Holland & Hart Healthcare Law Blog

COLORADO MEDICAL POT LAW ALL SMOKE?

The good news for Colorado Medical Marijuana smokers is that the Colorado State Constitutional Amendment making possession of pot more medically qualified users and their “personal care providers” is Constitutional. The bad news is that it is still illegal to sell it. On October 29, 2009, in People v. Stacy Clendenen, 08CA064, a panel of the Colorado Court of Appeals affirmed the conviction of apparent pot entrepreneur, Stacy Clendenen, for cultivation of marijuana, possession with intent to distribute marijuana, possession of marijuana-eight ounces or more, and possession of drug paraphernalia, after rejecting her defense that she was a “primary care giver, “protected under the Constitution.

THE INTERNET, MYSPACE, MEDICAL PRIVACY AND FAMILY FEUDS.

        Two recent and unrelated cases this month involved the unlawful access to private medical records and the posting of them on the internet on MySpace in order to inflict pain in the prosecution of family feuds. Both feuds involved Asian families. In Hawaii, Rhonda Wong-Fernandez, a 22 year old mother of three small children, plead guilty to a felony charge of unauthorized use of a computer to access confidential records. Ms. Wong Fernandez was a friend of the victim’s sister in law who was feuding with the victim.  She obtained access to the medical records of the victim who was suffering from HIV at the Straub clinic and published them three times on MySpace. At one time she stated that “I hope she dies.” The victim did die in April.  Although the prosecutor requested a one month jail sentence, the judge disagreed and sentenced her to one year in jail, five years probation and 200 hours of community service. The judge ordered her taken into custody immediately and refused a request to defer the start of her sentence until she could provide for her 5 month old child.

     

INTERNET MEDICINE: PART VII – PUBLIC, PROPRIETARY AND PRIVACY TENSIONS IN MEDICAL DEVICES.

The front page of the New York Times today carried a story by Pam Belluck on a hospital’s promotional webcast of Shila Renee Mullins’s brain surgery to extract a malignant tumor, which raised conflicting opinion is about the wisdom, benefit and ethics of the public dissemination of personal medical information, even if consensual, and the public access to dramatic interventional medical procedures. Some hospitals are featuring twittering during operations in order to apprise relatives and others of the progress of thee procedure in real time.

California Nixes Medical Discrimination By Religous Doctors.

The California Supreme Court has ruled that physicians may not discriminate and withhold  non-emergency medical care based upon their religious beliefs in violation of the California Unruh Civil Rights Act, which prohibits discrimination by businesses based on sexual orientation.  In North Coast Women's Care Medical Group, Inc. et al. v. San Diego Superior Court, a lesbian, Guadalupe T. Benitez brought suit against the physician group and two individual doctors for refusing to provide intrauterine insemination using unfrozen semen from a friend to assist her obtaining pregnancy. This is a medical procedure in which a physician threads a catheter through a patient's cervix and inserts semen through the catheter into the patient's cervix. One of the physicians claims that her religious belief's in question have more to do with the patient being unmarried than a lesbian, but that is disputed by the plaintiff.

Libya Sentences Nurses To Firing Squad.

The kaleidoscope of fractured images emerging from the murder trial of five Bulgarian nurses and a Palestinian Physician in Libya is more than vaguely disconcerting.  Kristinia Volcheva, Nasya Nenma, Valentina Sirapuvo', Valya Chermenyaska, Snezhava Dimitrana and Asheraf Al Hajaj have been found guilty by a Libyan court of murdering forty and infecting hundreds of Libyan children through injection of an HIV virus and sentenced to die by firing squad for the second time.  The Libyan Supreme Court overturned their first conviction on December 25, 2005.  The condemned are represented by Lawyers Without Borders an international legal defense organization.

The case while inciting international outrage and condemnation contains many seed of concern which sometimes reverberates through American Courts - overzealous prosecutors pandering to public cries for retribution; fundamental religious overlays in pursuit of eye for an eye justice; the lack of hard evidence; the reliance on coerced confessions; the distrust and rejection of countervailing  scientific evidence when stacked up against passion and belief.

Faxed False Positive HIV Test Results Leads to Statutory Mental Anguish Claim in Florida.

In Abril v. Department of Corrections, Fla. Dist. Ct app., No.2D03-311123, a Florida court of Appeals reinstated a negligence law suit brought by a prison nurse whose false positive HIV test was faxed by a laboratory to an insecure fax machine. The court found that the circumstances of the insecure transmittal let to an exception to Florida's "impact rule" which generally requires that there be some physical impact to a plaintiff before a viable claim for mental anguish and emotional distress can be made. There is a state statute that requires confidentiality for HIV test results. Reasoning that the state statute gives rise to a statutory duty leading to a cause of action in tort, the court fashioned a remedy for emotional damages for the most likely and foreseeable damages - emotional distress.

Politics, Ideology and Religion Infuse World AIDS Fight.

The Bush administration's tendency to infuse religion into public health policy is the subject of growing debate in the international community. In addition to the much discussed domestic debate over the administrations restrictions on stem cell research, the United State's massive 15 Billion Dollar world AIDS relief project is being heavily criticized at a World AIDS relief conference in Bangkok.

Secret testing of surgical patients for HIV?

There comes a time in most healthcare facilities where someone inquires as to whether HIV patients should have their files identified in some way or where patients can be secretly tested for HIV to warn or protect the medical and nursing staff, instead of, or in addition to, universal precautions.