HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Friday, January 25, 2008

That Kinoki FootPad Ad --

I don't know how many of you have seen the ad for the Kinoki footpad detoxication system but Revere- at Effect Measure viewed the ad and posts how just watching it makes him feel -- well -- perhaps we should hear it in his own words. . . .

[E]very time I see this piece of [. . . .] advert for something called the Kinoki footpad detoxification system. I want to scream when it comes on television. I mean really SCREAM. Mrs. R. has to restrain me from yelling at the TV. This ad pushes all my buttons. It pushes buttons I didn't even know I had. It pushes buttons I don't want to have and no one should have.

Now Wired has noticed it (hat tip Boingboing), calling it The Biggest Medical Scam Since Alex Chiu's Immortality Device. Since I'm not a quackery aficionado I don't know about Alex Chiu's live long and prosper technology, but I am an environmental epidemiologist and I know something about chemical toxins in general and some of them I know quite a lot about, as in being an expert knowing a lot about them. Like asbestos. Asbestiform fibers are minerals, variously composed calcium and magnesium silicates. When you breathe them they can cause a fatal scarring of the lungs (asbestosis) or one of a number of kinds of cancer. Because they are mineral fibers, they don't move around much once they get lodged wherever they get to. In particular, they won't leach out onto a foot pad over night. Nor, unfortunately, will your cellulite. Or lead. Or parasites. Mucous?!?! Holy Mother [. . . . ] (I will grant it is pretty effective at removing that green stuff from your wallet).

In case you have missed this ad, the Effect Measure website provides a helpful video.

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

SuperBowl Pepsi Ad by EnAble

While you are waiting for next weekend's Superbowl festivities, Shakesville helpfully highlights a youtube of the new Pepsi ad that will be aired during that primetime event.  EnAble a group within PepsiCo which supports diversity and the inclusion of persons with different abilities, made the ad. It is terrific!  And no, there isn't any sound . . . .

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

Thursday, January 24, 2008

Medicinal Marijuana and the Workplace: The Drug is Still Illegal

Today, the California Supreme Court ruled that the California Compassionate Use Act of 1996 did not prevent an employer from firing a new employee who failed a preemployment drug test.  The case is Ross v. Ragingwire Telecommunications, Inc., S138130 (CA Jan. 25, 2008),   Workplace Prof Bog reports further and provides excerpts from the opinion,

Plaintiff, whose physician recommended he use marijuana to treat chronic pain, was fired when a preemployment drug test required of new employees revealed his marijuana use. The lower courts held plaintiff could not on that basis state a cause of action against his employer for disability-based discrimination under the California Fair Employment and Housing Act . . .

We conclude the lower courts were correct: Nothing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and duties of employers and employees. Under California law, an employer may require preemployment drug tests and take illegal drug use into consideration in making employment decisions . . . .

Plaintiff’s position might have merit if the Compassionate Use Act gave marijuana the same status as any legal prescription drug. But the act’s effect is not so broad. No state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law (21 U.S.C. §§ 812, 844(a)), even for medical users (see Gonzales v. Raich, supra, 545 U.S. 1, 26-29; United States v. Oakland Cannabis Buyers’ Cooperative, supra, 532 U.S. 483, 491-495).  Instead of attempting the impossible, as we shall explain, California’s voters merely exempted medical users and their primary caregivers from criminal liability under two specifically designated state statutes. Nothing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and obligations of employers and employees. . . .

January 24, 2008 | Permalink | Comments (0) | TrackBack (2)

Ownership of the Body

The Ohio Supreme Court heard arguments yesterday in the case, Albrecht v. Treon, involving the issue of whether an individual has a legal right to a relative’s body parts and organs. In May 2006, after an autoposy to determine how and why Chrisopher Albrecht and his car ended up in a pond.  The county coroner's office failed to inform the family that it had removed his brain and not replaced it.  The parents are now suing.  The case has attracted lots of attention.  Here is a good overview of the legal background and the Cincinnati Enquirer reports on some of the factual issues as well as the interesting differences in litigation strategies,

During an autopsy to determine why Christopher Albrecht had suddenly plunged his vehicle into a pond and drowned, the Hamilton County coroner removed Albrecht's brain and never put it back.  Though the practice is standard for coroners, Albrecht's parents didn't know for years that they had buried their son without his brain.  When they found out, they filed a lawsuit that raises sweeping ethical, moral and religious questions.

The case, to be argued Wednesday before the Ohio Supreme Court, has drawn international attention for its ramifications to coroners, crime investigators, EMTs, funeral directors and followers of religions that espouse the importance of burying the whole body.  The lawsuit is a class action against coroners and commissioners in 87 of Ohio's 88 counties covering cases dating to 1991.  Under Ohio law, brains, hearts and other body parts and fluids removed during an autopsy are classified as medical waste, which generally means they are incinerated.

"What this case really comes down to is, for the convenience of the government, are we Ohioans, we humans, supposed to give up our most basic rights to the human remains of our loved ones?" said John Metz, an attorney who brought the Albrechts' suit. "I am absolutely amazed to have to be standing in front of the highest court in our state to defend against such a socialist view."

Defenders of the coroners, including the Ohio State Coroners Association, Ohio State Medical Association and the National Association of Medical Examiners, contend that establishing property rights for families to the organs, tissue, blood and other fluids extracted during an autopsy could jeopardize timely autopsies and risk the resulting criminal evidence. . . .

Mason anticipates an onslaught of litigation against counties if the Albrechts prevail, as relatives - often upset by an autopsy in the first place - negotiate what to do about body parts that have been removed, perhaps disagree and communicate conflicting directions to coroners.

Metz and co-counsel Patrick Perotti have been taken to task before the court for making a legal question too emotional. Perotti's briefs contain references to Achilles' slaying of Hector in "The Iliad," the drowning of Shakespeare's Ophelia and poet Walt Whitman's "I Sing The Body Electric."  Lawyers for the coroners at one point tried and failed to get one particularly verbose submission - which traced the history of death from ancient to modern times - stricken from the record.  "We don't dispute that it is a cultural norm for us to accord that kind of respect for our dead," Mason said. "But that doesn't mean that when they went out to get Hector's body back, they scraped up every drop of blood to make sure they got everything."

Pathologists and others fighting the Albrechts argue that what happens in an autopsy is common knowledge because of television if nothing else, and families must know that bodies that have undergone an autopsy are not returned entirely intact.  In its brief, the Medical Examiners Association said biologic material from a dead body can't help but be lost. Bodies lose fluids at accident scenes and parts of some bodies are never found, the group said.It argued that material taken by coroners is being singled out unfairly in this case.

Metz said there is evidence to suggest that people care deeply about retrieving such items, including the expense and effort taken by the U.S. military to identify and return remains to the loved ones of fallen soldiers.  Hamilton County, the one county not named in the suit, began calling families after autopsies as part of a court settlement, Metz said, and has encountered few problems with the new system. Franklin County took similar steps voluntarily - in part in an unsuccessful attempt to be removed from the lawsuit - with little negative impact, he said. . . .

January 24, 2008 | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 23, 2008

Diabetes and Surgery

The New York Times reports today on a new study showing that "Weight-loss surgery works much better than standard medical therapy as a treatment for Type 2 diabetes in obese people, the first study to compare the two approaches has found."  The story continues and states,

The study, of 60 patients, showed that 73 percent of those who had surgery had complete remissions of diabetes, meaning all signs of the disease went away. By contrast, the remission rate was only 13 percent in those given conventional treatment, which included intensive counseling on diet and exercise for weight loss, and, when needed, diabetes medicines like insulin, metformin and other drugs.

In the study, the surgery worked better because patients who had it lost much more weight than the medically treated group did — 20.7 percent versus 1.7 percent of their body weight, on average. Type 2 diabetes is usually brought on by obesity, and patients can often lessen the severity of the disease, or even get rid of it entirely, by losing about 10 percent of their body weight. Though many people can lose that much weight, few can keep it off without surgery. (Type 1 diabetes, a much less common form of the disease, involves the immune system and is not linked to obesity.)

Zuzu at Feministe responds by looking behind the articles and getting the bottom of the report on diabetes and weight loss surgery - it doesn't appear to be quite the easy fix to diabetes that the New York Times and Associated Press reports present.  Zuzu writes,

Patients who have lap band surgery can, once they heal, go on to eat a fairly wide variety of foods in small amounts. As for gastric bypass patients? (AP):

Gastric bypass is even more effective against diabetes, achieving remission in a matter of days or a month, said Dr. David Cummings, who wrote an accompanying editorial in the journal but was not involved in the study.

Yeah. And yet somehow the AP article, like the Times article, mentions this without also mentioning what gastric-bypass patients face after surgery. From the Mayo Clinic:

You won’t be allowed to eat for one to three days after the surgery so that your stomach can heal. Then, you’ll follow a specific progression of your diet for about 12 weeks. The progression begins with liquids only, proceeds to pureed and soft foods, and finally to regular foods.

With your stomach pouch reduced to the size of a walnut, you’ll need to eat very small meals during the day. In the first six months after surgery, eating too much or too fast may cause vomiting or an intense pain under your breastbone. The amount you can eat gradually increases, but you won’t be able to return to your old eating habits.

January 23, 2008 | Permalink | Comments (0) | TrackBack (1)

SCHIP Veto Override Fails Again

The Gavel reports that the House Republicans "have again narrowly sustained President Bush’s veto, with a vote of 260 in favor of passage and 152 against, (15 votes short) despite the veto-proof margin in the Senate."  The Gavel also has a handy list of newspaper editorials nationwide that urged Congress to override President Bush's veto. 

The Daily Kos blog's DemFromCt reports on what might be the likely political fall-out for the two parties from the SCHIP veto.  It also provides a rather eye-opening review of where both sides stand on SCHIP and health programs provided by the federal government. 

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

Updates on Flu Preparation: ACLU weighs in

DemFromCt writes at the Daily Kos blog and has an update on preparations for a flu pandemic.  The story reports on the ACLU report on issued last week and drafted by the illustrious George Annas and Wendy K. Mariner from the Boston University School of Public Health and Wendy E. Parmet of Northeastern Law School.  The story provides a brief summary of the report as well as a link to the full version.  It states,

. . . .  the ACLU issued a strongly-worded report entitled Pandemic Preparedness: The Need for a Public Health — Not a Law Enforcement/National Security — Approach, co-authored by George Annas, the same author of the Boston Globe editorial from 2005 . . .

Here's a summary from CIDRAP, which also includes reactions to the plan:

The American Civil Liberties Union (ACLU) this week charged that federal pandemic planning efforts rely too heavily on law enforcement and national security approaches, in effect making people, not disease, the enemy.

The ACLU aired its concerns in a report authored by three prominent public health law attorneys and released Jan 14 at a press conference in Washington, DC. The authors are George Annas and Wendy K. Mariner from the Boston University School of Public Health and Wendy E. Parmet of Northeastern Law School.

The report discusses a wide range of privacy protections and other civil liberties that the ACLU believes might be threatened in a pandemic setting. The authors include a list of recommendations intended to focus pandemic planning efforts more toward community engagement, as well as an appendix that covers a number of constitutional issues that could surface during a pandemic.

"A law enforcement approach is just the wrong tool for the job when it comes to fighting disease," said Barry Steinhardt, director of the ACLU's technology and liberty program, in a Jan 14 press release. He said history shows that a coercive approach to pandemic that treats sick people as enemies is ineffective from a public health perspective.

But a spokesman for the US Department of Health and Human Services (HHS) says the group has mischaracterized the government's efforts. Also, other critics with expertise in public health and the law say the ACLU report is marred by a misunderstanding of government response plans.

January 23, 2008 | Permalink | Comments (0) | TrackBack (1)

Health Care Plans of the Candidates: Now in Handy Graphic Form

Ezra Klein points out Health Care Central's helpful (if perhaps slightly imprecise) and super cool looking chart showing where the various health care plans of the current Presidential candidates line up in terms of access, coverage etc.  Click here for the chart.

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

Monday, January 21, 2008

Regulating Genetic Tests or Not

The New York Times reported last week on a federal panel, Secretary’s Advisory Committee on Genetics, Health and Society, which submitted a report demonstrating its concerns over the increasing use of genetic tests without the appropriate regulation and oversight.  The Times article states,

The science of genetic tests is marching ahead and so are efforts to sell them directly to consumers who are willing to send in a check and a bit of saliva to learn whether they are at risk for a disease.  What is not keeping up is regulation and oversight, according to a federal advisory panel. The panel concluded that a growing number of the tests are being marketed with claims that are unproved, ambiguous, false or misleading.


Millions of people have already taken the tests, a relatively new tool that even many doctors have yet to master. Test results can provide information to help prevent, detect and treat hundreds of conditions including cancer, heart disease, diabetes, cystic fibrosis and blood disorders.  The results can lead to momentous decisions. For example, women with a family history of breast cancer rely on them in deciding whether to have surgery to remove breasts or ovaries as a preventive measure.

With use of the tests growing at an explosive rate, the panel concluded that patients could be harmed. In most cases, the tests do not pose a direct physical risk; but, the panel said, if a test is inaccurate, patients may be given risky, unnecessary treatments or denied treatments that would be highly beneficial.   In addition, the panel said, most doctors lack the training and expertise needed to interpret genetic tests, and many are unfamiliar with professional guidelines for their use. Although professional societies play an important role in making sure their members get up-to-date information, the panel said, “they cannot keep up with the pace of development of genetic tests.”

The panel went on to discuss some of the regulatory morass that is supposed to helping approve and oversee these genetic tests.  It doesn't make one feel overly comfortable.

January 21, 2008 | Permalink | Comments (0) | TrackBack (3)

Addressing Conflicts of Interest . . .

The Associated Press reports on some steps hospitals are taking to address conflicts of interest that may arise in the pharmaceutical and medical device areas  - purging trinkets!

When a Duluth-based operator of hospitals and clinics purged the pens, notepads, coffee mugs and other promotional trinkets drug companies had given its doctors over the years, it took 20 shopping carts to haul the loot away.

The operator, SMDC Health System, intends to ship the 18,718 items to the west African nation of Cameroon.  The purge underscored SMDC's decision to join the growing movement to ban gifts to doctors from drug companies.

SMDC scoured its four hospitals and 17 clinics across northeastern Minnesota and northwestern Wisconsin for clipboards, clocks, mouse pads, stuffed animals and other items decorated with logos for such drugs as Nexium, Vytorin and Lipitor.  Trinkets, free samples, free food and drinks, free trips and other gifts have pervaded the medical profession, but observers say that's starting to change.  "We just decided for a lot of reasons we didn't want to do that any longer," Dr. Kenneth Irons, chief of community clinics for SMDC, said Friday.

So SMDC put together a comprehensive conflict-of-interest policy that, among other things, limits access to its clinics by drug company representatives. Employees suggested the "Clean Sweep" trinket roundup, Irons said. . . . .

SDMC's effort was motivated by a desire to show patients that its 450 doctors were serious about keeping prescription drug costs down and making unbiased medical decisions, Irons said.

The backlash against the cozy relationships between doctors and drug makers gained steam from article in the Journal of the American Medical Association in 2006. It said research had shown that even cheap gifts, such as pens, can affect doctors' prescribing decisions.  The Prescription Project, funded by the Pew Charitable Trusts, was founded to promote the JAMA article's recommendations for countering aggressive marketing to physicians by the pharmaceutical and medical device industries. . . .

Kaiser Permanente, the country's largest HMO, Veterans Affairs hospitals and medical centers at several universities have recently adopted strict conflict-of-interest policies, such as gift bans, Hams said.

Many of SMDC's items will be going to the health system of the Evangelical Lutheran Church of Cameroon, which has three hospitals, and several rural health centers.  Irons said there shouldn't be a conflict of interest in Cameroon because the advertised drugs aren't available there.

January 21, 2008 | Permalink | Comments (1) | TrackBack (0)