Supreme Court Score Card Wrap-up

Well, the 7th of the cases on nurse-and-lawyer-type-things is Safford USD v. Redding, which we already discussed at great length. What really struck me about this case is that there may, in fact, have been a hard-line argument to make about the search being justified in terms of protecting the students from a drug problem, and they didn’t end up making it. In other words, rather than carrying the logic of a situation to the extreme, as some of the Justices sometimes do, they managed to look at it at face value and say, this isn’t right. So amen to that.

On the whole, this set of cases paints an interesting picture of the court. They’re giving people more right to sue companies who may have done them wrong (Wyeth; Altria) and they’re looking at certain questions with more of a common-sense view than they might when the facts are plain (US v. Hayes; Safford v. Redding). But they’re also getting caught up in procedure, especially when things look a little murky,  at the expense of what seems clearly right (DA v. Osborne; AT&T v. Hulteen.)

Am I thrilled? That might be going too far. But I am excited to see what the Court’s newest member will bring, not so much in her vote, but in her contributions to argument and her ability to shape the debate.

Supreme Court Score Card #5

Just because it’s a holiday doesn’t mean I can’t blog. And besides, I like this one.

District Attorney’s Office v. Osborne Basically, a guy wants to know if, after he’s convicted, he can have access to the biological evidence (in this case, sperm found in a condom at a crime scene) that the state has, even though he hasn’t filed any sort of claim that would use that evidence, and the claim he may intend to file isn’t tenable. In other words, is that jizz his, regardless of how he plans or doesn’t plan to use it?

He wanted to order (at his own expense) DNA testing that wasn’t available at the time of his conviction – which seems reasonable, right? Due process, and all that? There are lots of rather dry legal questions here (e.g. can he sue rather than making a habeas claim, can he claim freestanding innocence rather than a defect in the trial), but the one I find most interesting is about whether he can have access to that evidence.

I won’t go on too long, but the DNA test they did at the time of conviction involved identifying one small sequence on one chromosome, a sequence that one in six or seven African Americans has. (In other words, the analysis revealed that the perpetrator was likely to be black, not that he was William Osborne. Which is an issue for another day.)

The court ruled, 5-4, that he has no constitutional right to the evidence. They were careful to say that that didn’t mean he shouldn’t have it; it just meant that it wasn’t up to the Court to say he could. In other words, the states will have to make their own clear rules about that.

Lawyer says: My head hurts!

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!

Supreme Court Score Card #3

Moving along nicely here! This was actually the first case argued this term. Way to get things rolling, gentlemen and lady!

Altria v. Good It’s sort of about smoking, so it’s fair game, right? The question is basically whether smokers can go to court to challenge labeling of cigarettes as light, low-tar, or low nicotine. (Boring legal issues abound – does federal law/FTC policy preempt state laws about deception, etc.)  During the appeal process, the federal government jumped in – on the side of the smokers who wanted to sue! Take that, Philip Morris! The decision was that federal guidelines DO NOT shield the cigarette makers and prevent the smokers from suing under state laws. If they think the marketing was deceptive, they can sue to their hearts’ content.

Lawyer says: Goliath-killing Win!

Supreme Court Score Card #2

Happy July, everyone. We’re now on our second Supreme Court case from the just-finished term. This is fun!

AT&T v. Hulteen: Gotta love a good maternity leave case.  The question was, do employers have to restore continuity of service (for seniority, benefits, pensions, etc.) to women who took pregnancy/maternity leaves BEFORE the Pregnancy Discrimination Act was passed in 1978? The answer: nope, they don’t have to. Because although we see treating maternity leave as different from other leave to be gender-based discrimination NOW, they didn’t THEN, and the law says the company would’ve needed INTENT to discriminate in order for the leave to be restored. Because apparently, if you didn’t *know* it was wrong when you did it, you shouldn’t have to fix it now.

Lawyer says: Feminism Fail!

Supreme Court Score Card

Well, the good people of SCOTUS just wrapped up their term and now get a nice long summer vacation. (Or a long rest-of-life vacation, if you’re Justice Souter.) But nurse & lawyer are still hard at work! Of the 83 cases decided by the Supreme Court this term, these lucky 7 addressed health care-type issues. For the next week, Lawyer will review one case each day with a brief summary and an even briefer opinion!

Wyeth v. Levine: Oooh, remember this one from the early days of Nurse & Lawyer? The question was whether a drug company could be sued for damage caused by the on-label use of an approved drug. (In other words, for insufficient warnings on the label.) The drug company says that being FDA-approved should give them protection. But the patient – who lost an arm, by the way, to a gnarly infection — prevailed! The FDA requirements represent a MINIMUM – and are not sufficient to get the manufacturer off the hook.

Lawyer says: Patient Protection Win!

paging dr. rich!

USA has a new show called “Royal Pains” about a fired ER doc who starts a concierge practice in the Hamptons. Wha’ts up with these guys?

Nurse: The show is careful to make its protagonist a “good guy”– in addition to accepting lavish accommodations and bars of gold, he treats a dog walker and a fisherman, pro bono, and he contemplates the conflict between making money and doing good out loud, on camera. so i think they’re aware of the issues, and trying to kind of. . . skirt it?

There’s some interesting stuff out there, including USA’s page on the subject, and a bunch of blogs. (see this one, and another)

Some Issues:

**Does conceirge medicine create a two-tiered health system, with better care for the wealthy?

Lawyer: We have two-tiered systems in all kinds of other things. Is it wrong to run a private school? Is it wrong to be a lawyer in a firm instead of a public defender? One could argue that those types of services are just about as essential as medicine, and we’re perfectly fine with allowing people to pay huge amounts of money for exclusive service even though there’s a less-awesome public option available for everyone.

Nurse: But some would argue that health care is a human right, and paying for much better care is somehow icky. Should you be able to butt in line in the ER of a private hopital if you’re rich simply because the poor people could go somewhere else?

**Can people receive better care, including preventive care and chronic disease management, when it’s not based on insurance payments?

Nurse: I’ll tell you right now, yes.

Lawyer: It looks like in at least some states (Maryland, Washington), insurance commissioners have contemplated stepping in, claiming that charging a flat rate for unlimited services constitutes running an insurance company. And that sounds pretty much wrong to me. Insurance companies assume risk, right? And anyway, isn’t the whole point of this that it operates outside of insurance?


**Some PCP’s are switching to this model and dropping longtime patients who won’t pay a large retainer. Is this unethical?

Lawyer: Isn’t it always kind of unethical to drop patients without referring them to another clinician who can treat them?

It’s a difficult question because if resources were unlimited (i.e. there were plenty of doctors), then I wouldn’t see any issue with it. But we’re facing a shortage in a lot of places already, and if we’re talking about universal health care, it will be an even bigger shortage. (Is this where we renew the call for nurse practitioners to fill more of that role?)

Is it possible that there might be some middle ground?Doctors who treat the masses, but reserve a certain number of appointments for VIP patients, and/or work certain hours as in-house doctors and fancy places, but still maintain a practice a few days a week? It looks like this might create trouble with insurance companies, who won’t “share” the docs?

Nurse: General medicine is not a popular choice these days because specialties pay much better.

Lawyer: But then again, is it not better to be a g.p. to the rich only then to say fuck it, I’m gonna run a Ponzi scheme? Or be a plastic surgeon who specializes in nose jobs? At least this way, a small cadre of patients are being taken out of the waiting rooms of the remaining doctors.

For that matter, does someone who has the abilities needed have some moral duty to go to medical school because we have a shortage of doctors? It would be hard to argue that they do. But if if you’re arguing that a doctor has a duty to be a GP to anyone who needs one, aren’t you more or less saying the same thing?

Nurse: Well, not exactly, but I do think there may be a reasonable sense of duty. I feel like I’m answering a call of duty in a way by being a nurse when we have a nursing shortage.

**There’s a professional organization for docs with this type of practice. They have some interesting stuff on their site, www.simpd.org.

Lawyer: But the simpd site does oppose adoption of electronic health records. Which was interesting — it makes sense that for a doctor who basically works solo, it would be a different process than for a large hospital, but honestly, I can’t get behind it. bring a laptop, Dr. Richy Rich. If you charge so much, then you should be able to afford the software.

This is bad on so many levels.

Check out this super-scary article from the Times: at a VA hospital, one of the doctors made an astounding number (92. That’s ninety-two) of errors in performing a procedure to implant radiation seeds as treatment for prostate cancer before regulators finally got their asses in gear. The doc made various efforts to cover up his mistakes, rather than, for instance, seeing more training or deciding that that was not a procedure he ought to continue to perform.

Let’s take an index of failings here: 1. The doc himself. 2. The hospital staff who structured the cancer unit such that there was no peer review — nobody was watching this guy. 3. The VA, for investigating briefly and deciding that no error had been made, since the surgeon involved had revised his operating plan before leaving the OR to match more closely with what he actually ended up doing. (This needs to be allowed so that doctors can change their plans based on what they find when they get in there, but apparently they don’t need to document a good reason for the change? Anyone?) 4. The joint regulatory commission for accrediting the hospital even AFTER the beginnings of this deep failing had been uncovered. 5. The Nuclear Regulatory Commission for failing to notice/care about any big problems until recently.

All of this is deeply disturbing — but what gets me the most is that most of these patients were not told of any error or even failure of the procedure. The surgeon reported that everything was fine.

In a recent post, we discussed the possibilities for reducing medical malpractice suits. But I gotta say, if ever there was a place for one, this is it. Maybe I can use this as a mental test for any future ideas about reducing suits: could we still sue this A-hole? I don’t know enough about law yet to know if there’s the possibility of any criminal charges here, but pretty much everyone involved was certainly  negligent. What’s going to happen now? I don’t know. I wouldn’t be surprised to see some of these patients come forward to sue the doctor, the hospital, the whole VA — for damages.

I have a question for you nurse-types out there: should the other doctors involved in fixing some of these mistakes (e.g. a urologist called in to remove seeds from a patient’s bladder while he was still under anesthesia) and/or nurses who assisted with the procedure have followed up more aggressively to make sure these errors were properly reported and corrected?

Go NYT and reporter Walt Bogdanich for digging this out. Way to go, America. Treating your veterans with real care here. Now just waiting to see if anyone actually gets held accountable.

Ping-Pong Post: Sotomayor Nomination

President Obama’s nomination of Sonia Sotomayor for the Supreme Court raises several nurse-and-lawyer issues:

1. Abortion.

Lawyer: We don’t know what she thinks. We have a little bit of evidence (upholding the Bush administration’s right to restrict federal funds to overseas agencies that perform or promote abortion, granting asylum to Chinese women (and their husbands) who would either be forced to abort or charged with a crime for allowing a pregnant woman to escape forced abortion) but neither of these rulings gives us much of a glimmer about a Roe challenge, which hinges on an implicit right to privacy as part of substantive due process.   As the Times says, objecting to forced abortion is hardly a radical stance — and it doesn’t really come down on either side of the choice debate as we know it in this country.

Nurse: Abortion is clearly a health issue, and a major one– and frequently kind of a litmus test (but we’ll get into that later). I think if a judge had NOT objected to forced abortion, it would be a huge, major red flag– whether or not we were looking Roe v. Wade in the future. I think that in the abortion issue, having another woman on the court– liberal or conservative– is a good thing. It’s hard to have a conversation about somethig which is so clearly a women’s issue without any women.

Lawyer: That’s a really good point, and one that I think is underplayed in the discussion. Gotta love the idea of a room full of men deciding things about women’s bodies. But that’s how it’s been.
2. Gun control.
Lawyer: SCOTUS ruled last year  that the FEDERAL government cannot make a law prohibiting guns to be kept in the home for self defense, and that played out in DC, which exists under federal laws — Judge Sotomayor sat on a panel that decided that a state CAN make such a law, and that’s  headed for the supreme court this summer (Maloney v. Cuomo.) She would almost surely recuse herself from this case, having already ruled on it, but there are others coming along on which she could rule.
Nurse: Violence is also a health issue– and some people don’t think so, but as a health care professional, I do. It’s good practice to ask about guns in the home when doing a health interview. I feel that law that regulate where guns can be have the potential to be really good– but like any laws, they need to be done well
Lawyer: I also think this issue is an interesting test of a judge’s judicial philosophy, as the Second Amendment, more than much of the rest of the constitution, seems a little anachronistic.  It was written to address a specific type of situation that no longer occurs, but other related situations do occur. So looking at how a judge interprets a question like this can give us a good sense of how much she wants to be living in the eighteenth century and how much she is willing to view the Constitution as a living document, a question that becomes more and more important as our society changes ever faster.
3. Gay marriage:
Lawyer: It’s already in the works. She has a history of siding with victims of discrimination — but that’s no sure bet.
Nurse: Again, in terms of health, we talked about gay marriage and the right to make healthcare decisions– this IS discrimination, no question. The law should protect people from discrimination.
Lawyer: I’m curious about where civil unions come into this discussion. Theoretically, a couple who was civilly united would have all those same visitation rights — right? I’m not condoning it — but in a way, that option being available makes the marriage fight harder to fight, because the discrrimination isn’t as blatant as it seems like it might be.
General thoughts:
Lawyer: The bigger question, from where I sit: to what degee is it right to look for a sure bet? We’re choosing a judge, not a congressman —  the President and Senate are not supposed to choose based on a stated platform. But at the same time, the President and the Senate need to make sure they choose someone who will protect our fundamental rights under the Constitution (though we differ on what those may be). It’s a fine line to walk.
Nurse: No, I don’t think we should look for a “sure bet.” We shouldn’t be picking judges on their positions on laws and issues, but rather on their process and their views on the law and the constitution, no? Healthcare is an area that needs law, and it needs it badly, so these are good questions to ask– but we need to remember in what context we’re asking them.
Lawyer: Either way, barring some revelation of a major ethical transgression, she’s almost certain to be confirmed. And I feel good about that.
Nurse: Me too.  :)

Sotomayor Update

Lawyer: I’ve read and thought some more about this. Below, I reproduce my comment from the Times’s Room for Debate blog about the nomination. (My comment is #27.) The entire debate on the post is interesting to read, though it did raise my blood pressure a little!

Some of these writers (especially Lopez) are missing what seems to me to be an obvious point: that empathy is not the sole criterion used by Mr. Obama. It was a quality he wanted in addition to serious intellectual rigor, a long record of carefully considered opinions, etc. It’s not as though he went out and found the most empathetic individual he could, and nominated her. He found a serious judge with a solid career who also has this particular quality that he values. We will see, during the confirmation process, whether her record and credentials stand up; that kind of test is built into the process. (cf. Harriet Miers.) But a president has the privilege of appointing justices, so he gets to have a say in which secondary qualities he wishes to focus on.