Tuesday, September 30, 2003
Baby Miller case decided by Texas Supreme Court
1. This is a devastating loss for the family, which has a lifetime of expensive nursing and medical care to pay for. With post-judgment interest, the judgment for the family had to have been worth over $100 million by now. The Court of Appeals reversed and rendered a take-nothing judgment, and today the Supreme Court said, "that's right."The really disquieting part of the decision is its reliance on the 1920 Moss case (link requires Westlaw subscription).
2. The major damage done by the Court of Appeals to the Natural Death Act (now the Advance Directives Act) was technically left alone by the Supreme Court. It affirmed on other state-law grounds and said it didn't need to reach the NDA/ADA issue. But the court offered some dicta that ought to make it clear the court thought the Court of Appeals blew it, which it did (big time). So my major hope for the opinion -- that the NDA/ADA would be restored to its natural meaning -- was half-way realized.
3. The court also side-stepped the Baby Doe issue in the case. It describes the Baby Doe rule as an appropriations/funding rule, which is satisfied by the fact that Texas has CPS policies and procedures in place to respond to reports of failure to provide medically indicated treatment to infants. Period. It does not seem interested in reading Baby Doe as establishing a standard of care, at least unless CPS has been called into a case, which it was not in this case, so as far as the court is concerned: no big deal. But in any event, the court said "this is a state-law, not federal-law, case so we won't technically decide the Baby Doe issue." This is okay with me (even though I think Baby Doe does implicate state law and does establish a standard of care as a matter of state law). Anything the court could have said about Baby Doe (other than what it did say) could only have made a bad rule worse.
First of all, it's an opinion by the Texas Commission of Appeals of the Texas Supreme Court, not the Supreme Court itself; this is an oddity of Texas judicial history that makes the precedent potentially not as strong as it might otherwise be.Curiouser and curiouser.
Second, and following from the first, the Supreme Court (in 1920) "approved the judgment in the case," which is generally regarded as weakening the precedential value of an opinion. If the court adopted the opinion of the commission, the precedential value would be higher.
Third, the holding of Moss is this: A surgeon was liable for performing surgery on a minor without the consent of the patient's parents because although "there was an absolute necessity for a prompt operation, [surgery was] not emergent in the sense that death would likely result immediately upon failure to perform it. In fact, it is not contended that any real danger would have resulted to the child had time been taken to consult the parent with reference to the operation. Therefore the operation was not justified upon the ground that an emergency existed."
Amazingly (in light of the Miller court's use of Moss), the Moss opinion ends with this: "The law wisely reposes in the parent the care and custody of the minor child, and neither a physician nor those in temporary custody of the child will be permitted, in a case of this character, to determine those matters touching its welfare." So the Miller supreme court is "guide[d]" (the court's term) to affirm the court of appeals decision against the parents on the basis of an opinion from 1920 of dubious precedential value containing a ringing endorsement of parents' prerogatives to give or withhold consent and setting a very high standard for an exception (more than "an absolute necessity for a prompt" intervention, there must be an emergency "in the sense that death would likely result immediately upon failure to perform the [intervention]." Curious.
Fourth, in Moss, the surgeon relied in good faith on the apparently valid consent of the child's aunt. He had no reason to suspect there was a lack of consent. In Miller, there was every reason to know there was no valid consent. Moss looks like a case that stands for the simple proposition that we will presume consent in a true emergency as long as there's no reason to believe consent has not or would not be given. But of what relevance is that rule to the Miller case?
Fifth, assume that Moss is good law. Does it really support this result? After all, the hospital seems to have had just about the entire day either to get the parents' consent or to get a court order to override the parents' refusal, and it did neither. I don't think Moss really says this is alright.
Big Increase Seen in People Lacking Health Insurance
Monday, September 29, 2003
New form of defensive medicine.
End-of-life care and the battle over medical proxy's right to decide.
Sunday, September 28, 2003
The Times got it wrong.
The implications of this research, both for medical ethics and practical policy, are potentially huge. Traumatic brain injuries are a significant health problem in the United States, but the study and treatment of them are clouded with a sense of hopelessness, a feeling that consciousness is too mysterious to be understood. When faced with patients in a vegetative state, doctors can do little more than wait to see if they wake up. No treatment has ever been definitively shown to help patients recover consciousness, and doctors can't predict which patients will emerge from a vegetative state and which won't. If patients don't show signs of recovery in a few weeks, they usually wind up at home with their families or in nursing homes, and they rarely see a neurologist again. In 1976, in a famous court case, the parents of Karen Ann Quinlan, a woman who had been in a vegetative state for about a year, won the right to take her off a ventilator (after which she lived until 1985). ''There's a point where people give up'' and discontinue aggressive treatment, says Joseph J. Fins, chief of the division of medical ethics at Weill Medical College. ''The question is, Are we giving up too soon on the ones who might become more functional?'' Schiff and his colleagues say that the answer, in too many cases, may be yes.Indeed, some of the patients may be able to recover, however fleetingly, quite remarkable levels of conscious interaction with others, through deep massage:
Giacino works hard to tease out hints of awareness in a patient. Sometimes he can actually coax patients into consciousness by working his fingers deep into their muscles. Neurologists have found that the stimulation of the nerve endings in the muscles can be powerful enough to arouse activity in networks of neurons in the brain. Giacino has a particular knack for the technique, and after a few seconds of muscle work, he can get some minimally conscious patients to speak. Some tell him their names, others tell him to leave them alone. As soon as he removes his hands, they slip away again.Until now, I have been very skeptical of claims that patients in a persistent or permanent vegetative state were "disabled" patients in need of protection against discriminatory policies that give up on the disabled as if they were already dead. The accepted paradigm for PVS is that the neocortical hemisphere is, for all intents and purposes, dead. This article -- quite misleadingly -- suggest that it is quite plausible that some number of such patients, diagnosed as PVS in accordance with protocols published by the American Academy of Neurology, experience relatively high levels of functioning, some of which might be recovered through appropriate therapies. Some of researchers whose work is discussed in this article have written to The Times to dispute any such implication. (I'll provide a link when and if The Times publishes their letter.) They want to clarify that PVS is and continues to be a valid diagnosis from which there is no return to sentience.
Marie Conniff has seen Giacino work this transformation many times. On New Year's Day in 1998, her son Scott was on duty as a New York policeman when a drunken driver rammed his car. Today, Scott sits in a wheelchair, his gaze often drifting across the room. Sometimes he laughs, sometimes he growls like a bear. He gives hard kicks to a big orange beach ball hanging from the ceiling. When Giacino begins to work her son's muscles, Conniff finds herself startled at how well Giacino can bring Scott back, in the look on his face, the clarity of his movements. ''I see a lot of what I had before he got hurt,'' she told me.
Saturday, September 27, 2003
While Medicare's opponents may take cover in ideology in the debate over these larger issues, ideology can't explain the myriad outrages buried in the 800 pages of the legislation that would cost the taxpayers unnecessary billions and pick the pockets of the sickest and oldest among us.There's more to read -- and to fume over -- in Friedman's excellent review of all that's wrong with what's going on in the Conference Committee that is trying to harmonize the House and Senate bills. I agree with Friedman: If the price tag for a prescription drug benefit we can't afford includes the ruination of the Medicare program, let's hope the conferees come up empty-handed.
One extraordinary example is a provision prohibiting the government from saving money by using its buying power to negotiate volume discounts with drug companies to get the best prices on drugs for beneficiaries. Indeed, the legislation would exempt drug companies from the cost controls that govern every other Medicare provider - doctors, hospitals and laboratories.
Thursday, September 25, 2003
When an untested drug is a patient's last chance.
Wednesday, September 24, 2003
Boston Children's Hospital.
Children's Hospital in Boston.
September 18 | September 19 | September 20 | September 22 | September 23
There's a bit of a media frenzy going on, but it's a compelling story with the additional lesson that if it could happen at one of the country's best hospitals, it could happen in yours, too.
214th birthday of the Judiciary Act of 1789.
Tuesday, September 23, 2003
Medical error at a children's hospital
Monday, September 22, 2003
Proposition 12: the dawning of a new day . . . .
Sunday, September 21, 2003
Case study of medical error in one of the best pediatric hospitals in the US.
End-of-life decision making.
Does HIPAA apply to the NFL?
"The problem with secret records is people are making decisions about you, and you don't know why. In this case, when you're talking about professional football players, (teams) could be making decisions about whether they should play or not. Their livelihood and future health could be at stake."
Saturday, September 20, 2003
Dubya takes Prop 12 on the road.
The Safety of Imported Drugs
Thursday, September 18, 2003
Another North Texas physicians' group charged with price-fixing.
Tuesday, September 16, 2003
Comfort Foods Switch Off Stress, Scientists Find
Really, did we need a paper in The Proceedings of the National Academy of Sciences on this to know what is now headline news in The New York Times? Here are some of the not-earth-shattering conclusions:
-- "Comfort foods like chocolate cake and ice cream literally blunt the body's response to chronic stress."Anyone for transcendental meditation and a pint of Häagen-Dazs?
-- "This makes sense from an evolutionary viewpoint. . . . Animals that are acutely stressed stop eating, lie low and pull fat and protein from their bodies. But they cannot do that forever. . . . 'After a few days, they need to get out and get a real fix,' [the author] said. 'They need high-energy foods, like a tub of butter, to put money in the bank.' Once energy stores are replenished, a signal, probably from fat, flows back to the brain saying it is all right to calm down [and] the chronic stress cycle is turned off."
-- "'"[I]f you are overly stressed, it's probably a good idea to overeat, at least in the short run,' said [one of the authors]. 'But if you develop a thick tire of fat around your abdomen, you need to figure out a way to reduce your stress or you'll be inviting all sorts of chronic health problems.'"
-- "In an insidious sidelight, stress hormones also activate fat receptors in the abdomen and belly in ways that increase deposits of fat, he said. The more abdominal fat people have, the better they shut down chronic stress but the more vulnerable they are to diabetes, heart disease and stroke."
-- "Chronic stress, perversely, also excites the compulsive pleasure-seeking component of the system, [the author] said. 'If you use sex, drugs or rock 'n' roll instead of high-energy food to get stress-reducing pleasure, you miss out on the metabolic feedback,' he said. 'You don't shut down the chronic stress system. You just seek more cocaine. Things like saccharin won't cut it. You need the real thing or the system won't stay in balance.'"
Monday, September 15, 2003
Democrats find bright side of loss on Prop. 12
Prop 12 wins in a squeaker
Sunday, September 14, 2003
Patients in Florida Lining Up for All That Medicare Covers
Doctor visits have become a social activity in this place of palm trees and gated retirement communities. Many patients have 8, 10 or 12 specialists and visit one or more of them most days of the week. They bring their spouses and plan their days around their appointments, going out to eat or shopping while they are in the area. They know what they want; they choose specialists for every body part. And every visit, every procedure is covered by Medicare, the federal health insurance program for the elderly."Romer's Law" ("a bed built is a bed filled is a bed billed") predicted that demand for health care services will follow supply in Field of Dreams fashion: If you build it, they will come. This article illustrates the unsurprising corollary: If you pay for it, they will order it.
Boca Raton, researchers agree, is a case study of what happens when people are given free rein to have all the medical care they could imagine. It is also a cautionary tale, they say timely as Medicare's fate is debated in Congress for it demonstrates that what the program covers and does not cover, and how much or how little it pays, determines what goes on in a doctor's office and why it is so hard to control costs.
South Florida has all the ingredients for lavish use of medical services, health care researchers say, with its large population of affluent, educated older people and the doctors to accommodate them. As a result, Dr. Elliott Fisher, a health services researcher at Dartmouth Medical School, said, patients have more office visits, see more specialists and have more diagnostic tests than almost anywhere else in the country. Medicare spends more per person in South Florida than almost anywhere else twice as much as in Minneapolis, for example.
But there is no apparent medical benefit, Dr. Fisher said, adding, "In our research, Medicare enrollees in high intensity regions have 2 to 5 percent higher mortality rates than similar patients in the more conservative regions of the country."
Doctors say that Medicare's policies are guiding medical practice, with many making calculated decisions about whom to treat and how to care for them based on what Medicare covers, and how much it pays.
"The bottom line is that the stuff that reimburses well is easier to get done," Dr. Carl Rosenkrantz, a Boca Raton radiologist, said.
"Health care pales next to perils of eating kittens"
Voters say the future of the health-care system is the most important issue facing Ontario. Finally, on the 11th day of the election campaign, the subject was thrust into the spotlight.And we think our debate over U.S. Medicare is a nasty one . . . .
Progressive Conservative Leader Ernie Eves and his Liberal counterpart, Dalton McGuinty, yesterday devoted major addresses to the stresses and strains facing Ontario's $28-billion health system. Not that you'll hear much about it. The leaders' noble support of the sanctity of medicare got eclipsed later in the day by the Conservatives' astonishing characterization of Mr. McGuinty as an "evil reptilian kitten-eater from another planet."
Thursday, September 11, 2003
'Do not resuscitate' instructions often ignored, overlooked
Studies estimate about 20 percent of Americans have some form of "advance directive," including living wills that describe a patient's wishes and health-care proxies that designate another individual to make decisions for the patient. DNRs are written by a doctor, nurse practitioner, or physician's assistant to spell out a dying patient's decision to refuse CPR and mechanical help with breathing. When DNRs are not honored, the problem is that sometimes doctors trained to save lives disagree with the DNR decision.Darned good thing the Texas State Board of Medical Examiners requires an hour of ethics instruction each year! Don't you wish your state did, too?
"There's still a fair number of doctors around who are uncomfortable with patients being DNR," said Dr. David Clive, chairman of the ethics committee at UMass Memorial Medical Center in Worcester. "It may be for personal or religious reasons or it may be their medical opinion that the patient is not sufficiently ill to warrant the DNR order. But it's important to realize that if the patient is competent, they rule the day, not the physician."
Doctors at odds with a patient on a DNR typically try to negotiate a resolution, Clive said. But at UMass, a doctor who decides against following a patient's explicit wishes is required to transfer the patient to another doctor.
More commonly, researchers and advocates said a mistaken resuscitation of a patient happens because of a communication failure.
Many doctors are uncomfortable discussing death and they avoid asking patients what they want. Even if patients and doctors have the conversation and the doctor issues a DNR order, that order isn't automatically shared with a hospital or ambulance service.
Fewer People on Medicare Are Dropped by H.M.O.'s
Medicare managed care (Medicare+Choice)
Wednesday, September 10, 2003
Tuesday, September 09, 2003
James Rachels, medical ethicist, dead at 62.
Thursday, September 04, 2003
Calif. proposes ban on balance billing for ER services.
Wednesday, September 03, 2003
Med mal premiums and access to health care.
"Actions taken by health care providers in response to rising malpractice premiums have contributed to localized health care access problems in the five states reviewed [Florida, Nevada, Pennsylvania, Mississippi, and West Virginia] with reported problems. GAO confirmed instances in the five states of reduced access to hospital-based services affecting emergency surgery and newborn deliveries in scattered, often rural, areas where providers identified other long-standing factors that also affect the availability of services. Instances were not identified in the four states [California, Colorado, Minnesota, and Montana] without reported problems. In the five states with reported problems, however, GAO also determined that many of the reported provider actions were not substantiated or did not affect access to health care on a widespread basis. For example, although some physicians reported reducing certain services they consider to be high risk in terms of potential litigation, such as spinal surgeries and mammograms, GAO did not find access to these services widely affected, based on a review of Medicare data and contacts with providers that have reportedly been affected. Continuing to monitor the effect of providers’ responses to rising malpractice premiums on access to care will be essential, given the import and evolving nature of this issue.The beat goes on . . . .
"Physicians reportedly practice defensive medicine in certain clinical situations, thereby contributing to health care costs; however, the overall prevalence and costs of such practices have not been reliably measured. Studies designed to measure physicians’ defensive medicine practices examined physician behavior in specific clinical situations, such as treating elderly Medicare patients with certain heart conditions. Given their limited scope, the study results cannot be generalized to estimate the extent and cost of defensive medicine practices across the health care system.
"Limited available data indicate that growth in malpractice premiums and claims payments has been slower in states that enacted tort reform laws that include certain caps on noneconomic damages. For example, between 2001 and 2002, average premiums for three physician specialties—general surgery, internal medicine, and obstetrics/gynecology—grew by about 10 percent in states with caps on noneconomic damages of $250,000, compared to about 29 percent in states with limited reforms. GAO could not determine the extent to which differences in premiums and claims payments across states were caused by tort reform laws or other factors that influence such differences.
"In commenting on a draft of this report, three independent reviewers with expertise on malpractice-related issues generally concurred with the report findings, while the American Medical Association (AMA) commented that the scope of work was not sufficient to support the finding that rising malpractice premiums have not contributed to widespread health care access problems. While GAO disagrees with AMA’s point of view, the report was revised to better clarify the methods and scope of work for this issue."
Proposition 12: Does Texas need a constitutional amendment to limit noneconomic damages?
1. As has been reported widely, including last Sunday in the Fort Worth Startlegram, doctors are lobbying patients with posters in their offices, brochures at the sign-in desk, inserts in the mailed bills to their homes, and jawboning during office visits. As the AMA Ethics Code rightly points out (AMA Opinion 9.012), doctors don't lose their first amendment rights when they become licensed. But they have to do so "with the utmost sensitivity to patients' vulnerability and desire for privacy." A careful and discreet physician would at least heed the warning of the Connecticut State Medical Society: "Political conversations are a fundamental part of political freedom. They must be, however, undertaken with great care in order that they do not interfere with the physician-patient relationship, exploit the medical authority of the physician or impose upon vulnerable patients or family members. Physicians should use common sense in deciding on the time and place for the exercise of their political rights." Different people will draw the line in different places, but I favor a more restrictive approach within the existing rule that would avoid political proselytizing within the office (unless the subject is raised by the patient, signalling her comfort level with the discussion), and I'd even extend that to inserts that accompany the bill. For a defense of such an approach, check out the comments of medical ethicist and religious studies professor M. Therese Lysaught.
2. On the merits, Prop. 12 seems both reckless and unnecessary. Unnecessary because HB 4 already limits noneconomic damages in med mal cases, adding Texas to the minority of states to have done so. A recent report from the federal Government Accounting Office (mentioned in this blawg on August 3) has given us plenty of reason to believe that this law won't solve or even particularly address the insurance crisis in Texas, but no one is seriously questioning the constitutionality of HB 4. Doctors who say a vote for Prop. 12 is a vote for your physician are being just a little disingenuous. They got their fix from the 78th Legislature. This isn't about them any more, other than to provide a constitutional "fix" for the inevitable (but, I predict, unsuccessful) constitutional challenge that will be mounted against HB 4. The constitutional arguments are not strong ones, and they've mostly been rehearsed in the courts the last time the Legislature enacted tort reform for health care claims. Reckless because it opens the door to wholesale legislative revision of the tort system and the checks and balances that have worked for a very long time in this state to keep all kinds of businesses and merchants in line. As between the two major groups waging war over this -- Save Texas Courts vs. Yes on 12 -- STC (consisting of a coalition headed by former Supreme Court Justices Deborah Hankinson and James Baker -- neither one known to be partial to the plaintiffs' bar or law-reform groups like the ACLU) seems to have the better arguments, which to one degree or another have been endorsed by every major newspaper editorial board in the state, as well as Texas AARP, MADD, and the ACLU.
Tuesday, September 02, 2003
Final EMTALA rule due in next Tuesday's Federal Register.
Monday, September 01, 2003
HeartMate's evolution illustrates the nexus of a health care system beset by an aging population, rising costs and limited resources and the longing for lifesaving technology often made by companies seeking to maximize profits. The conflict is expected to become more heated as more expensive technologies and procedures are developed, and at least in their infancy are not overwhelmingly effective. It will be especially difficult for Medicare, facing the baby boomer retirement wave and already searching for a way to finance a prescription drug benefit.Welcome to the tip of the rationing iceberg . . . .
"Technology is being created faster than our ability to put in any kind of a financial, ethical and moral framework," said Dr. Allen Korn, chief medical officer of the Blue Cross and Blue Shield Association, which issued a report saying the device qualified for reimbursement.
"Nobody wants to hear they are going to die. But somewhere there needs to be a bottom line," Korn said.
Adds Art Caplan, chairman of the department of medical ethics at the University of Pennsylvania's medical school, "We are headed for a big political debate about rationing health care - a debate no one wants to have."