HealthLawProf Blog

Science Stories of the Year

National Public Radio's Talk of the Nation did their annual biggest science stories and it was fun to review some of the break-through experiments and discoveries.  Here is the overview and you can listen to the podcast:

What were the most important scientific discoveries this year? From the discovery of ice in Martian soil, to the creation of the first synthetic genome, to learning of new exoplanets, Ira Flatow and guests discuss the science stories that captured the headlines and why.

Guests:

Sharon Begley, science columnist, Newsweek, New York, N.Y.

KC Cole, author, The Universe and the Teacup: The Mathematics of Truth and Beauty, professor, Annenberg School of Journalism, University of Southern California, Los Angeles, Calif.

Steve Mirsky, staff editor and writer for Scientific American, host of Scientific American's "Science Talk" podcast, New York, N.Y.

Paul Raeburn, journalist, author, Acquainted with the Night: A Parent's Quest to Understand Depression and Bipolar Disorder in His Children, author, "About Fathers" blog for Psychology Today, New York, N.Y.

Takings and Public Health

Marcia Coyle writing at Law.com reports on takings and public health - a potential expense that most have not considered when thinking about public health measures.  She writes,

Behold the table egg. A popular staple of breakfast and baking, eggs are at the center of a major and lengthy property rights battle in a federal appellate court that could affect all types of federal regulation on behalf of public health and safety.

The U.S. Court of Appeals for the Federal Circuit, an important forum for Fifth Amendment "takings" litigation between the federal government and business and private parties, recently heard the government's appeal of a lower court ruling that the government must pay nearly $9 million for a "takings" in connection with its effort to stop the spread of salmonella outbreaks almost two decades ago. Rose Acre Farms v. U.S., No. 2007-5169.

The takings decision by the U.S. Court of Federal Claims "raises a disturbing possibility" that government officials, when considering how best to protect public health and safety, will have to take into account a possible takings claim every time they regulate to take unsafe products off the market, said Elizabeth Wydra, chief counsel to the Constitutional Accountability Center, which filed an amicus brief in the Federal Circuit on behalf of eight consumer, public health, safety and science organizations.

"There could arguably be an extrapolation from this case that anytime government regulates to respond to a national disaster or terrorist attack that causes loss to businesses, that could be a takings that taxpayers would have to pay for," she said, adding, "We are very interested in making sure public health and safety gets predominate weight in balancing business interests and protecting the public." . . . .

At the end of the Federal Circuit argument in the case, Chief Judge Paul Michel, a member of the three-judge panel, said, "This is a very interesting and very troublesome case. Guidance from above has not always been crystal clear in the Fifth Amendment takings area, as lawyers have observed before me." . . . .

 

The Brain and Crime and Punishment

The National Law Journal reports on new studies that allegedly demonstrate how individuals sitting on juries make decisions about criminal culpability.  The story states,

Researchers from Vanderbilt University used magnetic resonance imaging (MRI) machines to chart brain activity as subjects were asked to determine issues of guilt, innocence and punishment in a range of circumstances. It was the first time researchers have actually watched the brain at work as people made legal decisions, said Owen Jones, a professor of law and biology at Vanderbilt and one of the study's authors. The study is released in this month's issue of the journal, Neuron.

The research showed that different parts of the brain were triggered when subjects were asked to determine guilt or innocence, as opposed to when they were asked to determine a level of punishment. The analytical part of the brain — called the dorsolateral prefrontal cortex — was active when subjects were asked to decide whether or not people deserved to be punished. But the part of the brain that is responsible for emotions was triggered when people were asked to decide the level of punishment deserved in the scenarios.

"One of the major findings is that the decision to punish versus how much to punish may be determined by different brain functions," said René Marois, a neuroscientist at Vanderbilt who worked with Jones on the study. Marois cautioned that the research doesn't necessarily mean that emotions drive decisions on punishment, but they do "raise the possibility that emotional responses to criminal acts may represent a gauge for assessing deserved punishment.". . .

Owens said that this research alone isn't going to transform the justice system as we know it, but it has highlighted areas where further study is needed to help identify what role emotions play in decisions on crime and punishment.  Although monitoring brain activity on an MRI machine can tell researchers which areas of the brain are responding, it won't provide a deeper understanding of why people make certain punishment decisions, he said.

Conscience Rule Regulations

The Washington Post's Rob Stein examines the Bush Administration's new conscience rule regulations.  He writes,

The Bush administration yesterday granted sweeping new protections to health workers who refuse to provide care that violates their personal beliefs, setting off an intense battle over opponents' plans to try to repeal the measure.

Critics began consulting with the incoming Obama administration on strategies to reverse the regulation as quickly as possible while supporters started mobilizing to fight such efforts.

The far-reaching regulation cuts off federal funding for any state or local government, hospital, health plan, clinic or other entity that does not accommodate doctors, nurses, pharmacists and other employees who refuse to participate in care they find ethically, morally or religiously objectionable. It was sought by conservative groups, abortion opponents and others to safeguard workers from being fired, disciplined or penalized in other ways.

But women's health advocates, family planning proponents, abortion rights activists and some members of Congress condemned the regulation, saying it will be a major obstacle to providing many health services, including abortion, family planning, infertility treatment, and end-of-life care, as well as possibly a wide range of scientific research.

The 127-page rule, which was issued just in time to take effect in the 30 days before the change in administrations, is the latest that the administration is implementing before President Bush's term ends.

The "right of conscience" rule could become one of the first contentious tests for the Obama administration, which could seek to reverse the rule either by initiating a lengthy new rulemaking process or by supporting legislation already pending in Congress.

President-elect Barack Obama's transition team did not specifically address the rule yesterday, but spokesman Nick Shapiro issued a statement that said Obama "will review all eleventh-hour regulations and will address them once he is president." Obama criticized the regulation when it was proposed last summer. . . .

Conscience Rule Regulations

The Washington Monthly discusses and critiques the new conscience rule regulations that will go into effect next month.  Hilzoy reports,

The rule (pdf) covers not just employees who refuse to perform a medical procedure they find objectionable, but to those who refuse to refer people to others who do provide such services. It would, for instance, protect people who not only refuse to perform abortions themselves, but who refuse to tell their patients who else might provide one, where to get the morning-after pill, etc. (See p. 106.) And as the Post notes, it would prevent organizations whose mission is to provide a small set of services from "discriminating against" people who refuse to perform those very services. (E.g., Planned Parenthood can not "discriminate against" people who object to providing contraception, even though providing contraception is 38% of their services delivered.) . . . .

Seriously: I am all for employers trying to accommodate their employees' religious convictions, when they can do so without compromising (in the case of medical employers) either the care they provide or the interests of their patients. Thus, if one of thirty Ob/Gyns in a large hospital believed that it would be wrong for her to perform abortions, I think it would be great for that hospital to arrange for other doctors to perform any abortions that were required, while asking her to take up the slack in some other way.

But the qualification "when they can do so without compromising either the care they provide or the interests of their patients" is crucial. And there are very clear limits to this, limits that this rule does not respect. My imaginary Christian Scientist doctor was meant to point that out. But the idea that it should be illegal for Planned Parenthood clinics to take someone's willingness to offer contraceptive services into account in hiring decisions is almost as absurd as saying that they should not be able to take into account that person's being a Christian Scientist.

Moreover, being unwilling to refer patients to (for example) providers of abortion or contraception always compromises the interests of patients. Doctors are supposed to explain patients' alternatives to them, and to provide the relevant referrals. They are not supposed to mention only that subset of those alternatives that they approve of on non-medical grounds -- grounds their patient might or might not agree with. The decision whether or not to have an abortion, to go on the pill, etc., is the patient's, not the doctor's. Keeping patients in the dark about those alternatives, or refusing to tell them how to obtain them, is paternalistic, and it's wrong. If a doctor doesn't want to provide such referrals, she should have gone into ophthalmology.

It's an odious rule. Luckily, as Steve noted yesterday, it probably won't last very long.

More critique can be found here.

 

Arthur Caplan on Fresh Air

Earlier this week on Fresh Air, Professor Arthur Caplan, director of the Center for Bioethics at the University of Pennsylvania, discussed a variety of health issues that President-elect Barack Obama may face during his administration.  He also examined some of the ethical issues surrounding the face transplant that recently occurred at the Cleveland Clinic.  It is an interesting and informative listen.

Face Transplant

The New York Times reports on the face transplant that took place this week at the Cleveland Clinic.  It is truly an amazing story raising lots of complicated ethical issues.   

Only the forehead, upper eyelids, lower lip, lower teeth and jaw are hers.  The rest of her face comes from a cadaver.  In a 23-hour operation, transplant surgeons have given nearly an entire new face to a woman with facial damage so severe that she could not eat on her own or breathe without a hole in her windpipe, doctors at the Cleveland Clinic said here on Wednesday.

The highly experimental procedure, performed within the last two weeks, was the world’s fourth partial face transplant, the country’s first, and the most extensive and complicated such operation to date. Dr. Maria Siemionow led the surgical team, which took turns at the operating table so the doctors could rest, sleep and share expertise. The woman’s identity was not disclosed, nor was the cause of her injury or the donor’s identity.

The woman is eventually expected to eat, speak and breathe normally and even smell again, her doctors said at a news conference. Feeling should return to her face in six months, and most facial functions in about a year, leading to her ability to smile after physical therapy to help train the muscles for that function. But because facial structure varies among people, the woman is not expected to look like her donor, the doctors said.

The woman will need to take antirejection drugs for the rest of her life, but those drugs do not guarantee success. Although rejection reactions seem more common in the first few months, they can occur at any time. Doctors can often reverse such reactions by adjusting the drug regimen.  The woman has cleared the earliest hurdle: she has not rejected the new face. The doctors said she was doing well but emphasized that they could not predict the future, as she faces potential complications like infections and cancers resulting from the immunosuppression treatment.  The clinic team said that if the transplant ever failed, it would be replaced with a skin graft taken from parts of the woman’s body. . . .

Dr. Kodish said that in psychological testing she was asked questions like these: Is it you or someone else in your family who wants you to have the face transplant? How do you feel about the prospect of living with a face from a dead person?  Under the clinic’s scientific blueprint, Dr. Kodish said, the patient was not allowed to see a photo of the donor, in part because it could lead her to believe she would look like the donor.  The trauma cost the woman sight in her right eye, and vision from the left eye is impaired. Before the transplant, she could make out the faces of her doctors.

As she awakened from heavy sedation, Dr. Chad Gordon, a plastic surgeon, said she gave a thumbs-up sign when asked how she was feeling. As she recovers in the clinic, she communicates mostly in writing.  Dr. Siemionow said, “I must tell you how happy she was when with both her hands she could go over her face and feel that she has a nose, feel that she has a jaw.” Dr. Siemionow, 58, a native of Poland, said she began preparing for the face transplant 20 years ago. Her research has involved transplants on animals and cadavers and ethical concerns. . . .

Medical ethicists said Wednesday that in face transplant surgery the risks and benefits to the patient must be weighed carefully. “Not to downplay the difficulties of having a facial disfigurement, but one can live a long life and be disfigured,” said Stuart G. Finder, director of the Center for Healthcare Ethics at Cedars-Sinai Medical Center in Los Angeles. But the benefits of a face transplant are not only cosmetic, Dr. Finder said, adding, “The repair of the face can also have significant social consequences — like the ability to speak, or the ability to eat, that can be replaced because of having lips.”. . . .

A major obstacle was finding donors whose sex, race, age and blood type matched that of potential recipients. Specific consent procedures were developed. . . .