Capital punishment and organized medicine: still a no-go in Mo.

As reported in this morning's New York Times, U.S. District Judge Fernando J. Gaitan, Jr., previously "had demanded an overhaul of the system after the doctor who now mixes the drugs for the state described an improvised process that Judge Gaitan found so chilling that he temporarily barred executions in Missouri."

In a sworn deposition, the Missouri doctor, whose name is being withheld by the state, acknowledged that he had sometimes given the condemned a smaller dose of anesthesia — used to reduce the pain of the lethal drugs to come — than the state had said was its policy.

The doctor said he was solely responsible for counting out dosage amounts of the three drugs administered in sequence, knew of no written protocol by the state for carrying out executions and was at times “improvising.”

He also said he is dyslexic, sometimes mixing up phone numbers or cable bill account numbers. “So it’s not unusual for me to make mistakes,” the doctor, identified in court records as John Doe I, said.

He indicated in his testimony, however, that he had made no mistakes in his death chamber work and that the mistakes elsewhere were “not medically crucial.”

Judge Gaitan said he was “gravely concerned” about the doctor’s dyslexia and criticized the lack of “checks and balances,” ruling on June 26 that the state was subjecting the condemned to “an unnecessary risk that they will be subject to unconstitutional pain and suffering when the lethal injection drugs are administered.”

The judge ordered Missouri to hire a board-certified anesthesiologist (John Doe I is a surgeon), and gave the state until today to submit a formal, written set of procedures, including increased monitoring of inmates and an assurance of sufficient anesthetic drugs.

But in the state’s filing last night, officials said they had sent letters to 298 certified anesthesiologists who reside anywhere near the state’s death chamber in Bonne Terre, and were turned down by all of them.

The nub of the problem, of course, is that "[t]he American Society of Anesthesiologists and the American Medical Association [Op. E-2.06] say physicians should not take part in executions, and Orin F. Guidry, the president of the A.S.A., recently issued a letter to members reiterating that position in light of the Missouri ruling." Dr. Guidry's description of the ASA position on physician participation is a little more nuanced than The Times lets on, but the ASA apparently comes out the same place as the AMA: "ASA does not have a detailed position on anesthesiologist participation in lethal injection but the 2001 House of Delegates 'Approved a recommendation that ASA support the American Medical Association’s position regarding physician nonparticipation in executions.' . . . . Clearly an anesthesiologist complying with the Missouri ruling – and despite this court’s position on ethical obligations - would be violating the AMA position which ASA has adopted. It is my belief that the court cannot modify physicians’ ethical principles to meet its needs."

Guidry ends his letter with some blunt observations:

We are being reluctantly placed on a slippery slope. If the courts demand that inmates be sufficiently anesthetized, then I would have to agree with the court that the only way to assure that would be to have an anesthesiologist prepare and administer the drugs, carefully observe the inmate and all pertinent monitors, and finally to integrate all this information. I don’t think that any of us would want to say that untrained individuals under current death chamber conditions can reliably produce a satisfactory level of unconsciousness. Our core skill is that we can induce an appropriate level of anesthesia. Are we willing to say that untrained individuals can also do so with a reasonable degree of success?

However if the only way to accomplish this appropriate level of anesthesia is with an anesthesiologist using all of our tools AND anesthesiologists will not participate, then are anesthesiologists stopping capital punishment and making public policy?

Not in my opinion. Lethal injection was not anesthesiology’s idea. American society decided to have capital punishment as part of our legal system and to carry it out with lethal injection. The fact that problems are surfacing is not our dilemma. The legal system has painted itself into this corner and it is not our obligation to get it out.

Has the Texas legislature made performing abortions a capital offense?

That's the question raised by a recent request for an Attorney General's Opinion (RQ-0501-GA). The literal question posed by David Swinford (R) (chair of the House Committee on State Affairs) is a bit more technical than that, of course:

Does a physician’s failure to comply with the requirements of either § 164.052(a)(18) (restricting third-trimester abortions performed on viable unborn children) or § 164.052(a)(19) (requiring parental consent for abortions performed on unemancipated minors) of the Texas Occupations Code, as provided by § 1.42 of S.B. 419 (2005 TEX. GEN. LAWS ch 269, § 1.42) subject the physician to liability under the criminal homicide provisions of ch. 19 of the Penal Code?

As reported in this morning's Kaiser Daily Women's Health Report, which drew heavily from a story in yesterday's Austin Statesman-American, Swinford wants to test an interpretation of the new law by the Texas District and County Attorneys Association:

The analysis says that because it is illegal both for abortions to be performed on a minor without the consent of a parent or guardian and for a physician to perform a third-trimester abortion, doctors who perform them could be prosecuted for murder. The analysis -- written by Shannon Edmonds, the group's director of governmental relations -- says, "This was undoubtedly an unintended consequence but one that law enforcement authorities should be aware of." Edmonds, who said he is unaware of any such prosecutions, said, "After every (legislative) session, there are changes in the law that are real head-scratchers, some intentional and some are unintentional. ... This is just a way to illustrate how unintentional consequences can result in something extreme" (Embry, Austin American-Statesman, 7/13). Swinford, who disagrees with the interpretation of the law by the TDCAA, said the law is intended to provide
criminal penalties for the failure of physicians to obtain parental consent or to comply with restrictions on abortions conducted at or after 28 weeks' gestation, but "certainly not to subject a physician to prosecution for capital murder."

Both the Kaiser report and the news story missed a crucial part of the story. Shannon Edmonds' analysis turns on a little-discussed amendment to the Penal Code in 2003 that expanded the definition of "individual" in the homicide portion of the Penal Code to include an unborn child at any stage of development starting at conception. Although the Penal Code exempts physicians who perform lawful abortions, that exemption wouldn't apply to physicians who perform unlawful abortions. And since the 2005 amendments to the Occupations Code make it unlawful for a physician to perform most late-term abortions or abortions on minors without parental consent (subject to a judicial-bypass provision), the argument would be that physicians who violate the new provisions would fall outside the 2003 law's exception for lawful abortions.

This is almost undoubtedly not what the legislature intended. With the Texas Legislature, though, you can never be quite sure. And by providing specific, lesser penalties for violations of the Occupations Code, the Legislature could be understood to have intended these penalties as an alternative to the Penal Code's death penalty. But when it comes to harsh penalties and the Texas Legislature, you can never be quite sure.

Pain control and end-of-life care are not simply their own reward

Excellence in end-of-life care and pain management are also sometimes rewarded by others, in this case by the AHA, which recently gave nurse practitioner Peg Nelson and St. Joseph Mercy Hospital in Pontiac, MI, its Circle of Life Award (which includes $10,000). This article from the Detroit Free Press has the details of their approach to end-of-life care.

Senate votes to allow drug reimportation by individuals

On Tuesday, the Senate approved (68-32) S. Amdmt. 4548 to H.R. 5441 (Department of Homeland Security Appropriations Act, 2007): "To prohibit the United States Customs and Border Protection from preventing an individual not in the business of importing a prescription drug from importing an FDA-approved prescription drug." As reported by The New York Times on Wednesday, the House is unlikely to get a chance to vote on the Senate's amendment: "[A]ides said that as in past years, the provision was likely to be removed when the legislation got to a conference committee of House and Senate lawmakers who will negotiate the final version."

Drug reimportation is extremely popular with voters, but Sen. Judd Gregg (R-N.H.) had his own reasons for opposing reimportation: "Referring to a leading cholesterol-lowering drug, . . . Gregg . . . said, 'If I were a creative terrorist, I would say to myself, "Hey, listen, all I’ve got to do is produce a can here that says ‘Lipitor’ on it, make it look like the original Lipitor bottle, which isn’t too hard to do, fill it with anthrax."'" But, hey, who needs to be a creative terrorist when our senators are dreaming up doomsday scenarios and sharing them with the national press corps?! And in any event, what's to stop that terrorist from doing the same thing with a bottle of Tylenol right here in the U.S.? Sorry, Senator, your argument doesn't persuade me that the Administration's (and your) opposition to reimportation is about anything more than keeping profits up for Big Pharma. Sure, there are a handful of drugs for which special handling (such as refrigeration) is required to avoid a loss in potency, but those can be excluded from the rule that allows reimportation, or special requirements can be added to try to ensure drug safety.

NYC unveils pandemic preparedness plan

From today's CDC Public Health Law News:

"City unveils a plan to identify, and contain, a flu pandemic" -- The New York Times (07/11/06) Diane Cardwell [link]

New York City Mayor Michael R. Bloomberg and city health commissioner Thomas R. Frieden this week announced a new plan to address avian influenza preparedness. The plan details the steps for identifying and containing an outbreak and distributing scarce resources such as antiviral medications. "The fact that New York is a major gateway to the nation and one of the world's most densely populated cities means the possibility of pandemic flu, however remote, is one that we must take extremely seriously," said Bloomberg. The plan stresses early detection to help contain the pandemic, so health officials have taken steps to strengthen communication with doctors and to monitor information about ambulance runs, pharmacy sales, and emergency room visits. In the event of an outbreak, in which the city estimates more than 2.5 million New Yorkers could be infected, officials said they would use traditional methods of containing the virus by encouraging certain behaviors among the public. "It's low technology, but it works: covering your mouth when you cough or sneeze; not going out if you have fever and cough. These are very important things people can do to reduce the spread of infection, and if there were a pandemic, they would be our first line of defense," said Frieden.

[Editor's note: To read the New York City Pandemic Influenza Preparedness and Response Plan, click here.]

Senate stem-cell vote set for next Tuesday

Laurie Kellman of The Washington Post has the story on the upcoming Senate vote on three stem-cell research bills, which were first discussed here two weeks ago:

The Senate will vote next week on three bills related to stem-cell research, including a measure that would expand federal funding for a procedure that uses and destroys human embryos in the drive to cure diseases that afflict millions of Americans [H.R. 810].

The Senate is expected to pass that bill, which would send it to the White House for President Bush's signature. Bush has promised to veto the measure, effectively killing it because neither chamber of Congress has displayed the two-thirds majority needed to override it.

That would be the end of the story, a victory for social conservatives, but for two issues: The Senate debate set to open Monday occurs late in a year of midterm elections, and polls show 70 percent of Americans support the embryonic stem cell bill.

So Senate Majority Leader Bill Frist, R-Tenn., who supports the bill and has spent a year trying to bring it to the floor, succeeded last week by promising opponents to also hold votes on two other stem cell measures they could support and Bush could sign [S.2754 and S.3504].

In a delicate election-year balancing act, Frist also will bring up a measure that would ban so-called "fetal farming," described as growing fetuses for the sole purpose of harvesting tissue. The other would fund research for stem cells derived from adults.

The House would then act quickly to pass the two non-controversial bills and all three would be sent to Bush for his signature. Bush would veto the embryonic bill and sign one or both of the others, giving him and social conservatives in Congress fresh evidence to present to voters this fall that they support stem cell research.

The current issue of Health Affairs is dedicated to public health. There are some terrific articles, but I particularly commend these:

• Can Public Health And Medicine Partner In The Public Interest? [link]
  J. Michael McGinnis
  Abstract: The dominant issues for health and health care today can be effectively engaged only if public health and medicine work together as better partners. Yet historical, professional, organizational, operational, and financial barriers exist to closer relationships. Fostering the necessary collaboration will require changes for both public health and medicine in leadership styles, professional education, practice incentives, accountability measures, and financing structures.

• What Does Social Justice Require For The Public’s Health? Public Health Ethics And Policy Imperatives [link]
  Lawrence O. Gostin and Madison Powers
  Abstract: Justice is so central to the mission of public health that it has been described as the field’s core value. This account of justice stresses the fair disbursement of common advantages and the sharing of common burdens. It captures the twin moral impulses that animate public health: to advance human well-being by improving health and to do so particularly by focusing on the needs of the most disadvantaged. This Commentary explores how social justice sheds light on major ongoing controversies in the field, and it provides examples of the kinds of policies that public health agencies, guided by a robust conception of justice, would adopt.

NH court: Doc has 1st Amendment right to be a jerk

As reported by the Associated Press, New Hampshire judge Edward Fitzgerald "has ordered the state Board of Medicine to stop disciplinary proceedings against a doctor accused of telling a patient she was so obese she might only be attractive to black men and advising another to shoot herself following brain surgery." The article reports that Terry Bennett, M.D., says "he planned to sue everyone involved for 'malicious prosecution.'

"'I am not inclined to be forgiving about it,' he said. 'It's been devastating and infuriating.'"

New Hampshire Public Radio aired a good piece on the matter, including comments by medical ethicist Larry McCullough (tough love -- and tough speech -- may be what the doctor ordered and is within the bounds of standard medical practice) and Vermont medical professor Virginia Hood (offensive speech can cause harm).

There are a few excerpts from the judge's opinion in an article in the Manchester Union-Leader.

This case raises some interesting issues. First, can it possibly be true that a medical board can't decide that certain speech constitutes unprofessional conduct and punish a licensee for engaging in such conduct, even if the speech is otherwise protected by the First Amendment? And second, the First Amendment cuts both ways. Recall the 2002 Ninth Circuit decision that First Amendment rights of physicians meant the federal government couldn't revoke the drug licenses of California physicians who recommended marijuana to their patients (Conant v. Walters).

Many hospice patients live longer than expected

Terrific story (via Kaiser Family Foundation's Daily Health Policy Report) about hospice:

McClatchy Newspapers/St. Paul Pioneer Press on Wednesday examined how some patients who check into hospices believing they are near death later go on to recover and leave hospice care. For Medicaid and Medicare beneficiaries to cover hospice care, the patient's doctor and the hospice's doctor must agree that the patient will die within six months. About two-thirds of hospice patients die within 30 days, according to the National Center for Health Statistics at CDC. If a patient does survive six months but is not likely to survive another six months, the patient remains in hospice. Patients who survive six months are discharged if their condition has improved and stabilized enough that they are likely to live another six months. According to CDC data, an estimated 100,000 hospice patients will leave hospice care this year. One study estimates that about one-third of those who leave hospice die within six months of their release. About 5,000 to 20,000 hospice survivors annually "live on with evident satisfaction," while the remainder is transferred to nursing homes, according to McClatchy/Pioneer Press.

Explanation
Experts say there are several factors that can lead terminally ill patients to recover enough to leave hospice care. In many cases, doctors inaccurately estimated how long a patient had to live, McClatchy/Pioneer Press reports. According to McClatchy/Pioneer Press, predicting how long a hospice patient will live might be more difficult today than it was in the 1970s and 1980s, when
three-quarters of hospice patients were admitted because of cancer. By contrast, nearly half of current hospice patients have dementia or heart, lung, kidney or liver failure -- which can make the length of a patient's decline less predictable. "Another theory ... is that pending death brings out the curative power of family and friends," McClatchy/Pioneer Press reports. In addition, some experts say patients might improve in hospice because they are receiving better care than before they entered facilities (Greve, McClatchy/St. Paul Pioneer Press, 7/5).

The article doesn't mention the ill-fated trial balloon from CMS a few years back, in which they proposed to recoup hospice benefits paid to Medicare beneficiaries who didn't die within 6 months!

Also: If you have trouble with the link provided above to the news article (I did!), try this one. Free registration may still be required, but at least the article (eventually) appears on your screen. . . .

HPV debate moves to the states

On June 30 Stateline.org published a useful summary of the issues surrounding the recently recommendation from the CDC's Advisory Committee on Immunization Practices that all 11- and 12-year-old girls receive the vaccine for the most dangerous strains of human papillomavirus (HPV), which causes cervical cancer. As a public health matter, the advisory committee's recommendation is pretty straightforward. But the politics of abortion, always lurking just below the surface of any discussion of public policy and sex, promise to alter the debate in many states:

. . . HPV is a sexually transmitted disease. The distinction already is spurring some conservative groups to say states shouldn’t mandate that girls get the vaccine, because the only way to catch the cancer-causing disease is through sexual contact.

Linda Klepacki, an analyst on sexual health for Focus on the Family, which promotes abstinence until marriage, said the reason for inoculating schoolchildren for diseases like measles doesn’t apply to the cervical cancer vaccine.

“HPV cannot be communicated by sitting in a public school classroom. It’s communicated only by sexual behavior. Because of that reason, we believe that parents should be the primary decision makers. . . . It’s not something you can catch, but it’s something you really have to go out and get,” she said.

Klepacki acknowledged that women who remain celibate until marriage still could be at risk, if their husbands contracted the virus earlier.

NEJM Perspective on Roe

There's an excellent (and free) article on Roe and partial-birth abortion in this week's New England Journal of Medicine. The authors leave no room for doubt as to their position on legal abortions, including late-term procedures, but their article is no more polemic: it's reasoned and supported by data and careful argument, ending with these four paragraphs:

Watson Bowes, emeritus professor of obstetrics and gynecology at the University of North Carolina, is among those who argue that Roe v. Wade is a misuse of federal authority: "The Supreme Court used raw judicial power to trump state legislators, and the decision should be overturned on those grounds." Other antiabortion activists advocate incremental changes in state laws to limit the provision of abortion. These changes include parental consent laws, fetal homicide laws (making it two crimes to kill a pregnant woman), strict regulations for abortion clinics, and legislation requiring physicians to offer women fetal ultrasonography before an abortion.

This strategy is already having an effect, argued Katherine Grainger, legislative counsel at the Center for Reproductive Rights. "With each year, more and more restrictions on Roe are being passed." Ultimately, Grainger said, "we'll see it slowly eviscerated to the point where . . . it's hollow."

Many older abortion providers believe that the complacency of younger women and physicians is partially responsible for the current state of affairs. "They don't remember the thousands of women who died from septic abortions," argued Edelin. "They don't realize that this is a battle to save women's lives — not a battle for choice."

As new legislation is passed, the courts will hear more cases that challenge Roe, and physicians may increasingly risk their careers and their lives if they choose to provide abortions. With each new decision to limit abortion, more American women lose their access. Whether the Supreme Court ultimately upholds or overturns the Partial-Birth Abortion Ban Act, one thing is certain: poor women in rural America are bearing the brunt of these decisions, and some may pay with their lives.

Health care costs going up by 9.6%

An article in today's Wall Street Journal (click here - link should be good for about a week) reports that "Americans should expect to pay more for medical costs whether they are employed or retired, according to two new studies. The reports, by Milliman Inc. and Watson Wyatt Worldwide, show that health-care costs are still rising at a fast pace -- despite slowing from double-digit rates in recent years -- and that businesses expect to curtail or limit retiree medical benefits."

Here's a little more detail:

The average annual medical cost for a family of four participating in a preferred provider organization, or PPO, program is up 9.6% from 2005 to $13,382 in 2006, according to Milliman, a consulting and actuarial firm that released its second annual study Thursday. Unlike other major health-care cost studies, which look at costs in terms of annual premiums or just the employer's share, the Milliman study also factors in employees' costs, including out-of-pocket expenses.

By my reckoning, even though the reported rate of increase is down a bit compared to reent years, it is still about 2.5-3 times the overall rate of inflation. The outlook for retirees is gloomier than for workers:

The vast majority of businesses are planning to curtail medical plans for current and future retirees, according to the Watson Wyatt study. The survey of 164 companies found that 14% plan to eliminate the benefit for future retirees over age 65, and 6% plan to eliminate it for their current retirees over age 65.

While most employers who still provide the coverage plan to continue it, retirees should expect to pay more for their coverage. "The good news is that they're all not jumping out. The majority are still going to provide it," says Cara Jareb, director of retiree medical consulting at Watson Wyatt. "The bad news is they will be paying more for this coverage."

Nearly two-thirds of employers expect to increase the financial contribution for future retirees, and half expect to change the design of their plans. Twenty-four percent plan to tighten eligibility for future retirees. Fidelity Investments has estimated that a 65-year-old couple retiring without employer-provided health benefits will need $200,000 for out-of-pocket health-care expenses during retirement.

Bottom line: more cost pressures on consumers of health-care services. Depending on your politics, this is either a good thing (because it provides an incentive for us to be better, savvier purchasers of health care goods and services) or not (because it pushes increasing numbers of us -- especially those in the worst position to protect themselves (low-income earners and retirees on a fixed income) -- to make tragic choices (drugs vs. food, or Drug A vs. Drug B).

Happy 4th of July

There's something really stirring about listening to the news-readers and commentators on NPR read the Declaration of Independence every 4th of July. If you missed it this morning, click here.
For some Independence Day fun, check out the National Archives' Charter of Freedom exhibit, where you'll find some interesting information about the signers (for example, 24 of the 56 signers were lawyers) [biographical overview], and you can add your signature to the Declaration, remembering that as we do so, "we mutually pledge to each other our Lives, our Fortunes and our sacred Honor." Heady stuff. (Thanks to Rob Robinson for the link to the Stark County Law Library Blog, which got me to the Moritz School of Law's legal information blog site and the National Archives.)

Garry Trudeau on creationism

[click for larger view]

Senate to take up stem cell bills

Sen. Majority Leader Bill Frist announced yesterday that he intends to bring up a three-bill package that would provide federal funding for stem-cell research for a vote before the Senate takes a break for the mid-term elections in October (according to the AP) or July (according to CNN, the Washington Post, and the Wall Street Journal).

• AP (LA Times)
• CNN
• Washington Post
• Wall Street Journal (subscription)

Here's the summary of the Senate's unanimous-consent agreement on Frist's plan (from the Congressional Record's Daily Digest for June 29):

Stem Cell Research Legislation--Agreement: A unanimous-consent agreement was reached providing that at a time determined by the Majority Leader, after consultation with the Democratic Leader, Senate begin consideration en bloc of H.R. 810, to amend the Public Health Service Act to provide for human embryonic stem cell research, and S. 2754, to derive human pluripotent stem cell lines using techniques that do not knowingly harm embryos, and S. 3504, to amend the Public Health Service Act to prohibit the solicitation or acceptance of tissue from fetuses gestated for research purposes, that both bills be discharged from the Committee on Health, Education, Labor, and Pensions; that there be 12 hours of debate equally divided between the Majority and Democratic Leaders, or their designees; that no amendments be in order to any of the bills; that following the use, or yielding back of time, the bills be read a third time, respectively, and the Senate begin three consecutive votes on final passage of the bills in the following order: S. 3504, S. 2754, and H.R. 810; provided further, that any bill that does not receive 60 votes in the affirmative have its votes on passage be vitiated, and that those bills be returned to the calendar or to the Committee on Health, Education, Labor, and Pensions; and that it not be in order for the Senate to consider any bill or amendment relating to stem cell research during the remainder of the 109th Congress.

The action is set out at pp. S7169-S7173 of the Congressional Record for June 29.

Is it legal to buy off manufacturers of generic equivalents?

The FTC thinks it's unlawful for the manufacturer of a patented drug or device to include in the settlement of its suit against the manufacturer of a generic equivalent a cash payment in return for the generic manufacturer's pledge to withhold its product from market. [In the Matter of Schering-Plough Corporation, Upsher-Smith Laboratories, and American Home Products Corporation, Docket No 9297] The 11th Circuit disagreed. [Schering-Plough Corp. v. FTC, No. 04-10688, March 8, 2005] On Monday, the Supreme Court denied cert. [order list; Docket No. 05-273], at least in part because the Solicitor General told the Court that this wasn't a particularly good case to tee up the issue (according to observers like SCOTUSBlog and the AP), in part because a similar case is cooking over in the Second Circuit [from the SG's brief at 16: "Indeed, only a district court thus far has examined, and rejected, the view that a patent gives the holder merely a potential right to exclude infringing competitors from the market. In re Ciprofloxacin Hydrochloride Antitrust Litig. (Cipro-floxacin), 363 F. Supp. 2d 514, 531-533 (E.D.N.Y. 2005), appeal docketed, No. 05-2851 (2d Cir. June 7, 2005). The Second Circuit may address the validity of that theory in its consideration of that case. That prospect further counsels against plenary review at this juncture."]

Meanwhile, as reported by Modern Healthcare, four members of the Senate Judiciary Committee (Republican Chuck Grassley (press release) and Democrats Leahy (press release), Kohl (press release), and Schumer) have introduced "[a] bill to prohibit brand name drug companies from compensating generic drug companies to delay the entry of a generic drug into the market." See Cong. Rec. S6560 (June 27, 2006); see also S.3582 (referred to the Committee on Commerce, Science, and Transportation).

This issue bears close watching. It is a terrific combination of cost-quality-access issues, as well as a good introduction to the tactics of the drug and device industries.

Words of One Syllable Department

[click image for larger view]

Drug & device manufacturers and docs: a new twist on an old tale

Drug and medical device manufacturers have long struggled to devise ways to get tight with physicians who can promote, recommend, prescribe, or use their products. In recent years, PhRMA and the FDA have published guidelines to rein in marketing abuses. All that effort, and the reams of adverse news stories and other publicity, seems only to have intensified the industry's efforts to continue the remuneration to doctors, albeit in a manner that might escape detection or, once discovered, provide the industry with a better cover story than was possible when the emoluments took the form of all-expenses-paid trips to Hawaii.

Judging from an article in today's N.Y. Times ("Charities Tied to Doctors Get Drug Industry Gifts," by Reed Abelson), the latest ploy seems not to have worked exactly as planned:

The Midwest Heart Foundation, and the way it has become quietly interwoven into its doctors' professional lives, is far from unique. Around the country, doctors in private practice have set up tax-exempt charities into which drug companies and medical device makers are, with little fanfare, pouring donations — money that adds up to millions of dollars a year. And some medical experts see that as a big problem.

The charities are typically set up to engage in medical research or education, and the doctors involved defend those efforts as legitimate charitable activities that benefit the public. But because they operate mainly under the radar, the tax-exempt organizations represent what some other doctors, as well as regulators and industry consultants, say is a growing conduit for industry money. The payments, they say, can bias the treatment decisions of physicians, may lead to suspect research findings and at times may even risk running afoul of anti-kickback laws.

Federal officials are starting to take notice of such tax-exempt charities, which critics say are becoming increasingly popular as other forms of industry support to physicians — like lucrative consulting agreements that involve little actual work — have come under scrutiny from regulators and others worried about the potential conflicts.

HealthLawBlog is back

It's been an interesting, fun, and rewarding trip along the HealthLawProf superhighway, but it's time to return to the meandering blogpath I started down almost exactly three years ago. I wish über-blogger Paul Caron and my HLP co-blogger Betsy Malloy nothing but success. For my part, I will probably blog a little less often than every day, will focus on matters of interest to me without worrying over-much about the relevance to teachers who teach health law or practitioners who practice health law, and will try to have some fun along the way.

HealthLawBlog has moved.

Back from vacation, I've decided to migrate my blog over to http://lawprofessors.typepad.com/healthlawprof_blog/. This is part of Prof. Paul Caron's ambitious multi-subject blog project for law professors (and all others who are looking for quick updates on breaking stories in the health law field). I am hoping for more exposure over there, and I also welcome the help I will get from co-blogger Betsy Malloy at the University of Cincinnati.

I hope you will add this new site to your list of favorites, or add it to your news aggregator, and keep visiting HealthLawBlog in its new incarnation: HealthLawProf Blog.

HealthLawBlog is on vacation.

While I am on vacation in New England (Nov. 4-14), I will not be posting to HealthLawBlog.

Back to the future?

The NY Times has a piece today on Kaiser Permanente, the pioneer among HMOs, suggesting that much that ails the U.S. health care system could be improved if we could learn from Kaiser:

Obviously, there is no single model for revamping the nation's costly,
disjointed health care system, and Kaiser certainly has its share of problems.
But according to economists and medical experts, Kaiser is a leader in the drive
both to increase the quality of care and to spend health dollars more wisely,
using technology and incentives tailored to those goals. " Quality health
care in America will never be cheap, but Kaiser probably does it better than
anywhere else," said Uwe E. Reinhardt, an economist at Princeton who specializes
in health issues.

As one-paragraph summaries go, this one does a nice job of describing our "system" of providing health care:

Health care systems in most industrialized countries are in crises of one form
or another. But the American system is characterized by both feast and famine:
it leads the world in delivering high-tech medical miracles but leaves 45
million people uninsured. The United States spends more on health care than any
other country - $6,167 a person a year - yet it is a laggard among wealthy
nations under basic health measures like life expectancy. In a nutshell,
America's health care system, according to many experts, is a nonsystem. "It's
like the worst market system you could devise, just a mess," said Neelam Sekhri,
a health policy specialist at the World Health Organization in Geneva.

Kaiser manages quality and costs with a set of incentives for providers and patients that set it apart from the (almost) late and (completely) unlamented managed care experiment of the 1990s. It's not a cure-all, but it's impressing lots of health care professionals, as well as regulators and legislators from both major parties.

Medicines Without Borders.

Nice play on words (the French name of the Nobel Peace Prize-winning medical group, Doctors Without Borders is Les Médecins Sans Frontières) for a totally stunning op-ed piece by a physician/marketing director for Pfizer, Peter Rost:

I am a drug company executive who believes we should legalize the reimportation of prescription drugs. I know that I have a different opinion from that of my employer on this matter, but to me, importation of drugs is about much more than money; it is about saving American lives. . . .

Drugs won't help save millions of lives if people can't afford to take them. I know that some people do not agree with me. Among them is President Bush. Senator John Kerry noted in the second presidential debate that Mr. Bush in 2000 had said that importation of drugs approved in the United States "makes sense," but that Mr. Bush had blocked legislation allowing it. Mr. Bush countered: "When a drug comes in from Canada, I want to make sure it cures you and doesn't kill you,'' and added, "What my worry is, is that, you know, it looks like it's from Canada, and it might be from a third world."

What Mr. Bush didn't say is that regulated importation of drugs would take away that risk, a risk Americans now face every day when they go surfing on the Internet for cheaper drugs. In fairness, Mr. Bush did say that he hoped to revisit the issue soon.

What I know about importation of drugs is based upon my experience in marketing pharmaceuticals in the United States and Europe for two decades. Importation or parallel trade of drugs has been done safely within Europe for over 20 years. . . .

In Europe, importers supply only authorized wholesalers or registered pharmacies; they do not sell to the public. So the chain remains closed. Authorized drugs are purchased from authorized wholesalers in one European Union country and sold to authorized distributors in another union country. This is the kind of system we should put in place in the United States.

Until that happens, to ensure safety, a good intermediate step is for states and cities to step in and provide access to lower-priced drugs. Boston and Springfield, Mass., have already established import programs for low-cost, Canadian drugs, while states like Minnesota and Wisconsin have established Web sites linking residents to Canadian pharmacies approved by state health officials.

Make no mistake about it, they are the real heroes in this battle. Every day Americans die because they can't afford life-saving drugs. Every day Americans die because Congress wants to protect the profits of giant drug corporations, half of the top 10 of which are French, British and Swiss conglomerates.

I have another confession to make. Americans are dying without the appropriate drugs because my industry and Congress are more concerned about protecting astronomical profits for conglomerates than they are about protecting the health of Americans.

Finally, some straight talk from an industry insider who knows what he's talking about, instead of the half-truths and distortions that have been coming out of the FDA and DHHS (and the White House) for years. So far, Pfizer and PhRMA haven't replied to the essay, and it's not at all clear how much longer Dr. Rost will have his job.

Jesse Koochin update.

The Salt Lake Tribune reports that the court battle over Jesse Koochin's care ended on the 27th with the hospital's promise that it wouldn't file a death certificate on the 6-year-old, whom two neurologists examined and declared to be dead according the neurological criteria on October 11th and 12th. That clears the way for insurance payments for the home ventilator support that presumably would have stopped upon the filing of a death certificate. (I am not sure why the insurance coverage couldn't end on the basis of the two neurologists' findings, but perhaps the insurance company doesn't want to go there.)

Ethics panel for CDC: a first.

As reported today in The New York Times, the CDC has appointed an ethics panel to decide which groups should be given priority in the allocation of scarce supplies of flu vaccine:

The panel began deliberating Monday. One member, John D. Arras, a professor of bioethics at the University of Virginia, said the group might eventually tackle the question of whether babies should have priority over the elderly in receiving the flu vaccine, or vice versa. Another question the panel might have to decide is whether, in the event of a pandemic, members of crucial professions - perhaps even undertakers - should receive priority. . . .

The disease control agency has already decided that broadly speaking, only the very young, the very old and the chronically ill should receive this season's limited supply of flu vaccine. But state and local health officials have complained that shortages of the vaccine are so dire that they do not have enough to inoculate everyone in those categories. While they have been making decisions themselves about who should receive priority, these officials say they want better guidance from the agency as to who is the highest of the high-risk. . . .

So far, the agency has declined to narrow its list, but Dr. Gerberding said that might change. And because choosing among high-risk groups involves ethical as well as medical issues, she said, she decided that she needed the help of ethicists.

Arras points out that Americans aren't terribly comfortable with the "R"-word, but extreme shortages in the vaccine (worse, in all likelihood, than HHS officials first let on) will require explicit rationing. This apparently is the first time the CDC has empaneled a group of ethicists to guide public health decision making.

Some of the choices presented to the panel by state and local public health authorities aren't going to be easy:

Dr. Arras said one health official at the meeting was grappling with the question of whether to vaccinate all residents of his state's nursing homes.

"Some of those people in nursing homes will be extremely old, extremely debilitated and also demented," Dr. Arras said. "The question arises, Where is the vaccine better deployed?''

Public health officers in North Dakota were able to agree that chronically ill patients in the state's nursing homes should be vaccinated first. The decision was reached for medical and practical reasons, said Larry Shireley, the state epidemiologist: such people not only are at great risk of contracting the disease, Mr. Shireley said, but also are easy to reach.

But state health officers could not agree, he said, on whether babies or the healthy elderly should be next on the list.

Babies are more susceptible to the disease, but the elderly are more likely to die of it. On the other hand, most babies, unlike most of the very old, have decades of life ahead.

A standard ethical argument is that "people are supposed to get a certain number of fair innings in a lifetime," Dr. Arras said.

"That would incline you to treat the young rather than the old,'' he said, "since the old have already had their innings."

But since the old are more likely to die of the disease, another way to decide the issue is to determine the number of years that would be saved by inoculating them first rather than the young.

The committee will examine all those issues, Dr. Arras said.

The creation of the ethics committee is part of the C.D.C.'s effort to ensure that vaccines are distributed fairly. News last week that flu vaccine was being freely offered to lawmakers and aides in Congress set off a furor, and candidates for office are being peppered with questions about whether they have received shots.

The decision to bring in ethicists is probably wise, though not for the reasons publicly expressed by the CDC. The idea that public health decisions are being made for political reasons -- hardly a shocking development for students of public health -- isn't going down well with the public whose health is implicated by these decisions. The creation of an ethics panel to help make allocation decisions will at least provide some political cover for the CDC, which can ill afford the taint of politics in this very political year.

As usual the cartoonists have their finger on the pulse of this story. For example:

Physician-hospital joint venture: commentary on IRS' PLR

On June 9, the IRS issued Private Letter Ruling 200436002, which generally approved of a proposed physician-hospital joint venture. The ruling is described and analyzed by Don Stuart in a commentary in the Oct. 18 on-line issue of HealthLeaders. Stuart's description of the deal is more succinct than the Service's:

[A] nonprofit, tax-exempt hospital proposed to form a new joint venture
structured as a limited partnership to own and operate a freestanding diagnostic
imaging center. Units in the limited partnership will be offered to physician
investors and related physician groups. If the offering becomes fully
subscribed, the joint venture will be structured so that a LLC wholly owned by
the nonprofit hospital will serve as general partner and own 1 percent, the
nonprofit hospital as a limited partner will own 54 percent, the physician
investors will own 40 percent and an independent management company will own 5
percent of the limited partnership.

Key factors in securing the IRS' blessings track the considerations set forth in Revenue Ruling 98-15 (courtesy of TaxLinks), including the following:

• The hospital's wholly owned LLC, acting as general partner, will have effective control over major decisions of the joint venture which will ensure that the imaging center will be operated in a charitable manner (i.e., promoting health for a broad cross section of the community) regardless of ability to pay. (The LLC's board members are elected by the hospital. No management rights were given to any other parties.)
  
• The partnership agreement specifically provides that the duty of the general partner is to operate the partnership in a manner that furthers charitable purposes and overrides any duty to operate the partnership for the financial benefit of anyone else. (The general partner LLC could only be removed by the limited partners holding more than 80 percent of the sharing ratios of all partners.)
  
• The imaging center will have an open medical staff and utilize the charity care policy of the hospital. (Physician privileges were not dependent on owning an interest in the joint venture. The charity care policy will be advertised to patients and the center's radiologists are required to treat all members of the community, including Medicare, Medicaid and indigent patients.)
  
• The LLC's board members will be representative of the community. (The board was made up of community leaders with experience in health care matters, including officers and board members of hospital.)
  
• Contributions to the partnership and allocations of profits, losses, and distributions from it will be in proportion to the interests of the partners. (No special allocations of income or loss were permitted.)
  
• The management agreement will require the manager to operate the center for charitable purposes, with charitable purposes taking precedence over any profit motive. All fees paid are subject to a ceiling amount that will not exceed fair market value. (The IRS did not have any objection to the management fee that was based on a percentage of funds collected in payment of patient services. The term of the management agreement was for two years and renewable for one additional two year term. A "for cause" termination provision was also included.)

Pain control and the criminal law.

The New York Times has an essay by Sally Satel, M.D., in today's issue: "Doctors Behind Bars: Treating Pain Is Now Risky Business." Actually, it's been a legally perilous business for many years, although I thought that the adoption of intractable-pain legislation and regulations in many states signaled the arrival of some regulatory and prosecutorial sanity on the subject. This essay is some evidence that the war has not yet been won.

Dr. Satel does a good job of describing the public-health and law-enforcement conundrum that is created by intractable pain:

The red flags that rightly alert regulators to potential misconduct by doctors are, paradoxically, the very features that can also mark responsible care for intractable pain. These include prescribing high volumes of narcotic painkillers for extended periods, prescribing potentially lethal doses or prescribing several different drugs. In some regions, patients use several different pharmacies, at their doctor's instruction, because some pharmacists are reluctant to dispense large quantities of the medications.

To complicate matters further, doctor shopping can also be a sign of what is called pseudo-addiction: the efforts to obtain drugs look on the surface like drug addiction, but in fact represent the patient's attempt to attain an adequate level of pain control. Once that is achieved, the patient no longer presses for more narcotics.

All of this makes responsible law enforcement tricky, even difficult, but not impossible. It means that traditional red flags should not be ignored, nor should they be relied upon entirely when deciding whether to bring a case. Only careful, detailed, and expert analysis of the facts of each case can reveal whether the red flags are red herrings.

Update on brain-dead patient in Salt Lake City.

Today's Salt Lake Tribune has a story about Jesse Koochin, who was transferred from the hospital to home hospice at the end of last week. The parents report that he is moving his feet and are encouraged by their ability to feel his pulse and to see that his cheek is pink and warm to the touch. All of this, of course, is consistent with a determination of death according to neurological criteria. As long as his body remains hooked up to a ventilator, his heart will continue to beat, at least until his blood chemistry gets so messed up that he can't generate a pulse on his own. (Reports that putrefaction has begun is evidence that this process is well under way.) As for his feet moving, there may be some random muscle movement or even spinal-cord reflexes at work, but a definitive diagnosis of "brain death" is a diagnosis of death. Unfortunately for this family, which seems to so profoundly distrust the medical experts, Jesse is not going to recover, and their efforts to try to get him to recover are sad, grotesque, and doomed.

States cut more services for illegal aliens.

The Wall Street Journal has a front-page story in today's edition (requires subscription) detailing Colorado's recent cut-backs in state-sponsored health care benefits available to illegal aliens.

Colorado has "cut off prenatal care for thousands of illegal immigrants. . . . At least one nonprofit program providing health care to legal and illegal patients faces a big cut in funding. . . . Last month, the state tightened its Medicaid rules another notch, scrapping a practice called presumptive eligibility that allowed any pregnant woman to receive prenatal care while the state determined whether she qualified for Medicaid. The process allowed many illegal immigrants to obtain prenatal care for up to four months, when abnormalities in the mother and the fetus usually are detected."

The article provides good background on this decision, as well as the dual critiques that this cutback is penny wise and pound foolish (an ounce of prevention being worth a pound of cure) and sets a dubious public-health precedent of cutting out a large segment of the population from the health care system.

By contrast, the article reports that, "[c]onsidering the greater potential for postdelivery expense, many states have created alternative programs for pregnant undocumented women. California, New York and Illinois are among states that by law guarantee prenatal care to all women. Other states, such as Texas, make prenatal care available to undocumented women through a combination of locally funded programs and federal money."

More on brain-dead patient in Salt Lake City.

There were two follow-up articles in the Salt Lake Tribune today about Jesse Koochin, the 6-year-old patient whose parents, Gayle and Steve, reject his physicians' diagnosis of death. The ethics of treating brain-dead patients are discussed here, and the factual developments in the case are described here.

According to the article, "on Thursday, Gayle and Steve Koochin were frantically trying to make arrangements to take Jesse to the family's temporary Salt Lake City home, where his care will be supervised by Gary Holland, Hospice for Utah's medical director, and a hospice nurse. He could be moved as soon as today."

Not to appear insensitive to the suffering of these parents, but this is as much a perversion of hospice care as continued ventilation is a perversion of intensive care. The poor kid died earlier this week, and his body has started to decompose, even as ventilator support has been continued. (See article below.) He doesn't deserve (mis)treatment. He deserves the respect of a decent burial. To continue to treat him under these circumstances gives his parents false hope and mistreats Jesse's remains.

State Medicaid expenditures eclipse education.

According to the 2003 State Expenditure Report of the National Association of State Budget Officers, state Medicaid expenditures exceed those for education, for the first time ever:

Total Medicaid spending in fiscal 2003 excluding administrative costs was $243.6 billion, or 8 percent more than fiscal 2002. Based on those amounts, Medicaid accounted for 21.4 percent of total state spending in fiscal 2003. [p. 46]

Elementary and secondary education is the largest functional category of state spending—21.7 percent of the total—amounting to $247 billion in fiscal 2003. Total elementary and secondary education spending increased by 6.4 percent between fiscal 2002 and 2003, and accounts for 35.1 percent of state general fund
spending. [p. 15]

In fiscal 2004, Medicaid expenditures are expected to hit 21.9% of state totals [p. 50], compared to 21.5% for primary and secondary education [p.17].

Brain dead?

Thanks to Elizabeth Woeckner for this story:

The Salt Lake Tribune has a long story in today's paper about the looming court case over a 6-year-old cancer patient who has been diagnosed as brain dead by two separate physicians who examined him on Monday and Tuesday of this week. His parents don't believe he is dead and want to take him home on a ventilator to care for him with naturopathic remedies until he recovers or until he's "really dead" -- presumably until cardiac death occurs. The court hearing is scheduled for Oct. 27, and the boy's physicians are predicting that his heart will stop beating by then, despite full artificial support for his bodily functions (including breathing) in the meantime. Meanwhile, the trial judge has issued a temporary restraining order requiring the hospital to keep the boy on life-support and to run another EEG before the hearing.

Utah -- like all states and the District of Columbia -- recognizes death according to neurological criteria: the irreversible cessation all all brain functions, including the brain stem. The patient's mother is quotes as saying, "I can't believe they can take this decision away from his parents. They would have to kill him for him to die." But this is not a right to die case. It is not about whether the patient should be allowed to die or should continue to receive treatments that his physicians believe to be futile. Thus, it would be a mistake to think of this case, or to litigate the case, in terms that we've become familiar with in the cases of Karen Ann Quinlan, Nancy Beth Cruzan, Helga Wanglie, and Terri Schiavo, to name just a few.

The patient is dead. It's a little misleading -- and confusing for family members -- when we talk about a patient being brain dead, or "considered dead," legally dead, or medically dead, all of which suggest that there are degrees of death, or different ways of being dead that aren't "really dead."

The patient is dead. The doctors' duty to treat and care for this patient is over. The doctors' only remaining duty to their patient is to treat his body with respect. According to the article, even while he is being maintained on the ventilator, his body has started to decompose. This is what happens to dead bodies. With luck, his grieving parents will come to accept the tragic death of their son, sooner rather than later. If not, it's going to be a grim 2 weeks in the ICU at Primary Children's Medical Center until the court hearing, if his heart holds out that long. If it does, let's hope that the judge provides the kind of closure for this patient that the adults around him have not been able to provide so far.

Complementary and alternative medicine & state licensing boards.

Adam Liptak has an article in today's N.Y. Times in which a South Carolina physician prescribes intravenous injections of what his lawyer describes as "a very dilute form of hydrogen peroxide" for a Minnesota patient with MS. The result: over the next five days, she bleeds to death. Local authorities classify her death as a homicide and the physician is sued for her wrongful death. The state licensing board, meanwhile, says the physician continues to be in good standing.

The article highlights the delicate balance maintained by the most conscientious state medical boards:

"The balancing act," said Dr. Robert M. Wachter, a professor of medicine at the
University of California, San Francisco, and a co-author of a book about patient
safety, "is that when we have a dangerous doctor, we don't have a good mechanism
to throw him out of the system or at the very least inform patients about him
while not casting the net so wide that the innocent, compassionate, caring
physician who makes an error once in a while is tarred by the same brush."

It's an age-old regulatory conundrum: is the public interest protected by a system of close scrutiny (accompanied by lots of "false positives") or one that is less punitive toward physician errors (and gives us more "false negatives")? In theory, at least, the resulting question for state boards like South Carolina's is a difficult one, although the story doesn't mention a single medical authority that supports "bio-oxidative therapy" for MS, AIDS, cancer, or the other illnesses for which it is sometimes prescribed. (The claims are detailed on this web site, among many others. A debunker's response can be found here, and the American Cancer Society's warnings are here. Memorial Sloan-Kettering Cancer Center's generally negative review provides no support whatsoever for the South Carolina physician's faith in this treatment.)

Apart from the public-health angle of this story, there is another balance to be struck: between supporting innovative therapies that have not yet been proven and cutting off dangerous quackery. State boards have been criticized for occasionally being too close-minded about alternative therapies (including acupuncture) that have subsequently proved to be effective. IV hydrogen peroxide may not be an example, but the issue is potentially raised anytime an "alternative" approach that challenges conventional medical wisdom is cited as a reason to limit or revoke the license of a physician. This particular physician is claimed by some who are closer to the facts than I am to be a dangerous quack, but some alternative therapies aren't that easy to rule out.

If you liked "Farenheit 911" . . .

. . . you just might love Michael Moore's next documentary effort. According to an article today's Chicago Tribune (rquires free registration), he is finalizing financing for a film -- tentatively entitled "Sicko" -- about the American health care system, or at least about two of the country's least favorite players: managed care and the drug companies. Meanwhile, the paper reports, "Some of the nation's biggest drug manufacturers and health insurance plans confirm they have issued warnings to their sales representatives and other employees in recent weeks, telling them to be on the lookout for the shaggy filmmaker in his trademark baseball cap. And, under no circumstances, are they to talk to Moore."

Boundary dispute.

The Miami New Times will publish a piece on Thursday that raises troubling questions of possible boundary violations by a physician. We're not talking about a property dispute over a fence line, but the kind of boundary defined by medical ethics. A physician shouldn't have a romantic or sexual relationship with a patient she or he is treating; that's a boundary violation, crossing over a line that defines the outer limits of the physician-patient relationship. Patients are presumed to be vulnerable and desperate and therefore not in a good position to exercise reasonable judgment or to freely consent or refuse to consent to the conduct in question.

The article focuses on a different type of boundary dispute: money. Specifically, it says that the families of two patients of a physician are contesting their decedents' wills -- which left sizeable portions of their estates to their physician -- on the ground of undue influence. In three cases detailed in the story, the paper reports the following pattern:

All [three women] spent their adult lives in Miami. All of them had been married, but had no children. All lived into their nineties, widows left to grow old in magnificent, rambling houses, beyond whose doors they rarely ventured. All of them left behind estates worth hundreds of thousands of dollars. All of them had employed Dr. Aloysius "Al" Brady as their primary care physician.

When they died, all of them left Brady a significant portion of their estates, or control of the estates.

Sixty-six-years-old, tall with long limbs, and a cadaverous complexion right down to his bone white hair and mustache, Brady has established a pattern of becoming the most important man in the life of women with surprisingly consistent backgrounds: wealthy, childless, frail, nonagenarians.

It appears he accomplished that by making more than just house calls. He bought them groceries and offered to manage their checkbooks, even if there were already people performing these tasks. He also stopped by for cocktails and bought dinner and flowers. In short, say family and friends, who described all of the women as homebound and lonely, he charmed them.

The doctor's lawyer denies the charges. The facts may or may not bear out the accusers' claims, but the cases stand as an illustration of an important ethical principal:

"Another clear rule [says Kenneth Goodman, co-director of the University of Miami's ethics program, and director of its bioethics program] is that you don't borrow money from your patients, and you don't insinuate yourself into their wills. Any time you find yourself in a patient's wallet or checkbook for anything other than a fee, you've gone from practicing medicine to doing something altogether different."

Euthanasia rights for minors.

There are reports (also here) of a coalition of bioethics groups that oppose a recent proposal that would allow patients down to the age of 12 years to obtain euthanasia services without parental consent. Currently, 16-17-year-olds can decide for themselves. I am still looking for independent verification that the Dutch are considering a change in their law.

End of life decision making

Here's long piece in Monday's New York Times about end-of-life decision making. This really resonates with me -- a lot of cases that come to one of the five hospital ethics committees I serve on present just like the cases described here.

Health care costs & technology.

Article worth reading from today's "Week in Review" section of the N.Y. Times: "Health Care Costs Are a Killer, but Maybe That's a Plus," by Steve Lohr. The message: even after we've squeezed out the 10-20% of health care costs attributable to inefficiencies and waste, you can expect health care costs to continue to spiral upward. Electronic medical records, computerized prescriptions, and automated billing systems (all of which will require the investments of billions of dollars in new hardware and software infrastructure), will help reduce the mountains of paper records, lost files, incorrect billing codes, etc., but it will do nothing for our (understandable, even justifiable) taste for high-tech medicine.

"High-tech" doesn't only mean coated coronary artery stents (at $2500 apiece, compared to $1000 for the uncoated variety) and wondrously noninvasive 3-D imaging devices. It also includes the deceptively simple drug delivery devices -- the pill and the capsule -- that get ever more effective pharmaceuticals into our bloodstream. Big Pharm has its critics (including me), but there's little debate over the contribution made by drug companies to the quality and longevity of human existence:

In a working paper for the National Bureau of Economic Research, a nonprofit research group, Frank Lichtenberg, an economist at Columbia University's business school, has concluded that 40 percent of the increased longevity in 52 countries over the last 20 years can be attributed to new drugs. The cost in pharmaceuticals for an extra year of life was on average $5,000 a person, according to his research.

"In general, the benefits of new drugs outweigh the costs by a substantial margin," Mr. Lichtenberg said.

One point not made by the article, but worth considering: Not only do these advances not come cheap. But added years of life mean added years of consuming health care technologies and services. Our successes, in other words, contribute to the ever higher bills we pay as a country.

First Amendment: Is there a right to clone?

Brian Alexander has an interesting article in Sunday's N.Y. Times Magazine in which he raises the possibility that scientific research is protected by the First Amendment, just like speech. The gist of the article is in the following paragraphs:

Why legal scholars would defend the right to research is hardly mysterious. The founding fathers passionately defended scientific and academic freedom, and the Supreme Court has traditionally had a high regard for it. In Griswold v. Connecticut, for example, the decision that struck down state prohibitions on the sale of contraceptives, the court stated that the First Amendment protected ''freedom of inquiry.'' But why would the right to read, write and speak as you please extend to the right to experiment in the lab?

Arguments in favor of applying First Amendment scrutiny to antiresearch laws can be complex, but the metaphors lawyers have used are not. One, proposed in separate articles by John Robertson of the University of Texas and James Ferguson, who teaches at Northwestern, compares scientists to reporters. As with journalism, actions that are not strictly speech (research) are so necessary to speech (publishing) that to ban them is to ban the speech.

R. Alta Charo, legal scholar and bioethicist at the University of Wisconsin, says that some experiments are constitutionally protected ''expressive conduct'' in their own right. ''If the questions you ask and the science you do really challenges or explores cultural or religious or political norms . . . that in itself is an act of rebellion, and this is exactly the sort of thing that fits comfortably in the spirit of the First Amendment.''

Just to be clear: this is not an argument that funding -- say, for embryonic stem cell research or cloning -- is constitutionally protected, only that a ban on such research would be constitutionally protected.

Schiavo: Is this the end of the road?

Google News shows 489 stories (and counting) about the Florida Supreme Court's decision yesterday to strike down "Terri's Law," which the state legislature hastily passed last year to authorize Gov. Jeb Bush to circumvent the Florida courts' consistent determinations that Michael Schiavo was the appropriate decision maker on behalf of his wife, lying in a permanent vegetative state in a Florida facility. (For my part, I've probably devoted more space in this blog to the Shiavo case than any other single case or issue: earlier posts can be found here.)

The Supreme Court's unanimous decision concluded that Terri's Law violated the doctrines of separation of powers (by allowing the governor to upset final judgments of the courts) and nondelegation (by effecting a standardless delegation of legislative power to the governor). The court's conclusion is worth reading in full:

We recognize that the tragic circumstances underlying this case make it difficult to put emotions aside and focus solely on the legal issue presented. We are not insensitive to the struggle that all members of Theresa’s family have endured since she fell unconscious in 1990. However, we are a nation of laws and we must govern our decisions by the rule of law and not by our own emotions.

Our hearts can fully comprehend the grief so fully demonstrated by Theresa’s family members on this record. But our hearts are not the law. What is in the Constitution always must prevail over emotion. Our oaths as judges require that this principle is our polestar, and it alone.

As the Second District noted in one of the multiple appeals in this case, we “are called upon to make a collective, objective decision concerning a question of law. Each of us, however, has our own family, our own loved ones, our own children. . . . But in the end, this case is not about the aspirations that loving parents have for their children.” Schiavo IV, 851 So. 2d at 186. Rather, as our decision today makes clear, this case is about maintaining the integrity of a constitutional system of government with three independent and coequal branches, none of which can either encroach upon the powers of another branch or improperly delegate its own responsibilities.

The continuing vitality of our system of separation of powers precludes the other two branches from nullifying the judicial branch’s final orders. If the Legislature with the assent of the Governor can do what was attempted here, the judicial branch would be subordinated to the final directive of the other branches. Also subordinated would be the rights of individuals, including the well established privacy right to self determination. . . . No court judgment could ever be considered truly final and no constitutional right truly secure, because the precedent of this case would hold to the contrary. Vested rights could be stripped away based on popular clamor. The essential core of what the Founding Fathers sought to change from their experience with English rule would be lost, especially their belief that our courts exist precisely to preserve the rights of individuals, even when doing so is contrary to popular will.

The trial court’s decision regarding Theresa Schiavo was made in accordance with the procedures and protections set forth by the judicial branch and in accordance with the statutes passed by the Legislature in effect at that time. That decision is final and the Legislature’s attempt to alter that final adjudication is unconstitutional as applied to Theresa Schiavo. Further, even if there had been no final judgment in this case, the Legislature provided the Governor constitutionally inadequate standards for the application of the legislative authority delegated in chapter 2003-418. Because chapter 2003-418 runs afoul of article II, section 3 of the Florida Constitution in both respects, we affirm the circuit court’s final summary judgment.

Is this the end of this ghoulish litigation trail? The governor's lawyers can file for reconsideration, of course, and in this election year they might just do that. As The New York Times reports in Friday's edition: "A spokeswoman for Mr. Bush, Jill Bratina, said his lawyers were exploring options like requesting a rehearing or appealing to the United States Supreme Court. Ms. Bratina said Mr. Bush had 10 days to seek a rehearing, during which the woman, Theresa Schiavo, 40, had to continue receiving nourishment."

At the same time, the Times reports, "[t]here were signs that Mr. Bush, who inserted himself in the thorny case last fall, might accept the Supreme Court's ruling":

"The governor was disappointed in the ruling, and his prayers go out to Terri's family," Ms. Bratina said. "At the same time, the governor respects the role of the judicial branch on issues such as this and the rule of law. And he recognizes the Florida Supreme Court is the final arbiter on state laws, and as such recognizes that the options before us may be limited."

Meanwhile, there is still a lower court proceeding that could keep this case in the courts well into 2005:

In the Circuit Court case, Mrs. Schiavo's parents, Robert and Mary Schindler, are seeking to have Mr. Schiavo removed as his wife's guardian. They have also filed a motion to set aside the judge's authorization to remove the feeding tube, pointing to Pope John Paul II's statement in the spring that it was wrong to withhold food and water from people in vegetative states. The Schindlers, like Mr. Bush, are Roman Catholic.

Stay tuned.

The ethics of face transplants

As reported by AP (courtesy of Yahoo!), a team of doctors from the University of Louisville and the Netherlands has joined similar teams from Cleveland, England and France, all waiting for the chance to perform a face transplant. The procedure involves removing a donor's skin and other tissue, putting it over the recipient's bone and cartilage and reconnecting it. The team plans to reserve the procedure for patients whose faces have been severely disfigured as the result of disease or accident. A series of articles not yet posted on the WWW but appearing in the current American Journal of Bioethics tease out the ethical pros and cons of performing the procedure.

An article in yesterday's Louisville Courier-Journal explores some of the ethical considerations:

Nichola Rumsey of the University of the West of England, an expert in psychosocial issues in medicine, expressed [reservations] in one of 14 essays written in reaction to the UofL/Utrecht article and published in the bioethics journal.

"Previous research and current understanding indicate that the psychological risks are more complex and extensive than the Louisville team suggest," she wrote. "I have no wish to minimize the distress experienced by many people with severe disfigurements, but to my mind, the current risk/benefit ratio ... is dubious at best."

But Osborne P. Wiggins, chairman of the UofL philosophy department and one of the authors of today's article, said researchers have gotten as far as they can without actually performing the procedure.

"Do we let the uncertainties and unknowns stop us and decide not to do it at all? Or do we go ahead and perform the procedure and learn the answers? We're willing to take the second option," Wiggins said.

Face transplants differ from other transplants because the face is an integral part of someone's identity, said the researchers, who helped write the article. "What is at stake," the researchers wrote, "is a person's self-image, social acceptability and a sense of normalcy as he or she subjectively experiences them." * * *

Researchers outlined some potential problems, such as misuse of the procedure. Aging rich people, for example, might seek a transplant for cosmetic improvements and criminals might want to conceal their identity, researchers said.

People getting such transplants would also face the same risks as other transplant recipients, such as the increased incidence of infection and cancer associated with immunosuppressive drugs. * * *

But the benefits are many, researchers said in the bioethics article. For example, transplants could restore facial expressions and sensory functions and improve people's psychological outlook. Besides Louisville, such transplants are being considered by teams in Cleveland, England and France.

"In a large number of cases facial disfigurement leads to depression, social isolation and even the risk of suicide," the UofL researchers wrote. "Restoring the abilities
to make facial expressions, enjoy an aesthetically acceptable appearance and
interact comfortably with others lends significant weight to the benefit side of the risk/benefit equation."

But the other side of the equation weighs heavy too, some experts said.

Rumsey, the English researcher, wrote that potential recipients might have to wait a long time for suitable donors and might be tempted to put their lives on hold in the interim. They might also have to endure lots of media coverage, she said. Socially, she wrote, such a procedure might convey the notion that people can't live well with disfiguring conditions. Carson Strong, of the University of Tennessee College of Medicine, wrote that two prominent professional committees — the Royal College of Surgeons of England and the French National Ethics Advisory Committee — have said that a face transplant should not be carried out now.

Strong said recipients would face the risk that their grafts could fail, making things worse. But other experts agreed with UofL researchers that the time for a transplant is now. "Our position is that face transplantation could now be performed," wrote three surgeons from Henri-Mondor Hospital in Paris. "The switch from `could' to `should' depends on the ethical conditions surrounding the procedure."

UofL researchers said they are considering all of the critiques as they move forward. They also have to take several additional steps, such as developing a program with Kentucky's organ procurement agency, developing a funding strategy and finding a full clinical team. The team also needs to find a hospital in which to perform the procedure.