Holland & Hart Healthcare Law Blog

VIRGINIA HEALTHCARE REFORM DECISION: TAX OR PENALTY, INDIVIDUAL RIGHTS OR COLLECTIVE RESPONSIBILITY?

      One of the interesting components of the evisceration of the the “Minimum Essential Coverage” provision in the health care reform bill, (“ACA”) by Virginia Federal District Court Judge Henry E. Hudson, recently is his rejection of the government’s assertion that the “penalty” contained in Section 1501 of the ACA for the failure to purchase health insurance was not a viable “excise tax” under the Constitution.  The Taxation Power of the Congress is as broad as any of its enumerated powers.  Article I, Section 8, Cause 1 gives the Congress the power to lay and collect taxes and judicial review of the Congressional power to lay and collect taxes is narrow and limited.

 

THE “MASSIVE REDISTRIBUTION OF WEALTH” AND 31 OTHER INTERESTING STATISTICS AFFECTING THE HEALTHCARE REFORM.

 The United States has undergone a massive redistribution of wealth in the last 30  years. In 1980 the top 1 percent of taxpayers reported 8.5 % of the nations reported income to the Internal Revenue Service. In 2008, the top 1 percent of taxpayers reported receiving 20% of the nation’s income. This and the following 31 other statistics provide an interesting foundation to review the PPACA and its alternatives.

HOSPITALS INSTALL MEDIATION CENTERS TO QUELL PATIENT VIOLENCE AGAINST DOCTORS

    Is access to quality healthcare a right of all citizens or a privilege for the privileged?  Consider the prospect of a growing disparity between the halves and have nots and the frustration of those excluded from the better hospitals and physicians because of the inability to pay. Imagine the potential for violence as patients observe loved ones needlessly dying or facing disabling injury as a result of poor or inadequate treatment.  Hospitals demanding police protection, but officers concerned that they are public servants and not body guards.  2000 people riot at a hospital which refuses to treat a three year old who is unable to pay an $82.00 up front fee. A pediatrician jumps out of a fifth floor window to avoid the wrath of angry relative of an infant who died under his care.  Relatives beat doctors and nurses with mops and sticks for referring feverish patient to an outside clinic. 5,500 medical workers injured by patients in a single year. A grim vision of the future?

METHADONE CAN BE A “REASONABLE ACCOMMODATION” FOR ADDICTED NURSE UNDER THE AMERICANS WITH DISABILITY ACT

    A federal district court in the middle district of Pennsylvania denied a motion to dismiss and ADA claim by an opiate dependent nurse who was clean but participating in a methadone program to avoid relapse.   The Methadone program required frequent opioid testing to insure compliance with the program.  The Pennsylvania Board of Nursing had a secret policy prohibiting the licensing of any nurse on Methadone. 

HOSPITAL PRIVACY BREACH -- DELIVERY OF MEDICAL RECORDS TO GRAND JURY.

 In responding to government or grand jury subpoenas for medical records, analysis under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), may not be the end of the road. HIPAA specifically authorizes a hospital to release a patient’s medical records in response to a grand jury subpoena. 45 C.F.R. Sec. 164.512(f)(1)(ii)(B). Unlike most federal statutes that pre-empt conflicting state laws, HIPAA specifically permits more stringent state medical privacy laws to pre-empt HIPAA. In the recent case of Turk v. Brian Oiler, et al., in the U.S. District Court for the Northern District of Ohio, a U.S. District Judge held that Ohio’s physician-patient privilege did not permit delivery of medical records to a grand jury and thus preempted HIPAA and exposed the Cleveland Clinic to potential exposure for delivery of the mental health and substance abuse records of the plaintiff James Turk to a state grand jury. 

ILLINOIS SUPREME COURT CLOBBERS (TORT REFORM) CAPS.

    Bucking a trend in other states, the Illinois Supreme Court held this week that state liability caps imposed on non-economic damages in medical malpractice cases violated the Illinois constitution’s separation of powers clause.  It found that the legislatively imposed caps was too bold an intrusion on the powers of the judicial  branch. A number of states have already passed similar statutes that have been upheld by the highest courts in those states. See Garhart v. Columbia/Health One, LLC, 95 P 3d 571, 581-82 (Colo. 2004); Judd v. Drezga, 103 P 3rd 135 (UT 2004) and Kirkland v. Blaine County Medical Center, 49 P 3rd 115, 121-22 (ID 2000).

MONTANA AFFIRMS RIGHT TO PHYSICIAN ASSISTED SUICIDE-THROUGH STATUTORY, NOT CONSTITUTIONAL, ANALYSIS.

In a decision filed on the last day of 2009, the Montana Supreme Court affirmed a lower court decision concerning the right of a dying patient to a physician assisted suicide though it based its decision on an analysis of Montana statutes and public policy rather than the state Constitutional analysis adopted by the trial court below. In Baker et al v. The State of Montana et al., 2009 MT 449 (MT, December 31, 2009), the court followed the maxim of Viscount Falkland that when it is not necessary to make a decision, it is necessary not to make a decision and side stepped addressing whether there exists a constitutional right to die with dignity in the State constitution as requested by the principal plaintiff, Robert Baxter. Mr. Baxter, a retired truck driver, suffered from lymphocytic leukemia with diffuse lymphadenopathy.  Mr. Baxter, now deceased, contended that the State Constitution gave him the right to choose the timing and circumstances of his impending death, rather than suffer the indignities that he perceived in palliative care and the imposition that a drawn out departure would have upon his family.  He wanted the right to obtain a prescription of life terminating drugs from his physician without fear that his physician would be prosecuted for violation of state law.

HEALTHCARE REFORM PART III:-THERE WILL BE PAIN!

 One of the unfortunate realities about Health Care Reform is that there will be pain.   The current trajectory of health insurance costs is unsustainable.  We are pushing 18% of the Gross National Product, more than double other industrialized countries and severely depressing our competitive edge in the world economy. Left unattended health care will continue to eat into American productivity, lifestyle, competitiveness and influence.   The solutions are not difficult to understand. The question is how to equitably distribute the pain. The strategy of “just saying no “ will just momentarily and ineffectively defer the pain. There are three ways, or combinations there of  to do it. The menu please!

“VULGAR” MYSPACE BLOGING NURSING STUDENT ORDERED REINSTATED BY FEDERAL COURT.

Nina Yoder was a nursing student at the University of Louisville on an obstetrics rotation. In February 2, 2009, she posted a blog article on her MySpace page entitled “How I witnessed the Miracle of Life.”  The article, despite its uplifting title was largely snarkey, even vulgar as described by the defendants and even the judge in Nina Yoder v. University of Louisville, et al., Case No.3:09-CV-205-S (W.D. KY at Louisville),issued on August 3, 2009. The University dismissed Ms. Yoder for violating the School of Nursing Honor Pledge in a Memorandum Opinion  granting summary judgment reinstating Ms. Yoder. The blog article described a difficult birth in the context of the frustrations and emotional reaction of a tired and conflicted nursing student using graphic and unattractive descriptions of the participants and family awaiting the arrival of “the Creep.”

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.