Nurse Love from the NYT.

The New York Times is all about nurses today!

In this “Fixes” piece on “The Power of Nursing,” David Bornstein talks about the Nurse Family Partnership (where nurses make home visits to families beginning early in a mother’s pregnancy and continuing until the child is 2) and its great successes in improving health and preventing all kinds of troubles — including criminality later in life for the kiddos. Perhaps the most interesting thing he notes? It doesn’t work if someone who isn’t a nurse makes the same kind of visits.

Lawyer’s favorite part:

What’s special about nurses? For one thing, trust. In public opinion polls, nurses are consistently rated as the most honest and ethical professionals by a large margin.


That’s definitely not, er, something people say about lawyers. 


DSM-V: What’s at Stake?

The American Psychiatric Association is scheduled to publish its next edition of the massive manual of psychiatric disorders next year. Some changes were made at their Annual Meeting last week. Allen Frances has expressed some concerns in a New York Times op-ed.

A few reasons why we care what the APA says is a mental disorder:

It can influence what types of medications and treatments insurance companies will cover.

It can influence what doctors decide to do with any given patient.

It can influence how the law treats different kinds of problems. (One reason for throwing out a suit that alleged a video game maker was liable for ruining the life of a gamer who got addicted to playing it? Video game addiction is not a recognized diagnosis.)

It can affect how responsible people are considered for their actions. (And while having a diagnosis doesn’t qualify you for the insanity defense, it can act as a mitigating factor in sentencing.)

Not to mention the softer factors of telling people they have a disease or mental illness — when that’s debatable.

There are plenty more consequences — please chime in in the comments if you have thoughts!

On Lawyer’s iPod

Ok, I’m about 6 months behind on Radiolab episodes. But on my morning run I listened to Patient Zero, a typically fascinating hour of exploration of tracing diseases back to their origins.

We got Typhoid Mary. And an in-depth look at where AIDS came from (patient zero, chimp zero, and monkey zero.)

Buried in there are some fascinating legal issues, which I hope we can discuss in depth in the future.

But just consider…

When can the government imprison an innocent, but contagious, person? Does it matter if she definitely knows she is infecting people but refuses to take precautions?

Can you go to jail for giving someone AIDS? If you do it on purpose?

Should the government be able to trace your phone records to try to piece together patterns about the spread of disease? (imagine agents showing up to ask questions at the home of someone who has just made a bunch of calls to a health provider…)

Definitely worth a listen!

zzzWhat? Huh? Oh, hi!

So, about the air traffic controllers, ray lahood, and sleeping on the job?

NPR had a blog post about this which hits some good points.
Nurse: as a former (and hopefully never again) night-shift worker, this is near and dear to my heart! Studies on nurses (and others) have shown that a brief nap can increase alertness significantly, yet the transportation department secretrary says basically that air traffic controllers can nap on the job over his dead body!  As this post above points out, smoking, eating, pooping = ok, but scheduled napping = not ok?  couldn’t they actually be causing danger with this inflexibility? i don’t know how this stuff is regulated, but it seems. . . bad.
Lawyer: OSHA could probably institute rules about required nap periods available for overnight workers, and if they can’t, Congress could give them the power to. The more data we can give them, the better.
In terms of lawsuits, I imagine it would have to be abundantly clear and unavoidable that the employer knew its policies were putting passengers (patients, etc.) at risk, and willfully ignored the danger, to get anywhere at all. So more studies, more articles, more publicity.

Nurse: we’re talking not only the health of workers, but the safety of the peopel who are depending on them– in this case, passengers, in my case, patients. these are not low-stakes jobs, people! we’re not just talking about the night watchman at sears here!
let’s get ray lahood to work overnight shifts for the next two weeks and stay awake the whole time. . . . who’s with me?

Arizona strikes again.

Lawyer says:

Since last week’s news of Arizona’s new organ transplant/medicaid rules, denying certain types of transplants for medicaid patients as a cost-saving measure, I have been thinking about what to write here.

All I have been able to come up with is this:

Shame on you, Arizona government. This change is unacceptable. You are telling your citizens that their lives, which we can likely prolong and improve, are not worth the cost, and they can only get life-saving care if it is not on your dime. There are many things I believe a state should guarantee for all its citizens, but even if I were to strip most of them away, life-saving medical care would always be on the list. What’s worse, you’ve taken people to whom you have already promised such care and kicked them off the waiting list — unless they can raise hundreds of thousands of dollars. The life of a person with abundant resources is not worth more than the life of a working-class husband and father. Shame on you, Arizona.

Is your DNA really yours?

Nurse and Lawyer share DNA. All of it. That leads to all kinds of cool things like looking similar and both being awesome.

It also means that if one of us committed a felony and went to jail, and the government took a sample of our DNA for their database, and then the other one committed a crime, the government could probably figure it out.

For years, governments (especially in England but also here) have been trying to figure out a way to use our massive forensic DNA databases to catch not just repeat criminals, but the family members of criminals. And now, California has successfully caught a serial killer with a body count of at least 11, known as the Grim Sleeper, using the technique. (NY Times; LA Times).

In brief, here’s how it works:

The FBI has a database of DNA markers called CODIS. The federal government and all the states contribute DNA profiles (in the form of sets of numbers identifying the number of times certain “junk” sequences repeat, good for identification but not known to code for any observable traits) to the database. The profiles come from convicted felons — most states now contribute data from all convicted felons, though it used to be more common to use only certain violent felonies. Some states (including Lawyer’s own California) now also submit profiles from people merely arrested — that is, not yet found guilty — of felonies. All these profiles are in CODIS.

When the police have an unsolved crime, they can submit DNA from the crime scene, and CODIS can tell them if there’s a match. That is, if there is DNA from a previous felon in the database that matches. That’s not super-controversial. Where it gets tricky is if they get a partial match — a profile that’s similar to the crime scene DNA, more so than might be expected by chance, but does not match. In these cases, it’s likely (but not even close to certain) that the DNA came from a relative — a parent or a sibling. And because of the distinctive pattern of DNA shared between parents and children, we can often tell if it is in fact a parent, or more likely a sibling. Police can then essentially draw a family tree for the person in the database and see if there are any relatives who might’ve committed the new crime.

That’s exactly what happened here. The Grim Sleeper’s son was in the database. They had the partial match, determined that the son in the database had a father who would’ve been in the right places at the right times and matched a description they had, and then. . . followed him around until he threw a pizza crust in the trash and DNA-tested it.

(Which, surprising to some, doesn’t seem to be illegal. If you throw it away, it’s considered “abandoned” for legal purposes, and then the cops are free to do what they want with it. Also, in an incident Lawyer found hilarious, one state has even upheld the practice of mailing a letter to a suspect with a return envelope, pretending to be a lawyer recruiting plaintiffs for a class action, so they could collect a saliva sample.)

According to the NYT story, California is one of only two states to have an explicit policy allowing this technique; the other is Colorado. But lots of other states do it to one level or another.

This case — catching a really prolific and still dangerous serial killer — is the best possible argument for this use of this technique.

But there are plenty of reasons not to do it.

Should some of us be subject to greater suspicion than others because of what our relatives have done? That seems kind of . . . unamerican.

Innocent people might be harassed and investigated at a greater rate, especially if police are overconfident because of a partial DNA match.

Resources better spent on traditional investigation techniques might be wasted following leads generated by a partial match.

The convicted felons in the database are having their privacy invaded to an extent — they didn’t cause this new crime, and now the police are drawing up their family trees, perhaps trying to get information from them, and generally using them for something we know they didn’t do.

The database is populated disproportionately with minorities — so this technique could be said to keep minorities under a greater level of “genetic surveillance.”

Lawyer thinks this technique is too much of an invasion. It isn’t right to exploit family relationships in this way. And though it’s true that catching the Grim Sleeper is a triumph for law enforcement, I’m not sure it’s worth the price. I think we should either eliminate the policies altogether, or limit their use to extreme cases like this one. (I also think that if we’re going to have such policies, they should be passed by legislatures — not written into internal policies in DA’s offices.)

I’m glad they caught him. But this turn of events is dangerous for privacy advocates. It was a dramatic win for law enforcement, and none of the potential bad things that can come of this happened in this case. That doesn’t make them any less likely to happen in future cases — but it does make the entire thing sound like a better idea when I’m not convinced that it is.

This should happen more often!

A few weeks ago, Nurse & Lawyer brought you a critique of the industry-sponsoed “Smart Choices” program, labeling foods that were. . . less horrible for you than other foods with a big green check mark. And suggesting that perhaps the FDA would be a better regulator of such labeling than the sugary-cereal industry.

Turns out everyone else thinks so, too. Pepsi is backing out, and Kellogg’s is phasing out the labeling, according to the New York Times, thinking that the FDA might be better situated after all.

Sorry folks: Froot Loops aren’t good for you after all.

ps. Can you be the first person to guess, in a comment, who Lawyer got to meet today?

Quickie: Can you prove WHY you got sick?

One of the things I’ve been studying in law school (torts again. Hi, Professor Engstrom!) is how you can prove that somebody else’s bad behavior actually caused your injury — rather than merely preceding it and being capable of causing it. This mainly comes up in the question of your trying to make them pay for your care (and possibly compensate you for your pain and suffering.)

We generally agree, these days, that agent orange caused a whole lot of health problems for the people who were exposed to it while the US used it in Vietnam. We can also be fairly certain that some of these vets would’ve had some health problems by this age, with or without agent orange. So… which ones is the VA particularly responsible for? If we made vets prove causation, the way we make most people filing tort claims prove it, they simply wouldn’t be able to. (And most of those who tried were denied, getting sicker and sicker as they tried to navigate an impossible appeals process.) To solve this problem, the Department of Veterans Affairs compiled a list of diseases known to be caused by agent orange, and if a vietnam vet presented with one of those diseases, well, okay, claim approved. (Yes, I know, oversimplified.)

The reason it’s in the news this week is that they’re adding a couple of diseases to the list. Three diseases, actually. (So reported by NYT.) And the VA is all, “Look! We’re making it easier for veterans to get the care they deserve!”

Um, okay.  Yes, you are making it easier for a few veterans to get the care they deserve. But your health care is still pretty terrible. Long waits, denials, etc, etc. This is a baby step, guys. Don’t start flying your Mission Accomplished banner.

So I ask: Is this even a good way to address the problem? Presuming that agent orange caused certain diseases, thus streamlining claims for those veterans who were in Vietnam and have those specific diseases? Is it just a good band-aid, when what we really need is a much better, much different system? Is it a bad band-aid, making things just good enough to scrape by while allowing us to ignore the greater change that needs to happen?

Coincidences happen. Even when you get a flu shot.

The New York Times has an article about the CDC’s concern that people who get flu shots this year will blame anything that goes wrong with their health on shots. (i.e. Someone gets a flu shot, two days later he has a heart attack, so obviously flu shots cause heart attacks. RIGHT?)

So, those of us who remember our stats or are science-trained sometimes utter the phrase “correlation does not prove causation” in our sleep. But much of the rest of the country world isn’t so quick to remember this fact. The CDC is especially worried that the news media will seize on individuals’ claims that the vaccine made them sick, and publicize them, which will spread that misinformation to the general public who believe anything they hear on TV or read in USA Today.

Why do we care? If people want to make themselves crazy freaking out, why would nurse and lawyer want to get in the middle of that?

One big reason: we don’t want people who really need the protection to be afraid of getting it. Pregnant women are one such class — need the protection, but wanting to be extra careful. Senior citizens are another group who need the protection and may be more susceptible to scare tactics. It could really interfere with our public health goals of preventing this from becoming a pandemic if people are afraid to get the shot. Right, nurse?

So what can we do? We obviously can’t forbid “news” organizations from reporting these kinds of stories. (Hello, First Amendment.) What about some kind of voluntary agreement, where news organizations are made aware of the problem and its potential consequences, and agree not to report these kinds of stories without appropriate context describing the nature of the correlation? What if we set a threshold for how many incidents of the same sort must be observed before it becomes a “trend” that they could report? Admittedly this is more a question of journalistic ethics than of law, but… I want to be able to do something about it!

Other ideas? Anyone?

We WILL talk about the Obama speech.

But not right now. Torts starts in 10 minutes and I didn’t even get to watch the speech yet, let alone think about it, due to that phenomenon about which I’d been warned, but had not really yet understood: the first year of law school.

But one of my professors was nice enough to reschedule my only Friday class this week, which means my 3-day weekend starts in… an hour and twenty-five minutes. So watch for it.

In the mean time, I’m going to go follow the example set by our upstanding members of congress and heckle my professor during lecture. We’ll see how that goes over. Professor Engstrom, if you happen to read this: I don’t actually think you were lying in class.