Puff, puff, fail.

NPR recently looked at the problem some colleges have when students with medical marijuana prescriptions bring their drugs with them onto campus– because it’s illegal under federal law, colleges which allow it are at risk for losing federal funding.

Nurse: So what we have here is an issue where a single substance is both a prescription medication under state law and an illegal substance under federal law. So. . . houston, we have a problem. Lawyer, what happens when state law and federal law conflict? We know that the feds could pull funding, but what else? I feel like I heard noise from the federal government that enforcing marijuana laws in states where it was legal was not a priority.

Lawyer: Well, basically, it’s still illegal. The state and the feds act in tandem, and the state has said this isn’t a crime, but the feds have said it is, so the state cops can’t arrest you but the DEA still could. Though as I recall, the Obama administration had decided it wasn’t going to prosecute medical marijuana. It hasn’t been all that much of a problem in the more general sense, but this federal funding thing is thorny. 

Nurse: I’ve heard an argument about this which amounts to, “come on, you can’t let these college kids have pot prescriptions, it’s a crock of shit and they’ll just sell it to their buddies.” But, well, first of all, no, there are legitimate medical uses and everyone knows that, and second, state law has already said it’s ok, so the “come on” argument just doesn’t work. 

Lawyer: But state law doesn’t trump federal law. So the feds can still say “come on,” even if the state says it’s okay. In any event, the thing that college kids are getting prescriptions for and selling to their friends isn’t marijuana — it’s aderall. 

Nurse: Imagine this scenario with another drug– something that isn’t illegal under federal law– and it becomes ridiculous. Your student in chronic pain from a car accident can’t have percocet? Your student with ADD can’t have adderall? Your student with cramps can’t have motrin? The college gets to make rules about these things? But when we have this conflict with federal law, this is not longer a patient specific, private issue. Hmmmm.

Lawyer: What I want to know — and this article doesn’t say — is why they think they may lose their funding. Certainly the feds could do that, but have they given any indication whatsoever that they intend to? I also wonder what exactly we’re looking at here in terms of policies. If the college is silent on the matter — i.e., they have a policy that says generally that students are entitled to use drugs for which they have a valid prescription, but are not entitled to use recreational drugs — where is the issue? Do they need pot-specific policies that would draw this kind of scrutiny? Certainly the student would be subject to the same risks he’d be taking if he used the drug anywhere — the feds could always come for him. Why is it on the college, unless they somehow specifically go out of their way to allow it? No one is talking about student health physicians writing these prescriptions. 

In the mean time, it’s a shame if indeed there are students who cannot attend classes because they need the medication, and their colleges are too risk-averse to deal with the situation and give them access to education as needed.

Elena Kagan, vegetables, and dumb laws:

Here’s a brief interesting little snippet from NPR Health: Senator Coburn questioned Kagan as to whether it would be constitutional for congress to require Americans to eat fruits and vegetables as a way to cut down on healthcare costs. Of course, he was being a little snarky and he was really talking about the requirement to buy health insurance, but I think she made a good point: SCOTUS isn’t, or shouldn’t anyway, be in the business of striking down laws because they’re senseless or dumb– it’s more concerned with whether they’re constitutional. I think she did a pretty good job of answering in the spirit of the question, no?

Here it is. Obamarama.

Lawyer: I went through the transcript with a highlighter to mark places where he actually said something concrete. I got to page 3 before I found anything.

Nurse: Overall, I think he’s doing a good job with this– it’s actually politically quite a tightrope between being too vague and making concrete promises that have to be shifted in some way later, and this always bites you in the ass. That said, it’s kind of disapointing to see how safe the approach is. While I recognize that it is largely impossible to enact sweeping dramatic change in a democracy which is beholden to so many interested parties, I wish it wasn’t. There are so many roots of the problems we have with healthcare delivery that are not addressed in this proposal– in a way, we are treating symptoms instead of making smart lifestyle choices. But I suppose that’s inevitable. Sigh.

Here are the substantive points he made, one by one:

1. We’d better build on what we have, rather than trying to build a whole new system.
Lawyer: Agree!

Nurse: Reluctantly agree out of pragmatism, not true belief.

2. This plan has three basic goals.
a. More security and stability for people who have insurance
b. Insurance for people who don’t have it
c. Slow the growth of health care costs

Lawyer: He doesn’t say much about how (c) is going to happen…

Nurse: And indeed, a lot of the most promising ways to do that are not possible in what amounts to a conservative (in the true sense of the word) reform effort.

3. Insurance regulation:
a.companies can’t deny coverage for preexisting conditions or drop/water down coverage when you get sick.
b. No arbitrary limits on how much coverage you get
c. Limits on out-of-pocket charges
d. Routine check-ups and preventive care must be covered

Lawyer: I mean, yeah.

Nurse: Right, this should be obvious. It’s not, but it should be. Even if this was the only thing that changed, we’d be better off.

4. Rather than out-right legislating what insurance companies must do, we will make these above reforms requirements for joining the health insurance exchange. Companies will want to join it so that they can compete for new customers. The exchange will give customers bargaining leverage.

Lawyer: I think this is a sound approach. Better to make people want to do things your way than to try to force them. Anyway, it worked with the whole drinking age thing. As long as it actually works. And insurance companies do actually participate. And follow the rules. Anybody know how this is actually going to function?

Nurse: It’s a tasty carrot. Mmm. carrots.

5. Tax credits for individuals and small businesses who can’t afford insurance, based on need.

6. Immediate low-cost, minimal coverage for the currently uninsured.

Lawyer: Um… details?

Nurse: Provided by? And covering. . .? People who can’t pay are still given care, but they are generally bankrupted by it. Maybe we are just getting around that.

7. People will be required to carry basic health insurance (just like auto insurance.) Businesses required to at least chip in. (Hardship waivers.)

Nurse: This at least makes sense, if we are going in a insurance-based model (See my previous post for a little discussion on that).

8. (wait for it…) Yes, there will be a public option available as part of the insurance exchange. (As one of many options.) CBO estimates that fewer than 5% of Americans would choose this option. The option will be self-sufficient, relying on the premiums it collects.

Lawyer: Wow, that low estimate makes me super-nervous.

Nurse: I think this is an essential part of the plan, not just in what it will actually do, but in the message it says. I do worry that it won’t truly be self-sufficient because people who elect it may have reasons not to buy private insurance or may find it too expensive. Depends on how the rest of that regultion reform plays out.

Lawyer: That’s too bad. Because people seem to be saying that it’s going down the crapper.

9. This will be paid for by cutting wasteful spending we already have, rather than expanding the deficit. If the projected savings don’t happen, we’ll cut spending, rather than adding to the deficit. Medicare trust will not pay for it.

Lawyer: Sounds good in theory. But I have a feeling that substantial savings will take a long time. I mean, longer than four years. Because our spending is really wasteful, yes, but we can’t just snap our fingers and quit doing that.

Nurse: And this is one place where we really need a cultural shift to fix it. A cultural shift involving how physicians and patients conceive of thorough care, and how malpractice suits are both perceived and actually used. Which leads into the next issue.

10. We’ll have some sort of panel to reduce defensive medicine. HHS is going to handle it. (vague, fuzzy, proclomations.)

Lawyer: I want to hear more about this! Ring ring, hello, Kathleen? Can we talk?

Nurse: Again, this is a deeply rooted cultural issue, in a way. I think we need some good evidence-based practice here– which means we need some research.

Lawyer: cf. Stimulus Bill.

Nurse: I have heard vaguely about studies which show that high-tech intervention can actually be harmful rather than helpful– as in using electronic fetal monitoring, which has been shown to cause unnecessary c-sections with no better outcomes, yet it’s become a standard of practice. HHS, can you work on this angle??

11. Poor Teddy Kennedy! This was his dying wish!  Also, as he said, this is a moral issue, not just a policy issue.

Lawyer: Aww. Shot to the heart.

Nurse: Ok. Cool.

12. People thought we were socialists back when we invented social security and medicare, too, but can’t we all agree now that we need those things and they were a good idea?

Lawyer: JEEZ, thanks Obama, I’ve been trying to tell people that for a while now.

Nurse: well, what’s wrong with socialists? And another thing: he talks about requiring insurance to cover preventive care, but I think we could make huge progress by going a step further and offering incentives for preventive care. Maybe that would just be smart business for an insurance company, I don’t know– but i think it would help!

Lawyer: Mmm,  more carrots. Carrot cake. I have to go…

Supreme Court Score Card #4

Have off from work today? Great! More time to read Nurse & Lawyer!

United States v. Hayes Oh, this one might make your head spin a little. It’s a question about domestic violence. That’s health-related, right?

The question is, in order for a misdemeanor crime to be considered domestic violence, does the domestic relationship between the victim and offender have to be an element of the actual language of the crime the offender is convicted for, or does the fact that there is a domestic relationship involved, regardless of the statute under which the person is convicted, qualify it?

This matters because if it IS a domestic violence-specific misdemeanor, then the offender may never carry a firearm. If not, he might be able to.

Basically, some jerk beat his wife, and then, since he was actually convicted of battery, not wife-beating, he claimed that restrictions placed on domestic violence offenders didn’t apply to him. The court ruled, 7-2, that if the relationship exists, it was domestic violence, regardless of the fine details of the actual conviction. (Thanks, Justices Roberts and Scalia. You really got our backs.)

Lawyer says: Decency Win!


The Supreme Court ruled the strip search of Savana Redding unconstitutional this morning. Souter wrote the majority opinion — there was no real evidence that what they were looking for posed a real danger, or that she had it… there.

It’s complicated to say what the split was, since there were several issues being decided (was it constitutional, were the officials liable, was the district liable) but it looks on a quick glance like everyone except Justice Thomas (duh) found the search unconstitutional.

The school officials are not liable for their actions. Though some dissented on this.

Is the district? Back to the lower court.


Nurse:  Lawyer just wrote about some scary medical errors. Any system that allows that many errors to occur is scary. Yes, mistakes happen– but it is the duty of hospitals to have systems in place to prevent large-scale errors from occurring. That’s why there are often so many annoying redundancies– we’d all do well to think of this next time we’re ticked that we have hoops to jump through.

Ping Pong Post: Medical liability reform

One of the contentious issues in the health care reform debate surrounds malpractice suits, how they are driving up health care costs, and how to fix the problem.  The issues:

Lawyer: Very high premiums for insurance carried by doctors

Nurse:Which, in some cases, forces MD’s out of practice or to cheaper areas or specialties, as you can see looking for an OB in Pennsylvania!

Lawyer: Also, “defensive medicine” – unnecessary tests and procedures performed for fear of being sued if something is missed.

Nurse: Which is part of the reason healthcare costs have spiralled so seriously out of control– see Gawande’s article on this in a recent New Yorker, and a NYT article by Pauline Chen a few weeks ago about the demise of “hands-on” doctoring.

Lawyer: All these suits also lead to limited discussion of previous mistakes, which prevents improvement.

Nurse: They sure do! Hospitals still do hold closed-door “morbidity and mortality”, or “M&M,” meetings for medical staff, where issues, cases, and yes, mistakes, are to be discussed candidly– but in some cases, hospital staff are instructed not to say “I’m sorry” because it could be construed as an admission of fault!

Lawyer: It’s so hard to use the law to change the culture. But “I’m sorry” has to be taken back to mean what it says: sympathy, not responsibility. (Take it from the Italians: mi dispiace, literally, it displeases me, vs. mi scusi, excuse me, my bad.)  And we still definitely need a system to preserve (and improve!) patient safety.

Nurse:Amen, sister!

Proposed solutions:

Capping jury awards in malpractice suits (favored by doctors and republicans)

Lawyer: Yes, this reduces the costs born by doctors and can protect them from being punished outlandishly for mistakes, but it also restricts patients’ legal rights.

Nurse: It could be more fair if specific awards– like for pain and suffering– are capped simply because different juries can make vastly different awards for something like this that really isn’t quantifiable. Part of the argument in favor of capping is that it will diminish frivilous lawsuits– but who knows?

Limiting lawsuits by providing protection for doctors who follow established guidelines

Lawyer: An interesting plan, especially if the guidelines are written taking into account evidence-based practices. Doctors who followed established guidelines could not be sued for their actions, but doctors who made legitimate errors or who disregarded the guidelines (or accidentally violated them) could be sued.

Nurse: This is interesting, but pretty sticky! It seems like a slightly more codified version of what we already have. There are established guidelines– standards of care– and the doctor/patient relationship constitutes a duty. Failing to follow standards of care represents a breech of duty.

Lawyer: But that’s not the only way doctors get sued. Again, we need a cultural shift here — and a change like this would have to go with a public education campaign to that people would realize that just because they didn’t get a good outcome doesn’t mean their doctor was in the wrong.

Alternative programs, including that outlined in the MEDiC bill (discussed in NEJM here), a Hillary Clinton and pre-Presidential Obama-supported program that, if it had succeeded, would have provided for empathy, open discussion and negotiation of fair compensation as a provider’s response to a medical error .

Lawyer: I like these because they’re not limiting lawsuits, they’re aiming to reduce the situations that cause them to begin with. This kind of program can and should also focus on facilitating doctor/patient communication throughout the relationship – patients are much less likely to sue if they understand all along what they are being offered, and what choices they and their doctors are making.

Nurse: True dat, double true. I have cared for numerous patients who had no idea that they had choices. A woman I cared for recently asked me fearfully one night if they would be whisking her off for open heart surgery in the morning. She had not even spoken with a surgeon yet– she was under the impression that it was his choice, and she was powerless to make her own decisions. Although even now, patients are to have the options explained along with the risks and benefits, doctors often don’t see it this way– they thrust a form in your face and say, “get consent for this.” The doctor has a plan he wants to carry out, and the patient’s opinion is only an obstacle. (This isn’t everyone, but. . . it’s widespread!)

Lawyer: I totally understand democrats’ opposition to capping jury awards – who’s to say from where we stand now what might or might not be appropriate for some terrible occurrence in the future? This is why we have a court system – so that judges and juries can decide what’s appropriate on a case-by-case basis. It also does little to improve patient safety, since doctors’ risk is decreased for any and all decisions, not just reasonable ones.

Nurse: I am not sure I agree with the opposition to capping. I think it could make things a little more fair– it’s the amorphous things like emotional distress, or suffering, that may be awarded outlandish sums in some cases but not in others, and it’s not that they shouldn’t be compensated, but it leaves a lot of room for a convincing witness to pull at some heartstrings when it’s not necessarily legally the right thing to do.

Lawyer: I’m not sure what you mean by “legally the right thing”. Legally, the jury gets to decide. And large awards like that aren’t wrong legally. What’s legal isn’t always fair, etc, etc… so a system that puts the decision into the hands of citizens can be really frustrating in situations like this, but that’s how our court system is built, and for a good reason.

What I don’t understand is people’s (mostly democrats’) providing protection to doctors who follow established guidelines. It looks to me like that would eliminate suits based on the merely unfortunate (a doctor made a reasonable judgment call, which leads to a patients suffering harm that theoretically might have been preventable but not within reasonable standards) while still permitting real errors that should’ve been prevented to be brought to court. In other words, it separates judgment calls from real medical errors. Doctors are them free to order appropriate tests and procedures, rather than batteries of tests that are exhaustive as possible with dubious potential benefits.

Nurse: This isn’t really a big change from the current system. Of course this doesn’t mean people don’t sue and win when a reasonably prudent doctor treated them without making a grave error– they do. But a lot of these suits are thrown out. (Incidentally, most settle out of court, because it’s cheaper and less embarassing. Plans that address the incentive to sue in the first place could help prevent this.) To write guidelines incorporating evidence-based practice would hard, too– either it would be a constant, broad effort to keep legal codes up to date, or it would require doctors to have an individual broad base of current research across the board– which could include other specialties, obscure studies. . . a plan like this would need to be flexible and very carefully crafted if it will be helpful.

Lawyer: I’ve never bought “it’s hard” as a reason not to do something.  I think there are many, many variations on this plan, some of which would help and some of which wouldn’t, but the idea of saying “These are clear boundaries, I am clearly inside them” could save a lot of headaches. As it is now, the boundaries don’t seem that clear? Maybe? To me? I’m thinking of the octuplets case where we discussed standards of care.

Nurse: The problem is, medicine is in large part judgement. A lot of things that actually are medical errors are judgement calls. Clinical decision making is at the heart of medicine, and there is really not a clear line between judgement call and error.  Aside from the obvious (complete failure to recognize obvious symptoms, dismissing of ominous complaints, cutting off the wrong leg–) where can we put this line?

Lawyer: Oh, why can’t people see that they’re hiring doctors to give it their best shot, not to fix everything with a 100% guarantee? You’re not taking your car to the mechanic here, people. I just think that having clearer guidelines — or at least more widely understood ones — would be a good way to begin drawing that line.

Nurse: I think people have a tendancy to thing about malpractice in terms of individual sad stories– and that can actually be kind of destructive to reforming a system where most of the cases are very different from the high-profile ones.

Lawyer: Note: I have referred almost entirely to doctors here – and so has the majority of the debate. Do nurses get sued for malpractice? How does that work? What are the separate issues there?

Nurse: Nurses do get sued for malpractice– but very rarely compared to doctors. Usually we could be implicated in a suit, but it’s very easy to show, if you document your care well, that you have followed the standard of care. Nurses are also frequently protected by their employers– we work for the hospital, or the practice, or whatever– where as doctors have a different arrangement. Also, I have personal malpractice insurance (the hospital covers me while I am on duty there, but not if I volunteer–) and a year cost me. . . . drumroll please. . .  $59. That’s not a typo.

We’re ba-aaack!

Dear gentle readers,
We are now in the brief window between Lawyer’s wedding (6/6/09) and Nurse’s wedding (8/1/09), so you can expect more nurse and lawyer posts very soon! But forgive us if we fall silent again in a month or so… we’ll return, we promise!
In the mean time, we’re cooking something up for you on health care reform… stay tuned…

A little from column A, a little from column B


Bad news first: Prop 8 stands. No more gay marriages in California. (They’re trying to play it down as a question of semantics: civil union, yes. marriage, no.) At least until the next election when we introduce that measure that repeals prop 8 for another referendum. Existing marriages are allowed to stand. This saddens me — I believe the prohibition of gay marriage to be unconstitutional. Heading for the Supreme Court?

Which brings us to the good news: nomination of Sonia Sotomayor for the Supreme Court. I won’t repeat all the qualifications and comments about her (that’s what the New York Times and the Huffington Post are for), but I will say this: there’s been chatter about her only abortion ruling (yes, we can prohibit gifts of federal money to groups that promote/allow/offer abortion overseas).  But I think people are really asking the wrong question there. Any judge worth her salt, which this one seems to be, isn’t just going to focus on “do I believe abortion is wrong?” but rather, does the Constitution allow for this?

I don’t know enough about her to know to what extent she is willing and able to do this. She has shown someone of an inclination to side with the worker/victim/discriminee. But I don’t think we can generalize from there. And I’m not sure we should. President Obama is selecting someone to make judgments, not selecting a pre-determined slate of judgements.

And the senate republicans seem to realize that barring some major revelation, they probably can’t oppose this. Nor should they — she seems to be a well-qualified judge. And anyway, can they afford to alienate the Latino voting community any more?

The new judge — Sotomayor if confirmed, which I imagine she will be — is likely to face a Roe challenge and a gay marriage decision. Both of which are nurse and lawyer type topics. I’ll be interested to see how the confirmation hearings go — what kind of info they try to weasel out of her, and what she is and isn’t willing to say. I personally hope that she doesn’t spill too much.