Wrongful death claims and the stillborn fetus.

Thanks to Austin friend Louise Joy for alerting me to this case, handed down Thursday by the Texas Supreme Court:

In Fort Worth Osteopathic Hosp., Inc. v. Reese, No. 02-1061, the court held that its ruling in Witty v. Am. Gen. Capital Distrib., Inc., 727 S.W.2d 503 (Tex. 1987) (holding that the statutory wrongful death cause of action does not allow recovery for a stillborn fetus) does not violate the Texas Constitution.

Interestingly, the majority refuses to overrule Witty, primarily because the Legislature codified most of the Witty rule last year. The 78th Legislature amended the definition of "individual" in the wrongful death statute (Tex. Civ. Prac. & Rem. Code § 71.001(4)) to include “an unborn child at every stage of gestation from fertilization until birth,” but as the court notes in Reese, "the statute expressly does not apply to claims 'for the death of an individual who is an unborn child that is brought against . . . a physician or other health care provider licensed in this state, if the death directly or indirectly is caused by, associated with, arises out of, or relates to a lawful medical or health care practice or procedure of the physician or health care provider,'” id. § 71.003(c)(4).

Thus, the court sticks to the Witty rule, which leaves the court with the question whether the exclusion of stillborn fetuses violates the Texas Constitution's equal protection provision (Art. I, § 3). The court concludes that it does not, principally on the ground that, because the U.S. Supreme Court ruled in Roe v. Wade that a fetus is not a "person" for purposes of the 14th Amendment, neither does it enjoy legal protections under the Texas Constitution. The opinion is notable for the utter lack of reasoning in support of its conclusion, other than noting that the law has ever been so. Other states (Maryland, Florida, California) and the Third Circuit agree.

The majority opinion is here. Justice O'Neill's concurring opinion reluctantly agrees with the majority that 17 years of legislative silence (plus 2003's amendments to the wrongful death law) amounts to acquiescence in the Witty rule. Justice Smith's dissenting opinion disagrees with every jot and tittle of the majority's ruling - both the statutory analysis and the equal protection ruling.

Times' obit for Kübler-Ross

Lots more detail than the early AP newswire story: click here. Here's an odd note:

In the later part of her career, she embarked on research to verify the existence of life after death, conducting, with others, thousands of interviews with people who recounted near-death experiences, particularly those declared clinically dead by medical authorities but who were then revived. Her prestige generated widespread interest in such research and attracted followers who considered her a saint.

But this work aroused deep skepticism in medical and scientific circles and damaged her reputation. Her claims that she had evidence of an afterlife saddened many of her colleagues, some of whom believed that she had abandoned rigorous science and had succumbed to her own fears of death.

A great teaching moment:

In 1962, she became a teaching fellow at the University of Colorado School of Medicine in Denver. A small woman, who spoke with a heavy German accent and was shy, despite extraordinary inner self-confidence, she was highly nervous when asked to fill in for a popular professor and master lecturer. She found the medical students rude, paying her scant attention and talking to one another as she spoke.

But the hall became noticeably quieter when she brought out a 16-year-old patient who was dying of leukemia, and asked the students to interview her. Now it was they who seemed nervous. When she prodded them, they would ask the patient about her blood counts, chemotherapy or other clinical matters.

Finally, the teenager exploded in anger, and began posing her own questions: What was it like not to be able to dream about the high-school prom? Or going on a date? Or growing up? "Why," she demanded, "won't people tell you the truth?" When the lecture ended, many students had been moved to tears.

"Now you're acting like human beings, instead of scientists," Dr. Kübler-Ross said.

Her wisdom and tenacity paid off: "Her lectures began to draw standing-room-only audiences of medical and theology students, clergymen and social workers — but few doctors."

The real revolution, the one that occurred among physicians, started to take root in 1965 when

she became an assistant professor in psychiatry at the University of Chicago Medical School, where a group of theology students approached her for help in studying death. She suggested a series of conversations with dying patients, who would be asked their thoughts and feelings; the patients would teach the professionals. At first, staff doctors objected.

The change in professional attitudes came slowly:

To bring public pressure for change in hospitals' treatment of the dying, she agreed to a request by Life magazine in 1965 to interview one of her seminar patients, Eva, who felt her doctors had treated her coldly and arrogantly. The Life article prompted one physician, encountering Dr. Kübler-Ross in a hospital corridor, to remark: "Are you looking for your next patient for publicity."

The hospital said it wanted not to be famous for its dying patients but rather for those it saved, and ordered its doctors not to cooperate further. The lecture hall for her next seminar was empty.

"Although humiliated," she said, "I knew they could not stop everything that had been put in motion by the press." The hospital switchboard was overwhelmed with calls in reaction to the Life article; mail piled up and she was invited to speak at other colleges and universities.

Not that this helped Eva much. Dr. Kübler-Ross said she looked in on her years later and found her lying naked on a hospital bed, unable to speak, with an overhead light glaring in her eyes. "She pressed my hand as a way of saying hello, and pointed her other hand up toward the ceiling. I turned the light off and asked a nurse to cover Eva. Unbelievably, the nurse hesitated, and asked, `Why?' " Dr. Kübler-Ross covered the patient herself. Eva died the next day.

"The way she died, cold and alone, was something I could not tolerate," Dr. Kübler-Ross said. Gradually, the medical profession came to accept her new approaches to treating the terminally ill.

Five Stages of Grief.

The AP story on the death of Elisabeth Kübler-Ross reminds me of a poem that we read in Law, Literature & Medicine, "The Five Stages of Grief" by Linda Pastan:

The night I lost you
someone pointed me towards
the Five Stages of Grief.
Go that way, they said,
it's easy, like learning to climb
stairs after the amputation.
And so I climbed.
Denial was first.
I sat down at breakfast
carefully setting the table
for two. I passed you the toast--
you sat there. I passed
you the paper--you hid
behind it.
Anger seemed more familiar.
I burned the toast, snatched
the paper and read the headlines myself.
But they mentioned your departure,
and so I moved on to
Bargaining. What could I exchange
for you? The silence
after storms? My typing fingers?
Before I could decide, Depression
came puffing up, a poor relation
its suitcase tied together
with string. In the suitcase
were bandages for the eyes
and bottles of sleep. I slid
all the way down the stairs
feeling nothing.
And all the time Hope
flashed on and off
in defective neon.
Hope was a signpost pointing
straight in the air.
Hope was my uncle's middle name,
he died of it.
After a year I am still climbing,
though my feet slip
on your stone face.
The treeline
has long since disappeared;
green is a color
I have forgotten.
But now I see what I am climbing
towards: Acceptance
written in capital letters,
a special headline:
Acceptance,
its name in lights.
I struggle on,
waving and shouting.
Below, my whole life spreads its surf,
all the landscapes I've ever known
or dreamed of. Below
a fish jumps: the pulse
in your neck.
Acceptance. I finally
reach it.
But something is wrong.
Grief is a circular staircase.
I have lost you.

Pastan talks about her work here (20MB sound file; 43:21). Interestingly, she says she wrote the poem when a friend was going through a divorce and it occurred to her that the friend's progress through the divorce resembled Kübler-Ross' five stages of grief.

Kübler-Ross dies.

Elisabeth Kübler-Ross, the path-breaking psychiatrist who wrote On Death and Dying (1969) and whose "fve stages of grief" is taught in every medical school, died Tuesday in Scottsdale at the age of 78. The AP report is here. Kübler-Ross mined a very rich vein of scholarship after her early classic appeared, including such titles as:

• On Life After Death
• Living With Death and Dying
• Life Lessons: Two Experts on Death and Dying Teach Us About the Mysteries of Life and Living
• The Wheel of Life : A Memoir of Living and Dying

In addition to her support for the hospice movement, her writings did more than anyone's to make death and dying a socially acceptable topic for discussion, leading to the advance-directive movement and to the appearance of bestsellers like Sherwin Nuland's How We Die: Reflections on Life's Final Chapter.

Nonprofit hospitals' billing practices examined.

There's a good article by Roger Yu in this morning's Dallas Morning News (requires free subscription) that gets into more of the details of hospitals' billing practices than the USA Today article does. The opening paragraphs tell the story pretty well:

Uninsured and diagnosed with liver cirrhosis, Elaine Sawyer entered the Mayo Clinic in Jacksonville, Fla.

A month later, doctors determined a transplant wouldn't help. She and her husband, Dempsey Sawyer, returned home to McKinney in June with a terminal diagnosis and a hospital bill for $225,000.

Had Mrs. Sawyer, 63, had health coverage, her family might have been responsible for a modest co-payment, and an insurance company would have paid a discounted price – perhaps tens of thousands of dollars less.

"I've talked to some medical people, and they said some of those charges are ridiculous," said Mr. Sawyer, 69, a retired high-tech worker, who borrowed money to pay $190,000 of the bill.

It's not that hard to see how the hospitals got into this situation. First, they have their standard fees - often 3 to 4 times their actual costs. This is the amount that indemnity-type health insurance plans and the uninsured were usually charged. Hardly anyone has an indeminity plan any more: they've been priced beyond the reach of most Americans, for this very reason. Managed care plans exist for basically one reason: to negotiate discounted fees for their insureds. Their rates average about 13 percent above cost (though averages are a bit misleading) and Medicare has legislated itself a sweet deal of 1 percent (on average) above cost.

So who's left paying the full charges? The uninsured. "Paying" may be a misnomer. That's the amount they are billed. Very few pay the full bill and many pay nothing. But that doesn't stop the hospitals from sending bills and trying to collect. As well they should. I believe that, as good stewards of the public's tax subsidy for their operations, nonprofit hospitals have an obligation to take reasonable steps to bill and collect for the services they render.

Is there any relief for the truly indigent? Yes, some. As the article points out:

"It's important to understand that a hospital charges patients the same amount regardless of the type of insurance," said Carmela Coyle, policy analyst with American Hospital Association.

Hospitals in Texas say they can't lower charges for the uninsured because state law prohibits them from knowingly charging more to individuals who have insurance.

The Texas Department of Insurance says this law doesn't apply to Medicare and Medicaid patients or to the "medically indigent."

Patients who qualify for the label "medically indigent" can get a break. All others get the full billed charge, even though a lot of those charges get written off as bad debt after collection efforts have failed.

Nonprofit hospitals in Woe-town (USA Today)

An article in today's USA Today ("Scales tipping against tax-exempt hospitals") provides a laundry-list of legal challenges facing the nonprofit hospital industry. Here's the quick rundown:

•The IRS is looking at salaries paid to executives and officers of 2,000 of the nation's charities and non-profit foundations, which include hospitals. Salaries deemed “excessive” may violate federal law.

•Three congressional committees are investigating non-profit hospitals, looking at how they charge the uninsured, the tactics they use to collect unpaid bills and the amount of charity care they provide. New rules could result. Possibilities include more uniform financial reporting standards and regulations on the size and make-up of hospital boards.

•States and local property tax authorities are renewing their interest in hospital tax exemptions. In Illinois, the Department of Revenue denied the property tax exemption of one hospital, and the status of a second hospital is under review. Similar efforts in the 1990s led some states to require hospitals to report annually on their charitable activities.

•More than 40 class-action lawsuits have been filed since June by a team of high-profile law firms against nearly 400 not-for-profit hospitals. The lawsuits take issue with the way the hospitals treat the bills of the uninsured, saying their tax-exempt status implies that they should be more lenient with the uninsured.

Billing and collections practices are behind a lot of this scrutiny: "'When you start throwing people in jail because they don't show up for a court hearing on their overdue bills, that attracts attention,' says John Colombo, professor of law at the University of Illinois at Urbana-Champaign. 'The question will be: "Why is it we're providing these huge tax subsidies to these organizations?"'"

Bush's health plan doesn't produce claimed results.

And Kerry's will almost undoubtedly cost more -- as much as $300 billion more -- that his campaign's estimate of $653 billion over 10 years. That's what the experts, including those at the nonpartisan Congressional Budget Office, are saying, according to an article in yesterday's Washington Post by Ceci Connelly, whose reporting on the political side of health issues continues to be the best around.

Speaking of the CBO, there's a good article about its new director, who is catching some flak from his former bosses at the White House for publishing studies that don't toe the party line, in today's N.Y. Times.

GPO's receive subpoenas from Dallas' U.S. Attorney.

This is going to be huge.

Novation, one of the largest group purchasing organizations (GPO's) in the country ($20 billion a year in sales), has been served with subpoenas signed by the chief of the criminal division of the U.S. Attorney's office in Dallas, according to an article in Saturday's N.Y. Times. It's part of a much larger investigation into the way medical supplies are purchased, sold to hospitals, and billed to federal health programs like Medicare. Novation is owned by, and sells to, some of the largest and most prestigious nonprofit health care centers in the country, who in turn bill Medicare. Ultimately, the investigation will be looking into the hospitals' billing practices.

Medicare reform hits insurers' opposition.

The biggest reform package to amend Medicare since its inception in 1965 (passed last fall) is famously unpopular with seniors (at least the ones who know the details). It also really hacked off Congressional Democrats and Republicans alike, who have objected to being lied to about the true price of the reforms by the White House (through the DHHS/CMS chief actuary, acting under "orders" (literally a threat) from his boss, CMS chief Tom Scully). Now comes the story in the August 22 N.Y. Times that insurers don't much like it either, because it would require them to insure regionally, rather than locally or on a statewide basis, which most if not all insurers claim is not financially feasible. The insurers, of course, like to insure relatively low-cost insureds, and those are found in greater numbers in the cities. Rural patients cost insurance companies more, and the insurers shun them like the . . . well, you know. Of course, the insurers could raise premiums to cover their increased costs, but that would make them less competitive against other insurance companies who aren't in the Medicare market.

This is one more small example of a nearly universal pattern in American health care. Cream-skimming the insurance market, shifting costs to someone else, jimmying your product or your market so that you avoid high costs and thereby help to ensure hefty operating margins -- all of these techniques, which the federal government applies just as skillfully as the private insurance companies, are designed to get "someone else" to pay for the most expensive health care. The result is patchwork affair that will someday have more holes than fabric. The truth is, there is no free ride in health care. Everything gets paid for by someone, whether it's taxpayers, shareholders, other patients' health plans (and therefore other patients and their employers), consumers whose costs are inflated by the cost of health care, citizens who travel further (and at greater risk) for trauma care because of ER closings, the hospital employees who work longer hours for less pay . . . the costs are covered many different ways, some hidden and some more visible. Many of the ways these costs are covered are bad for everyone's health and drive costs up higher than they otherwise would be.

This is nuts. Who is going to bite the political bullet and propose a realistic plan for covering the actual costs of providing health care to all? Neither Kerry nor Bush has really come up with anything close, though Kerry's health plan would do much more for the uninsured than Bush's (and at a much higher cost). Ironically, the Medicare reform law's requirement of regional insurance plans was probably a step in the right direction, but that isn't the way the insurers, who prefer business as usual, want to compete.

First-ever HIPAA conviction.

I'm not sure we needed HIPAA in order to prosecute the conduct described in this press release, but that's the statute that was used by the US Attorney in Seattle to convict Richard Gibson, who admitted that he "obtained a cancer patient's name, date of birth and social security number while [he] was employed at the Seattle Cancer Care Alliance, and that he disclosed that information to get four credit cards in the patient's name. G[ibson] also admitted that he used several of those cards to rack up more than $9,000 in debt in the patient's name. [He] admitted he used the cards to purchase various items, including video games, home improvement supplies, apparel, jewelry, porcelain figurines, groceries and gasoline for his personal use."

DHHS/Health Information Technology: GAO Briefing

The Government Accountability Office (GAO) has published a good summary of the efforts of the Department of Health and Human Services (DHHS) to promote the development and widespread use of electronic health records and the legal environment in which those efforts are being carried out. The briefing document for the staff of the Senate Committee on Health, Education, Labor, and Pensions is entitled, "HHS’s Efforts to Promote Health Information Technology and Legal Barriers to Its Adoption" [GAO-04-991R, August 13, 2004].

Related Recent GAO Reports:
Health Care: National Strategy Needed to Accelerate the Implementation of Information Technology. GAO-04-947T, July 14, 2004 (12 pages).

Medicaid Waivers: HHS Approvals of Pharmacy Plus Demonstrations Continue to Raise Cost and Oversight Concerns. GAO-04-480, June 30, 2004 (74 pages).

Medicare: CMS Needs Additional Authority to Adequately Oversee Patient Safety in Hospitals. GAO-04-850, July 20, 2004 (50 pages).

Illegal immigrants and emergency care.

As previously mentioned here, CMS has announced its plan to implement a provision of the Medicare reform law that is intended to provide some relief for states hit with high costs for providing emergency medical treatment for undocumented immigrants. As reported today's N.Y. Times, one of the quid's that accompanies the government's quo is a requirement that hospitals inquire into and record the immigration status of their patients. Although Congress claims the inquiry is intended to make sure the money provided to the states (including $48 million to Texas) is paid for care to illegal immigrants, it's not at all clear that this will be the effect of the required inquiry: "Hospital executives and immigrant rights groups said the questioning would deter undocumented immigrants from seeking hospital care when they need it, and some hospitals said compliance might cost them more than they would receive in federal aid."

More on stem cells.

If you thought I was too tough on Tommy Thompson's political news release on stem cells earlier this week (see below), here are some excerpts from George Q. Daley's upcoming article, "Missed Opportunities in Stem-Cell Research," slated for publication in the August 12 issue of the New England Journal of Medicine, and released early through the journal's web site today (may require paid subscription):

• "The President’s policy has severely curtailed opportunities for U.S. scientists to study the cell lines that have since been established, many of which have unique attributes or represent invaluable models of human disease."


• "Some 128 new human embryonic stem-cell lines have been produced worldwide since the President’s announcement. . . . Though the federal government is the principal patron of peer-reviewed biomedical research, U.S. scientists studying these cell lines cannot obtain grant support through the National Institutes of Health (NIH); they must find funding from private foundations or philanthropic sources that seldom provide predictable, long-term support."


• "Although the pre-2001 lines facilitate . . . basic studies, they have limited potential for use in clinical therapies. All were cultured in contact with mouse cells and bovine serum, which renders them inferior to newer lines, derived under pristine conditions, for potential therapeutic applications. Moreover, given the limited genetic diversity of the lines, transplantation of their products would face the same immune barrier as organ transplantation. More important questions can be addressed only by means of the lines modeling specific diseases, and therapies may best be pursued with lines genetically matched to specific patients through somatic-cell nuclear transfer. Such approaches are precluded by current policy."


• The science of human embryonic stem cells is in its infancy, and the current policies threaten to starve the field at a critical stage. The explosive growth of research that followed the isolation of mouse embryonic stem cells in 1981 ushered in a revolution in developmental biology. It will be discouraging if studies of human embryonic stem cells, which have such profound implications for human health, are unable to keep pace.

Stem cells.

In an apparent attempt to close the "stem cell gap" between Democrats and Republicans, skillfully highlighted by Ron Reagan at the DNC Convention in Boston, Secretary of Health and Human Services Tommy Thompson released a statement on the subject today. It's not on the HHS Press Office's web page yet, so here it is in full, with my commentary:

Date: August 8, 2004
For Release: Immediately
Contact: HHS Press
Office
(202) 690-6343

STATEMENT BY HHS SECRETARY TOMMY G. THOMPSON ON PRESIDENT'S EMBRYONIC STEM CELL POLICY

Quotable political soundbite/opening paragraph: Three years ago, President Bush opened the nation's laboratory doors for the first time to federal taxpayer funding for human embryonic stem cell research. The President remains committed to this groundbreaking policy that is advancing medical research into some of our most debilitating diseases. As we look forward to further progress on stem cell research, both embryonic and adult, it is important to keep in mind several important points.

President Bush provided - for the first time - federal funding of embryonic stem cell research. [Technically true, but only because Clinton's funding policy came late in his second term and Bush suspended it soon after taking office. Bush's own policy, announced in August 2001, was considerably more restrictive than Clinton's would have been.] The President's unprecedented decision [if you don't count Clinton's] allows for federal funding of research using existing stem cell lines that were derived before Aug. 9, 2001, with no limits on private funding of research. [Limits on private funding would probably have required a change in federal law, and Bush probably understood that he couldn't get such a law passed in 2001, any more than he could get it today.] The President believes that federal funds should not be used to encourage or support further destruction of human embryos, a principle that has been part of federal law since 1996. [And it's a policy that make almost no sense in the context of stem cells. With IVF clinics storing 10's of thousands, if not 100's of thousands, of frozen embryos that have already been designated for donation to research, or which could be legally donated by the clinics, or that have not been designated for any use and will eventually (despite staying frozen) break down and be useless for any purpose, does it make any sense at all to deny federal funds for research on stem cells derived from these embryos?] The impact of the President's decision was to open the flow of federal research dollars for embryonic stem cells and help accelerate work in this field.

The policy is working. [Sort of, and not nearly as well as it could be.] Under President Bush, federal funding for embryonic stem cell research has grown from zero under previous administrations to $24.8 million in fiscal year 2003 [a drop in the bucket], with no limits on future federal funding of research on eligible lines. [The limits are inherent in the eligible lines themselves, which this statement conveniently fails to acknowledge constitute a fraction of the number of cell lines the president based his policy on.] This investment has supported more than 500 shipments of stem cell lines to researchers around the world who are in the early stages of finding ways stem cells can be used to treat diseases such as neurological disorders, diabetes and heart disease. Additionally, in fiscal year 2003, the National Institutes of Health provided $190.7 million in adult stem cell research, which continues to show exciting promise.

The administration is working to maximize research opportunities within the federal guidelines. The NIH is taking new steps to create a National Embryonic Stem Cell Bank that will provide a ready source of human embryonic stem cells to scientists, ensure consistent quality of the lines and provide other technical support that will make it easier for scientists to use these lines. The NIH is also creating three new Centers of Excellence for Translational Stem Cell Research with the goal of exploiting new discoveries in basic embryonic and stem cell biology.

Let's take advantage of the great opportunity that exists before arguing that more is needed. The President's policy holds tremendous and yet-untapped potential, and there is much work to do. Before anyone can successfully argue that the existing federal stem cell policy needs to be broadened, we must first exhaust the potential of the stem cell lines made available within the policy, as well as the ability of the private sector to go beyond the policy. [Why? We already know the current policy isn't going to get enough stem cell lines into the hands of enough researchers for us to unlock the potential of stem cells anytime soon. Why not unleash that potential now, with a significant increase in the number of cell lines and an increase in the amount of federal funds devoted to this research project?] Keep in mind: More lines are available in the United States than any other country in the world. And while federal funding has paid for more than 500 shipments to researchers to date, more than 3,500 shipments are still available. Unlike many countries, there are no limits in the United States on private stem cell research. One study estimates that 1,000 scientists at more than 30 firms spent $208 million experimenting on embryonic and adult stem cells in 2002 alone.

Quotable political soundbite/closing paragraph: The future is promising. Years of hard work remains to be done before the basic research of today can become viable treatments and cures tomorrow. There is good reason to be optimistic. And this optimism is made possible by the reasoned policy of President Bush. Fair and reasonable people can disagree on this complex and difficult issue. President Bush made a tough decision that invested in the scientific promise of embryonic stem cell research without compromising an important ethical line. Three years later, it is clear that this balanced approach is working. The future is promising with the new research opportunities provided by President Bush's historic decision.

Nonprofit class actions: 1st settlement announced.

Modern Healthcare is reporting that "[s]ix-hospital North Mississippi Health Services, Tupelo, reached an agreement with a Mississippi law firm to provide an estimated $150 million in refunds, debt forgiveness, discounts and free care to about 48,000 eligible uninsured patients. The $150 million would cover the system's obligations under the agreement for the past three years and into the future. The system is the first to address the issue with a group of plaintiffs' attorneys that has filed class-action lawsuits against 40 not-for-profit hospitals and systems covering more than 300 hospitals in 21 states. The lawsuits allege that the hospitals overcharge uninsured patients and are unfair in pursuit of payment."

There may be less here than meets the eye. This system has not yet been sued; it resides in Richard Scruggs' backyard; and it doesn't appear to cost the hospital system any real money that it wasn't already planning to spend:

North Mississippi had not been named in any of the lawsuits. However, the system reached an agreement with attorney Richard Scruggs and the Scruggs Law Firm of Oxford, Miss., because 'there are several community issues we need to be addressing,' North Mississippi's chief executive officer, John Heer, said in a system news release. A lawsuit would be distracting, and the proposed discounts were similar to North Mississippi's current policy, Heer said.

In a national teleconference, Scruggs said the attorneys group has approached several not-for-profit hospitals that have not yet been sued about reaching an agreement. Scruggs praised North Mississippi and called its agreement with the firm 'a very compelling template for the other hospitals and the American Hospital Association.' Under the agreement, which is awaiting approval by a federal judge, North Mississippi will not charge eligible uninsured patients more than 10% of their annual income. It also will provide free care, prospectively and retrospectively, to uninsured patients earning up to 200% of the federal poverty level and for uninsured patients earning more, it will establish a sliding fee scale based on Medicare rates. Scruggs said the system can ask the federal judge in U.S. District Court, Aberdeen, Miss., to revise the agreement if the terms prove too costly.

The teleconference/news conference can be downloaded here (follow links to main litigation page).

Abortion and deceptive trade practices.

It's a somewhat unusual combination, but a federal judge in New Orleans enjoined a local man from a variety of deceptive trade practices all intended to interfere with the abortion rights of women (see AP newswire story, courtesy of the Boston Globe). According to the news story:

US District Judge Stanwood Duval granted a preliminary injunction against William A. Graham, who was accused of listing the business phone of his Causeway Center for Women under ''Abortion Services" and making misleading statements aimed at delaying women until it was too late to get legal abortions. . . .

The lawsuit accused Graham of pretending to refer women to abortion providers at bargain prices, then telling them their appointments had been postponed. Louisiana law allows abortions only during the first 24 weeks of pregnancy.

One plaintiff said Graham told her that if an abortion were ''performed too early, it could be harmful to her health," according to the lawsuit.

Elizabeth Nette of Metairie, La., said Graham deterred her 19-year-old daughter, Mary Schloegel, from getting an abortion.

Nette contacted Graham in January. Graham told her he would set up appointments at a local hospital, but delayed them for six weeks, Nette said.

Schloegel is now eight months pregnant and will have the baby.

As unconscionable as Graham's conduct is (regardless of one's views of abortion), his comment was, ''I still don't see that we've done anything wrong." Clueless.

Indigent care woes.

The Milwaukee Journal-Sentinel has an article in today's paper about cutbacks by Aurora Sinai, a downtown hospital that serves a mostly poor patient population. Bottom line: Sinai isn't making enough money on Medicare and Medicaid patients to offset losses incurred from treating poor patients whose care is paid for by the county's general assistance medical program ("GAMP"). Following back-to-back losses of $24 million last year and $14 million projected for this year -- "[e]ven with staff cutbacks, clinic and ward closures and tougher restrictions on care in Sinai's emergency department" -- the hospital is encouraging its physicians to see fewer GAMP patients, which it hopes will translate into fewer GAMP admissions. A hospital spokesman said, "We are cutting back generally on the population that hurts us the most."

This, of course, is going down like chopped hay in local circles. First, there is the criticism that a tax-exempt hospital darned well ought to be able to provide charity care, which resonates with lawmakers on Capitol Hill, who are holding hearings in the House and the Senate on this topic, and is part and parcel of the 31 class-action lawsuits filed this summer against tax-exempt hospitals all over the country. Logically, however, there is nothing about tax-exempt status that precludes crippling financial losses. Put otherwise, is there any reason to believe that a hospital's tax savings are necessarily sufficient to pay for all the uncompensated care some hospitals are geographically and demographically situated to provide?

Then there's the criticism that at the same time Sinai is cutting back on services to GAMP patients it is seeking governmental approvals to build an $85 million 88-bed suburban hospital 3 miles from an existing facility. Of course, excess net operating revenues from the new hospital could offset operating losses at the downtown hospital and allow Sinai to see more GAMP patients, but critics of tax-exempt hospitals often miss the point that you sometimes have to spend money to make money, even in the nonprofit health sector.

For Dallas County residents, this all sounds dizzyingly familiar, right down to the County Commissioners' criticism of Parkland Hospital's plan to building an out-patient surgery center at the corner of Harry Hines and Motor Street. Aurora Sinai's statement that it want "to reinvent itself as a downtown destination hospital. We want a healthy mix of commercial and neighborhood patients" could have been taken from a page out of Parkland's playbook.

The article concludes with some insightful comments:

"[T]he even bigger issue here is that our health care system is broken, and relying on charity care is a weak patch to put on the system. We need political leadership in Milwaukee County and in this state to overhaul our health care system," said [Darcy Haber, health care campaign director of Wisconsin Citizen Action, a consumer advocacy group].

Aurora Sinai's downtown location is the reason it serves so many poor people, said John Whitcomb, director of Sinai's ER department.

"We are the last ones standing downtown. Someone please help us," he said. "The real villain here is an inadequate health care system."

Many hospital admissions are the result of poor patients not receiving primary care, said Bevan Baker, Milwaukee health commissioner. As they get sicker with conditions that could be managed in a primary care setting, they require expensive hospitalization, he said.

"The solutions are not wrapped around Aurora but around an understanding that care should be assessed through the primary care route," Baker said.

Reproductive rights update.

There are two items of note in today's news roundup:

• The Department of Justice has appealed their trial-court loss in San Francisco in which the district court declared the 2003 federal ban on late-term abortions unconstitutional; you can read the San Francisco Chronicle story here. Considering the unbroken string of losses they have suffered on this statute, which blatantly and baldly fails to include an exception to protect the health of the mother (as required by the Supreme Court in Stenberg), you have to wonder: Is this issue about anything other than staying in touch with the Republicans' conservative base and giving the president a debating point between now and November?
• Planned Parenthood (which is a plaintiff in the San Francisco litigation) has joined with the ACLU in a suit to take a parental-notification provision off the November 2 ballot; you can read the Tallahassee Democrat article here. The plaintiffs claim that the wording of the ballot item deceptively claims that it increases privacy protections: "'What it fails to tell voters is that it will reverse Florida Supreme Court decisions and take away the privacy rights guaranteed by the Florida constitution,' said ACLU attorney Randall Marshall." The ACLU's press release on the suit is here.

Uncompensated care and undocumented immigrants.

Two developments in the past couple of weeks provide enduring lessons in the politics of health care for undocumented immigrants.

On July 22 the Texas Attorney General issued Opinion No. GA-0219 to answer the question whether section 285.201 of the Health and Safety Code requires a hospital district to provide nonemergency public health services to undocumented persons who are otherwise ineligible for those benefits under federal law.

Background: In 2001, the Texas Attorney General told the Harris County Hospital District that federal law prohibited the district from providing free or discounted nonemergency health care to undocumented persons. Tex. Att'y Gen. Op. No. JC-0394 (2001). The Attorney General relied on the Federal Personal Responsibility and Work Opportunity Reconciliation Act ("PRWORA"), 8 U.S.C. §§ 1601-41 (2002), which provided that "undocumented or illegal aliens are ineligible for state and local public assistance, subject to specific exceptions." The Attorney General further observed that federal statute "preempts contrary state laws and renders illegal the state and local programs that provide public benefits to aliens contrary to its terms." The opinion concluded that, under the present state of Texas law, the federal statute prohibited the Harris County Hospital District. The opinion also noted, however, that the PRWORA contains an exception authorizing states to provide additional public benefits to undocumented persons. 8 U.S.C. § 1621(d) (2002).

That is precisely what the 78th Legislature did in 2003 when it added Tex. Health & Safety Code Ann. § 285.201 (Vernon Supp. 2004):

As authorized by 8 U.S.C. Section 1621(d), this chapter affirmatively establishes eligibility for a person who would otherwise be ineligible under 8 U.S.C. Section 1621(a), provided that only local funds are utilized for the provision of nonemergency public health benefits. A person is not considered a resident of a governmental entity or hospital district if the person attempted to establish residence solely to obtain health care assistance.

(emphasis added)

The question posed to the AG focused on the word "eligibility" and asked whether this provision requires a hospital district to furnish nonemergency public health benefits to undocumented persons, or, on the other hand, whether it merely permits a hospital district to do so.

Based upon the AG's reading of various dictionary definitions of "eligibility," as well as Texas caselaw, see Foreman v. Security Insurance Co. of Hartford, 15 S.W.3d 214 (Tex. App.-Texarkana 2000, no pet.) (requires WestLaw subscription), and legislative history, the AG concluded that "eligible," as used in this statute, means something less than "entitled," and therefore hospital districts are permitted but not required to provide nonemergency public health benefits to undocumented persons. This is bad news for undocumented immigrants, who can be turned away from hospitals with impunity unless they have an emergency condition, and it's bad news for the hospitals, which are faced with the Hobson's choice of admitting patients for treatment before their condition becomes life-threatening or waiting until the patients come to the hospitals' emergency departments hours, days, or weeks later with emergency medical conditions and the legal right to receive (more expensive) medical treatment. Of course, Texas (like most states) has never suggested how the care for these patients should be paid for.

Also on July 22, CMS announced a plan to implement a plan for hospitals and other providers to recoup $250 million a year for the next 4 years against the cost of providing unreimbursed health care services to undocument immigrants in emergency rooms. The plan can be read here. The plan would implement a provision in the Medicare reform act sets aside $1 billion over 4 years and requires CMS to have a plan in place by September 1. Comment: The amount that's been appropriated is a drop in the bucket, and it ignores the even more substantial costs of in-patient care for those emergency-department patients who have to be admitted in order to be stabilized as required by the Emergency Medical Treatment and Labor Act (EMTALA). But it's a start, and more of a start than we are seeing from the Lone Star State.

Maternal-fetal conflict, Texas style.

As reported in an article by Mary Alice Robbins in the Aug. 2 issue of Texas Lawyer, the Potter County DA is prosecuting a woman whose newborn tested positive for cocaine. The woman is charges with a violation of the Controlled Substances Act, Health & Safety Code § 481.122, which provides:

(a) A person commits an offense if the person knowingly delivers a controlled substance listed in Penalty Group 1, 1-A, 2, or 3 or knowingly delivers marihuana and the person delivers the controlled substance or marihuana to a person:
(1) who is a child . . . .
(c) An offense under this section is a felony of the second degree.
(d) In this section, "child" means a person younger than 18 years of age. . . .

It would be a stretch to apply this section to a pregnant woman who ingests cocaine and thereby "delivers" the controlled substance to her fetus, except for the fact that the 78th Texas Legislature passed S.B. 319 in 2003, which amended the definition of "person" in the Texas wrongful death statute and the Penal Code to include "an unborn child at every stage of gestation from fertilization until birth." The Legislature was careful, in amending both statutes, to make it clear that the new definition does not apply if the harm to the fetus is the result of conduct by the mother.

What am I missing here? First, the Legislature did not amend the Controlled Substances Act's definition of "child" to include an unborn child. So the amendments to the Wrongful Death Statute and Penal Code should be beside the point.

Second, with respect to the only Penal Code provisions that could conceivably apply to the alleged conduct (in addition to the Controlled Substances Act in the Health & Safety Code) -- which would include assault, endangering a child, and deadly conduct -- the Legislature made it clear that the new definition does not apply when the dangerous or harmful conduct is the mother's.

So if the 2003 change to the definition of "individual" doesn't apply, and the Legislature did nothing that would expand upon the class of protected persons in H&S Code § 481.122, this prosecution comes down to the now widely rejected theory that a woman can unlawfully "deliver" a controlled substance to a fetus prenatally. As terrible as it is for a woman to take cocaine while pregnant, there are plenty of good policy arguments against prosecuting a woman who does.

For health care providers, however, the Potter County DA's interpretation of the Controlled Substances Act is an ominous one. Reportable child abuse under chapter 261 of the Texas Family Code includes the following:

(I) the current use by a person of a controlled substance as defined by Chapter 481, Health and Safety Code, in a manner or to the extent that the use results in physical, mental, or emotional injury to a child; [or]
(J) causing, expressly permitting, or encouraging a child to use a controlled substance as defined by Chapter 481, Health and Safety Code.

It also includes

(B) causing or permitting the child to be in a situation in which the child sustains a mental or emotional injury that results in an observable and material impairment in the child's growth, development, or psychological functioning; [or]
(C) physical injury that results in substantial harm to the child, or the genuine threat of substantial harm from physical injury to the child, including an injury that is at variance with the history or explanation given and excluding an accident or reasonable discipline by a parent, guardian, or managing or possessory conservator that does not expose the child to a substantial risk of harm.

If any of these forms of abuse can be directed at an "unborn child," then physicians, nurses, and others who know the child tested positive for cocaine at birth have an obligation to inform Child Protective Services or local or state law enforcement authorities (Family Code § 103). This is a drastic expansion of current legal duties and would appear to fly in the face of the Supreme Court's 2001 decision in Ferguson v. City of Charleston.

I repeat: What am I missing?