Practical Strategies for Healthcare Providers to Limit Claims Involving Alleged Contraction of COVID-19 on Premises (Haynes and Boone Newsletter)

Haynes and Boone's recent newsletter on limiting COVID-19-related liability is a gold mine of practical analysis and advice. It is also a virtual roadmap of issues that I've covered in my first-year Torts class: negligence (esp. duty and causation), negligence per se, premises liability, medical malpractice, immunity statutes, express waivers of liability, and best practices for avoiding a direct corporate negligence claim, not to mention topics I couldn't get to in a four-hour course (including fraud and public nuisance).

Care at the End of Life

The New England Journal of Medicine just published an incredibly insightful and moving Perspective piece, "Learning About End-of-Life Care from Grandpa," by Scott Halpern.  https://www.nejm.org/doi/full/10.1056/NEJMp2026629?query=TOC (Oct. 21, 2020). It's about physician aid-in-dying and voluntarily stopping eating and drinking (VSED) and hospice and family and home. I can't recommend it strongly enough. Oh, and it's free.

As reported by the Fort Worth Star-Telegram, the Texas Supreme Court on Friday declined to review the order of the Second Court of Appeals (Fort Worth) in the Tinslee Lewis case. This keeps in place the court of appeals's order that requires Cook Children's Hospital to continue aggressive life support for the one-year-old pending a full trial on the merits of her mother's suit against the hospital. As Thad Pope points out, this case challenges the constitutionality of § 166.046 of the Texas Health & Safety Code, our so-called "futility provision" of the Texas Advance Directives Act. 

The briefs for and against the lower court's ruling, which -- though not disposing of the constitutionality question -- gave a very strong indication of its inclination to strike down the law, are here. It probably goes without saying, as someone who worked (with many others, including National Right Life and Texas Right to Life, before they changed their mind about the law) to draft this law more than 20 years ago, that I am persuaded by the briefs that argue to uphold the law, which passed both houses of the state legislature without a single nay vote.

Nicholas Kristof: On the Right Side of History

Kristof's column in today's N.Y. Times is well worth a read. He's probably right that the Court, with or without Amy Coney Barrett on it, is unlikely to snatch the ACA away from 20 million people who are insured because of the law. It's a life-line for millions:

Census data show that even before the Covid-19 pandemic the number of uninsured Americans had risen by 2.3 million under Trump — and another 2.9 million have lost insurance since the pandemic hit. Most troubling of all, about one million children have lost insurance under Trump over all, according to a new Georgetown study.

The argument against the ACA is so weak (despite persuading the trial judge and a majority of the 5th Circuit panel that have ruled against the ACA), "only a lawyer could make it with a straight face," wrote Ruth Marcus in the Washington Post earlier this week. (Been there, said that here, here, and here.)

Public-Health Experts Agree (More or Less): Covid Shutdowns Aren’t the Way to Go

Not, at least, for the looming “second wave.” Over the past week or two, articles have been popping up left and right with this message. Now the Wall Street Journal has published a good summary (10/13/2920) of the arguments pro and con. The emerging consensus is that many people are worn down by the earlier shutdowns and aren’t likely to comply with another round of broad closings. On that assumption, public-health experts claim it is preferable to push a less drastic (and more traditional) regime that takes less effort to follow and is less disruptive of daily living:

• mask
• wash hands and avoid touching your face
• observe social distancing (now thought to be 9', not 6')
• avoid large groups, particularly indoors.

Questions for Judge Amy Coney Barrett

Over at The Commonwealth Fund, health-law prof and ACA expert extraordinaire Tim Jost properly focuses not on whether CJ Roberts got it right when he upheld the individual mandate as a proper exercise of Congress's powers under the Taxing Clause of the Constitution (Judge Barrett has argued that he did not) or when he upheld access to ACA premium tax credits for individuals enrolled in insurance plans through the federal exchange (ditto). 

The issues presently before the Court in California v. Texas are (1) whether the individual mandate is unconstitutional now that Congress has zeroed out the tax penalty in the 2018 tax reform bill and, if so, (2) whether the individual mandate provision is severable from the rest of the ACA. The district court (N.D. Tx., Fort Worth Div.) and the Fifth Circuit both answered (1) yes and (2) no, meaning the whole ACA has to be thrown out. Texas v. California, which has been consolidated with California v. Texas, raises a third issue: Whether the individual and state plaintiffs in this case have established Article III standing to challenge the ACA's individual mandate. In the unlikely event that Judge Barrett isn't confirmed before the Court decides these cases, the standing issue could conceivably give a Court split 4-4 on the first two questions a way out. Lack of Article III standing requires dismissal of the case at the district court level, effectively nullifying the two lower-court decisions.

As Tim Jost writes, 

Though she could be asked about standing or the mandate’s constitutionality, questions for Judge Barrett should mainly focus on severability: How much, if any, of the ACA should be invalidated if the mandate is found unconstitutional? (It does not matter much if the unenforceable mandate is invalidated if the rest of the ACA remains in place.) Would she disturb the Court’s long-standing presumption of severability? Cases recently decided by the Court with majority opinions written by Chief Justice Roberts and Justice Kavanaugh reinforce the presumption that if a provision of a statute is found unconstitutional, as much of the rest of the statute as possible should be found severable and preserved. She should be asked if she agrees with this doctrine.

Severability goes to the heart of these two cases. It is nearly inconceivable that she would tip her hand on this issue during the hearings. Democrats will fume and threaten not to vote to confirm, but most of them weren't going to vote for her confirmation anyway, and Mitch McC has enough Republican votes lined up to confirm the judge without the Dems.

78% of Americans Believe Abortion Should be Legal "To Some Extent": Gallup Poll

For decades it seemed the numbers followed the "rules of 3's": 1/3 believed abortion should be legal, period; 1/3 believed it should be illegal, period; and 1/3 believed it should be legal under some circumstances, so a 2:1 ratio favoring legalization of abortion.

A Gallup poll released September 29 has revised numbers:

According to Gallup's May 2020 update on Americans' abortion views, 29% believe abortion should be legal "under any circumstances," 14% say it should be legal "under most circumstances" and 35% say it should be legal "only in a few circumstances." Meanwhile, 20% say it should be illegal in all circumstances.

That is a nearly 20% increase in support, to some degree or another, for legalized access to abortion. Roe v. Wade continues to be a lightning rod unto itself, garnering only 64% support (May 2018).

Wall Street Journal: More Superb Reporting on The COVID Storm

Catching up with the most recent installments in the WSJ's excellent series, "The Covid Storm."

• "Why Did Covid Overwhelm Hospitals? A Yearslong Drive for Efficiency" (9/17/2020)
• "How South Korea Successfully Managed Coronavirus" (9/25/2020)
• "In a Year of Bad Days, This Was One of the Worst" (9/25/2020)
• "Why Hospitals Can’t Handle Covid Surges: They’re Flying Blind" (9/30/2020)
• "The U.S. Economy Was Laden With Debt Before Covid. That’s Bad News for a Recovery" (10/1/2020)
• "How New Jersey Nursing Home Suffered One of America's Deadliest Outbreaks" (10/6/2020)
• "Coronavirus Hit the U.S. Long Before We Knew" (10/8/2020)

For links to previous installments, search for "storm" in the right-hand nav bar.

Overturning the ACA Would Kick 12 Million Newly Enrolled Individuals Out of Medicaid: Kaiser Family Foundation Policy Paper

The ACA permitted states to expand eligibility for Medicaid enrollment to 128% of the federal poverty line. Twelve million people enrolled after their state took the federal government up on their offer to sweeten the deal by paying for 90% of the additional cost of covering these new enrollees (and even more that 90% in the early years). 

The ACA is currently being challenged in the Supreme Court, with oral arguments scheduled Nov. 10, one week after national election day. The Kaiser Family Foundation's policy paper explains that if the Supreme Court affirms the Fifth Circuit's decision and tosses out the entire ACA (on the basis of a specious severability argument), the result will be the rescission of federal permission to expand eligibility and the unavailability of federal funds to subsidize each state's expansion. (So far, 39 states have accepted the federal offer. Texas, with the most uninsured and highest uninsured rate in the country, has not.)

The result of overturning the ACA will be a Hobson's choice for expansion states: Either cut back the eligibility cutoff to the pre-ACA level: "income eligibility limits for parents were very low—typically just 64% of poverty, equating to less than $14,000 a year for a family of three in current dollars." Most states cannot self-fund the expansion, especially in light of the COVID-19-era hit to their budgets (on both the revenue and expenditure sides).

Add this effect to the loss of the ACA's broad range of insurance underwriting reforms --protection for patients with pre-existing conditions, the ability to keep a child on her parents' health insurance plan up to age 26, abolition of life-time and annual caps on coverage, elimination of the ability to rescind a policy simply because the insured has started submitting claims, etc. -- and the devastation will be all too real for tens of millions of Americans. 

Political Interference with FDA and COVID-19 Vaccine

The New York Times reports that the White House chief of staff and other "[t]op White House officials are blocking strict new federal guidelines for the emergency release of a coronavirus vaccine, objecting to a provision that would almost certainly guarantee that no vaccine could be authorized before the election on Nov. 3, according to people familiar with the approval process."

This is part and parcel of this administration's on-going politicization of public-health processes designed to promote the greatest good for the greatest number while minimizing harms to others. Put otherwise, the FDA's mandate is to regulate medical devices, drugs, and biologics (including vaccines) to promote their safety and efficacy. It's a balancing act, to be sure, but it's one that needs to be guided by evidence, not electoral politics. Shouldn't that be clear? Why isn't that clear to the White House's "top officials"? And where's the outrage? Are we (and by "we," I mean not only our political class but the rest of us as well) so inured to the utter predictability of this sort of dangerousness that we simply accept it as par for the course?

If they are successful, these "top officials" are going to expose the nation to the unnecessary risk of a vaccine that is not ready for prime time. And, sadly, it also negates the efforts of the tens of thousands of volunteers who have voluntarily taken on the risks of participation in clinical trials.

POSTSCRIPT: 6:00PM CDT

FROM THE NEW YORK TIMES:

BREAKING NEWS

The F.D.A. released stricter coronavirus vaccine guidelines that the White House had blocked. They make a vaccine by Election Day highly unlikely.

The new guidelines recommend gathering extra data about the safety of vaccines in the final stage of clinical trials, a step that would take time and make it highly unlikely that a vaccine could be authorized before Election Day, Nov. 3.

Common sense and decency prevail! 

Senate Report on Health Inequities and COVID-19

It's a report from the Democratic staff of the Senate Health, Education, Labor, and Pensions Committee: "COVID-19 & ACHIEVING HEAL TH EQUITY: Congressional Action Is Necessary To Address Racism And Inequality In The U.S. Health Care System" (Sept. 2020).

From the summary:

COVID-19 has had a disproportionate impact on Black people across urban, suburban, and rural communities. As of September 2020, Black people were nearly 3.5 times as likely to die from COVID-19 as white people when age is accounted for.

Latinx people have experienced some of the highest rates of infection from COVID-19 in the country. As of June 2020, counties where more than a quarter of the population is Latino saw infection rates increasing at higher rates than in counties with smaller Latino populations, and as of July 2020, the infection rate among Hispanic patients was more than three times the rate among white patients. Over the same time period, Hispanic patients were hospitalized at a rate that was more than four times higher than white patients, and COVID-19 accounted for approximately one in five deaths among Hispanic people.

Data are not consistently available from states for other minority groups, but what is known supports similar conclusions about the risk of serious COVID-related complications and death among Asians, Native Americans, and LGBTQIA+ individuals.

Contributing factors include underlying health conditions, a lack of adequate insurance, increased likelihood of exposure to COVID-19 at work, mistrust of the health care system based upon a history of racial bias and exploitation, present-day explicit and implicit bias in the health care system, underrepresentation of physicians of color, bias in medical research and pharmaceutical clinical trials, limited access of patients of color to high-quality medical care, and a long list of social determinants of health that have disproportionately disadvantaged persons of color.

This is an important report, and not only for the fifteen pages of endnotes. The report ends with thirty recommendations for congressional action. Ask your representative or senator if they've read the report. We all should. 

Leave it to Trump to Say the Exact Wrong Thing

  

President Trump announced his intention to leave Walter Reed at 6:30 this evening. Okay, it is not the standard of care, but it's common for VIPs to get inferior care because no one wants to tell them "no." But did he have to tweet this utterly inappropriate message?

"Don't be afraid of Covid"? Mr. President, 209,000 of your fellow citizens have died of this disease since January. And, according to an infectious-disease doctor at NYU who is quoted in the NY Times, there's a very real chance the president's medications have induced a false sense of euphoria and well-being:

“I think it would be disastrous to be in a situation where he gets really sick at the White House, and you’re having to emergency transfer him,” said Dr. Céline Gounder, a clinical assistant professor of medicine and infectious diseases at the N.Y.U. Grossman School of Medicine, who has been caring for Covid-19 patients. “To me, it’s not safe.”

Dr. Gounder also noted that dexamethasone can cause a sense of euphoria. Mr. Trump said in his tweet that he feels better than he has in 20 years.

“A lot of people will just feel really great. If you had any aches and pains, they will disappear. If you had a fever, that will disappear,” she said. “People can become somewhat manic, grandiose.” 

The Opposite of How Public Health is Supposed to Work

The staff of the Congressional Select Committee on the Coronavirus Crisis has issued a report on The Trump Administration's Pattern of Political Interference in the Nation's Coronavirus Response (10/2/2020). Coming from a committee with a majority of members of the Democratic caucus one month before the national election -- and with a title like that -- the political implications (and motivation) are hard to avoid. But . . . 

The public-health lesson should be clear to all. The administration -- at least within the White House -- has treated the pandemic like a political problem to be managed. And the political interference with public-health authorities has made COVID-19 far worse that it needed to be. 

Public health is a fragile enterprise. It always involves some interference in the lives and liberty of individuals, whether by encouragement or legal mandate. Widespread compliance requires understanding and trust. Mixed messages and blatant political manipulation of public-health authorities and the information they must convey undermine both public understanding and trust. It's as simple as that.

NY Times Op-Ed: Maybe Roe v. Wade Isn't Worth Fighting For Anymore

UC-Hastings law professor Joan Williams writes in today's NY Times ("The Case for Accepting Defeat on Roe," 9/29/2020) one of the best summaries of where the current abortion jurisprudence stands in 2020 and argues that reproductive-rights advocates may fare better with state legislatures than they have in the courts:

It’s true that abortion access is already abysmal. . . . Nearly 60 percent [of women seeking abortions] have already had one child and nearly half live below the poverty level; some fear they’ll be fired if they take time off, particularly if they need to make two trips, as they must in the 26 states with mandatory waiting periods.

The argument that the left has already lost the abortion fight reflects the fact that there’s no abortion clinic in 90 percent of American counties. This is the result of the highly successful death-by-a-thousand-cuts anti-abortion strategy, which has piled on restriction after restriction to make abortion inaccessible to as many American women as possible.

Prof. Williams isn't ready to give up on the fight to preserve Roe, though every year it seems to protect less and less of a woman's right to choose. She cites Justice Ginsburg's critique of Roe as support for a legislative strategy going forward:

So what should we do now? Often forgotten is that R.B.G. herself had decided that Roe was a mistake. In 1992, she gave a lecture musing that the country might be better off if the Supreme Court had written a narrower decision and opened up a “dialogue” with state legislatures, which were trending “toward liberalization of abortion statutes” (to quote the Roe court). Roe “halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue,” Justice Ginsburg argued. In the process, “a well-organized and vocal right-to-life movement rallied and succeeded, for a considerable time, in turning the legislative tide in the opposite direction.” 

There's more to read and learn from Prof. Williams's insightful op-ed. I recommend it. 

KFF Report on Trump's Health Care Record

We can expect health care (and HC reform) to be a major policy focus of the fall presidential campaign. The president's record is long and complex, including (quoting a press blurb from the nonpartisan Kaiser Family Foundation):

his response to the COVID-19 pandemic, his early and ongoing efforts to repeal and replace the Affordable Care Act (ACA), his annual budget proposals to curb spending on Medicare and Medicaid, his executive orders and other proposals to lower prescription drug prices, and his initiative on hospital price transparency.

This is from an issue brief published by KFF  -- "President Trump's Record on Health Care" -- with all the details. It is the fairest and most comprehensive summary I've seen. 

The Case for the Saliva-Based Antibody Test, Rather than PCR Test, to Reopen Society Safely

Co-authors A. David Paltiel & Rochelle P. Walensky write in today's Health Affairs blog that we shouldn't be put off by the 30% false-negative rate of antigen testing (as compared to the PCR test, which is great at identifying the virus (sensitivity) but has a relatively high rate of specificity (it can be fooled into giving a positive result long after the virus has left the individual, and therefore long after the individual has ceased to be infectious). The key distinction pressed by the authors is "infection" vs. "infectiousness." Their claim is that the antigen test is pretty lousy as a test for the presence of the virus but actually quite good as a test for infectiousness. It's a pretty persuasive case for the rapid-return, inexpensive test, which has been touted by some, as well criticized by others. 

The authors state that the FDA has been slow to approve these tests. As far as I can tell from the FDA's "COVID-19 Emergency Use Authorization" page, that's true. The authors argue that the time has come to ask the FDA why it isn't moving faster on an EUA for this technology.

The Latest from The Atlantic's Ed Yong on Where We Are Headed with COVID-19

Yong is quite possibly the best journalist covering the pandemic beat -- knowledgeable about the science, perceptive in spotting trends. His latest article in The Atlantic (9/8/20) is a good example. It's also borderline apocalyptic: "America Is Trapped in a Pandemic Spiral." Did I say "borderline"? I meant "downright apocalyptic." Here's the article's subtitle: "As the U.S. heads toward the winter, the country is going round in circles, making the same conceptual errors that have plagued it since spring." 

If you want to read all of Yong's reporting (and by others on its staff) on the pandemic, The Atlantic has made all of its articles free at this link.

A Look at the Top-Down Management of the Coronavirus by Gov. Cuomo: WSJ's Series

The latest in the Wall Street Journal's series, "The COVID Storm," is critical of Governor Cuomo's insistence on controlling the shut-down and reopening of New York City, one of the hardest-hit cities in the United States. The article argues that the death toll didn't need to be as high as it was, if local authorities had been left to manage the crisis on their own.

$10,984 for a COVID-19 Antibody Test? Yes.

This is like one of those kid's puzzles -- Can You Spot the Errors in This Picture? -- with upside-down swings hanging up from tree branches and a man wearing unmatched socks. As reported by ProPublica, a part-time ER medical director walks into his employer's stand-along emergicare center to get a COVID-19 antibody test. There's no serious attempt to take a history and no physical exam, just a blood draw and results 30 minutes later.

The charge (100% of which was paid by the doctor's insurance company, a subsidiary of health insurance behemoth UnitedHealthcare): $10,984: $2,100 for the physician portion and $8,884 for the facility fee.

1. The facility advertises the price of an antibody test on its website: $75.

2. The insurer never blinked before paying the charges in full. 

3. The parent company of the insurer cleared $6.6 billion in net earnings in the second quarter of 2020. An $11,000 bill -- whether sent in error or because of a policy of price gouging -- may amount to a rounding error for the insurer's first hour of operations at the beginning of each quarter and just not worth the hassle to question the provider.

4. It's not as if UnitedHealthcare or its sub ends up footing the bill for these charges. They are paid by all of UHC's policyholders.

I am partial to Medicare opt-in for all in the hope that it will provide a reality check for providers and private insurers, whose business model is making lots of people rich off the most expensive system of health care in the world. According to the ProPublica article: "Medicare lists its payment at $42.13 for COVID-19 antibody tests." That's a reality check!

The ER doctor/patient responded to this episode with a letter of resignation: "I have decided I can no longer ethically provide Medical directorship services to the company . . . . If not outright fraudulent, these charges are at least exorbitant and seek to take advantage of payers in the midst of the COVID19 pandemic."

"‘Really Diabolical’: Inside the Coronavirus That Outsmarted Science": Latest in WSJ Series

Another good installment in the WSJ series, "The COVID Storm" (9/7/20). Here are the opening few paragraphs:

The new coronavirus is a killer with a crowbar, breaking and entering human cells with impunity. It hitchhikes across continents carried on coughs and careless hands, driven by its own urgent necessity to survive.

It has a gregarious side that makes it hard to resist. It loves a party. The persistent social climber claims its victims around the world by riding on moments of the most innocent of human interactions—a shared laugh, a conversation, an embrace. And it is a liar. SARS-CoV-2, which causes Covid-19, often misleads the body’s immune systems.

Taken on its own terms, SARS-CoV-2 is the infectious disease success of the past 100 years.