard University Press is publishing the book, Bending Science: How Special Interests Corrupt Public Health Research. It is scheduled for release on May 31, 2008.

In their book, McGarity and Wagner describe how scientists can find their research blocked, or find themselves threatened with financial ruin. Corporations, plaintiff attorneys, think tanks, even government agencies have been caught suppressing or distorting research on the safety of chemical products.

Bending Science reveals that ideological and economic attacks on research are part of an extensive pattern of abuse and corruption, and the authors make a compelling case for reforms to safeguard both the integrity of science and the public health . . . .

To read an excerpt from the book on-line or order a book from Harvard University Press go to

Thanks to Brian Leiter for the link.

June 23, 2008 | Permalink | Comments (0) | TrackBack (0)