May 4, 2012
Guest Blogger Thaddeus Pope: 50th Anniversary of the “Death Panel”
The term “death panel” famously dates to the summer of 2009, when former Alaska Governor Sarah Palin used that term to refer to a provision in proposed health reform legislation (H.R. 3200, section 1233) that would have paid physicians (more than current reimbursement allows) to provide voluntary advance care planning (VACP) to Medicare beneficiaries. The characterization of VACP as “death panels” was later (correctly) denounced by PolitiFact, among others, as the “lie of the year.”
Still, the term has been employed somewhat more accurately (even if pejoratively) in other contexts. For example, the UK’s National Institute for Health and Clinical Excellence (NICE) makes healthcare coverage decisions that effectively impact who will live and who will die. And here in the United States, many charge that the Medicare IPAB will soon move (though currently statutorily barred) from merely insisting on cost effective treatment to outright denying expensive treatment. While usage of the term “death panels” is generally mere calumny, it is sometimes befitting.
I write this post to commemorate the 50th anniversary (1962 – 2012) of a genuine and infamous American “death panel”: the Admissions and Policy Committee of the Seattle Artificial Kidney Center at Seattle’s Swedish Hospital. In 1962, Swedish housed the only dialysis clinic in the country. But, even locally, there were more needy patients than Swedish could accommodate. The Seattle Committee’s job, as a famous Life Magazine article title described it, was to “decide who lives, who dies.” Consequently, it became known as the “God Committee” or “God Squad.” Over the following decade, other committees in other cities also decided who would, and who would not, get access to life-saving dialysis.
The dialysis committees disappeared after Congress expanded access in 1972, by authorizing the End Stage Renal Disease Program under Medicare. There was no longer a shortage of machines and facilities. But many other conditions of healthcare scarcity persist. For example, today, we have organ transplantation committees and hospital futility committees. There are all sorts of “death panels” in the United States. We need them. By acknowledging both their existence and their importance, we can better rationally, openly, and fairly grapple with the tragic choices that our society must make.
Worth Reading This Week
Jessica Gabel, Redeeming the Genetic Groupon: Efficacy, Ethics, and Exploitation in Marketing DNA to the Masses, SSRN/Miss. L.J.
David Blumenthal, Performance Improvement in Health Care — Seizing the Moment, NEJM
Susan Wolf et al, Managing Incidental Findings and Research Results in Genomic Research Involving Biobanks and Archived Data Sets, SSRN/Genetics in Medicine
Nadia Sawicki, Patient Protection and Decision Aid Quality: Regulatory and Tort Law Approaches, SSRN
Shock! Higher Prices, Overpriced Technology and Obesity Responsible for Healthcare Costs
The Commonwealth Fund has made available an important new report, Explaining High Health Care Spending in the United States: An International Comparison of Supply, Utilization, Prices, and Quality, here. The authors compare the cost and quality of healthcare in 13 industialized countries. Contrary to arguments frequently made this report finds that higher costs in the US are not due to higher income, the size of the elderly population, or smoking rates in the US. Rather the only positive correlations were, “higher prices and perhaps more readily accessible technology and greater obesity.” Unfortunately the same study confirmed prior research that “despite high costs, quality in the U.S. health care system is variable and not notably superior to the far less expensive systems in the other study countries.” [NPT]
May 2, 2012
The Publication Filter: Certifying, Clarifying, or Obfuscating?
A recent story emphasized the importance of filters in an era of information overload, and the need to develop better ways of processing complex information. Kerry Grens's article "Data Diving" emphasizes that "what lies untapped beneath the surface of published clinical trial analyses could rock the world of independent review."
[F]or the most part, [analysts] rely simply on publications in peer-reviewed journals. Such reviews are valuable to clinicians and health agencies for recommending treatment. But as several recent studies illustrate, they can be grossly limited and misleading. . . . [There is] an entire world of data that never sees the light of publication. “I have an evidence crisis,” [says Tom Jefferson of the Cochrane Collaboration]. “I’m not sure what to make of what I see in journals.” He offers an example: one publication of a Tamiflu trial was seven pages long. The corresponding clinical study report was 8,545 pages. . . .
Clinical study reports . . . are the most comprehensive descriptions of trials’ methodology and results . . . . They include details that might not make it into a published paper, such as the composition of the placebo used, the original protocol and any deviations from it, and descriptions of all the measures that were collected. But even clinical study reports include some level of synthesis. At the finest level of resolution are the raw, unabridged, patient-level data. Getting access to either set of results, outside of being trial sponsors or drug regulators, is a rarity. Robert Gibbons, the director of the Center for Health Statistics at the University of Chicago, had never seen a reanalysis of raw data by an independent team until a few years ago, when he himself was staring at the full results from Eli Lilly’s clinical trials of the blockbuster antidepressant Prozac.
There will be a growing imperative to open up all of the data as concerns about the reliability of publications continue to grow. (PS: I found the Grens story via the "Medical Skeptic" twitter feed; very interesting link feed.)
May 1, 2012
IOM Addresses Drug Safety
The Institute of Medicine issued a new report today, "Ethical and Scientific Issues in Studying the Safety of Approved Drugs." In the wake of problems that have arisen with drugs that needed to be pulled from the market, the IOM called for the collection and assessment of data about "a medication's benefit-risk profile throughout its entire 'life cycle' from approval until it is no longer marketed."
April 29, 2012
Introducing Guest Blogger Thaddeus Pope
The Health Law Professors Blog is honored to introduce our guest blogger for the month of May, Professor Thaddeus Pope. Here is his short bio:
Professor Thaddeus Pope is Director of the Health Law Institute and an Associate Professor of Law at Hamline University. He teaches Health Quality and Liability, Bioethics, and Medical Law at the End of Life. Professor Pope is also Adjunct Associate Professor of Law at Albany Medical College, where he teaches both courses and CME for the Alden March Bioethics Institute. Before joining Hamline in 2012, Professor Pope taught Torts and Health Law at Widener University.
In his scholarship, Professor Pope has focused on two main areas: (1) end-of-life medicine and (2) public health ethics. Whether addressing medical futility disputes or smoking bans Professor Pope is especially concerned with exploring the justifiability of limitations on individual liberty. His work has appeared in law reviews, bar journals, medical journals, nursing journals, bioethics journals, and book chapters. He authors a regular column for the Journal of Clinical Ethics. And he writes about legislative, judicial, regulatory, medical, and other developments concerning end-of-life medical treatment conflicts for the Medical Futility Blog.
Professor Pope’s engagement with these issues goes beyond scholarship. For example, he has participated both as appellate counsel and as expert witness in cutting-edge litigation. He has been invited to testify before the President’s Council on Bioethics and the Texas House of Representatives. He has served as legal consultant to several Policy Statement groups of the American Thoracic Society. And Professor Pope helped draft MOLST regulations for the state of Delaware.
Before joining academia, Professor Pope clerked for the U.S. Court of Appeals for the Seventh Circuit and practiced as a corporate litigator with Arnold & Porter LLP in Los Angeles and Washington, DC. Professor Pope was graduated from Georgetown University, where he received both his J.D. and a Ph.D. in philosophy and bioethics. He earned his B.A. from the University of Pittsburgh with highest honors and was elected to Phi Beta Kappa.
Call for Speakers: Sections on Law, Medicine & Health Care, and Employee Benefits and Executive Compensation
The Sections on Law, Medicine & Health Care, and Employee Benefits and Executive Compensation are issuing Call for Speakers for one additional panelist for our 2013 annual meeting co-sponsored program, described below. The program is scheduled for Saturday, January 5, 2013, 8:30 a.m. – 10:15 a.m.
To be considered, please send an abstract of no more than 300 words describing your proposed presentation to Elizabeth Weeks Leonard, Chair-Elect of the Section on Law, Medicine & Health Care, at firstname.lastname@example.org, by June 30, 2012. Section Executive Committee members will review the submissions and notify panelists by September 2012.
The panel description and confirmed panelists are as follows:
American Exceptionalism: Health Reform and the Persistence of Employer-Based Benefits: In keeping with the 2013 AALS Annual Meeting theme on “Global Engagement and the Legal Academy,” this panel will examine the United States’ unique reliance on private employers to provide essential health insurance benefits for the majority of Americans. Barring a seismic shift in federal health policy following the Supreme Court’s decision on the constitutionality of the Patient Protection and Affordable Care Act (ACA) in June 2012 and the presidential elections in November 2012, the prominence of employer-based health benefits will persist or even increase. Panelists will consider the incentives for U.S. employers to continue offering employee health benefits and the ability of firms to compete globally while shouldering that burden, as well as offer comparative perspectives on welfare policies and recognition of affirmative health care rights in other countries.
Mark Hall, Fred D. & Elizabeth L. Turnage Professor of Law, Wake Forest University School of Law
Jeffery Stempel, Doris S. and Theodore B. Lee Professor of Law, UNLV William S. Boyd School of Law
Kathryn L. Moore, University of Kentucky, Laramie L. Leatherman Professor of Law, University of Kentucky College of Law
Abigail R. Moncrieff, Peter Paul Career Development Professor, Associate Professor of Law, Boston University School of Law
Please note: Participants are responsible for paying their Annual Meeting registration fee and travel expenses. Full-time faculty members of AALS member schools are eligible to submit proposals. Faculty at fee-paid law schools, foreign, visiting, and adjunct faculty members, graduate students, fellows, and non-law school faculty are not eligible to submit.