The Debate Surrounding the Right to Die

In 2014 Brittany Maynard became the face of the nation’s right-to-die debate. Maynard, 29, was diagnosed with terminal brain cancer and given six months to live. After assessing her options, Maynard and her family reluctantly decided to move from the San Francisco Bay Area to Oregon, one of five states that authorized physician-assisted suicide at the time. Maynard died on November 1, 2014 after taking a lethal dose of drugs prescribed by her physician. An ardent advocate for physician-assisted suicides, Maynard revitalized the discussion across the country and made the topic relevant to a younger generation.

The topic sparks rigorous debate and there are complex arguments on both sides of the issue. At play are legal, ethical, and moral dilemmas. Proponents of physician-assisted suicide say that it gives those suffering from terminal illnesses a right to die with dignity. They argue that in the face of a terminal illness where the prospect of unbearable pain, diminished quality of life, inevitable suffering, and death are all imminent realities, one should have the right to decide how and when to die.  Opponents say that it is dangerous and unethical. They argue that when doctor-induced death becomes an acceptable remedy for suffering, “logical extensions grease the slippery slope.” For example, one doctor who opposes the practice cited statistics from Holland, where the practice is legal, that claim more than forty people sought and received doctor-assisted death for depression and other mental illnesses.

In two 1997 cases, Vacco v. Quill and Washington v. Glucksberg, the U.S. Supreme Court ruled that physician-assisted suicide is not a fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment. Because it was not determined to be a fundamental liberty interest, the Court gave a great deal of deference to the laws in place at the time of the rulings. In particular, Washington v. Glucksberg dealt with a Washington statute that made it a felony for a person to assist in the death of another. The state of Washington argued that it had a legitimate interest in preserving lives, preventing suicides, avoiding the involvement of third parties and the use of unfair or arbitrary influence, protecting the integrity of the medical community, and avoiding future movement toward euthanasia and other abuses. The Court held that the law was rationally related to those legitimate interests. However, it left the door open for states to permit physician-assisted suicides by declining to ban the practice.

Currently California, Oregon, Washington, and Vermont have enacted “Death with Dignity” statutes, and Montana has made the practice legal through case law. Twenty more states are considering “Death with Dignity” legislation this season, and twenty-five states have no legislative activity on the topic this year. Clearly there is still a lot to be decided in this area, and it is likely to be an active area of law for many years to come.

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Pharma Transparency Bill Wains in California as Price-Gouging Discussion Gains Momentum Nationally

On August 17, California lawmakers killed a drug price transparency bill, putting to rest a policy that would have major implications on the pharmaceutical industry in the United States’ most populous state. The bill, which was first introduced by State Senator Ed Hernandez (D-West Covina) in February 2016, sought to require drug makers to report and explain any price pharmaceutical increase of ten percent within any given twelve-month period, as well as justify any drug price of at least $10,000 within thirty days of moving to that amount and require insurers to disclose how much money they spent on drugs. While the bill received far-reaching support from healthcare providers, insurers, patient advocacy groups, labor groups, and business groups alike, it was met with fervent opposition by pharmaceutical companies.

According to the Los Angeles Times and lobbying activity filings, Hernandez’s legislation was one of the most lobbied bills of current the session, with at least seventy groups spending  money to advocate for or against it. “It’s probably amongst one of the more heavily lobbied bills — similar to tobacco and the most controversial bills,” the measure’s author, Senator Hernandez, told The Times.  However, by August 17, after four amendments, Hernandez pulled the plug on it entirely, stating that the amendments made it difficult to accomplish the bill’s intention, which would have “shed[] light on the reasons precipitating skyrocketing drug prices.”

The demise of this legislation is another huge win for Big Pharma lobbyist PhRMA, which in October 2015 won a summary judgment ruling in the United States District Court for the District of Columbia, blocking certain hospitals from receiving discounts for pricey orphan drugs. It also comes at a time when pharmaceutical companies, biotech firms, and orphan-drug makers have come under high scrutiny for price gouging, including the 5,455% price increase of HIV and Malaria-treatment medication, Daraprim, from $13.50 to $750 per pill in September 2015. Earlier this month, the uptick of the price of the allergic reaction-treating EpiPen Auto-injector medical device – from $57 to $600 between 2007 and 2016 – as its maker anticipates the arrival of a generic competitor, though, its non-generic, brand name competitor Auvi-Q was recalled in 2015 over dosage concerns.

A proponent for changes to Big Pharma since the 1990s, United States Senate Bernie Sanders (I – VT) made “out of control” prescription drug pricing a key issue during his 2016 presidential campaign. After winning the Democratic nomination, Presidential hopeful Hillary Clinton has carried the torch, speaking out on drastic price increases, sending stocks for EpiPen-maker, Mylan, tumbling.

With little being done by the United States Congress on the issue of drug price transparency, fourteen state legislatures have introduced measures to reign in prices. As of 2016, only Vermont has been successful in passing a bill, while others stall or fail outright, as is the case in California.

The pricing war in California now marches to the ballot in November. Citizens will vote on an initiative that would prohibit state agencies, like Medical (the state’s version of Medicaid) and Medicare from being charged any more for drugs than the United States Department of Veterans’ Affairs.

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Holding Nursing Homes Accountable

There are currently over 1.4 million Americans living in nursing homes. When people enter a nursing home, they expect to receive the utmost quality care. However, if for any reason that care is anything less than adequate, there are not reasonable safeguards in place to hold nursing homes truly accountable to patients.

In an effort to prevent nursing home residents from suing for resident rights violations, abuse or neglect, nursing homes ask residents or their families to sign agreements prior to admission that include binding pre-dispute arbitration provisions. The arbitration clauses in these contracts require residents and their families to settle disputes through private arbitration rather than in a court of law in front of a jury. Most arbitration clauses are hidden in contracts so that consumers will not pay attention to the fact they are waiving important, constitutional rights to a jury, the right to discovery, and the right to a written record. However, instead of simply banning these pre-dispute clauses, the Centers for Medicare and Medicaid Services allows them as long as the nursing homes take steps to explain and disclose the clauses. Unfortunately, even if nursing homes explain these clauses it does not mean that residents and their families will fully understand prior to signing. Forced arbitration shields corporations from liability, but at the same time denies justice to patients, meaning that business wins and consumers lose.

In July 2015, the Centers for Medicare and Medicaid Services (CMS) issued a proposed rule to revise requirements for nursing homes, including specific requirements relating to the use of these pre-dispute arbitration clauses. In October 2015, 27 members of Congress sent a letter to CMS criticizing CMS’s proposed rule, stating it would not adequately protect residents in nursing home facilities. The letter called on CMS to issue a final rule; this ensured that residents entering these agreements will do so only on a voluntary and informed basis after a dispute arises instead of prior to a dispute. This would give residents the choice to use arbitration as an alternative dispute resolution rather than a forced resolution. Further, the congressional members wanted to ensure that signing the agreement would not be a requirement for admittance, but simply an option to handle unresolved disputes.

In July 2016, 32 members of Congress sent another letter to CMS that commended many provisions of the rule, but highlighted critical issues that must be fixed before the final version to protect our country’s most vulnerable population.  The letter applauded CMS for recognizing the problems with these pre-dispute arbitration clauses, but said CMS was not doing enough. The letter asked to explicitly prohibit these clauses from nursing home agreements for many reasons. CMS cannot expect residents and their families to make such decisions during their initial admission to a nursing home. Nursing homes must be held accountable for the care they provide to our nation’s elderly community.

The final version of the new regulations for nursing homes is expected to arrive in September.

 

 

 

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Just a Weed Killer?

Earlier this month, a federal court ruled on whether Monsanto’s Roundup herbicide is capable of causing non-Hodgkin’s lymphoma must be first determined before proceeding in a personal injury suit (Giglio v. Monsanto Co., 2016 BL 251362, S.D. Cal., No. 15-cv-2279, 8/2/16). The U.S. District Court for the Southern District of California bifurcated the trial and limited the first round of pre-trial discovery to whether Roundup can cause harm, such as cancer. If causation can be shown, then the court will weigh specific injury to plaintiff. The plaintiff, Emanuel Richard Giglio, owned and operated a turf installation business and used Roundup on a regular basis in his work. Giglio alleges that his exposure to glyphosate, the active ingredient in Roundup, caused him to develop stage three non-Hodgkin’s lymphoma.

Glyphosate is an active substance used for the production of pesticides and is the most frequently used herbicide worldwide. The term “pesticides” refers to a broad class of crop-protection chemicals: insecticides, which are used to control insects; rodenticides, which are used to control rodents; herbicides, which are used to control weeds; and fungicides, which are used to control fungi, mold and mildew. Glyphosate-based pesticides (i.e. formulations containing glyphosate and other chemicals) are used in agriculture and horticulture, primarily to combat weeds that compete with cultivated crops.

However, the United States is not the only country considering the health effects of the commonly used weed killer. Glyphosate has been thrust into the middle of a heated dispute between EU and US politicians, industry leaders, regulators, and activists. In 2015, European Food Safety Authority (EFSA) was in the process of reviewing glyphosate, when the International Agency for Research on Cancer (IARC)—which independently gathers health data for the World Health Organization—declared glyphosate a “probable human carcinogen.”  Then in May 2016, U.N.’s Food and Agriculture Organization (FAO) and World Health Organization (WHO) stated glyphosate was unlikely to pose a risk to people exposed to it through food.

The contradictory findings have spurred debate and have delayed the license for glyphosate, which expired June 30, 2016. EU member states failed to reach agreement on the renewal of the herbicide, and the European Commission were forced to temporarily grant an 18-month extension to glyphosate’s authorization in the EU.  Furthermore, new rules which restrict the conditions around the use of glyphosate in the European Union are to come into effect. These new restrictions around the use of the herbicide will apply for the duration of the 18-month extension until the European Chemicals Agency (ECHA) issues its opinion on the herbicide.

Glyphosate will continue to be at the center of debate for the next couple of years, as the EU and US await further studies on its likely impact on human and environmental health.

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Approaching Clients from a Trauma Informed Perspective

Studies show that growing up in poverty hurts young minds. A recent New York Times article chronicling these findings compares growing up in poverty to playing football without a helmet-everyday life causes social concussions. Brute force is not required to cause physical changes in the brain, rather these changes can result from perpetual toxic stress. How is this so? The brain is the primary mediator and target of stress resiliency and vulnerability because it determines what is threatening and also decides how to respond to that threat. When a person is stressed, the brain releases a hormone called cortisol-a hormone that is essential to the “fight or flight” response and that is important in the development of young children. Margaret Cotty, executive director of the Partnership With Children explains:

Too much cortisol changes two parts of the brain. One is your prefrontal lobe in the front of your brain. That’s how you develop executive functions — negotiating with people, telling the difference between good and bad, thinking about the consequences of your actions, your social behaviors in a classroom. Literally, how you behave. The other area is the hippocampus, deeper in the brain, which is central to creating memories of fact. The things you can declare and verbalize. Pretty important to school.

 

These concerns were highlighted in a study that was conducted by Kaiser Permanente health maintenance organization and the Centers for Disease Control and Prevention between 1995 and 1997. The study, called the Adverse Childhood Experiences Study, demonstrated an association of adverse childhood experiences (ACEs) with health and social problems as an adult. Children who develop in lower socioeconomic (SES) households, in addition to being exposed to toxic substances, excessive noise, and temperature variations, are more likely to live in unfavorable housing conditions and to be exposed to what have been termed “risky family” dynamics, characterized by conflict-laden relationships, aggressive and harsh parenting, and other forms of early life stress which may increase risk for the problems highlighted above. Also, individuals living in low SES neighborhoods may be more frequently exposed to stressful life events in association with higher concerns over community crime, pollution, and crowding, as well as unstable, effortful, and unrewarding employment opportunities related to persistent economic hardship.

This reality undoubtedly affects court systems every day. It is important to consider past and present trauma when working with clients in the court system, as many have undoubtedly been exposed to multiple stressors in their lives. In such instances, it is possible that clients may exhibit behaviors that are problematic or frustrating since their executive functioning and stress response systems have been adversely affected. In an article entitled “The Pedagogy of Trauma-Informed Lawyering,” Sarah Katz and Deeya Haldar offer suggestions for courts and attorneys. According to them, the hallmarks of a trauma-informed practice are when the practitioner puts the realities of the client’s trauma experiences at the forefront in engaging with the client, and adjusts the practice approach informed by the individual client’s trauma experience. Trauma-informed practice also encompasses the practitioner employing modes of self-care to counterbalance the effect the client’s trauma experience may have on the petitioner. By approaching the client with a trauma-informed response, the root of the problem can be addressed rather than exacerbated.

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