Health care law (including regulatory and compliance issues, public health law, medical ethics, and life sciences), with digressions into constitutional law, statutory interpretation, poetry, and other things that matter
Some serious violations with serious legal consequences. . . . $54 million bribery and kickback scheme , , , 30 years in prison . . . 25 years in prison . . . Opioid abuse resulting in 5 patient deaths. Every profession has its scoundrels whose hopes for riches overpower their judgment. You don't have to be an evil person to do an evil thing, but these cases do remind me of the opening to the old radio series, "The Shadow."
Like the medical consequences of "long-Covid," the legal repercussions for conduct during the emergency phase of the pandemic seem destined to remain with us for a long time. Case in point: It was announced today that an urgent-care chain settled a False Claims Act suit with DOJ for $1.6 million. The case arose out of whistle-blowers' allegations that the chain was illegally "upcoding" Evaluation and Management claims to Medicare for the testing and treatment of patients with suspected exposure to COVID-19 during the Coronavirus pandemic.
There are admittedly some close judgment calls when it comes to coding claims for reimbursement, whether payment is sought from Medicare or from a private health insurer. And, as the announcement of the settlement recites, "The claims resolved by the settlement are allegations only, and there has been no determination of liability." The case for liability had to be pretty strong, though. DOJ gets to choose whether to get involved in qui tam suits brought by whistle-blowers, and the Department most often declines to take what it regards as weak cases, leaving the allegations to private litigation.
It is rare, but not unheard of, for a physician to be prosecuted criminally for conduct that would otherwise be treated as medical malpractice and tried in a civil courtroom. Even egregious departures from the applicable professional standard of care will usually be treated as gross negligence or, rarely, an intentional tort (like assault), either of which may give rise to liability for punitive damages, usually multiples of the compensatory damage award. Again, even in most of these extreme-negligence/intentional-tort cases, prosecutors seldom seek criminal charges.
So when Beckers Hospital Report picked up a story from Colorado about a plastic surgeon who has been convicted of attempted reckless manslaughter and obstruction of telephone service (both felonies), a couple of questions occurred to me:
How bad was the surgeon's conduct to expose him to criminal liability?
"Obstruction of telephone service"? What on earth?
The surgeon was performing a breast augmentation procedure on an 18-year-old patient who, while under anesthesia, suffered a cardiac arrest and went into a coma. Staff members asked the surgeon for permission to call 911, and the surgeon said no. (Interference with telephone service?)
Instead, the surgeon performed CPR himself and didn't allow a call to emergency responders until 5 hours after the cardiac arrest. The patient died 1 year later in a nursing home (NBC News, June 15, 2023).
More questions:
"Attempted" manslaughter? I am guessing the charge was negotiated down to attempt, despite the fact that the surgeon surely caused the patient's eventual death. The one-year delay before the patient died may have made it at least questionable that the state could prove causation in a manslaughter case. I'm not a Colorado attorney, but there also may be a statute or case law that bears on the issue of causation when there's a substantial delay between the injury and the death -- unlikely, but possible.
What were the clinic's staff thinking? That they might be fired if they disobeyed the surgeon's instruction not to call for help? I hate to be a Monday-morning quarterback, but this is really unconscionable.
The press version of legal cases often raise more questions than they answer and frequently get details wrong. But from what's available in NBC's reporting, this looks like a case that deserved to be scrutinized by the criminal justice system.
A fresh crop of miscreants -- some charged, some convicted, some sentenced. It's hard to quantify, but the continuing tidal wave of fraud enforcement actions leads me to question the deterrent effect claimed by criminal law theorists. Or it may be that criminal liability deters penny ante stuff but when the payoff is in the millions, the possibility of some time in jail may pale in comparison the the potential gain.
Negligent infliction of emotional distress (NIED) is exactly what it sounds like. As with most negligence torts, a plaintiff has to show duty, breach, causation (both factual and legal/proximate (don't ask)), injury (specifically extreme emotional distress), and damages. NIED also usually involves a fact pattern where the defendant's conduct put the plaintiff at immediate risk of physical injury.
There are, however, some torts where one or more of those elements is presumed without an evidentiary showing. One of them is NIED under circumstances that courts regard as sufficiently vexing and extreme that extreme emotional distress may be presumed. Erroneously telling a family that a close family member has died is one of those types of cases.
That is exactly what happened on June 13, when Zuckerberg San Francisco General Hospital called the wrong family about a patient's death. The family was informed that their son had died at the hospital. The family, as it happened, had a 30-year-old son. But before traveling to San Francisco, the family asked for further identifying information, and the hospital described a decedent who was 4 inches taller and 50 pounds heavier than their son. The decedent inexplicably had the couple's son's identification, though, and the hospital has a policy -- one that sounds reasonable to me -- that calls for prompt notification of parents when a family member has died. It's hard to know what more the hospital could have done to avoid calling the family, who alone knew the height and weight of their actual son.
So was there a breach of the hospital's standard of care? It may take further factual investigation and even expert testimony to know for sure. The case does highlight the difficulty hospitals and other health care providers face when they are charged with a duty to do the right thing, particularly in the context of the many highly charged situations they deal with on a daily basis.
Some random thoughts on Father's Day about gun violence in the United States.
According to the authoritative Gun Violence Archive website, there were 125 shootings on Father's Day (July 18) resulting in 149 victim injuries and 49 victim deaths. Six shootings involved 4 or more victims being injured or killed (the commonly accepted criterion for a "mass shooting"), including 22 injured and 1 killed in a shooting at a Juneteenth celebration in Willowbrook, Illinois, and 9 injured and 1 killed in St. Louis. Today.
All gun deaths are horrible, but surely it is worth noting that it seems a disproportionate number of victims appear to be young people, the age of our kids (or, in my case, my grandkids).
As parents, it is our responsibility to try to make the world reasonably safe for our kids. We try to protect them from the consequences of choices and conduct that could kill or maim them. It is admittedly impossible to eliminate all risk from the world, but we do our best to manage that risk. Except when it comes to guns.
I am writing this in HealthLawBlog because gun violence is not only a criminal-law issue but also a public-health issue. As the American Public Health Association (APHA) has written:
Gun violence is a leading cause of premature death in the U.S. Guns kill more than 38,000 people and cause nearly 85,000 injuries each year. As a longtime advocate for violence prevention policies, APHA recognizes a comprehensive public health approach to addressing this growing crisis is necessary.
The biggest obstacle is the number of politicians who are beholden to the gun lobby for secure and well-financed primaries. There are plenty of voters who have been sold an absolutist interpretation of the Second Amendment, and politicians are scared of alienating them, too.
The question posed in the title of this post deserves an answer.
My SMU Law colleague Eric Ruben argues persuasively that Second Amendment absolutism is based upon a serious -- dare I say fatal? -- misreading of that amendment (click here for links to most of his writings; click here for his latest article, forthcoming in the Yale Law Journal). His work is well worth reading. Suffice it to say that gun-rights absolutists base their position on an ahistorical reading of the Second Amendment, an error that is compounded in the Court's most recent Second Amendment decision by what Ruben and his co-author, Joseph Blocher, in their Yale piece call "originalism-by-analogy," a unique version of originalism, seemingly invented to produce a particularly virulent reading of the Second Amendment.
There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.
The current Court would do well to heed the wise words of Justice Jackson.
New estimates released today from the Office of the Actuary (OACT) at the Centers for Medicare and Medicaid Services (CMS) and published online today in Health Affairs project a rate of national health spending growth of 4.3 percent for 2022, with expenditures projected to have reached $4.4 trillion. Health spending over the course of 2022–31 is expected to grow 5.4 percent per year on average.
Economic growth is expected to have outpaced growth in national health spending in 2022, causing ta decrease in the projected health spending share of gross domestic product (GDP) from 18.3 percent in 2021 to 17.4 percent in 2022. However, over the course of the 2022–31 period, nominal GDP is expected to grow 4.6 percent annually—0.8 percentage point lower than average growth in national health expenditures—resulting in health spending accounting for 19.6 percent of GDP by 2031 (emphasis added).
Wednesday, June 14, 2023
The story of the lethal neurosurgeon's murderous rampage from one North Texas operating room to another to another is still pretty fresh. Reading the superb reporting of Laura Beil and then listening to the excellent podcast raised one large question over and over: How could these hospitals allow "Dr. Death" -- Dr. Christopher Duntsch -- to continue to mutilate and kill patients despite overwhelming evidence that he lacked the skills to perform these operations and allegedly performed surgery while he was impaired? He's serving a life sentence in prison so his doctoring days are over, but the question persists.
Yesterday (June 13), Gov. Greg Abbott signed into law HB 1998 -- closing what has been dubbed the "Dr. Death loophole" -- with an effective date of September 1, 2023. The "loopholes" are gaps in the reporting system known as the DHHS National Practitioner Data Bank, which was designed to encourage reporting by state medical boards and hospitals when adverse actions (e.g., restrictions or revocations of medical license or medical staff privileges, medical malpractice awards) were taken against a physician. As stated in the NPDB Guidebook:
Congress enacted legislation leading to the creation of the NPDB because it perceived that the increasing occurrence of medical malpractice litigation and the need to improve the quality of medical care had become nationwide problems that warranted greater efforts than could be undertaken by any individual state. Congress also identified the need to restrict the ability of incompetent physicians and dentists to move from state to state without disclosure or discovery of the physician's previous damaging or incompetent performance. Congress felt that the threat of private money damages liability under federal laws, including treble damages liability under federal antitrust law, unreasonably discouraged physicians and dentists from participating in effective professional peer review. Therefore, Congress sought to provide incentives and protection for physicians and dentists engaging in effective professional peer review.
Title IV led to the establishment of the NPDB, an information clearinghouse, to collect and release certain information related to the professional competence and conduct of physicians, dentists, and, in some cases, other health care practitioners. The creation of the NPDB represented an important step by the U.S. government to enhance professional review efforts by making available to eligible entities and individuals certain information concerning medical malpractice payments and adverse actions.
HB 1998 contains a few measures designed to prompt actions when the NPDB might not require reporting, including:
equipping the Texas Medical Board with necessary tools to protect patients from dangerous physicians while also maintaining transparency about physician disciplinary records.
Here's what else the new law provides:
Lying on medical license applications will be a Class A misdemeanor.
Physicians who have been convicted of a felony or misdemeanor related to moral turpitude may be denied a license to practice medicine in Texas.
The Medical Board is required to conduct a criminal background check in connection with license renewals.
Monthly monitoring of physicians will be required using the National Practitioner Data Bank.
The Texas Medical Board must update physician profiles on its website within 10 days of being notified about any disciplinary action against a physician.
Probably no system is fool-proof, but this new law tightens things up considerably. Even before HB 1998 was passed, though, I wondered if our law ties the hands of the Medical Board too much. For example, Section 155.003(e), Occupations Code provides that "An applicant is not eligible for a license if: (1) the applicant holds a medical license that is currently restricted for cause, canceled for cause, or suspended for cause or revoked by a state, a province of Canada, or a uniformed service of the United States." But not all revocations, restrictions, and suspensions are created equal. For example, many are related to substance abuse, and Texas physicians who successfully complete a rehab program and stay clean are often allowed to return to practice. It's hard to justify a more draconian result when a Texas physician is disciplined for similar reasons by another state's licensing board.
Tuesday, June 13, 2023
AHLA's most recent 50-state survey looks great: Health Care Fraud Law: A 50 State Survey. The research required for such a project is back-breaking.
My first publication for AHLA (actually, it was for NHLA, one of the merger partners that produced the AHLA) was “State Illegal Remuneration and Self-Referral Laws” (1996). Searching out every relevant state statute led to free-standing prohibitions, prohibitions inside professional licensing laws, and -- in one memorable instance -- a prohibition against paying for referrals that was buried in the Massachusetts motor vehicle insurance statute.
It looks like AHLA rounded up health lawyers from each jurisdiction to research their own state's laws. Smart. Very smart.
Members and non-members alike can order a copy here.
There's an Associated Press article in this morning's Dallas Morning News describing a multicenter study involving the transplantation of hearts taken out of donors who were not brain dead but had been declared dead after irreversible cessation of cardiac and circulatory function (DCD/DCCD).
Certain solid organs have been transplanted after DCD for decades. The protocol for harvesting involves the following steps:
moving the patient to the operating room (usually from an ICU);
stopping all life-supporting measures;
waiting for a fixed period of time for the heart to stop beating (usually 60-90 minutes);
if the heart stops, waiting another period of time (usually 5 minutes) to see if the heart will autoresuscitate;
if autoresuscitation doesn't occur, death is declared and organ harvesting (usually kidneys, liver, and pancreas).
The DCD procedure was designed to shorten the warm ischemic time from when cardiopulmonary function ceases and the harvested organ can be restored to function in the recipient's body. Even with that innovation, though, hearts were not considered for transplantation because of their extreme fragility.
As described by the AP, however, the results of a multicenter study over a number of years establishes that the six-month survival rate after DCD (94%) was slightly better that the survival rate for heart transplants after brain death (90%). So what has changed? As reported by the AP:
Now doctors can remove those hearts and put them in a machine [a "heart-in-a-box" device invented by TransMedics, the sponsor of the study] that “reanimates” them, pumping through blood and nutrients as they’re transported –- and demonstrating if they work OK before the planned transplant.
I am all for increasing the supply of donor hearts, and this is a very interesting development. I am wondering, however, how to square the transplantation of a viable heart with the cardiopulmonary criterion of death. The statutory standard of "irreversible cessation of all cardiopulmonary function" will now need to be understood as “irreversible in the donor’s body but not necessarily in the body of the recipient of the heart.” That begs the question, which has applied to DCD from the beginning, why has cardiopulmonary ceased (because we took away the donor’s life support) and why is the cessation irreversible (because we didn’t try to reverse it). Once we actually try to restore cardiac function (“reanimating” the heart in a “heart-in-a-box” device), some hearts are restored and do at least as well in the recipient’s body as a heart from a brain-dead patient.
Are we comfortable with this slightly altered version of "irreversible cessation"? Should we be? The so-called "dead donor rule" (DDR) forbids killing a patient for organs or removing organs needed to sustain life from a living patient. So far, we have avoided the slippery slope of removing organs from patients who are almost dead or "as good as dead." How certain are we that this new approach to DCD heart transplantation satisfies the DDR?
One week ago (see Becker Health (no paywall), June 1), the N.Y. Times reported that Allina Health's policy was to deny clinic care to patients with unpaid bills. Emergency room visits were not part of the policy, and the unpaid balance had to exceed $4,500. This may be a smart business decision, but -- as the refrain goes throughout the semester in my health law class -- health care is different, and it's not a good look for a major nonprofit health care provider. The policy is apparently quite widespread. A 2022 study found that about 20% of hospitals deny nonemergency care for the same reason (Kaiser Health, Dec. 2022).
Today, the Star Tribune reported that Allina has suspended its policy, presumably in no small part because the Minnesota AG was inviting patients to submit reports of denials to his office as he considers launching an investigation into the policy.
Continuing a feature that I introduced on May 21, here are four more cases released today by the OIG at HHS. Ordinarily I would pick a favorite based upon the audaciousness of the scheme or the staggering financial implications, but these four are all interesting in their own way:
Fortune's team of Maria Aspan and Erika Fry have focused their analytical lens on the growth of health care firms in their recent article, "Companies like CVS and UnitedHealth are now some of the world’s biggest businesses. Is that healthy for the rest of us?" (May 24, 2023). It's a good read.
Let's start some context. Despite a recent minor dip, health care is the largest single sector that contributes to our Gross Domestic Product, the equal of defense and education (at all levels) combined.
Although this number -- whether expressed in absolute dollars, as a percentage of GDP, or as expenditures per capita -- is vastly larger than the expenditures of every other developed country in the world. And by almost any measure, the results -- in terms of life span, infant and maternal mortality, etc. -- pale in comparison to the same countries and many developing countries, as well. Much has been written about this conundrum. After all, we are a rich country and if we want to spend a lot of our wealth on health care, well, why not? The counter-argument is multifaceted. Are we as a society making smart decisions about those health care expenditures? Are there better strategies than "throw a ton of money at what ails you and hope that something works"? Are we doing all we reasonably can to root out waste and fraud? As COVID vividly and catastrophically demonstrated, expenditures for health care goods and services are not equitably distributed to racial and ethnic minorities, economically disadvantaged individuals and households, or the under- and uninsured, a group that persists despites the reforms of Obamacare.
This is Aspan and Fry's concern, too. They are looking at the rapid and extensive increase in firm size and the consolidation of disparate providers (hospitals, pharmacies, clinics, physician practices) into behemoths of unimaginable market power see at least a correlative relationship with GDP. Much of the merger activity in the health care sector is fueled by debt and venture capital, all of which demands cash flow to service. In other words, relentless growth in net revenues, year over year and quarter over quarter. Where's the incentive to keep patients healthy and out of hospital beds or to provide the most cost-effective care?
Granted, providers prosper by delivering more goods and services. And insurers prosper by paying for less care. As the authors point out, there is a conflict of interest at a fundamental level of this business model. Meanwhile, it's the wild, west out there, and the big firms seem to be doing just fine, at least for now. Whether that translates into better health outcomes for the rest of us is still very much in doubt.
If there's one indisputable legal and business trend in the health care industry over the past 10-20 years, it's the move toward greater consolidation of health care providers. Some observers praise consolidation on efficiency grounds (cutting duplication and waste --> lower costs --> lower prices for patients), while others decry consolidation because it concentrates market power and lessens competition, which leads to higher prices for patients.
The mechanism for resolving these claims in connection with large proposed mergers is the statute known as Hart-Scott-Rodino (H-S-R), along with its numerous FTC, DOJ, and SCOTUS interpretations. But according to Daniel Sokol and Dick Pierce, the times they are a-changin', though where federal policy is headed is anyone's guess.
In his Jotwell essay (May 25, 2023), Pierce argues that two articles by Sokol "are required reading for anyone who is interested in antitrust law, administrative law, government regulation, or corporate law." That's just about everyone in the legal profession, but I'll throw in health care law for good measure.
The catalyst for change is Lina Khan, the Biden Administration's chair of the FTC. As described by Pierce,
Khan has made it clear that she disagrees with virtually every characteristic of the [FTC/DOJ merger] guidelines, including the guidelines’ goals. She rejects the goal of maximizing consumer welfare, which the Justice Department and the FTC have pursued for the last 50 years. Instead, she has emphasized the need to protect competitors from large firms that charge low prices—a goal that the enforcement agencies and the Supreme Court disavowed 50 years ago. Khan cannot further her stated goals by applying the 2010 guidelines.
The Pierce essay is a quick and easy read. The implications of Chair Khan's views on mergers portends an era that will be messy and uncertain.
This would be a good fact pattern for a 1L Legislation-Regulation final exam. The question posed by the Board in its request is "Whether the Texas Board of Chiropractic Examiners has discretion to suspend or revoke a chiropractor’s license under Texas Occupations Code section 201.5065 if the chiropractor is convicted of certain offenses." The language in this section makes suspension or revocation of a license mandatory upon conviction of certain offenses. Other language sprinkled around the Occupations code provides for discretionary suspension or revocation for other offenses. Apparently the Board wants clarification as to the effect of mandatory authority on these discretionary provisions. Nice little statutory interpretation problem, eh? I think the answer should be clear: the Board has both types of authority absent a clear indication that the legislature intended to negate the discretionary provisions. I'll get back to you when the AG's opinions staff gives us their answer . . .
As with banks and bank robbers, health care is where the money is. And for some so-called health care providers, the temptation to rob, steal, and cheat is apparently irresistable. Starting today I will highlight some of the more audacious schemes drawn from the week's health fraud indictments, settlements, and verdicts.
We begin this series with the settlement of a civil fraud case in the Southern District of New York. A Bronx nursing home allegedly made cash payments to a hospital supervisor in return for patient referrals. Okay: big yawn. But the second fraud scheme is the frosting with sprinkles on top of the boring cake. The nursing home allegedly switched residents out of the lower-paying Medicare Advantage plan and into the relatively higher-paying Original Medicare plan without the consent of their residents. The parties paid $3.46 million to the United States to settle the claims.
I am not saying health insurers are evil. Or that their policies are evil. But their claims-handling practices are very often ill-advised, are calculated to maximize corporate revenues at the expense of the health of their insureds, and too often produce results that are, well, evil.
One of the defining characteristics of "managed care" -- which used to be this funky little thing over in the corner of our system of healthcare finance and delivery and now is everywhere -- is the notion of preauthorization by your insurance company before you can get almost anything: a visit to a specialist, hospitalization, a prescription drug, etc. The craziness that sometimes marks this process is hard to fathom (other than the aforementioned profit motive). Dr. Amy Faith Ho has taken this on over on Twitter and her posts are well worth following.
First, "innovation and access" is and always will be an important health law and policy topic. The testimony on May 10 covered Alzheimer's, cancer, FDA regulatory issues, Big Pharma R&D, and NIH research support. Important stuff.
Second, the blog post consists of summaries of testimony that were generated, in whole or in part, by ChatGPT. 'Nuff said? I could have waded through the testimony and written my own summaries or paid a research assistant to do the same. And I would certainly read the testimony if I were citing it, relying on it, etc. I am guess, though, that these summaries are serviceable enough as background reading (and a way of determining whether the testimony appears interesting enough to invest more of my time reading it).
This was posted recently by a wonderful German attorney and former Bioethics student of mine, Christine Gärtner. It appears to be part of an interview with Justice Ginsburg, and I am not sure of the source, but it sure looks like her crystal ball was firing on all cylinders. Of course, lots of others were making the same prediction, though she cut to the policy question that, honestly, can have only one answer:
The NEJM editorial summarizes the board's reasoning this way:
By abolishing longstanding legal protections, the U.S. Supreme Court’s reversal of Roe v. Wade serves American families poorly, putting their health, safety, finances, and futures at risk. In view of these predictable consequences, the editors of the New England Journal of Medicine strongly condemn the U.S. Supreme Court’s decision.
The full editorial, "Lawmakers v. The Scientific Realities of Human Reproduction,"is available here.
Justice Breyer's dissenting opinion on behalf of himself and Justices Sotomayor and Kagan lays out the costs in clear and vivid terms:
Today, the Court discards that balance. It says that from the very moment of fertilization, a woman has no rights to speak of. A State can force her to bring a pregnancy to term, even at the steepest personal and familial costs. An abortion restriction, the majority holds, is permissible whenever rational, the lowest level of scrutiny known to the law. And because, as the Court has often stated, protecting fetal life is rational, States will feel free to enact all manner of restrictions. The Mississippi law at issue here bars abortions after the 15th week of pregnancy. Under the majority’s ruling, though, another State’s law could do so after ten weeks, or five or three or one—or, again, from the moment of fertilization. States have already passed such laws, in anticipation of today’s ruling. More will follow. Some States have enacted laws extending to all forms of abortion procedure, including taking medication in one’s own home. They have passed laws without any exceptions for when the woman is the victim of rape or incest. Under those laws, a woman will have to bear her rapist’s child or a young girl her father’s—no matter if doing so will destroy her life. So too, after today’s ruling, some States may compel women to carry to term a fetus with severe physical anomalies—for example, one afflicted with Tay-Sachs disease, sure to die Cite as: 597 U. S. ____ (2022) BREYER, SOTOMAYOR, and KAGAN, JJ., dissenting 3 within a few years of birth. States may even argue that a prohibition on abortion need make no provision for protecting a woman from risk of death or physical harm. Across a vast array of circumstances, a State will be able to impose its moral choice on a woman and coerce her to give birth to a child.
So much has already been written on the leaked draft majority opinion by Justice Alito in the Mississippi abortion case, it's time to look back and forward -- back to understand the deep vein of misogyny that has driven much abortion policy in the past century, and forward to see where abortion policy is headed and what can be done to preserve what the Supreme Court has understood to be a fundamental right for 49+ years: the decision, as Justice Brennan so delicately phrased it in his 1972 majority opinion in Eisentstadt v. Baird, "whether to bear or beget a child."
There are lots of pathways back to pre-Roe misogyny. To state the obvious, that's not to say misogyny ended with Roe, but there is a specific version of it that is recognizable today and therefore still important to understand going forward. One way back is an essay by Adrienne Rich in the New York Review of Books, which recently posted the essay (without a paywall) on its website with these words:
In the Review’s October 2, 1975, issue, Adrienne Rich wrote about “The Theft of Childbirth,” tracing the patriarchal history of obstetrics—and “the technology of childbirth”—and finding that “the value of a woman’s life would appear to be contingent on her being pregnant or newly delivered. Women who refuse to become mothers are not merely emotionally suspect, they are dangerous.”
The path forward (assuming, as seems reasonable, that the Alito draft is fairly close to the final version that we will see later this Term) is littered with legal questions and controversies. I am working on a short piece for the SMU Law Review "Forum" on state restrictions on medical abortions, something I described in March as a legislative "pincer movement" intended to end all abortions in Texas and elsewhere without enacting an outright ban (though Texas and at least 12 other states have so-called "trigger" laws at the ready for the inevitable demise of Roe [NY Times, May 4; Politico, May 3 (23 states have pre-Roe prohibitions or trigger laws]). More on that topic in a subsequent post.
A "pincer movement" is defined as "a military maneuver in which forces simultaneously attack both flanks (sides) of an enemy formation. This classic maneuver holds an important foothold throughout the history of warfare" (Wikipedia), now including the Texas legislature's intentional and cruel war on women's health and their constitutional rights.
I've previously posted on Texas's restrictive, blatantly unconstitutional prohibition of abortions after approximately 6 weeks of pregnancy, i.e., before many if not most women even know they are pregnant, here, here, and here. The well-documented effect of SB 8 has been staff cutbacks and closings of abortion clinics in Texas and women scrambling to find out-of-state providers even for emergency terminations (NPR, 3-1-22; The Guardian, 3-3-22).
Mindful that they had succeeded in drastically cutting back on the availability of surgical abortions (which are far, far safer -- 14 times less likely to cause death -- compared to carrying a fetus to term), the legislature then turned its attention to shutting down access to medical abortions. In the 2nd Special Session last summer, the legislature passed SB 4, which became effective last September 17th. SB 4 makes it a state jail felony to provide an abortion-inducing drug, including the Mifeprex regimen, misoprostol (Cytotec), and methotrexate. Physicians are exempt if they follow a detailed protocol and then only if the drugs are provided within the first 7 weeks of pregnancy. SB 4 also provides: "A manufacturer, supplier, physician, or any other person may not provide to a patient any abortion-inducing drug by courier, delivery, or mail service."
I am reliably informed that some pharmacists in Texas are reluctant to fill prescriptions for these drugs and, even more worrisome, that drug manufacturers are expressing concerns that shipping these drugs into Texas will expose them to criminal liability.
I have four granddaughters, from 3 to 14 years of age. I care about their health, including their physical and mental health as well as their reproductive health. The effect of all but eliminating access to surgical and medical abortions, if successful, amounts to an intentionally cruel pincer movement that intensifies the Texas legislature's war against not only abortion but the health, safety, and welfare of Texas women, including my granddaughters. This war has to stop, but I am having a hard time imagining how or when.
The litigation history of Texas's abortion statute (SB 8) is a sorry tangle of "hot potato" from federal courts to state supreme court and from trial court to the U.S. Supreme Court, but one thing is unmistakable: The misnamed "heartbeat" law is unconstitutional under current federal law. Full stop. As long as Roe and Casey are good law -- and they may be seriously threatened by a supermajority of conservative justices on the Supreme Court, but for the time being those cases are still the law of the land -- a previability prohibition of abortions violates that law.
SB 8 prohibits abortions after about six weeks and provides for private parties to enforce the prohibition through civil litigation against anyone who "aids or abets the performance or inducement of an abortion" in violation of SB 8's prohibition. To be clear: an "aider" or "abettor" is a person who "assists someone in committing or encourages someone to commit a crime." Even under SB 8, a violation of its prohibition is not a crime, and Texas officials are barred from enforcing its provisions whether civilly or criminally. Private enforcement was intended to insulate the law from constitutional review (no state actors = no state action, et voila!: no constitutional violation!). If this is upheld, any state that isn't happy with a decision of the Supreme Court can pass a law in violation, provide for exclusively private enforcement, and shield the state law from federal constitutional review.
All of this -- the litigation tangle, the constitutional analysis, and the implications for the future -- are admirably addressed in a brief opinion piece by Glenn Cohen, Rebecca Reingold, and Larry Gostin in the Journal of the American Medical Association, on-line and free. It's worth a read.
Yep. That's the title of an op-ed in today's Washington Post. That we have this "partial holiday" at all is contemptible. That it occurs the same week as the federal MLK holiday is even worse. C'mon folks! In the past legislative session, there were 3 bills introduced in the House to eliminate this official state holiday (HB 36, HB 219, and HB 2067) and one bill in the Senate (SB 128), and none of them went anywhere. . . {sigh}. The op-ed doesn't mince words: "The South lost. It’s good to bring down Confederate monuments. But it’s also time for Texas to stop giving symbolic shelter to enslavers and rapists and traitors — and relegate Confederate Heroes Day to the ash heap of history, where it belongs."
These are the messages from Ed Yong's latest piece in The Atlantic: "It’s a Terrible Idea to Deny Medical Care to Unvaccinated People." To which I'd add:
4. Tort law will not support your decision. My first-year Torts students read a case in which the Tennessee Supreme Court reversed a trial court decision to allow the jury to compare the degree of fault of a hospital and two employees (whose provision respiratory support left the patient with permanent brain damage) with the degree of fault of the plaintiff (who had been driving with a blood alcohol level of .20% at the time of the accident). The American Law Institute's Third Restatement of Torts supports the rule that a patient's prior conduct (whether tortious or criminal) -- conduct that necessitate the medical treatment in issue -- does not diminish a health care provider's duty to treat or the duty to meet a professional standard of care. Restatement (Third) of Torts, Apportionment of Liability § 7, cmt. m (2000).
Yong concedes that this "debate" is theoretical:
Health-care workers are not denying care to unvaccinated patients, even though, ironically, many told me they’ve been accused of doing so by not prescribing ivermectin or hydroxychloroquine, which are ineffective against COVID but are often wrongly billed as lifesavers. Still, I ran this argument past several ethicists, clinicians, and public-health practitioners. Many of them sympathized with the exasperation and fear behind the sentiment. But all of them said that it was an awful idea—unethical, impractical, and founded on a shallow understanding of why some people remain unvaccinated.
1. Not particularly well, except in the few cases where they do.
2. Talking is an essential, and often overlooked, aspect of advance care planning. In my talks to community groups, my advice is this: If you were forced to choose between executing the documents (e.g., living will, medical power of attorney) and discussing your values and preferences with family and physicians, you should choose the latter. Checking off a few boxes and affixing your signature to a document is seldom the panacea we think it will be. Of course, it's a false choice and you can do both.
3. Essential reading: (a) An essay in the Jan. 3 New York Times by physician Daniela Lamas. (2) A balanced and fair piece in Kaiser Health News this morning (reprinted with permission):
A New Paradigm Is Needed: Top Experts Question the Value of Advance Care Planning
Judith Graham
For decades, Americans have been urged to fill out documents specifying their end-of-life wishes before becoming terminally ill — living wills, do-not-resuscitate orders, and other written materials expressing treatment preferences.
Now, a group of prominent experts is saying those efforts should stop because they haven’t improved end-of-life care.
“Decades of research demonstrate advance care planning doesn’t work. We need a new paradigm,” said Dr. R. Sean Morrison, chair of geriatrics and palliative medicine at the Icahn School of Medicine at Mount Sinai in New York and a co-author of a recent opinion piece advancing this argument in JAMA.
“A great deal of time, effort, money, blood, sweat and tears have gone into increasing the prevalence of advance care planning, but the evidence is clear: It doesn’t achieve the results that we hoped it would,” said Dr. Diane Meier, founder of the Center to Advance Palliative Care, a professor at Mount Sinai and co-author of the opinion piece. Notably, advance care planning has not been shown to ensure that people receive care consistent with their stated preferences — a major objective.
“We’re saying stop trying to anticipate the care you might want in hypothetical future scenarios,” said Dr. James Tulsky, who is chair of the department of psychosocial oncology and palliative care at the Dana-Farber Cancer Institute in Boston and collaborated on the article. “Many highly educated people think documents prepared years in advance will protect them if they become incapacitated. They won’t.”
The reasons are varied and documented in dozens of research studies: People’s preferences change as their health status shifts; forms offer vague and sometimes conflicting goals for end-of-life care; families, surrogates and clinicians often disagree with a patient’s stated preferences; documents aren’t readily available when decisions need to be made; and services that could support a patient’s wishes — such as receiving treatment at home — simply aren’t available.
But this critique of advance care planning is highly controversial and has received considerable pushback.
Advance care planning has evolved significantly in the past decade and the focus today is on conversations between patients and clinicians about patients’ goals and values, not about completing documents, said Dr. Rebecca Sudore, a professor of geriatrics and director of the Innovation and Implementation Center in Aging and Palliative Care at the University of California-San Francisco. This progress shouldn’t be discounted, she said.
Also, anticipating what people want at the end of their lives is no longer the primary objective. Instead, helping people make complicated decisions when they become seriously ill has become an increasingly important priority.
When people with serious illnesses have conversations of this kind, “our research shows they experience less anxiety, more control over their care, are better prepared for the future, and are better able to communicate with their families and clinicians,” said Dr. Jo Paladino, associate director of research and implementation for the Serious Illness Care Program at Ariadne Labs, a research partnership between Harvard and Brigham and Women’s Hospital in Boston.
Advance care planning “may not be helpful for making specific treatment decisions or guiding future care for most of us, but it can bring us peace of mind and help prepare us for making those decisions when the time comes,” said Dr. J. Randall Curtis, 61, director of the Cambia Palliative Care Center of Excellence at the University of Washington.
Curtis and I communicated by email because he can no longer speak easily after being diagnosed with amyotrophic lateral sclerosis, an incurable neurologic condition, early in 2021. Since his diagnosis, Curtis has had numerous conversations about his goals, values and wishes for the future with his wife and palliative care specialists.
“I have not made very many specific decisions yet, but I feel like these discussions bring me comfort and prepare me for making decisions later,” he told me. Assessments of advance care planning’s effectiveness should take into account these deeply meaningful “unmeasurable benefits,” Curtis wrote recently in JAMA in a piece about his experiences.
The emphasis on documenting end-of-life wishes dates to a seminal legal case, Cruzan v. Director, Missouri Department of Health, decided by the Supreme Court in June 1990. Nancy Cruzan was 25 when her car skidded off a highway and she sustained a severe brain injury that left her permanently unconscious. After several years, her parents petitioned to have her feeding tube removed. The hospital refused. In a 5-4 decision, the Supreme Court upheld the hospital’s right to do so, citing the need for “clear and convincing evidence” of an incapacitated person’s wishes.
Later that year, Congress passed the Patient Self-Determination Act, which requires hospitals, nursing homes, home health agencies, health maintenance organizations and hospices to ask whether a person has a written “advance directive” and, if so, to follow those directives to the extent possible. These documents are meant to go into effect when someone is terminally ill and has lost the capacity to make decisions.
But too often this became a “check-box” exercise, unaccompanied by in-depth discussions about a patient’s prognosis, the ways that future medical decisions might affect a patient’s quality of life, and without a realistic plan for implementing a patient’s wishes, said Meier, of Mount Sinai.
She noted that only 37% of adults have completed written advance directives — in her view, a sign of uncertainty about their value.
Other problems can compromise the usefulness of these documents. A patient’s preferences may be inconsistent or difficult to apply in real-life situations, leaving medical providers without clear guidance, said Dr. Scott Halpern, a professor at the University of Pennsylvania Perelman School of Medicine who studies end-of-life and palliative care.
For instance, an older woman may indicate she wants to live as long as possible and yet also avoid pain and suffering. Or an older man may state a clear preference for refusing mechanical ventilation but leave open the question of whether other types of breathing support are acceptable.
“Rather than asking patients to make decisions about hypothetical scenarios in the future, we should be focused on helping them make difficult decisions in the moment,” when actual medical circumstances require attention, said Morrison, of Mount Sinai.
Also, determining when the end of life is at hand and when treatment might postpone that eventuality can be difficult.
Morrison spoke of his alarm early in the pandemic when older adults with covid-19 would go to emergency rooms and medical providers would implement their advance directives (for instance, no CPR or mechanical ventilation) because of an assumption that the virus was “universally fatal” to seniors. He said he and his colleagues witnessed this happen repeatedly.
“What didn’t happen was an informed conversation about the likely outcome of developing covid and the possibilities of recovery,” even though most older adults ended up surviving, he said.
For all the controversy over written directives, there is strong support among experts for another component of advance care planning — naming a health care surrogate or proxy to make decisions on your behalf should you become incapacitated. Typically, this involves filling out a health care power-of-attorney form.
“This won’t always be your spouse or your child or another family member: It should be someone you trust to do the right thing for you in difficult circumstances,” said Tulsky, who co-chairs a roundtable on care for people with serious illnesses for the National Academies of Sciences, Engineering and Medicine.
“Talk to your surrogate about what matters most to you,” he urged, and update that person whenever your circumstances or preferences change.
Most people want their surrogates to be able to respond to unforeseen circumstances and have leeway in decision-making while respecting their core goals and values, Sudore said.
The Centers for Disease Control and Prevention also has a comprehensive list of resources.
We’re eager to hear from readers about questions you’d like answered, problems you’ve been having with your care and advice you need in dealing with the health care system. Visit khn.org/columnists to submit your requests or tips.
