A little from column A, a little from column B

Lawyer:

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.

The Vermont Crackdown

Vermont has been busy passing a law that restricts gifts to doctors (and nurses and pharmacists and hospitals) from drug and medical device companies, and requires them to report all gifts they receive that ARE still allowed. A few other states have laws to this effect, but this one seems to be the toughest.

Lawyer says: bravo Vermont! One of the best ways to work on big problems is to expose them to the sunlight — if this business has to be conducted out in the open, it will have to be conducted more cleanly.

The New York Times reports that the Pharmaceutical Research and Manufacturers of America  (PhRMA) has a code that companies can voluntarily sign that prohibits gifts that aren’t educational and places some restriction on meals.  Apparently PhRMA objects to Vermont’s law because… it’s redundant? And will waste doctors’ and companies’ time?

Well, PhRMA, I’m glad you have a code. That’s a good step. But come on!The code limits some types of gifts, and the law limits others. It also does something the code does not: requires reporting of things that continue to be allowed. Reporting requirements are, if you ask me, the best way to fix this problem. It encourages both good behavior on the part of doctors and pharma companies, AND  it can create public investment in and awareness of the process – very important where healthcare is concerned.  In addition, unlike the code, the law applies to everyone in the state  – not all pharama companies have signed the code.

Side note: previous regulations (and those that still stand in many places) allow large gifts to slip through, protected as trade secrets. Last time I checked, shady business practices (i.e. bribery) were not legitimate trade secrets that would allow other companies access to proprietary information about a company’s inventions.  Close the loophole!

Patients have a right to unbiased care. Vermont is helping them get that. Way to go, Vermont.

Opposite marriage? Take THIS for a spin.

Nurse: All this marvelous talk about same-sex marriage has stirred up some intersting questions around marriage and gender transition. (See: NYT op-ed). (See also: The Traditional Values Coalition’s statement: “Once homosexual marriage is legalized, transgendered individuals will demand the right to marry each other. It’s already been tried in Kansas.”

Lawyer: Indeed, this question is governed entirely by state law. And different states approach it differently. (Most allow you to change your name and sex on your birth certificate — way to hold out, Idaho, Ohio and Tennessee.) But whether or not they recognize these sex reassignments for the purpose of marriage really varies.

First, a terminology clarification: I will take the approach of sex as the physical/biological charactaristic, and gender as the expression of  maleness, femaleness, or somewhere in between. I do not accept the mismatching of sex and gender as a mental illness. One can alter one’s sex to match one’s gender through various medical procedures including hormone therapy and surgery. Capice? So how does the law recognize a person’s sex? The most reliable document, it seems, is the birth certificate. If yours says M, you’re recognized as a man, if it says F, you’re a woman.  Most states allow a revised birth certificate upon the completion of sex reassignment surgery, although many trans folk don’t undergo this procedure. It’s expensive, risky, and painful. A person CAN change sex in many ways without undergoing this surgery.

States also have differing requirements for what you must do and/or prove in order to revise your birth certificate. Some laws are more specific in what they will and won’t allow than others — and it’s the ones that are vague that can be really sticky to deal with. No states specify that you can have your sex revised without sexual reassignment surgery, though some don’t spell out that you need to have had it in their laws

There are a couple of scenarios: first, a couple that was born opposite sex can marry, although they live currently as a same-sex couple, even where same-sex marriage isn’t legal. I know people who’ve done this, and although it wasn’t easy, it appears to be valid, or at least hasn’t been challenged.

The only context in which I can really see this being challenged is if the sex change is officially documented, a revised birth certificate is issued, and then there is some sort of fight over the estate. (Someone might argue that the sex change invalidates the marraige.) But you’re right — that particular scenario hasn’t yet come up.
Second, in a couple which was originally sopposite-sex, a partner undergoes transition, and the couple is now same-sex. Is the marriage valid?
Third: A man-born-man marries a transsexual (male-to-female) after the transition. Is that marriage valid?  Texas has ruled that it isn’t, in Littleton v. Prange (1999) in which a post-op Male-to-female transsexual was not allowed to inherit her (male) husband’s estate.
Questions like these are sticky because, among many other reasons, they suggest that a person misrepresent his or her identity to obtain what ought to be a legal right. This is damaging to an already marginalized population.

These two scenarios look like they ought to be legally identical. But they’ve been treated differently. (i.e. they involve two people who were born opposite genders, marry, and live, either at the time of marriage or afterwards, as the same gender.) There was a case in Kansas (In re Estate of Gardiner, 2001) that found that the court had to consider what an individual’s gender (gender, mind you, not sex) was at the time that the marriage license was issued, not simply the individual’s chromosomes at the moment of birth. That decision ultimately led to Kansas recognizing reassignment for purposes of marriage. We’ll see how much that spreads.

Manny Update

Thanks to Gabe Feldman of Sports Law Blog for digging up this clause from the standard player contract that rules out the possibility of the Dodgers terminating Manny under the morals clause just for using a banned substance:

“No Club may take any disciplinary or adverse action against a Player (including but not limited to a fine, suspension, or any adverse action pursuant to a Uniform Player’s Contract) because of a Player’s violation of the Program.”

As Feldman explains it, the teams have relinquished all their authority to punish players for this particular offense to the Commissioner.

Yet to be seen: Has he/will he lie about it or disgrace himself in some other related way, giving the Dodgers something they CAN fire him for, if they want to? (See Clinton, Bill.) Can he be sued by others who stand to face substantial losses as a result of his suspenion? I’m guessing at this point that neither of those is going to pan out, but we’ll wait and see.

Domino’s Speaks!

Maybe they heard me! I now have Domino’s “official” nutrition information for the pasta bread bowls– and actually, I found this to be quite an interesting exercise. If you want to know whether the cheesy-doughy-creamy concoction you’re staring at will kill your or not, just wait a few weeks, search the internet tirelessly, call the franchise, email the boss. . . and then decide. Riiiiight.

The info they publish actually isn’t as bad as I had feared. As long as we have the information to decide for ourselves whether we want to eat 660 calories worth  of gooey goodness, including 21 g of saturated fat and 1800 mg of sodium (Mac-N-Cheese!), is all right with the world? Or should you have to eat it naked, standng in front of a mirror?

Pasta-Bowl-Nutritional-Info

Ping Pong Post: Manny Being… picked apart by Nurse and Lawyer

First of all:

Dear Manny,

WHY? Why are you such an idiot? I loved you so hard. I was THERE when you hit that 500th home run. I defended you when my friends called you lazy and ugly. Not because you aren’t lazy and ugly, but because you were Manny. Now? You suck.

Love,

Amy

Also, I’m glad I never bought your Jersey. Jerk.

There are two basic legal issues to look at here.

1. What did Manny actually do wrong/ how did they catch him?

2. Can anybody sue anybody else as a result of this?

Lawyer: The answer to #1 is complicated, and interesting, I think, for Nurse to address. Manny claims that the drug was for a legitimate medical use. And everyone responding says this is highly unlikely. Which, granted, it probably is. But IF Manny were telling the truth, then he still didn’t follow the rules — MLB would require that he get a Thereputic Use Exemption — IN ADVANCE of taking the drug.

Nurse: When you are asked to take a drug screen, you are responsible for knowing any medications that you are taking which were legitimately prescribed that could show up. You are given the opportunity to disclose them and provide proof that it’s legit. I have had this opportunity when I’ve been tested for work, and I would be shocked if athletes weren’t given the same chance.

Manny used used human chorionic gonadotropin. HCG is a hormone that females make during pregnancy– it’s the hormone that a pregnancy test detects . It may be prescribed for women who are having fertility problems– that’s not a difficult leap to make. It may be occasionally prescribed for men who are having fertility problems also because it helps men produce male hormones– like testosterone, although it isn’t well studied. Do we see where this is going? We get even more suspicious noting that experts say HCG is sometimes used by steroid users coming off a course while the body’s own testosterone production is shut down.

HCG is prescribed under several brand names, and indicated for infertility in women and low levels of male hormones in men. More information is available from Micromedex, a clinical drug reference widely used and trusted.

Lawyer: According to the New York Times, he didn’t actually fail a drug test. Something in his medical records (which apparently they get to see — nurse? Thoughts?) was damning enough to trigger the suspension. And from what I understand, there was something suspicious but not sufficient in a urine sample, which led them to pull the medical records, which contained the damning entries.  Baseball lets the commissioner suspend plays for “just cause”  (note, you non-legal types, that that doesn’t mean “just because,” it means  a fair and sufficient reason.) And in fact, this has been the case for most of the high-profile suspensions that have happened in the last few years.

The long and the short of it is, Manny didn’t follow the rules.

Nurse: although the urine tests were suspicious, it was the investigation following that showed Manny was prescribed HCG, and this was the cause for his suspension, according to Bud Selig. Manny says the drug was prescribed for  a“personal health issue.” This would mean some kind of hormonal or pituitary problem, but it’s pretty suspicious. I’m wondering: if they can investigate his medical records to determine what was prescribed, can they also investigate why? If I were Manny, I would certainly disclose whatever condition made it legit, so. . . maybe not so much. Sure, it’s a gross violation of privacy to dig through someone’s medical records and do it publically, but when you sign up to play pro sports, should this be part of the package?

Lawyer: For issue # 2, I really don’t know know if anyone has real legal recourse here, though this being America, I’m sure someone will try a law suit. Some possible interessting scenearios:

The Dodgers sue Manny to recover all sorts of lost revenue — interesting especially in light of their attempts to market much more heavily to Hispanic fans.

Nurse: I foud some numbers on the WSJ: Mr. Ramirez generated roughly $7.6 million in ticket sales, parking, food, drink and merchandise for the Dodgers, and average attendance jumped after his arrival. The Dodgers sold 14,000 Ramirez T-shirts, 7,000 dreadlock wigs and 500 jerseys. When he signed a new two-year, $45 million contract in March, the team spent an estimated $2 million on advertising for the season. The campaign included splashing his image onto billboards. A Dodgers spokeswoman says they will be replacing those billboard images soon.

Lawyer: Nice one, Nurse. That’s exactly the sort of thing I could imagine them suing over.

Other possibilities: Fans sue Manny or the Dodgers

Or, as Gabe Feldman suggests (is he joking or not?)  on his Sports Law Blog, fantasy baseball types sue Manny because now their fantasy teams are in the crapper. (More about that here.)

I seriously don’t know how any of this would work, and I probably never will, because sports law is not exactly on my list of must-take classes.

But I do know this: the way that tort law works in this country, it’s meant to more or less allow money-related issues and perceived unfairness to work themselves out. There’s been a lot of debate about how to enforce the drug policy in baseball and many other arenas (zero-tolerance is desirable in some ways, but also flawed, not least because the testing is imperfect.) If players could be sued for big bucks for violating the drug policy, isn’t that likely to be more effective than simply suspending them for a few games? MLB doesn’t have to make new draconian rules. Our existing legal system, applied to this situation, could get it to right itself.

One final note: though I still kind of can’t believe there’s a whole blog devoted to the rules and legal issues of fantasy sports, the folks at SportsJudge did bring up an interesting point: there is a clause in the standard player contract that basically says the player has to behave. It doesn’t specify what constitutes behaving in terms that are really any more specific than that. And if he doesn’t, the club can boot him. Does this count?


And stay in!

Lawyer: This is my fourth and final post about legal issues surrounding public health emergencies. When can we isolate or quarantine people? How can we do it? What about can vs. must? This one is a real doozy — if we could count on people to do the socially responsible thing, we wouldn’t have to worry about this. But all kinds of reasons — from employers who won’t give paid leave or even guarantee you can keep your job, to lack of education about disease, to a general lack of community spirit, many people won’t voluntarily stay home or in a hospital if they are sick or have been exposed. Here are a few thoughts about the who/when/where/why of quarantine and isolation.

1. It really can prevent the spread of disease. In a real pandemic situation, if you keep the sick people away from everyone else (isolation) and those who have been exposed separate until an incubation period has passed (quarantine), the germs can’t get to the rest of the population anywhere near as fast.

2. We as a nation place strong value on individual liberty and have a real reluctance to confine people if we can help it at all. (Unlike, say, China.) And this is one of the great things about our country. But does this great value of ours override the government’s responsibility to keep its citizens safe? I’d say it does, until the danger is really imminent. (see China: overzealous.)

3. It’s not just in what you do — it’s in how you do it. New rules that are being hashed out and introduced require a mandated isolation to meet two tests: the isolation itself must be fair and warranted, and the means of conducting it must also be. There is a built-in due process mechanism that entitles an individual to an automatic medical review after a short period of isolation, and if the individual disagrees with the decision, he/she is entitled to make an appeal on medical grounds, and is entitled to a medical representative (sort of like a lawyer for them, except it’s a doctor.) If they go through this and still disagree and exhaust all the administrative channels, then they are entitled to a habeus hearing. Where they get an actual lawyer.

4. All these hearings and such introduce interesting questions — can an infected person appear in court? Can court personnel be excused if they aren’t comfortable? This has come up in the past in the case of TB, but it’s simpler there — often much more isolated, etc. Alternatives include telephonic hearings, which have been allowed in some contexts in the past. I’m starting to envision hearings via Skype or iChat. The times, they are a-changing.

Lots of sticky issues here. It’s the old safety vs. security debate that we are so fond of, in contexts ranging from forced searches at the airport to, well, pandemic preparedness. Tough stuff!

xposted Ready or Not

Don’t shoot yourself in the foot!

Lawyer:  Here is part three of my series on public health emergency law.

There are a number of measures written into various laws that allow government agencies more flexibility during public health emergencies. We have a lot of regulations surrounding health care, including privacy rules, procedures for various state-fudned health care programs, and regulations about the use of drugs and medical equipment, and when we need to act fast, these rules, which are important protections most of the time, can really get in the way of a quick and coordinated response. Here are a few interesting possibilities:

Emergency Use Authorizations: The Health and Human Services Secretary can ask the FDA commissioner to issue an authorization to use a drug or device that has not yet been approved if there is reason to believe that its risks are minimal and it will help with the health emergency. Likewise, they can authorize the use of an approved drug in a new population or for a new use. These have been used in the past, and there is one in place now allowing the use of flu drugs in children.

Certain laws relating to Medicare/Medicaid — specifally, some of the requirements of health care professionals (i.e. specific timetables for certain kinds of paperwork, requirement that the license be in the specific state where they are providiing services, etc.)

These kinds of built-in flexibilities are important to a functioning system! We wouldn’t want to operate this way all the time, but we also wouldn’t want to be bound by regulations that don’t make sense in a context that requires rapid action. The potential concern — that flexibility opens up the possibility for abuse — is mild in this context, and the alternative is far worse. (As I write this, Arizona has moved up in the list of states with the most cases, but the flu also continues to look mild, and the hot weather may slow its spread — here’s hoping!

(xposted on Ready or Not.)

don’t forget. . .

Do you have a nurse in your life?

National nurses’ week is May 6-12, marking Florence Nightengale’s birthday and reminding us all to appreciate the many and varied ways that nurses are valuable to our society. There are hospital nurses (like me!), sure, but nurses also work in schools, public health agencies, industrial plants, insurance companies, offices, advice lines, the military, universities, clinics, outreach programs, churches. . .  the list goes on. What’s the most unusual way you’ve seen a nurse working?

Hug a nurse! Let her (or him) know you care.

(p.s. does anyone know if there’s a national lawyer’s week? :-P )