Holland & Hart Healthcare Law Blog

Can Faith Healthing Be a Crime? - Part II

The anticipated criminal trials of Jeffrey and Marie Beagley and Carl and Raylene Worthington in Oregon and Dale and Leiloni Neumann in Wisconsin this year raise again the specter of legal confrontation between individual rights guaranteed by the First Amendment to the Constitution and the “police power” of a state to protect children from harm. Some that holding “strict constructionist” views of the bible firmly rely on their perception of Christ’s example in rejecting the benefits of modern medicine for prayer.

Can Faith Healing Be A Crime? - Part I

        2009 is shaping up to be a watershed year for the prosecution of parents who have undertaken faith healing in lieu of conventional medical or surgical treatment for children with life threatening illnesses or conditions. On Monday, January 26, 2009,Clakamas County in the State of Oregon will be trying Carl Brent Worthington and Raylene Marie Worthington, for manslaughter and criminal mistreatment, related to their failure to obtain medical treatment for their 15 month old daughter Ava who died of bronchial pneumonia and various blood infections.

     Later in June, Clakamas County will seek to convict Jeffry Dean Beagley and Marie Rae Beagley for criminal negligence in the death of their son Neal Jeffry Beagley 17, from complications of a urinary tract blockage. Pressure for prosecution has been mounting since 1998 when a significant number of bodies of young children belonging to a religious group calling themselves Followers of Christ Church were identified in a cemetery outside of Oregon City.The children apparently died without medical intervention.

    In Wisconsin, Leiloni Neumann and Dale Neumann will be separately tried in May and June in Marathon County for Reckless endangerment in the death of their 11 year old daughter Kara who died of diabetic ketoacidosis after her diabetes went undiagnosed and untreated in favor of prayer.

    " All of the defendants are asserting the 1st Amendment right of freedom in the exercise of religion as a cornerstone of their defenses. Absent complications from arcane state statutes protecting faith healing and jury nullification, they they will likely loose if the prosecution can establish that they were aware of the life threatening condition of their children and their rejection of medical treatment for prayer."

    Among the spiritual principles of many of religious people who rely on faith healing in lieu of medicine, is the concept of living according to Christ's example. One prominent piaster adherent says "Jesus never sent anyone to a doctor or a hospital." Jesus, by most accounts, never had any children. He therefore never watched his own young children die of curable conditions while he stood by anointing them with oil.

    Many faith healing adherents rely on the bible for guidance in this matter.

    "Is any sick among you?  Let him call for the elders of the church; and let them pray over him anointing him with oil in the name of the Lord; and the prayer of faith shall save the sick, and the Lord shall raise him up."
James 5:14.

    The free exercise of religious belief is, of course, an absolute right guaranteed by the 1st Amendment to the United States Constitution. The free exercise of religious conduct is not. A state may regulate dangerous conduct regardless of religious content. Cantwell v. Connecticut, 310 U.S.  296 (1940). In 1944, the Supreme Court upheld a Massachusetts statute used to prevent a Jehovah's Witness couple from using a minor child to peddle religious material on a public street.The Court, in Prince v. Massachusetts, 321 U.S. 158 (1944), addressed the larger principle of the 1st Amendment and conflicts with the State's police power.

    "Parents may be free to become martyrs themselves. But it does not follow that they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice themselves."

    In other words, there are no individual rights of religious practice that extend to exposing others, even your own family members, to risk of harm. Under the Constitution, religious rights end at another's nose. Under our laws, children are not property to be sacrificed on the alter of belief. In a nation of laws and ordered liberty, Abraham and Issac notwithstanding, we cannot kill our children on the strength of what we perceive to be a command from God. Nor can we stand by and watch them die until they are old enough to make that decision for themselves.

Getting Out of the National Practitioner Data Bank - Part II

Getting out of the NPDB is perhaps equivalent to escaping from Alcatraz – a near impossible feat. Yet there are those who have accomplished it. The easiest way of course is to convince the hospital or other reporting entity that the report was improvidently submitted and that it should be retracted and withdrawn as they are able to do. The other option is to convince the Secretary of HHS that based on the administrative record, the submission was in error and not reportable under the criteria for reporting set out in the NPDB Guidebook. If the Secretary persists in affirming the appropriateness of the report, the only remaining recourse is the filing of a judicial review action in a federal court under the federal Administrative Procedure Act, 5 U.S.C. §701 et seq., where you must establish that the decision by the Secretary was "arbitrary and capricious." One of the most contentions areas of data bank reporting is the obligation to report a physician who resigns or withdraws an application for privileges in order to avoid a peer review "investigation" or discipline. Two successful judicial review cases in which doctors have "escaped" from the NPDB are instructive.

Getting Out of the National Practitioner Data Bank, Part I

Once a physician or other health care provider is reported to the National Practitioner Data Bank, he or she is normally there for life. It is extremely difficult to get out. Some physicians have remarked that it is like having a "record," which like in the criminal context can result in the denial of hospital privileges, denial of jobs and potentially the destruction of careers. All hospitals are required to access the data bank reports on physicians every two years during hospital privieges re-certifications. State disciplinary actions are required to be reported as well as malpractrice insurance payments (no matter the amount). Peer review discipline is also reportable, although their are some limited exceptions.

15 Ways to Eliminate “Trust”In Health Care Organizations.

Trust" can be defined as confidence in the integrity, ability, character and truth of a person or thing. It is a dangerous commodity in a health care setting. Remember as the poet said,

As contagion of sickness makes sickness, contagion of trust makes trust.

Marianne Moore, In Distrust of Merits (1941) Trust is a frightful tool in the hands of the wrong party bent on influencing events.

A small dust of earth that walks so arrogantly, trust begets power and faith is an affectionate thing.

Id

. Trust can be contained and even eliminated in any labor intensive organization by following a few simple rules. Here they are:

1. Keep your focus on your self interest rather than diluting it upon your organization and its members. There can be only one number one.

2. Always claim every success whether it belongs to you or not. Everybody loves a winner.

3. Chase the short-term goals that generate immediate returns. After all, you may not be here tomorrow and that might be a good thing.

4. Promise them anything whether you can deliver or not. Memories are short and it’s impolite to say no.

5. Maintain a firm hand in command and control. Everybody needs to know who is in charge of their future and fate.

6. Accept no responsibility for failure. Nobody likes a loser. Make sure that it is adequately punished to stomp out unnecessary risk.

7. Carefully limit the authority of those around you so that they know that they must respond to the strings that you pull.

8. Divide and conquer by identifying and rewarding your favorite people. Loyalty must have its perquisites and to the victor belong the spoils.

9. Punish those that demonstrate free thinking and independence. They need to get on the same page as the rest of the team. That kind of conduct can be disruptive.

10. Keep hidden agendas hidden until you need them. Transparency gets in the way of political pragmatism.

11. Announce principles and values for others to follow but provide yourself dispensation because after all you are in charge or on your way up.

12. Ignore or minimize the contributions of the "others" so that they do not get a leg up on "us." Make sure you can identify "them" that are opprosed to "us" so that we can over time squeeze them out of the organization.

13. Keep people on their toes by keeping organizational goals fuzzy and constantly changing, making it more difficult to focus responsibility. You can’t be a target if you are not responsible and your contribution is not measurable.

14. Reaching consensus is a waste of time. Tell people where the organization is going and brook no dissent. Get on the bus or off the boat.

15. Reward mediocrity because it is non-threatening and comfortable. Tie others to failures and punish them quickly to minimize the damage.

Following these prescriptions you will find an effective antidote to the menace of trust in your health care organization. Good luck and God speed.

Colorado Denies Immunity from Physician Peer Review

In Peper v. St. Mary’s Hospital and Medical Center, No. 07CA2491, the Colorado Court of Appeals held that a Colorado hospital and medical stafff physicians who revoked the plaintiff’s hospital privileges without notice or a hearing failed to establish grounds for immunity under the Health Care Quality Improvement Act of 1986.  Dr. Peper is a cardiothoracic surgeon who was appointed and reappointed to the “provisional actual medical staff of St. Mary’s Hospital.”  At about the time of his reappointment, the hospital began a secret review of 19 of Dr. Peper’s cases.  An external reviewer asserted the presence of provisions that suggested the possibility of problems with surgical techniques and/or judgment.