HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Friday, April 10, 2009

An Argument Against Cognitive-Enhancing Drugs

Professor Justin Barnard writes on the Public Discourse:  Ethics, Law and the Common Good website, and provides an excellent argument against the use of cognitive enhancing drugs.  He argues,

Recent calls for the widespread use of cognitive enhancements are based on a narrow, mechanistic view of what it means to be human.  In a recent issue of Nature, several prominent intellectuals call for public policies that support the “responsible use” of cognitive-enhancing drugs by healthy citizens. “We should welcome new methods of improving our brain function,” they write. “In a world in which human work-spans and life-spans are increasing, cognitive enhancement tools—including the pharmacological—will be increasingly useful for improved quality of life and extended work productivity, as well as to stave off normal and pathological age-related cognitive declines. Safe and effective cognitive enhancers will benefit both the individual and society.”

Their essay is illustrative, not merely of a new public policy challenge we will face in the biotech age, but also of the kind of reasoning one invariably hears in public discussions about such issues. In a nutshell, their case is pragmatic and utilitarian. And along the way, they are utterly dismissive of the most substantive arguments, reasons that, if heard, would threaten to undermine the apparent sober-mindedness of their perspective. . . . .

Of course, no citizen of good will should disregard these three in conversations about the shape of public policy, especially on issues such as the production and distribution of powerful narcotics. But the idea, as this essay suggests, that such practical or utilitarian concerns are matters of first or perhaps even exclusive importance is mistaken. Rather, as the logic of the essay itself tacitly reveals, it is our conception of human nature, along with our understanding of the purpose and meaning of human life that is foundational to the arguments we will make and conclusions we will draw about the moral legitimacy of cognitive enhancement for the healthy.

At the heart of the defense of cognitive enhancement for the healthy is an argument by analogy that depends upon an assumption about the nature of human beings and the purpose(s) of the life of the mind. Specifically, these authors suggest that cognitive-enhancing drugs are just like (or at least more or less similar to) other forms of mental “enhancement” (e.g., “written language, printing, and the Internet” or “exercise, nutrition and sleep”). Since the latter are legally permissible, the former ought to be—or so they argue. . . .

The defense of cognitive enhancement depends upon a view of mind as mere machine. This is an understanding of human nature (or at least of one’s mental life) that is thoroughly mechanistic. The mind (or if we’re being honest, the brain) is a computer. Thus, “improvements” come in two forms: (1) increased storage capacity or more information, and (2) increased processing efficiency or speed. This is a view of human nature that is fundamentally ateleological; it is without purpose beyond the mere acquisition and processing of information. Holding such a view, as a matter of logical necessity, commits one to the conclusion that the summum bonum for human beings consists in maximizing our machine-like functions to the highest degree feasible. Thus, it is no surprise that the authors conclude: “We should welcome new methods of improving our brain function . . .” as a means of “extended work productivity.”

Such a view of human nature is thoroughly reductionist. It is also mistaken. That this is so can be grasped by a simple thought experiment involving the use of another form of enhancement and America’s pastime. Imagine attending a baseball game in which no human beings were participants. Imagine sitting for several hours watching a pitching machine throw to a mechanical arm swinging a bat. Can you honestly imagine being spellbound by such a game? Would you pay top dollar for seats behind home plate?

My hypothesis is that while a thoroughly-perfected game of robotic baseball might commandeer an initial measure of fascination, it would simply fail to captivate our imaginations over time. Moreover, our intuitive reluctance in being enthusiastic about this imagined scenario is telling, not simply as an indication that something is amiss in the use of performance-enhancing drugs, but more importantly as a clue to a proper understanding of human nature.

That we find the prospect of robotic baseball uninteresting should not lead us to conclude that the skills of baseball are in no way machine-like. Indeed, the fact that baseball players hone their skills, often by means of machines in connection with machine-like repetition, is evidence of the degree to which the cultivation of such skills can be perfected by treating them mechanistically. To treat a skill mechanistically is simply to analyze it into its constituent parts with a view toward training one’s body to perform the most efficient and effective sequence of parts with as much precision and accuracy as possible. Think of Tiger Woods' own success in rebuilding his golf swing.

But we err in thinking that our mental life is exhausted, or even most uniquely expressed, in exercising that narrow range of computer-esque cognitive functions alone. And this is the error of those who promote the use of cognitive-enhancing drugs for the healthy. Like the athlete who uses steroids, those who advocate the “responsible use” of cognitive-enhancing drugs among the healthy falsely presuppose that one or two cognitive goods among many are the most important goods among the many that constitute the life of the mind considered as a whole. They presume, in other words, that cognitive improvement (and by extension, human improvement) is exclusively a function “adding” information and “better” information processing.

This presumption is simply false. For while the capacities to procure and to process information are indeed goods of human life, they are neither the highest of human goods nor are they ends in themselves. Yet, the use of cognitive enhancers by the healthy implicitly treats the single good at which the drug aims as though it were the most important or only good of one’s mental life considered as a whole. As our thought-experiment about robotic baseball makes clear, if merely thinking (very fast!) about lots of information were the most important or only good of the human mental life considered as a whole, why not simply replace us with computers?

Herein lies the proverbial rub. The logical trajectory of arguments supporting the wholesale use of cognitive enhancers among the healthy is ultimately destructive of human nature. And this would be the case even if one conceded what is most assuredly dubious—namely, that public policy could be crafted and enforced so as to minimize the deleterious effects of the widespread distribution and use of such drugs. Proponents of cognitive enhancement may still protest that benefits would accrue to “both the individual and society.” But such benefits may come at the expense of individuals and societies that are uniquely human in nature.

April 10, 2009 | Permalink | Comments (0) | TrackBack (0)

Thursday, April 9, 2009

Prosecutorial Misconduct in Painkiller Distribution Case

Ok, so it isn't the Senator Stevens trial misconduct, but perhaps the Department of Justice will be a bit more careful about ensuring that ethical rules and constitutional values are upheld when pursuing criminal charges against anyone, including doctors.  Vanessa Blue from the South Florida Sun-Sentinel writes, 

Calling the actions of prosecutors "profoundly disturbing," a federal judge in Miami has ordered the U.S. government to pay sanctions topping $600,000 in the case of a South Florida physician charged with illegally prescribing painkillers.  U.S. District Judge Alan Gold is forcing the government to pay Dr. Ali Shaygan more than half the costs he incurred to defend himself at trial as punishment for secretly recording his defense team.

In a harshly-worded 50-page order, Gold said the "win-at-any-cost behavior" of federal prosecutors Sean Cronin and Andrea Hoffman raised "troubling issues about the integrity of those who wield enormous power over the people they prosecute."  Shaygan, 36, a Miami Beach resident, was found not guilty March 12 of 141 counts of unlawful prescribing.  Prosecutors had accused Shaygan of selling prescriptions for powerful pain medications without legitimate medical purpose, leading to the overdose death of a West Palm Beach man.

As his trial was under way, defense lawyers learned that two witnesses had secretly recorded their phone conversations with the defense team with approval from prosecutors and government agents.  The investigation, purportedly to look into witness tampering by the defense, resulted in three recordings that were not disclosed to Gold or Shaygan's lawyers, David O. Markus, Marc Seitles and Robin Kaplan.  The recordings captured of Markus and his investigator violated internal policies of the U.S. Attorney's Office and federal evidentiary rules because defense lawyers were not informed of their existence.  "We regret that any of this ever happened in the first place but we are grateful that Judge Gold took it seriously and did the right thing," Markus said. . . .

Thanks to Professor Froomkin at for the website. 

April 9, 2009 | Permalink | Comments (0) | TrackBack (0)

Solving the Food Safety Issue

At Balkanization, Professor Ian Ayres writes about a potential way to solve the current food safety crisis.  It might be worth a try - only I don't think I would want to see the commercials.   He argues,

By now, virtually everyone in the country has heard that the Peanut Corporation of America knowingly shipped peanut products contaminated with salmonella bacteria, leading to the deaths of at least nine people and sickening 22,500 others. Last year, the Westland/Hallmark slaughterhouse processed meat from “downer” cattle that were too sick to stand, forcing a recall of 143 million tons of beef. President Obama has spoken of a food-safety “crisis” confronting the country, and that over-used term does not seem to be an exaggeration in this case.

So what should we do? Government inspectors are too few in number to visit all of the thousands of food preparation facilities, let alone conduct thorough inspections. . . .

Maybe we should take a lesson from the 1980’s commercials for the Hair Club for Men. You may remember those cheesy ads, which concluded with the pitchman declaring that “I’m not only the Hair Club president, I’m also a client.” The right way to align the incentives of management with those of the customers, in other words, may be to make sure that the managers are customers. One way we could implement this would be to require inspectors to certify that they saw the president of the company (or perhaps the plant manager) eating a substantial helping of the product being sold. (Maybe the inspectors should be required to eat some as well!) Someone who knows that his downer-burger was made from a cow that was too sick to stand, or his salmonella-butter-and-jelly sandwich contained infested nuts, might not be so happy about his working lunch.

The idea is really an update of a very old idea. The court food taster’s job was to make sure that the food was not tainted — and the chief chef, like the C.E.O., is the perfect person to take action to make sure that a food product is safe. Managers would likely be more careful about inspecting their plant’s output if they knew they’d have to eat enough of it to make them pretty sick. . . .


April 9, 2009 | Permalink | Comments (0) | TrackBack (0)

Why is health care so expensive?

Megan McArtle writes in the Atlantic Monthly about the expenses and the reason behind those expenses in the way that our health care is provided.  She writes,

To my mind, the real answer is threefold:

1)  We pay more for our medical services.  But though the pharma industry is important, the real action is in wages.  Our medical personnel cost vastly more than their counterparts abroad in almost every category.

2)  We consume more services.  Americans get shiny new facilities--my British colleagues once derisively commented that American hospitals are "like hotels".  American hospitals don't have open wards for almost anyone.  They staff at very high levels.  Doctors conduct an inordinate amount of tests.  We use an expensive machine rather than watchful waiting.  And often, those expensive machines catch conditions that never would have turned into anything, which we then treat.  Natasha Richardson probably would have lived if she'd had an accident here, because doctors would have done a cat scan, and there would have been a Medevac helicopter available.  That's tens, maybe hundreds of thousands of dollars to save a single life.

3)  There are inefficiencies.  I don't mean "compared to other systems"--every system has some screwed-up illogicality that costs it money and makes patients worse off.  But compared to what we could have.  For example, Medicare pays for procedures, not wellness, which means that there's a chronic undersupply of geriatricians, because the specialty isn't particularly well paid even though the nation's largest healthcare provider is specifically designed for old people.  This is madness.  But every real-world system that has attempted to pay physicians for wellness has ended up giving up in disgust.

So how much scope is there for reducing our costs, relative to the rest of the world?  Some, obviously, though it's not clear that this would actually be a net benefit to either us and the world, since the iatrogenic effect would probably be to wipe out most industry research into new drugs and medical devices.  But not really that much, for both political and practical reasons. 

Politically, state health care systems have so far proven unable to control labor costs--indeed, the health care unions are some of the most powerful political forces in most states, while the AMA has dominated the Medicare reimbursement schedule.  There's no evidence that is going to change any time soon.  Politically, also, conservatives have got to face the fact that we are not going to stop providing health care to people who are in dire need, and that this will undercut any attempt to move towards a fully private model. 

Practically, we have to pay healthcare workers a lot because we have to pay everyone a lot; in a rich country, wages for healthcare workers are high.  And measuring healthcare productivity is really insanely difficult, which makes it very hard to figure out what's worth spending money on. As long as Americans don't want to sacrifice access to procedures--and they don't--there's just not much room for decreasing costs.

That doesn't bother me that much.  The mindless trend extrapolation about how much we'll spend on health care in the future elides the point that we'll be much richer in the future; why shouldn't we spend all that extra income on healthcare?  Your ancestors spent 2/3 of their daily income on food.  Now you spend about 15-20%.  But spending much more of your income on clothes and housing doesn't mean that you're starving; it means that you're so rich, you only spend a small fraction of your income on food.  When I look around at our incredibly bountiful economy, I don't see any obvious lack that we're creating by spending ever more of our income on leading longer, healthier lives.

April 9, 2009 | Permalink | Comments (0) | TrackBack (0)

Caution on Health Care Reform

Former Congressman Richard Gephardt provides some thoughts about health care reform in a New York Times article by John Harwood who writes,

Now Mr. Gephardt says universal or near-universal coverage cannot pass this year — and he is urging the White House to defer that goal until it enacts cost-saving reforms in health care delivery. Otherwise, he argues, the new president risks the same losing argument about paying for expanded coverage that stymied President Bill Clinton 15 years ago.

Leading Democrats have balked at Mr. Obama’s initial financing idea, curbing tax deductions for high-income Americans. Republicans have attacked another alternative, taxing employer-provided health benefits, since Mr. Obama criticized a proposal to do that last fall by Senator John McCain of Arizona.

“I feel so much now like déjà vu all over again,” said Mr. Gephardt, who now lobbies for corporate America on issues including health care. Universal coverage “is absolutely imperative, and it needs to be dealt with. But the way to get to it is to show that we can deal with some of these problems first.” . . .

April 9, 2009 | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 8, 2009

EMTALA Provides for Third-Party Claims Against Hospitals

The Sixth Circuit has held that that hospitals may have a duty to third parties arising from EMTALA when treating mentally ill patients.  The opinion in Moses v. Provident Hospital may be found here.   An article in the ABAJournal reports on the details of the case.  Martha Neal writes,

The estate of a suburban Detroit woman murdered by her husband 10 days after he was released by a Michigan hospital can proceed with a suit against the medical facility under a federal law that requires emergency treatment to stabilize patients, the 6th U.S. Circuit Court of Appeals held yesterday.

Reversing a federal trial court's dismissal in 2007 of the case brought against Providence Hospital by the estate of Marie Moses Irons, a three-judge panel said a jury must decide whether Christopher Howard had an emergency condition--or whether doctors at the hospital believed he did--when he was released. One doctor at the hospital had recommended that Howard be transferred to psychiatric unit, but another disagreed when Howard was later released, the news agency writes.

"We recognize that our interpretation ... may have consequences for hospitals that Congress may or may not have considered or intended," says Judge Eric Clay in the court's opinion. "However, our duty is only to read the statute as it is written."

Howard, now 42, is serving a life sentence for first-degree murder. He killed his 41-year-old estranged wife with an ax as she slept, the AP reports. The company that runs the hospital declined to comment to the AP about the 6th Circuit ruling. However, the hospital had earlier argued that Irons' estate has no standing to sue, as a third party, and that the Emergency Medical Treatment and Active Labor law is inapplicable because Howard didn't have an emergency condition. . . .


April 8, 2009 | Permalink | Comments (0) | TrackBack (0)

Risky Medical Devices Need New Proof

The FDA announced that makers of certain older and risky medical devices will have to prove that their products are safe and effective according to the New York Times.  Gardiner Harris reports,

Federal regulators said Wednesday that that they would ask makers of some of the riskiest medical devices to prove that their products are safe and effective — a step that critics have said is long overdue.  In January, the Government Accountability Office issued a report scolding the Food and Drug Administration for failing for decades to fix its system for reviewing categories of devices that have been on the market since before the enactment of the medical device law in 1976.

Such legacy devices, as they are known, were originally allowed on the market with minimal testing. But in the 1976 law Congress instructed the F.D.A. to gradually reclassify these older devices and decide which ones needed extensive testing before approval of new versions and which ones did not.

The agency never finished that process, leaving 27 different types of devices unexamined — products that include artificial lung membranes, external defibrillators and various pacemaker components.For decades, the F.D.A. has approved devices in these categories for sale without demanding rigorous tests showing that they work safely. Investigators for the accountability office stated that “it is imperative that F.D.A. take immediate steps” to fix its system for approving such devices, and the agency agreed.

The agency has already undertaken a review of two of these older device types, and it announced Wednesday that it was requiring makers of the other 25 types of devices to submit information to the agency within 120 days detailing the products’ safety and effectiveness. . . .

April 8, 2009 | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 7, 2009

Collection of Dead Person's Sperm . . . .

Most thought-provoking and surprising article of the day from which carries a brief article on a court's grant to a mother access to her dead son's sperm.  The Associated Press reports,

A judge has granted a mother's request to have someone harvest sperm from her dead son's body, so she can have the option of carrying out his wish to have children. Nikolas Colton Evans, 21, died Sunday at a Brackenridge hospital after being punched and falling outside a bar in Austin, Texas, on March 27. His mother, Marissa Evans, told the Austin American-Statesman newspaper that he wanted to have three sons someday and had even picked out their names: Hunter, Tod and Van. "I want him to live on. I want to keep a piece of him," she told the newspaper.  . . .

Evans and her attorneys were trying on Tuesday to find a urologist or other medical professional willing to collect the sperm for a possible surrogate pregnancy in the future.

University of Texas law professor John Robertson, who specializes in bioethics, said state law gives parents control over a child's body for organ and tissue donations but its use for sperm "is very unclear." "There are no strong precedents in favor of a parent being able to request post-mortem sperm retrieval," he said. . . .

April 7, 2009 | Permalink | Comments (0) | TrackBack (0)

Doctors' Diaries on NOVA

The PBS program, NOVA, has a new show tracing the lives of medical school students and later doctors as they begin to practice medicine.  Here is the program note: 

In 1987, NOVA's cameras began rolling to chronicle the lives of seven young, bright medical students embarking on the longest and most rigorous endeavor in higher education: the years-long journey to become a doctor. From their first days at Harvard Medical School to the present day, none of them could have predicted what it would take, personally and professionally.

In "Doctors' Diaries," a two-part special, NOVA returns to find out what sort of doctors—and people—the seven young students have become. The program is the latest installment in the longest-running U.S. documentary of its kind.

The first hour of "Doctors' Diaries" begins by reuniting the physicians on the steps of Harvard Medical School 17 years after graduation. Footage from the previous four installments in the series offers a rare and candid look at the rewards and personal sacrifices each has made over the last two decades—from the stress of medical-school exams, to the first cut into a cadaver, through first wedding ceremonies (and sometimes second or third), internship, residency, and life as a certified M.D.

"Doctors' Diaries" is filled with personal insights offering raw perspectives on the medical profession. "First-year medical school is absolutely something that one cannot be emotionally prepared for," says Tom Tarter, in footage from the past. "This has been the most emotionally trying period of my life ... I can't remember crying until last week."

Today, Tarter is a board-certified emergency physician. All but one of the seven subjects are still practicing medicine, and although they each chose different specialties—from cardiology to anesthesiology, ophthalmology to psychiatry—all share the distinct privileges and demands of dealing with matters of life and death. (For more about the choices doctors have to make, see The Hippocratic Oath Today and M.D. Specialties.)

April 7, 2009 | Permalink | Comments (0) | TrackBack (0)

Monday, April 6, 2009

Increased Use of Generic Drugs

The Wall Street Journal Health Blog's Jacob Goldstein reports,

For those keeping score at home: The total number of U.S. prescriptions for generic drugs grew by 12% a year between 2004 and 2008, while the number of prescriptions for branded drugs fell by 6% a year during the same period, according to a new analysis from Wolters Kluwer Health. . . .

A bunch of familiar factors are driving this. Payers are being more pushy about getting patients to take generics. As big campaigns like Wal-Mart’s $4 generics deal have made generics more familiar, patients have grown more comfortable with the idea of moving off of branded drugs. Tough economic times and, for many patients, higher co-pays add an economic incentive. And some big name drugs have gone off patent, without being replaced by comparable new blockbusters (Merck’s Zocor — generic simvastatin — comes to mind). . . .


April 6, 2009 | Permalink | Comments (0) | TrackBack (0)

Sunday, April 5, 2009

More Bad News About Smoking

MedPage Today reports on a new study that links pancreatitis with smoking.  Michael Smith writes about the study published in the Archives of Internal Medicine,

Smoking may account for nearly half of all cases of acute and chronic pancreatitis, researchers here said.  The finding, from a large Danish cohort study, adds tobacco use to the established pancreatitis risk factors of alcohol use and gallstone disease, according to Janne Schurmann Tolstrup, Ph.D., of the University of Southern Denmark, and colleagues.

The increased risk was roughly the same in both men and women and increased with the amount of tobacco smoked, the researchers said in the March 23 issue of Archives of Internal Medicine.

April 5, 2009 | Permalink | Comments (0) | TrackBack (0)