HIV, felonies, and more:

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An interesting recent article in the NYT: http://www.nytimes.com/2010/04/12/sports/12hiv.html?ref=health

Nurse: So, in florida, it’s criminal to knowingly expose someone to HIV without telling them. Lots of states have laws designed to criminalize people who spread HIV, but lots of them are outdated– is that just a symptom of how the legal system works? there are lots of outdated laws on the books. does that make it problematic to write laws reacting to health crises?

Lawyer: It’s how poorly drafted statutes work, but not how the whole legal system has to work. There are at least two (what I consider to be) good ways around that problem. One is to put a sunset clause in — say the law automatically expires after some set period of time (5 years?) unless the legislature affirmatively renews it. Another is to include some broad language and then delegate the task of defining the language to an administrative agency (e.g. health department). That way, the content could be changed to keep pace with medical knowledge and realities much more easily than requiring a legislative body made up of non-doctors to keep revisiting the law.

Nurse:  The example provided in the article is that some laws treat saliva of HIV people as dangerous, so things like spitting are unfailry criminalized, when we know that HIV is very, very difficult to transmit that way, if not impossible.  The article points out that in missouri, even passing the virus without your knowlege can make you a criminal. how does this compare with other criminal law? can you really be a criminal if you are not aware?

Lawyer: My understanding of the general principle is that most criminal law require some kind of “mens rea” or guilty mind — you had to have some level of knowledge of what you were doing, be that negligence (you should’ve known, but you didn’t/ a reasonable person in your situation would’ve known), recklessness (you knew it was possible, but disregarded the possibility), knowledge (you knew what you were doing) and purpose (you knew what you were doing and wanted/intended that particular outcome.) Generally, laws punishing conduct without ANY of these can’t carry very stiff penalties/ can’t be felonies. But these HIV Statutes seem like even the ones not requiring you to know you were infected might be categorizable as negligence (if you could’ve been exposed, you should’ve gotten tested, and hence should’ve known your status.)

Nurse: Of course, you can make the case that you are responsible for knowing your status, but there are certainly cases where you may have very low risk factors and have no reason to believe you are infected. if you don’t know you’re infected and have no reason to believe you are, you could still be a felon. hmmm.

Lawyer: Ah. This is where we need you, nurse: who would even fall into this category? If you really have no risk factors, then how did you get it? Can you spin us a hypothetical?

Nurse: Sure. There are lots of ways that it is unlikely, but possible, to contract the virus. If two people who each have miniscule cuts on their mouths kiss, they virus could theoretically be passed although it would be a longshot. A healthcare worker, even one who is cautious and hasn’t had known exposure, could have contracted it through a cut or sore they didn’t know about, but again, it’s a longshot. You could have had sex with someone who carried the virus and had a false negative test or hadn’t fully seroconverted.  These setups are less likely than your typical risk factors (sharing needles, unprotected sex with an infected person), but not impossible.

Laywer: Under the negligence analysis above, such a person could probably defend him or herself by proving that he or she wasnot negligent — i.e. had taken all precaution a reasonable person with his or her risk factors would take. (A true virgin who’d never used IV drugs or had a blood transfusion could probably show that there was no good reason for her to have gotten the test, and hence, it wasn’t negligent of her.)

Nurse: Are these laws applied uniformly? my hunch is that in some areas, gay men are targeted and singled out. I don’t have any proof for that, but. . . let’s face it. there are parts of the country where gay men are singled out for anything and everything.

Lawyer: Alas, we have basically no mechanism in our legal system for challenging a prosecutor’s decision to charge some people and not charge others. The only possible avenue for this sort of challenge would be an equal protection claim, that it’s because of minority status (here, sexual orientation) that the charges were brought. This would require proving not only a disparate impact on the minority group, but also intent to discriminate in doing it. And how do you prove intent? It’s really freaking hard. In some cases, even really shocking statistics haven’t been enough — basically, these claims are theoretically valid but unwinnable. And another problem — the Supreme Court has yet to actually recognize sexual orientation as a constitutionally-protected minority status. They’ve said that you can’t write a law saying it isn’t such a status, but they’ve stopped short of allowing it explicitly. (This is one reason why so many gay rights activists are concerned about a gay marriage challenge reaching the Supreme Court — the present membership seems unlikely to get a majority to say that it’s a constitutionally protected category.)

Nurse: Can we think of a better way to discourage reckless behavior, or knowingly endangering others? This is a real problem, and it really happens– people who are positive DO knowingly have unprotected sex.

Lawyer: I think some of the statutes are certainly less offensive than others…. for instance, the California one that punishes knowingly exposing someone without telling them WITH THE INTENT TO INFECT THEM. (Though again, how in the hell do you prove that beyond a reasonable doubt?) Do you have the sense that it’s a very small minority that behaves so recklessly?

Nurse: Well, yeah. It’s not a huge lot of people who are intentionally behaving this way. As an aside, women are at risk from this behavior because it’s much easier for a man to pass the virus sexually to a female than for a female to pass it to a male. In some of these cases, it seems like stepping up ways to provide anonymous testing and reporting to partners might help, but in cases where it’s intentional? that’s tricky.

Lawyer: I think if it’s intentional, you have much better grounds for criminal prosecution, with or without HIV-specific statutes.

Nurse:  We talked about quarantining people with communicable diseases deemed a public health danger, but i don’t know that there’s an acceptable mechanism to regulate someone’s sexual behavior in this country. Perhaps we need to say “caveat emptor”– of course you may still be at some degree of risk even if you use condoms, but your odds of being infected by someone are much lower if you have safe sex. In the hospital, we use “universal precautions” dealing with body fluids– everything is potentially infected. perhaps we need a resurgance of safe sex education that empowers individuals more. If you insist on condoms, you are less at risk.

Lawyer: I think this is really important irrespective of criminal statutes, because there will always be people who are infected and don’t know it — whether or not the law says they are felons.

Nurse: Absolutely true. I wonder if anyone has ever attempted to prosecute someone for spreading HIV under a more generic law, like that they are endangering another person or even attempting murder.

Lawyer: Yes, people have been charged (and convicted!) under generic criminal laws for infecting others with HIV. Reckless endangerment is probably the best bet, though it’s usually a misdemeanor. (Can’t do serious jail time.) ttempted murder is possible if you can somehow prove intent to kill. (And at least some courts have specifically said that knowledge that you yourself are infected is NOT enough to infer intent to kill.) Also, if you do it without intent to kill, there would be a possibility of attempted manslaughter.  Though these last two are much more slippery an an age where HIV is not a quick death sentence. So I think this presents somewhat of a bind — knowingly and/or intentionally exposing someone to HIV is a pretty serious offense, I think we would agree. But it probably can’t (hardly ever anyway) actually successfully be attempted murder. Reckless endangerment seems a bit light in many cases, especially if you did it on purpose. I think that’s perhaps why so many states rely on HIV-specific statutes.

Nurse: Arizona, nurse’s home, unsurprisingly has no law on the books (Arizona has few laws about much of anything. . .), but lawyer’s California calls it a felony to have unprotected sex when you know you’re infected without disclosing to your partner– but you also have to prove that you have intent to infect. interesting. (source: Lambda Legal#mce_temp_url#)

Lawyer:  A few other interesting notes:  I believe (though am not certain) that courts have declined to consider HIV-positive status alone a disability for purposes of the Americans with Disabilities Act.

There were also some interesting tort cases in the early 90s where people were suing each other for emotional distress for having exposed them to HIV.

In needle stick cases, you couldn’t win at all unless you could prove that the actual needle that stuck you was infected.  In other types of cases, there was some interesting and largely inconclusive debate about whether the general level of paranoia in the culture at the time/ lack of understanding was relevant. (Imagine: you’re ignorant of the causes of HIV, so you are terrified that having used someone’s toothbrush, you were exposed. You’re just as scared as someone who knows he had unprotected sex with an infected person, and the thing your’e suing for is emotional distress — should your mistake, even though it was consistent with cultural understandings at the time, mean your distress is less valid?)

No Good Options Here. . .

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Recently, a public dialysis clinic at Grady Hospital in Atlanta has been forced, for budget reasons, to close. This means they have to discontinue care to the patients they’ve been seeing. Most are eligible for medicaid/medicare, but they have a good number who are undocumented immigrants, and these people can’t get care from the state. They can’t pay for it themselves. And they can’t get it in their home countries. The hospital is giving them some options — but it doesn’t seem to be helping.

NYT has a short series on it.

The patients have been trying (unsuccessfully) to get into court, on the grounds that they are being illegally abandoned by their healthcare providers.

Lawyer: We had a discussion about it at the law school — mostly as an immigration law issue — which really got me thinking. It raises some impossible questions. Such as: If the hospital is being forced to cut its budget, is there any “right” way?

Nurse: It looks to me, although there aren’t a lot of details, that they are trying very hard to make a “right” way. Offering transitional services and assistance returning home seem to me like pretty hefty measure to help. Cutting the budget, closing the clinic, and offering nothing and little notice does seem wrong, but at this point, that’s not what is happening.

Lawyer: Patients are continuing to pursue a lawsuit (which has twice been dismissed — that dismissal is now being appealed to the State Supreme Court) against the hospital, claiming that they are being abandoned. It does indeed look like the hospital has done a lot to try to ease the transition — giving them a period of time and funding to seek treatment elsewhere, offering to fly them home, paying for private dialysis for a transitional period — I’m wondering what else they could actually do, if they cannot provide care indefinitely.

Nurse: I agree. I don’t think this could really constitute abandonment. These patients are receiving a service now which can no longer be offered, but there’s been a very generous allowance of time, money, and resources (although the article doesn’t provide specifics, and we all know that there are lots of forces which work against the success of poor undocumented immigrants).

Lawyer: And if we require them to provide care indefinitely one they’ve started, aren’t we creating an incentive to refuse to begin treatment?

Nurse: Yes! That’s really not feasible. I mean, can we say that a medical doctor must continue to see patients as long as he is physically able? No, we cannot– he can retire, he can move, he can change his practice model. . .just as we can’t force a publically funded clinic to operate without funds.

Lawyer: In the health debate going on now ( still going on… jeeeeez) no plan provides coverage or subsidy for undocumented immigrants. One proposal allows them to buy unsubsidized coverage in the exchange. Others don’t. Should they?

Nurse: Sigh. This is one of those very sticky things. We know they are here, and they are very expensive when they utilize our healthcare system through charity hospitals and ER’s (EMTALA much?). I think there is indeed a duty to treat– and neither that duty, nor the people in question, is going to dissapear. So yes, we should allow them to buy coverage. Doing so does not give them anything for free and it doesn’t charge our taxpayers– in fact, it has the potential to save us all money because hospitals like Grady won’t have to pick up the slack with taxpayer funding.

Lawyer: Oh, Nurse. I love it when you say things like “EMTALA.”

The practical issue, of course, is that if we refuse routine care, patients end up in emergency care which costs more. But if we have a reputation for providing free routine care, more people will come to use it, and it will become less feasible. Catch-22.

Nurse: True, true. But perhaps there needs to be another category– routine care that isn’t free, but rather affordable and accessible. This is a big thing to think about and it’s not easy to fix. I think there’s room to explore more options. I know that any payment at all is out of reach for some of these people at this point. . . and there are a lot of interconnected issues that  cause that, too. I don’t know how far we can make it on this problem without addressing immigration on another level.

Lawyer: Another thing that came up in our discussion was that the legal issues and ethical issues are really in tension here. Legally, it really doesn’t look like the Grady patients are being abandoned.

But ethically, the healthcare professionals in that setting might be in a bit of a bind — basically, the law doesn’t protect what is, or at least feels like, a duty that they have. The code of ethics in healthcare is not law. Which occasionally gets people into a real tight spot. (Recall our whisleblowing nurse!)

Nurse: I agree that there is definitely frequently a tension there, but in a case like this, I’m not sure that all the patients are holding up their end of the bargain. We as healthcare professionals do care for and advocate for our patients, but they need to participate in their care and meet is in the middle to the extent they can. We can provide you support and care for your lung disease, and we can give you counseling, referrals, and medications, but we cannot follow you around and stop you from smoking each cigarette. Likewise, we can help you to set up a new plan when we can no longer care for you, but we cannot literally make you do anything about it. Now, we do not have all the details, and certainly, some of the patients in this story don’t have the resources (including literacy, perhaps?) to really navigate the system well enough to find other arrangements, or there aren’t great options, as some have stated. But the article also says that many patients never really investigated alternate arrangements and plan on taking advantage of the generosity of our system in providing emergent care. I don’t think the latter group really can be considered abandoned  at all. As for the others, it’s murky.

Lawyer: Finally, if you DO somehow get the outcome that a hospital like Grady is required to continue care indefinitely for existing patients (to close, they simply stop accepting new patients), we have created a serious conflict of interest for the hospital — they have NO incentive to keep their patients alive. The sooner their patients die, the sooner they are off the hook. (Don’t mean to suggest that individual practitioners would feel this way — but the hospital as an institution, in its allocation of resources.)

Nurse: Ugh. As the article pointed out, dialysis can cost 50,000 dollars per year, easily. Patients on dialysis can live this way for years and years and years. I don’t see how that could really be a workable solution.

A final question: the article mentions a contract between Fresenius, the dialysis provider, and Grady, which operates the clinic. Fresenius seems to feel that their contract is to provide, and be reimbursed for, services for one year. I don’t know what the contract contains, but in that case, the employees of Fresenius may feel an additional obligation to continue giving care.

Lawyer: Though their legal position is much simpler. They have a contract, with defined terms and defined end date. Though it doesn’t really look like the hospital has a legal obligation here, there is at least an argument that they do, where the contract provider really has no possible liability. Aaaand we’re back to our tension between ethical duty and legal obligation. I’m getting dizzy!

We’ll keep an eye on this. . .

Protect your patients, go to jail!

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A few days ago, NYT reported on a nurse who was being prosecuted for “misuse of official information” when she sent an anonymous letter to the state medical board raising some concerns about a doctor in the small, public, rural hospital where she worked. After internal processes yielded no action or improvement. Here’s what we’ve got to say:

Lawyer: 2 things jumped out at me.

  1. The doc portrays himself as a victim here. But if he’s reported to the state medical board, won’t they just… investigate? And if he is investigated, and hasn’t actually done anything wrong, then no harm, no foul. In other words, the innocent have no reason to fear investigation.
  2. A doc who hired him said he was a very caring person. That raises some flags for me because it’s irrelevant to whether he wrote bad prescriptions or made other medical mistakes. If that’s how they defend him, their priorities are in the wrong place.
My gut on this is that the nurses will win — it’s very difficult to prove that they had the intent to harm the doctor, or that they acted in bad faith. But they’re talking to a jury — that’s a wildcard.

Nurse: My first question is, on what grounds did the sheriff search the nurses’ computers? writing a letter to the medical board isn’t illegal, is it? is there probable cause?

Lawyer: It’s a good question. The NYT article says that the sheriff was a friend and “admiring patient” of the doctor’s. I haven’t been able to find any more info about the warrant. But how they frame the alleged crime makes a difference in terms of what counts as probable cause. So I find it conceivable that they had probable cause to suspect she wrote the letter. If writing the letter were a crime — which they seem to be suggesting that it is. . .

Nurse: My next question is really one about the nursing profession: “We’re just in disbelief that you could be arrested for doing something you had been told your whole career was an obligation.”– that’s absolutely right. nurses are taught again and again that it is our obligation to protect and advocate for patients, and this frequently means questioning doctors. if they followed procedures (internal chain of command, etc) and were ignored, then they did what is mandated of them as nurses. this isn’t improper use of privelaged information– it’s absolutely both proper and necessary. if someone followed up on the complaints and found fabrication, lies, or found that the nurses were accessing info that they didn’t need, then it would be different. nurses cannot be cowed out of voicing their concerns. small-town politics cannot override the ethics of nursing.

Lawyer: One issue that seems to be complicating this matter is that it’s a public hospital, and she is therefore a “public official.” (She was the compliance officer at the hospital.) (She was the compliance officer at the hospital.) Some clash, perhaps, between her duties as a nurse and her role as an administrator. You raised the ethical guidelines — which, unfortunately, aren’t actually law. It’s this weird gray area.

What baffles me, if they’re using this reasoning, is how preventing a doctor from harming patients also at a public hospital is not a governmental use of the information. The same reason that makes the information governmental ought to make this use of it governmental, too.

The medical board considers it a governmental purpose. (They are, after all, under the State of Texas.) So I’m not sure the prosecutor really has a leg to stand on.

Nurse: Next, i agree with your first point– if he really hasn’t done anything improper, then why is he afraid of a medical board investigation? that’s how the process is supposed to work– the board will look at the complaint and take appropriate action. if there’s no real substance to the complaint, it’s dropped. and who the hell cares if he’s a caring person? in this case, he “cares” about his reputation, no?

Lawyer: My prediction would be that this whole case is going to fall apart. If the nurse is convicted at trial — which might happen purely because of local politics, jury, etc. — it won’t stand up on appeal.

scarce resources.

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There’s an interesting post on NPR’s health blog about the care US healthcare teams are providing to Haiti earthquake victims on the navy hospital ship.

It deal with what is often a hypothetical question to practitioners who work in wealthy countries and facilities: what do we do when we run out of supplies, blood, ventilators? This situation seems to create nothing but uncomfortable and unsavory possibilities: don’t treat people who are likely to die? Take life support away from someone?

I think people who work in healthcare would do well to remember  these situations when we are feeling sorry for ourselves.

Selling a kidney? Read this!

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Nurse: Beyond the stuff of urban legends, there really is a black market for organs– kidneys, especially, since a living donor can give one up and essentially have no ill effects. To be simplistic, the black market thrives because there are more people with kidney failure than there are willing– or cadaverous– donors. Iran has a program that allows the government– and the recipient, through a 3rd party– to pay the donor a “modest sum”. This brought up all kinds of stuff for both of us!

Lawyer: Hmm. The part about the recipients paying the donors was more immediately troubling to me. Access question — who gets the kidneys? Definitely legal issues here — in terms of ownership rights. Comes up in property law — in what way do you own your body/organs?
Nurse: I’d be inclined to say you own your body/organs more than anything else in the world– more than your shirt, more than your house. They are absolutely yours.
Lawyer: We can certainly conceive of different kinds of ownership — ownership that allows you to exclude others (you can’t just TAKE my kidney) or that allows you to give it away, or destroy it after its removal, but NOT sell it. These different sorts of rights can be separated from each other. At the minimum, we could say that you don’t own your body at all — all you have is a right to protect it against unauthorized invasion. So you can’t sell it or rent it out (prostitution, for example), and you can’t even control what happens to your body after you die (though in our society, you can) — see what I’m saying? Different types of legal rights we could or could not grant. Related question about who owns tissue excised from your body during non-elective surgery. (One case I studied involves the spleen removed from a patient with a rare form of leukemia being used for research and subsequent profit without his consent — and the court, though divided, allowing it, and granting him ZERO rights to any of the profits.)
Nurse: Is it ever ethical to pay living organ donors for their organs, as is done in this case (Iran)? There are of course lots of protections in place for the donors, including who can evaluate their suitability. Also, it’s a pretty small payment– but likely enough to be essentially coercive to someone who is hard up. in the article, doctors say they believe donors act out of altruism, but why then include a financial component at all? i can see including care for free, but why cash?
Lawyer: This might be part of the problem, too. . . people who are desperate might actually “under-price” this sort of thing. I’d venture to guess that in a real competitive market for this sort of thing, the value of all the pain and future uncertainty of giving up a kidney would be a lot more than $1200. But I agree — why cash at all? If it’s altruism, pay for their care, pay for some monitoring after the procedure, maybe even pay them for their time — but not for their organs.
Nurse: Normal consent procedures certainly won’t cut it, if you ask me– people frequently sign without understanding, knowing that the procedure is in their best interest. in this case, it’s in someone else’s interest, not their own. that changes the calculus drastically. to truly accept the risk, the donor must have a fairly sophisticated understanding.
Lawyer: How would you accomplish a “super-consent”? Is there such a thing already in place for other types of situations? Research?
Nurse: Research is the closest case I can think of, and research consents are far more extensive than a basic procedure consent. They can be pages and pages and pages, whereas a regular consent form that we’d use in the hospital is one page, with a minimal amount of information written in.
To what extent can the government intervene? it’s illegal to sell your organs, no? why? would a regulated system circumvent the concerns at all?
Lawyer: The government can intervene in that they can make it illegal to sell your organs — basically, if a doctor removes your kidney, you have no claim to payment. Of course, there can be all sorts of other “payment” that doesn’t leave a paper trail… bag of hundred dollar bills, etc. (cf. gestational surrogacy — can’t actually pay someone to do this for you. But you can over-pay them for nutrition during gestation, etc.)
Nurse: People CAN sell plasma and eggs, and both of these donation procedures carry some risk. not as much as nephrectomy, but still.
Lawyer: Is it just about the risk of the procedure itself, or also about possible compromised future health? (I mean, you definitely don’t need all your plasma or eggs, but don’t you need both your kidneys? Need as in, there’s a reason we have 2? Is the second one really just a backup? What are the increased risks of living with a single kidney? Will the health care system have to bear the cost of this risk, especially for the aforementioned patients who are indigent?)
Nurse: You really only need one. The risk of living with one is that you’re screwed if your one kidney fails. Otherwise people can live with a single kidney and have no adverse affects.
Lawyer: A further curiosity: are there really any other organs where we could see this come up? Most of the things we desperately need, we don’t have two of (e.g. liver). So, nurse, is this just, always and forever, about kidneys?
Nurse:  Well. . . for now it is. It is possible to transplant part of a liver from a living donor. I believe it’s somewhat riskier, but in general it’s fairly successful. And like our earlier discussion, things like blood, plasma,and  eggs are certainly part of the discussion.
Lawyer: I am also curious about alternatives. I know there has been work on artificial hearts — what about kidneys? (I mean, obviously, short of lifetime dialysis.)
Nurse: Well, dialysis IS really an artificial kidney.  And as of now, it’s the only other way to do it. And if we wanted to open up a can of worms about cost, both financially and in terms of quality of life, that would be a good one!

Who’s choosing what?

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So, we thought we’d take a look at some of the issues surrounding the hot mess that is the Stupak amendment. And first and foremost, it’s a bitch, because there are not a lot of facts that are accessible and trustworthy. So that said, here we go.

Lawyer: In figuring out just how bad this really is, I tried to find some info. Specifically, I wanted to know what percentage of abortions are actually paid for (at least partially) by insurance. It’s patchy, out there on the web. a lot of this doesn’t seem terribly reliable to me, and I don’t vouch for it.  But I did find:

“A 2003 study by the Guttmacher Institute found that 13 percent of abortions in 2001 were directly billed by abortion providers to private insurance. Abortion opponents say that shows that eliminating abortion coverage is not much of an issue. But the Guttmacher Institute itself points out that its numbers don’t include women whose abortions were paid for by Medicaid (17 states cover Medicaid abortions using state funds); abortions for which women submitted their own reimbursement requests; or those paid for out of pocket.” (Source: NPR)

Nurse: I really wish there were better facts on this. Of course, it seems like everyone who is presenting “facts” is pushing an agenda– on both sides. I’m actually surprised to know that even that many abortions are covered by  private insurance and especially by medicaid.

I do have a few more questions: the care and support of pregnant women and their children who may not have any financial means– for food, care, diapers, clothes, health. . . is absolutely more expensive than abortions. but an abortion is an elective medical procedure, right? i mean, i absolutely agree that federal legislation shouldn’t bar insurance from covering it (isn’t this exactly the kind of government restriction and overreach that republicans profess to fear??), but i’m a little but unsure of why people seem to feel so strongly that insurance should cover it. i am playing devil’s advocate a little, but. . . does a woman who doesn’t use birth control carefully and is seeking her third abortion have a good case that someone else should pay for it? (this is actually an attitude that i think is encouraged in all kinds of medical care just by the fact that we use insurance as our primary method of payment.)

Lawyer: I don’t think saying “someone else should pay for it” is the right way to look at it. We’re talking about being able to buy insurance against that, if you so choose. Last time I checked, insurance — even subsidized insurance — wasn’t free. It’s a choice to put aside some of your own money, pooled with everyone else who makes the same choice, to deal with future possible needs.  I’m not saying all plans should cover it. I’m saying the choice should be out there. And good point about the overreach.

Nurse: It’s so hard to parse the “women’s issue” thing for me. Sure, it is– but is that relevant to the debate? I think it is in so far as the vast majority of people who are writing it and voting on it are men. But let’s not fall in to the trap of thinking that abortion opponents are all men.

Lawyer: But you want to get all controversial and stuff, here’s a theory for you. The moral hazard theory: that if you know something isn’t going to cost you, you take fewer steps to avoid it. The classic example is that people with really good car insurance don’t lock their cars as often. I don’t need to go any further with that.

Nurse: I actually think that line of reasoning is both valid and troubling. My other question is that i’ve seen it posited that if this bill was passed into law with the amendment, it would destroy any access to abortions even for women who can pay out of pocket. I don’t get this– are abortion providers that dependent on insurance payments?

Lawyer: My take was that the chief concern is for women who can’t afford it out-of-pocket. Then, without an insurance contribution, we probably do have a fairly major access question — the people whose lives (and children’s lives) would be the most dramatically altered by this sort of thing aren’t the ones with McMansions.

I wish i had better numbers:

Nurse: Who needs facts when you have righteous indignation?

Apology Laws

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After a recent essay in Slate about laws protecting doctors who apologize for medical errors, we got to thinking:

Lawyer: On apology laws: I think they are a very good idea. So long as doctors know about them. (Do they? Any doctors in the house?) And better if patients know about them too, though that will have no legal effect (i.e., if the patient runs to his lawyer thinking “got him!”, the lawyer will gently inform him that the statement is inadmissible, and if the lawyer doesn’t, the judge will.) If a doctor was truly negligent, there will usually be other evidence available to prove it. I also think it’s possible that a jury will be less likely to nail a doctor who seems genuinely sorry — as opposed to one who might come of as aloof or arrogant.

Nurse: It seems almost odd that we’d need to have such a thing to begin with. It really does stem from the fact that it seems like as a society, we feel doctors should be infallible and we are all entitled to perfect, flawless, faultless care at every juncture. Now, of course, medicine is different from other fields because our health and welfare is so dear to us, but can you imagine if there had to be a law allowing a Subway employee to apologize for putting peppers on your sandwich?

Lawyer: But apology laws are really only a very small part of the solution — a patient may be spurred on by the apology. If they’d had any doubt about whether the doctor was at fault, well, now, they don’t. I also have some kind of undefined mixed feeling about whom they’re actually serving. Yes, we rely on doctors to make important decisions for us, and as a society, we seem to have a tendency to deny the fact that doctors are human, and doing a very hard job that must be done. But there was something in that article that sounded to me almost like… how to put this… the doctor was more concerned with her own feelings of guilt than with the serious danger in which she put her patient. At what point does it become inappropriate to make it about easing the doctor’s feelings, when there is a real injured patient there? I don’t have an answer for this, and I think it’s certainly important to remember that doctors are people too, with emotional needs. It’s a balancing act, and a tough one.

Nurse: First, if a doctor IS at fault, why should they let the patient doubt that fact? That’s essentially dishonesty. Second, you’re right, she was easing a guilty conscience, but she’s also expressing genuine regret. I think there should be a way for a medical professional who’s made a genuine mistake to express this regret– even if it is partially self-serving. When we make mistakes in health care, it can be really gut-wrenching in a unique way, and we are breeding a more stressful, morally pained environment for medical practice if we as a society don’t recognize and respect that.

Lawyer: On the studies cited: The story touches on the sort of “heat of the moment” being very different from a study. I think this is a more major factor than is generally acknowledged. I also think that volunteers in a study saying that they would sue is very different from actually making the decision to do so. I can’t imagine what would suck more time and emotional energy from an already-injured patient than a lawsuit, and especially one that fails. Of course, we have to do studies, but relying on this sort of thing really worries me.

Another thing the article doesn’t touch on: what are they really calling an apology here? Should doctors be saying “my bad, I should really get more sleep” or “I’m so sorry for your pain and any way in which I may have contributed to it?”  Relevant to things like apology laws — there’s certainly room for sympathy without claiming liability. But I wonder if under the surface, this article isn’t saying that it’s the admission of fault that has value. It’s a little tough to tell. (In fact, most apology laws explicitly make this distinction — sympathy is inadmissible, but actual admissions of fault are fair game. Except, for some reason, Colorado. If you screw up in Colorado, you can come clean.)

Nurse: The article does mention the distinction between a full apology and a no-fault apology. (I’m sorry that I made this mistake, vs. I’m sorry this happened and I’m sorry for your pain and suffering.) I think there’s no question that a no-fault apology should always, always be given– but often a full apology should as well, or we should have protections for it. If we don’t let doctors own up to their mistakes, we are giving them a true incentive to lie and withhold. Do we really want to do that? Should mistakes– or even just difference of opinion in treatment– only be discussed among colleagues and behind closed doors (like at M&M’s)– I’d hope not. I think patients have a right to be more involved, and that over time, more openness could lead to a cultural shift away from litiganous behavior. There’s a movement afoot in medicine to involve patients more in their care and their decision making, both as a safety measure and out of respect for their preferences. Health care is, in many ways, a service– and from that view, we should stop patronizing our patients. There’s more going on here, but we’ll save it for another day!

Failing to wash your hands can kill!

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There’s a lot of hype about hand-washing now that it’s flu season, and we have the new kid (H1N1) in town, too– but let’s not forget our good old hospital buddies, MRSA, C-diff, VRE. . .

There was a recent French study discussed on NPR’s health blog that showed that healthcare workers who move throughout a hospital working on different units– like radiology techs, physical therapists, lab techs, and others, who don’t wash their hands can become “super-spreaders.” One person who doesn’t practice good hand hygiene can cause hospital-wide outbreaks of some pretty nasty bugs.  Now, hospitals have different strategies to combat this kind of recklessness, but usually the upshot of an infraction is a reminder or a slap on the wrist. Given the severity of the problem– realistically, this behavior can kill someone– is that enough? Should a certain number of documented infractions be a fireable offense? Should licensed personnel have their licenses at risk? We’ve all forgotten a few times, or had our hands full, or been super-rushed or in an emergency situation, sure. But is that an excuse? Is there a line?

This should happen more often!

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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?

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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?