HealthLawProf Blog

Terri Schiavo Has Died

The Washington Post and others are reporting that Terri Schiavo died this morning in a Pinellas County hospice 13 days after removal of her gastrostomy tube.  Her death came the day after her parents' appeals were denied by the U.S. Court of Appeals for the 11th Circuit and the Supreme Court of the United States.  Although this brings the legal odyssey of the Schindler and Schiavo families to an end, the fallout from the most litigated right-to-die case in American history will undountedly linger.  In addition to the announced intention of Congress to consider legislation in this area (as evidenced by Section 9 of S. 686), states are reconsidering their laws on the subject, as well (as reported by the New York Times this morning).  [tm]

PAS Bill in Vermont Legislature

Today's N.Y. Times reports that a bill to legalize physician-assisted suicide is back before the Vermont legislature, having been reintroduced in February after having died there last year.  The bill is H. 168 ("An Act Relating to Death With Dignity").  Here are links to the bill-status page and the text of the bill as introduced.  [tm]

11th Circuit Grants Schindlers' Last-Minute Bid

Last night, the 11th Circuit Court of Appeals granted the request of the parents of Terri Schiavo to be allowed to file a motion for en banc reconsideration out of time.  The Schindlers are arguing that District Judge Whittemore's review of the Florida decisions should have included a substantive review of the evidence, not just a procedural review.  Granting the request for leave to file is a relatively modest step by the court and certainly no indication of any willingness to grant reconsideration en banc, but it does give the Schindlers one last chance to obtain the relief they've been denied by every state and federal court they've petitioned.  The AP story on this development (courtesy of the San Francisco Chronicle) indicates that has been no ruling from the appeals court on the Schindlers' request for an order to reinsert Terri's feeding tube while their request for en banc reconsideration is pending.  [tm]

Underinsured - A Growing Problem

The AMNews runs a story about an often forgotten group of individuals, the underinsured.  The story reports on the harm that results from extremely high deductibles which make it hard for individuals to pay their health bills.  The doctors discussing this issue are calling for legislation that will address the problem of inadequate insurance, much like the Health Insurance Portabilty and Accountability Act (HIPAA) addressed preexisting condition clauses.    [bm]

U.S. News Rankings

It is that time of year again.  The dreaded U.S. News and World Report rankings of law schools are due to be released this Friday.   An early release by Volokh Conspiracy blog of the top 100 schools is now available.

Thanks to Professor Paul Caron and TaxLawProf blog for the heads up.  [bm]

 

Brooklyn Law School Conference

Next week, April 5, 2005 from 4-6pm, Brooklyn Law School is co-sponsoring a timely conference entitled, "Contemporary Challenges in Bioethics:  An Interdisciplinary Discussion of End-of-Life Issues.  The brochure states:

This program will feature experts from a number of related dsciplines, including law, medicine, and health advocacy.  Together the participants will explore case studies that present some of the most challenging bioethics issues of the day, including "who decides when medical intervention should end?"  The goal of this interactive program is to expose students and professionals to an interdisclinary approach to these issues and to foster greater understanding and collaboration among the various disciplines.

Sounds like a terrific conference.  For more information and to RSVP, please click here. [bm]

Pharmacists' Rights?

Today, the Washinton Post has a story concerning the behavior of certain pharmacists that refuse to fill prescriptions for birth control and morning-after pills.  The pharmacists argue that dispensing the medications violates their personal moral or religious beliefs.  The Post story reports,

An increasing number of clashes are occurring in drugstores across the country. Pharmacists often risk dismissal or other disciplinary action to stand up for their beliefs, while shaken teenage girls and women desperately call their doctors, frequently late at night, after being turned away by sometimes-lecturing men and women in white coats.

"There are pharmacists who will only give birth control pills to a woman if she's married. There are pharmacists who mistakenly believe contraception is a form of abortion and refuse to prescribe it to anyone," said Adam Sonfield of the Alan Guttmacher Institute in New York, which tracks reproductive issues. "There are even cases of pharmacists holding prescriptions hostage, where they won't even transfer it to another pharmacy when time is of the essence."

I find this type of behavior very troubling for a number of reasons, only one of which is the fact that I have not heard of any pharmacist refusing to fill Viagra, Cialis or other such prescription drugs.  I wonder where this will end - the article discusses how a number of states are considering "conscience clause" laws that would protect pharmacists who refuse to fill prescriptions that violate their beliefs.   I suggest that perhaps we need legislation that requires a pharmacy to ensure that a pharmacist capable of filling all prescriptions always be on duty so as not to leave a patient without the medical care they require. [bm]

Congress Likely to Consider End-of-Life Legislation

Sheryl Gay Stolberg of The New York Times reports today that, in the aftermath of the whirwind of controversy surrounding end-of-life decisions on behalf of Terri Schiavo, members of Congress on both sides of the aisle think Congress should at least hold hearings and possibly even prescribe new rules on the subject.  There appears to be enough interest on the part of disability-rights and pro-life groups to prompt Congressional action of some kind.  Past congressional efforts in this area include the "Baby Doe rules," the Patient Self-Determination Act of 1990, and (perhaps inadvertently) EMTALA (used as a basis for the 4th Circuit's decision upholding a treatment order in a futility case involving an anencephalic infant (In re Baby K) (WestLaw; requires subscription).   [tm]

FDA and Declaration of Helsinki

According to a recent story from Reuters, the Food and Drug Administration has proposed that international guidelines, specifically the Declaration of Helsinki, ethical standards that protect patients involved in clinical trials, should no longer be followed for overseas trials.  The Declaration of Helinski guarantees certain rights to patients who take part in a clinical trials, including rights to continued access to drugs at the end of any study, and limitations on the use of placebos in such trials.   The Reuters story states,

Currently, FDA rules require studies supporting a new drug application be carried out in line with the declaration or any local laws, whichever is more protective for patients. But proposals made last year would weaken this so that overseas studies not conducted under an application for an investigational new drug need no longer comply with the declaration. Instead, they would simply have to meet good clinical practices. Dr. Robert Temple, FDA's associate director for medical policy, said he felt the "ethical necessities" of a trial were "well-covered" by the good clinical practice standards.

The story is more complex than it originally appears.  The blog, Maternal and Child Health, provides a helpful and more in-depth overview of this story and notes that the FDA does not appear to have ever adopted the 2000 Declaration of Helsinki, which is apparently the version of the Declaration at issue.  He provides some analysis of why the FDA may feel that the more demanding standards of the 2000 Declaration would overly limit future research opportunities. [bm]

Schindlers Announce Abandonment of Federal Appeals

After yesterday's 11th Cir. rejection of the emergency stay request by Terri Schiavo's parents, the Schindlers filed another request for emergency relief with state judge Geroge Greer.  The motion was based upon three allegations:

1. Affidavits from attorney Barbara Weller and Suzanne Vitadamo stating that they observed Terri Schiavo attempt to repeat the words "I want to live" (with the sounds "ahhhhhhh" and "waaaaaaaa").  The affidavits were executed March 22 and allege this "conversation" occurred on March 18, days before the filings in federal and state trial courts this week.
2. An affidavit from an inventor whose device (in the words of Judge Greer) "would allegedly allow permit a person such as Terri Schiavo to communicate 'using the modulated equivalent of prevocalized thoughts' which would then be translated into words using pattern recognition software. It is clear that this device is for persons with cognitive ability whose ability to vocalize is lost.  Terri Schiavo is just the opposite."  Moreover, the inventor offered no opinion as to the likelihood of success if his invention were deployed.
3. An affidavit from a physician stating that Terri Schiavo might benefit from hyperbaric therapy, a suggestion that was litigated and decided in 2002.

At 11:45 a.m. (EST) today, Judge Greer denied the Schindler's motion.  Meanwhile, the Schindlers were reported to be undecided about whether to challenge Judge Greer's ruling and to have decided against any further federal appeals. [tm]

A Tale of Two Mothers

What seems mostly lacking from the response of Congress to the ordeal of Michael Schiavo and the Schindlers over his nontreatment decision for his wife, Terri, is recognition that these decisions are, sadly but inevitably, daily events around the country.  In round numbers, there are 2.5 million deaths in the U.S. each year (see Table 99).  Eighty percent of those occur in an institutional setting, and eighty percent of those deaths (or roughly two-thirds of the national total) occur after an explicit decision to withhold or withdraw life-saving or life-sustaining treatment.  State laws, similar if not identical to the Florida law under which Michael Schiavo made his decisions for his wife, lay out the ground rules for such decisions: who can decide, what are the standards for such decisions, what combination of physical and mental impairment will trigger the process, which treatments can be refused and which ones cannot.  The comments of Tom DeLay and many others in the House last weekend during the debate over S. 686 -- if taken at face value and not as mere political posturing -- betrayed their surprise over the legal developments in the states over the past 20 years and a surprising ignorance of the difficult choices that are made every day in the legislators' home states.  They might start their remedial education on this subject with an article in today's L.A. Times about the decisions of two mothers whose children lie in a persistent vegetative state -- no demonizing, no moralizing, no grandstanding, and no litigating, just quiet, dignified parental decision making we all hope will never come to us as parents.  [tm]

Congratulations to Professor Cerminara

Professor Kathy L. Cerminara, Associate Professor of Law at the Nova Southeastern University Shepard Broad Law Center,l appeared on CNN's Inside Politics yesterday afternoon to discuss the Terri Schiavo case.  She did an excellent job and health law professors should be proud.  Professor Cerminara provided a clear, insightful and intelligent overview of the Terri Schiavo case and the variety of opinions that seem to hit us daily from the Florida and federal courts.   I have found the transcript on-line at westlaw for those of you who missed the show.  Thanks again to Professor Cerminara for her excellent work in this area.

Professor Mayo has linked to Professors Cerminara and Kenneth Goodman timeline before but in case you missed it - here is the timeline of the Schiavo case with links to the important filings and court rulings.   SCOTUSblog has an update and explanation as well on the most recent court filings and decisions.  [bm]

Schiavo Documents

If you are interested in assigning part of the Schiavo case to your class, or merely attempting to keep track of the various motions that have been filed over the past week, Findlaw has complied a helpful website entitled, Terri Schiavo Case:  Legal Issues Involving Health Law Directives, Death and Dying.

Thanks to Joe Hodnicki for the tip.  Joe runs the the Law Librarian Blog, an informative and fun blog that I highly recommend.  [bm]

Upcoming Health Law Transactions Conference

If you are going to be in Chicago during mid-April, and you have an interest in health law transactional work, this conference might be helpful to you.  (This conference is for all you health law corporate attorneys/professors who are ready to consider aspects of heath law beyond the Schiavo case).

Thanks to Jim Tomaszewski for the cite. [bm]

Schiavo Cases Update

The Supreme Court refused to hear the Schindler's appeal concerning their daughter Terri Schiavo.  The Justices did not issue a legal opinion explaining the reason for their decision and there was no written dissent either.

The New York Times also reports on the judiciary's role in this saga.  And, MSNBC has a terrific question and answer session with the Rev. John J. Paris, a Professor at Boston College and a jesuit, who provides a slightly different Catholic perspective on the Schiavo case.  [bm]

Supreme Court and Bioethics

The Supreme Court may be reviewing more than its fair share of bioethics issues this week.  It is unclear how the Court will treat the Terri Schiavo case - although some commentators seem to believe that the Court will not act to review the case.   If that isn't enough excitement, tomorrow the Court will decide whether to grant review to a challenge to Idaho's abortion law which contains a medical emergency exception.  The case, Wasden v. Planned Parenthood of Idaho, concerns Idaho's abortion statute that permits minors to obtain an abortion without parental consent or judicial bypass if a medical emergency exists.  The Ninth Circuit Court of Appeals found the law unconstitutional because the definition of "medical emergency," as well as other terms within the statute, were too narrow and did not encompass all conditions in which a woman's life or health would be threatened. [bm] 

America's Reaction to Schiavo Case

CBS News has a poll that shows that a fairly large majority of Americans (66%) oppose re-inserting Terri Schiavo's feeding tube.  It also shows that a similarly-sized majority (61%) would prefer that the Supreme Court not hear the case.  I must admit, I have been a little worried about how Americans are viewing our health care system during this time with so many angry charges and counter-charges on the airwaves.  Thus, I found this poll reassuring because I was concerned that Americans would want to re-write all of the "right-to-die" jurisprudence.  [bm]

11th Circuit Denies Schindlers' Request for Emergency

A 3-judge panel of the U.S. Court of Appeals for the Eleventh Circuit decided this morning, by a 2-1 vote, that they would not overrule the order of District Judge James Whittemore denying the parents of Terri Schiavo an injunction to reinsert her feeding tube.  (The opinion is here -- the download from the Court's overloaded web server takes a very long time.  FindLaw, which is an increasingly invaluable resource for primary documents, has it here -- much faster than the court's site.)

As reported by the Associated Press:

In a 2-1 ruling early Wednesday, a panel of the 11th Circuit Court of Appeals in Atlanta said the parents "failed to demonstrate a substantial case on the merits of any of their claims" that Terri's feeding tube should be reinserted immediately.

"There is no denying the absolute tragedy that has befallen Mrs. Schiavo," the ruling said. "We all have our own family, our own loved ones, and our own children. However, we are called upon to make a collective, objective decision concerning a question of law."

In his dissent, Judge Charles R. Wilson said Schiavo's "imminent" death would end the case before it could be fully considered. "In fact, I fail to see any harm in reinserting the feeding tube," he wrote.

Twice rejected by the federal courts since Congress' enactment of extraordinary legislation last weekend, the Schindlers are now going to the U.S. Supreme Court, which has refused their request for emergency interventions 3 times before (Bloomberg News).  [tm]

Two Important Articles from NEJM on Schiavo

As far as I can tell, the New England Journal of Medicine has posted two articles on its website for free download by anybody.  (I am a subscriber, so it's possible that I am getting to them because of a cookie, but it doesn't appear that I am logged in as a subscriber when I am accessing the articles.)  These are important pieces, Web-posted a month before their scheduled appearance in the print version of the medical journal:

• Timothy E. Quill, "Terry Schiavo -- A Tragedy Compounded"
• George J. Annas, "'Culture of Life' Politics at the Bedside -- The Case of Terri Schiavo"

[tm]

Federal Judge Rules: No Reinsertion of Terri Schiavo's Feeding Tube

Judge Whittemore's opinion and order denying the Schindlers' request for preliminary injunctive relief is here.  ABC reports that they have filed their notice of appeal to the US Court of Appeals for the 11th Circuit.