Holland & Hart Healthcare Law Blog

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.

CAN STRATEGIC WITHDRAWAL IN DRUG WAR FINANCE HEALTH CARE REFORM?

Perhaps now is the time to think about it.  These may be the most difficult times in the history of the Republic since the Civil War. We are engaged in two foreign wars and a Wall Street melt down. Our economy has been in free fall. Runaway health care costs continue to be a drag on the economy and will likely impede a recovery. We are sending reinforcements to Afghanistan because we are in serious danger of loosing ground to the resurgent, insurgent Taliban.  We are sending troops, equipment and millions of dollars to secure our southern borders from cartel drug violence and penetration from Mexico, in an effort to stem a drug war that we cannot win because of the law of supply and demand.   Our population spends more money and gets less of a return for health care than any other country on earth and our new President is struggling for a way to fund his promise of health care reform.  It is possible, just possible that if we think broadly and logically enough that the seed of resolution of all of these crises lies in rethinking our war on drugs and the possibility of surrender- not on the sale or distribution, but on the decriminalization of use.

HCQIA IMMUNITY CAN APPLY TO PEER REVIEW OF PRIVATE PHYSICIAN CONDUCT.

In the recent case of Moore,, MD v. Williamsburg Regional Hospital et al., No. 07-1966 (4th Cir. 2009), a federal court of appeals addressed the issue of how far a hospital peer review can go in considering the private conduct of a physician in suspending his or her hospital privileges.  The physician, Dr. Moore is a general surgeon who performs surgery on both adults and children in his practice.  Dr. Moore’s private left spilled over into his professional life in a tragic and unresolved way. 

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.

MT. Constitution Protects Doctor Assisted Suicide

The United States Supreme Court has thus far declined to find a constitutional right to doctor assisted suicide under either the Due Process Clause (Washington v. Glucksberg, 521 U.S. 702 (1997)) or under the Equal Protection Clause (Vacco v. Quill, 521 U.S. 793 (1997)). There are a very few number of states that have incuded the Right to privacy in their State Constitutions. Montana is one of them. In Robert Baxter et alv. State of Montana, Cause No. ADV-2007-787, an action brought by Mr. Baxter who has a terminal condition, several physicians and Compassion & Choices, an advocacy group, against the State to declare the application of state homicide statutes to physician assited suicide to be unconstitutional. District Court Judge, Dorothy McCarter from Lewis & Clark County issued an opinion and order earlier this month finding that the Montana Constituion protected doctor assisted suicide, wherein a doctor provides drugs for a terminal patient, who administers the lethal drug and the homicide statutes could not punish the doctor for his or her assistance.

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.

International Patient Dumping by Hospitals Scored in New York Times

On Aug. 3, 2008, the New York Times ran a front page feature story chronicling the apparently widespread practice by U.S. hospitals in dumping illegal (and sometimes legal) immigrants abroad in order to avoid the high cost of treatment and maintenance in the United States.  The feature, “Deported by U.S. Hospitals,” written by Deborah Sontag, largely follows the medical and legal passage of one Luis Alberto Jiménez, a Guatemalan illegal, who was working as a gardener in Stuart, Florida when he was struck by a drunken Floridian, suffering severe traumatic brain injury.

Medical School Professor can pursue failure of due process claim in dismissal.

Henry Kissinger once commented that academic politics are so brutal because "there is so little at stake." Just egos. In Gentilello, M.D. v. Rege, M.D. and Gilman, M.D. filed in the U.S. District Court, Northern District of Texas, Dallas Devision, Case 3:07-CV-01564L, Dr. Gentilello, a tenured professor at the University of Texas Southwestern Medical School in Dallas, was fired from his position as chairman of the Division of Burn, Trauma and Critical Care and from his endowed chair in Trauma Medicine for alleged unprofessional conduct, intimidation, inflammatory remarks and unwillingness to compromise. Dr. Gentilello alleged that he was terminated as a retaliatory measure as a result of his speaking to his superior, Dr. Rege about substandard patient care at Parkland Hospital due to discrimination based on patient socioeconomic backgrounds. He filed a civil rights claim under 42 U.S.C. § 1983 asserting retaliation for expressing his views on matters of public concern in violation of the First Amendment and removal of a life, liberty or property interest without due process of law.