Thanks for the 60 years of marriage, honey, but I have to cut you loose.

NYT ran a story this weekend about the practice of “spousal refusal” — that is, one spouse refusing to pay for the other’s long-term medical care (think nursing home) so that the ailing spouse can have the care covered by medicare. Which it otherwise wouldn’t be if they have assets of more than $110,000. (Assets including, you know, the money you were planning to live on for the rest of your life, since you’re retired, and stuff.) Nurse and lawyer take a look at some of the complexities of this practice — which seems heartless, but then, so do the alternatives, no?

Nurse: Yikes! Well, my first instinct is, can you blame ‘em? The cost of nursing home care is so outrageous, and it’s true that medicaid pays less than a regular consumer, so I totally get the instinct. If you’ve saved your whole life for a comfortable retirement and then you are basically S.O.L. because your spouse has a particular kind of illness that medicare won’t cover the cost for, that is pretty lousy.

Lawyer: I wonder if the consequences of signing a refusal form like that are limited to health benefits, or if they endure or extend. (In other words, is there some kind of “penalty” you end up paying?)
It also made me wonder why the man in the story who was being sued by the state hadn’t just transferred more of his assets. If the whole point was saving for the next generation, couldn’t he have avoided the problem by giving as much of it to his children/family as he could (depending on tax situation?) I’d also note that surely that suit could settle for far less than the cost of the care, making this kind of thing economically efficient for the refusing spouse.
Nurse: The counter-argument presented in the article talks about millionaires gaming the system. . .which I see is possible, but probably not really the issue. It’s more about people who made a lot of sacrifices to amass some savings who are never really going to see it now.  I don’t think it’s really a good thing to essentially “cheat” this way, but what you are allowed to keep and still be covered by medicaid isn’t super generous. . . and it sort of discourages saving, in a way.
Lawyer: Sure does. (If we assume that people are thinking about this and planning for it. Which some people are.) Why don’t they raise the amount of savings you’re allowed to have, and still qualify? It’s $110,000. That is… not much, in terms of life savings for retirement. They could set it considerably higher, avoid the “millionaire problem,” and keep people’s savings from being wiped out by catastrophic illness. This is crazy-making because of course spousal refusal is no kind of solution to the huge problems we face. And it might seem to make our health care budget crunch worse. But for the people facing the choices at the time, they have to do something.
Nurse: So. . . let’s reform the system! (that is apparently my standard answer, no?). You know what’s cheaper than nursing homes, has better outcomes, and better patient and family satisfaction? Home care! Day programs! There’s a place for nursing homes, we need them. . . but they aren’t the only option in a lot of cases, but they may be the easiest to set up, or the only one that has some insurance benefit.
Lawyer: Love it! The problem isn’t refusal — it’s that the cost of care if way too high. The article mentions that in New York, home care is covered by the same kind of benefit. I wonder how the decisions get made — I imagine it’s not by the patient/family, given your info on satisfaction.
If you were going to design a policy, how would you do it? Who gets home care and who goes into a nursing home? By disease? By preference? By. . . what? Are the decisions made by people who have financial incentives one way or the other?

I like this solution because it seems like it shouldn’t be controversial. It… works better AND costs less? AND doesn’t involve letting a government official appear to be making very personal decisions for you? But then, we’ve had all kinds of good ideas that can’t get any traction. The political system is busted. Beyond belief. Excuse me while I go bang my head against the desk for a few hours before I start working on solutions that won’t involve congress.

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.

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?

Ping-Pong Post: The Toughest of Choices

The New York Times and ProPublica collaborated on a story (more than a story, really) that will appear in this weekend’s magazine about health care decisions made in the immediate aftermath of Hurricane Katrina.

The upshot: some health care professionals administered lethal doses of drugs to patients who seemed almost certain to die anyway in a hospital that was completely cut off from all services. And though the doc in charge was not indicted on criminal charges, she is still facing wrongful death suits. These issues are painful to even consider in the abstract, but then, we didn’t go into nursing and law because they were warm and fuzzy. Some of the issues:


Nurse: the most familiar things would be to evacuate the sickest first. the theory behind taking the DNR’s last is that they have the least to lose– typically, patients only have DNR orders if they are very old, very ill, or often, both. But this isn’t always true. Some people who are relatively healthy have DNR orders, not because they are dying, but because if they ever do die suddenly, they want to do it peacefully. When we don’t know the extent to which rescue would be possibly, is it wrong to take spots for people who may recover fully and live for thirty years in favor of those who are currently critically ill and are unlikely to survive a few years anyway? This sounds awfully harsh, but it’s a harsh world out there. But is a DNR order an OK way to decide who those people are? DNR is NOT the same as giving up or withdrawing care. have these people somehow relinquished their right to be save while they remain alive? If this was standard or common practice, it would change the meaning of a DNR order. (incidentally, i believe DNR’s are a good thing in a lot of cases and should be protected. people who are quite ill and have little chance of recovery may not wish to have their death prolonged by violent chest compressions. It can be very, very ugly.)

Lawyer: Yes, I see the concept behind using that classification, but it seems to be the wrong one. They appear to be using it as a shorthand for chance of recovery, in some ways, and you’re right, signing a DNR would be a very different thing if it also meant “Rescue Me Last.” If such a policy were to be instituted, it could only rightly be done with NEW DNRs — that’s not what people who already had them were signing up for.


Nurse: This is what we look for in utilitarian ethics– which seems like a reasonable thing to apply in disaster situatios. but how do we define it? years of life saved? quality of life saved? number of lives saved? we can’t define any of these things in absolute terms. at memorial, they basically flipped the standard triage model on its head– the sickest were last instead of first. (in many models only the already dead or those who seemed unsavable would be passed over in favor of more stable patients).

Lawyer: Okay, I can only really speak to this with my disaster hat on, but in basic disaster medical operations (such as what they teach in CERT training) they teach you to, in initial triage, pass over people you can’t help quickly. Someone may be totally saveable — but if you’d have to stand there with your finger plugging their artery for half an hour while eight other people died, you’re not doing the greatest good. So how sick they are is part of it — but so is how far your effort will go toward helping everyone who needs help.


Nurse: These patients got doses of morphine enough to supress their breathing. Is this murder, or is it comfort care? What makes that line? Is it intent? Is it outcome?  Is it ok if the person is dying, and the morphine lets them die without pain (even if it’s slightly sooner?). If the person is not dying, but they almost certainly will– in this case, it could be from dehydration, starvation, lack of treatment, or any number of things– then is it ok? If a person is conscious and lucid, that must change things– can you ask them? If they are capable of consent and you do not ask, that is almost certainly wrong. If you do ask, it may still be wrong. It’s gray. At Memorial, it seems that alert people were given enough morphine to kill them without being asked. Although I recognize the intent was to be compassionate, I find it deeply troubling. What happened is not really palliative care, either– it seems the intent was to end life, and the doses used are way beyond the standards of practice. I have no doubt that some patients really did get “comfort, peace, and dignity” in the words of one of the nurses involved. It cant have been an easy decision, but they went too far, I think. Some of the invovled people said that that’s what they would have wanted done for them. I don’t think we can use that. I frequently do things for people that i wouldn’t want done to me– all kinds of painful, life-sustaining treatment– and I know that a lot of healthcare providers wouldn’t want it done to them either, but that doesn’t mean that others wouldn’t.

Lawyer: Since law school has now started, I wasn’t able to read all, ahem, 18 webpages of this article, so I may be missing some details. And I agree with your line-drawing there. But I’d ask if those patients who seemed certain to die were taking resources from patients who stood a good chance of recovery.

Nurse: The doctor and two nurses who were arrested in the case were not indicted. I don’t think they should be. My concern here is with what is ethical going forward– laws and ethics are not the same thing. I’m glad that healtcare providers were protected here- we need to develop systems to guide and protect them during crisis. The doctor involved, Anna Pou, is now advocating for just this. You go, girl.

Lawyer: What Dr. Pou has been emphasizing is that the rules are different in disasters. We can’t use the same standards, and we can’t use the same systems. There are many laws already in place dictating the “new rules” in disaster situations, and many more in the works — they become active when disasters and emergencies are declared in any number of different ways. (e.g. a governor’s or presidential declaration, an HHS secretary’s declaration of a public health emergency, etc.) The last eight years have been fruitful in this area — but there is still a TON of work to do. I’ll save my treatise on disaster-specific laws for another day, but the take-away here is that legally and ethically, we can’t rely on our usual senses of right and wrong in the midst of a true catastrophe.

Thoughts on Swine Flu from lawyer, wearing her disaster preparedness hat

Seen the stories recently about the swine flu that’s killed up to 61 people in Mexico? And has also been found in California and Texas? Especially scary because its victims are not the very old and very young, who are typical flu victims — it’s killing young, healthy adults. The article linked above gives details.

Mexico City has closed schools and museums to work on containing it, and though we don’t have a serious outbreak here, it remains possible. It raises some really tough questions. One topic is non-pharmaceutical interventions (NPI) — the most common of which are social distancing measures. (Maybe we’ll talk about drugs and vaccines and who should get them in another post.)

At what point does it become necessary or wise to close schools? Museums and movie theaters? Workplaces? My take is that closing museums and movie theaters and the like can help prevent the spread of disease and kind of sucks, but doesn’t create any huge social problems. Closing schools leaves many families up a creek — but is one of the most effective ways to prevent the spread of illness among  children. I’m in favor of it — and also in favor of requiring employers to allow employees to take leave if a school closure is enacted. It’s still a tough situation for a lot of people, but better a tough situation than dying of swine flu. And that’s really the bottom line here.

What about imposing requirements that people wear masks in public? What about curfews and quarantines?  It’s tricky — we don’t want to make overly restrictive laws (and even if we do, people may not obey them) but we do want to keep the public safe, and there will always be those who act irresponsibly. Even with the force of law, there’s not a lot that can be done to keep a few irresponsible people from spreading infection and posing a great risk to public health. When greatly restrictive laws have been imposed to combat previous outbreaks, governments have been unable to enforce them. Distribute masks with instructions on how to use them and why it’s important. Give people the tools to protect themselves. Success through education, not force.

Recently, we discussed what health care workers should be required to do in a public health emergency.  This discussion could become a lot less abstract in the coming months. If you work in healthcare, check into your institution’s policies.

Containment doesn’t seem to be an option here — it isn’t confined to a small geographical area — but in other pandemic situations, that’s another tough choice we’d face.

Here is my hope: that if US city and state governments end up facing this choice, they are as transparent as possible. Communicate clearly with the citizens. Let us know what’s going on. Make recommendations. Give us options. Help us understand why you’re asking us to do certain things rather than just telling us we have to.

Stay tuned for more thoughts as the situation unfolds!

Strip Search Update

Lawyer: The Supreme Court took up the Savana Redding case (which we previously discussed)yesterday. We’ll certainly discuss the ruling, when it comes, but in the mean time, the New York Times gathered some kind of hilarious quotes from various justices trying to properly discuss the issue of who’s likely to put what in her underwear.

It seems a lot of debate went on, some of it uncomfortable and hilarious, and the term “crotching” was introduced, but I still want to know how they’re trying to argue that there wasn’t a Fourth Amendment violation. Where was the reasonable suspicion?  I don’t think a tip from a seventh-grade girl with a grudge counts.

Justice Souter also made the argument that, basically, the safety of the students is worth their embarrassment. If they had reasonable suspicion that she had a drug that actually has the potential to be harmful — okay. But they had a vague hunch that she had IBEUPROFEN. No one’s safety was at risk, and embarrassment is a mild word for the psychological effect of this sort of thing on a 13-year-old girl.  I can’t help but feel that Justice Souter’s comment implies that students somehow have less robust rights than other citizens. It’s embarrassing, yes, but students also have a right to a certain amount of privacy, just like everyone else. The police can’t come in your house because your neighbor whose tree you cut down says they should. A student — and especially one who is subject to compulsory school attendance at a public school — has all the same rights.

Now, granted, it’s possible to say that the school handled this particular case badly (their suspicion wasn’t well-founded; they went straight for the search without first asking her reasonable questions), but there is still a question to debate here – WOULD they have the right to conduct this search if the circumstances were more appropriate? It’s only with broad applicability that things like this get to the Supreme Court.

Are there alternatives? If the school has a true reasonable suspicion (side question: what constitutes reasonable suspicion in this context?)  that a student has, say, oxycontin tablets on her, and they’ve searched her locker, bookbag, and pockets, what are their choices? They could call her parents and/or send her home. I would say suspending a student for the afternoon and/or involving her parents is less extreme than asking her to strip.I’m sure there are other possibilities, too –any creative thinkers out there have an idea?

Bottom line right now: Drugs are scary, and the schools are trying hard to protect students from the harm they can cause, but that doesn’t give them the right to infringe on citizens’ constitutionally-granted liberties. If a liberty is protected, that’s because it was deemed important enough to be in the constitution, not just when it’s convenient. We’re not talking about national security here. Work a little harder. Be creative. Find ways to keep kids safe AND keep their liberties intact.

Stay tuned.