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.

Internet Medicine Part IV: “Health 2.0.”

“Health 2.0” or “Medicare 2.0” relates to a new paradigm in the relationship between patients and physicians, in particular the application of Web 2.0 interconnectivity tools or social media technology to the provision of health care.  One of the ironies of this movement is the emphasis on sharing rather than protecting or hiding health care information.  The www.patientslikeme.com  website sponsors  patients as partners with their physicians in assembling and sharing information related to specific diseases.  Patientslikeme assembles and aggregates patient information related to 5 chronic illness categories: Amyotrophic Lateral Sclerosis (ALS); Parkinson’s Disease, HIV/AIDS, Multiple Sclerosis and Mood Disorders.  Participants share treatment experiences, drug side effects, new treatment regimens and even organize and participate in their own clinical trials. 

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.

RECOVERY AUDIT CONTRACTORS (RAC) RETURN MARCH 1.

 They’re back!!!. After a brief intermission to allow the Government Accounting Office to deal with challenges to contract awards, the Government is again gearing up for the 50 state roll out of the Recovery Audit Contract Program where contingent fee contractors get to rummage through the records of hospitals, physicians, DME suppliers  and other Medicare suppliers to see if they can enrich themselves on the identification and recovery of Medicare overpayments going back 4 years.  The wildly successful six state pilot recoupment program implemented in New York, California, Florida, Arizona,  South Carolina and Massachusetts will be extended to a wider group of states divided into 4 regions, artfully described as A, B,C & D. From 2005 to 2008, the pilot contractors earned themselves a hefty $187,000.000.00 on $1.03,000, 000,000. in identified overpayments based upon their contingency ratios of 9 to 12.5%..

Evil In Contamination of Food and Medicine.

It is hard not to applaud the Chinese for their decision to execute officials for the contamination of milk sold domestically and abroad, even for those generally opposed to the death penalty. Unfortunately, the Chinese may have been motivated more by the impact of the unfavorable publicity than real concern about the larger moral evil lurking like a cancer in the cells of commerce. Two articles appearing in the New York Times today underscore the metastasis of that evil in the world community. One story involves Nigeria and the other the United States.

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.

STATE CANNOT REDUCE MEDICALLY NECESSARY HOME HEALTH COVERAGE UNDER MEDICAID.

In Anna C. Moore v. M.D. Rhonda Medows, No. 107-CV-631 TWT (D.C.N.D. Georgia-Atlanta Div. June 4, 2008), an action for declaratory and equitable relief brought by a 12 year old Medicaid patient under 42 U.S.C. §1983, the U.S. District Court granted Ms. Moore summary judgment against the State of Georgia which sought to reduce the number of home duty nursing hours afforded the plaintiff from 94 prescribed by her doctor to 84 hours a week as a cost cutting measure.

FDA Review to “Pre-Empt” State Pharmaceutical Litigation?

The United States Supreme Court will soon decide whether state tort actions against drug companies will be "pre-empted" by the FDA’s pre-market regulation of new drug products. The case, Wyeth v. Levine, arose out of a Vermont action by a musician, Diane Levine, who was injected with Wyeth’s anti-nausea drug, Phenergan during hospital treatment for migraine headaches. The drug was mistakenly injected into Ms. Levine’s artery resulting in the necessary amputation of her right arm. Many observers believe the Supreme Court will follow the logic of its recent decision in Riegel v. Medtronic, to pre-empt state law tort actions against drug companies where the drug has received FDA approval.

The FDA does not itself test new drugs, but rather relies on reported results of pre-market studies performed by the drug companies themselves. It may not surprise anybody to learn that these self-reports are not always complete and candid. Further, an overextended and underfunded FDA is not always on top of its game in investigating weaknesses in the studies presented to it.

AND THE HORSE YOU RODE IN ON!

Wilcox Memorial Hospital in Kauai, Hawaii announced last month that a relative of a patient arrived at Wilcox with a horse to cheer up a patient at the hospital.  The visitors reached the lobby where the front desk personnel had retired for the evening.  The relative and the horse called from the lobby to announce their arrival and intention to visit the patient. They boarded an elevator and proceeded to the 3rd floor where they were met with security.  Security seems to be a problem at Wilcox at a number of different levels.   Back in 2005, the hospital informed 120,000 past and current patients that their names, addresses, Social Security numbers and medical records had been placed on an USB  Flash Drive and was missing.