Author Archives: Jessica Winslow

The Debate Over Wrongful Birth Suits in Texas

The Texas Senate may soon decide on a bill that would prohibit parents from filing “wrongful birth” suits.  Wrongful birth suits allow parents of a child born with a genetic disability to sue their doctor if they say they were not properly warned about the potential for the disability or counseled on their options, including the parents’ choice to have an abortion based on the severity of the condition.  Nine states have enacted bans on wrongful birth lawsuits, including Arizona, South Dakota, and Indiana.

Wrongful birth lawsuits are different than wrongful pregnancy cases, in which women can sue physicians if they become pregnant after receiving an operation to prevent them from having children.  They are also different from wrongful life suits, which are brought on behalf of disabled children and are not recognized in Texas.

The wrongful birth legal issue in Texas dates back to a 1975 Texas Supreme Court caseJacobs v. Theimer, 519 S.W.2d 846 (1975).  Dortha Jean Jacobs, the plaintiff in that case, contracted rubella during her first trimester, giving birth to a child with defective organs.  Consequently, the Jacobs’ medical bills totaled more than $21,000 by 1973.  Jacobs and her husband sued Dr. Louis M. Theimer on grounds that she failed to diagnose the rubella and inform them of potential long-term risks to the fetus.  The Texas Supreme Court sided with Jacobs, awarding her family the funds needed to care for the child’s disability.  Since the Jacobs case, wrongful birth lawsuits in Texas have been very rare.  In fact, medical malpractice attorneys in Texas say they rarely, if ever, see wrongful birth lawsuits.

Lawmakers brought the bill before the Texas Senate Committee on State Affairs last week in a hearing with dramatic and emotional public debate.  Senator Brandon Creighton, who authored the bill, said allowing the lawsuits could encourage doctors to seek out every possible disability and even promote abortions to avoid litigation.  Creighton said the bill would send a message that Texas “does not believe that a life in and of itself is an injury in which parents need a damage payment.”  “The presence of a disability in a child should not be grounds for a lawsuit,” Creighton said at a Senate State Affairs Committee hearing on February 27.

Proponents of the bill say that it is needed to protect doctors from wrongful birth lawsuits and to protect the rights of the disabled.  Proponents also argue that parents will still be able to sue doctors for negligence if needed.

Opponents called it another attempt by the state to infringe upon a woman’s right to choose to have an abortion and that it essentially allows doctors to withhold information from patients, and impose their religious beliefs upon them.  “It seems to be axiomatic that we should have to stand up and say that it shouldn’t be policy for the state of Texas to excuse doctors from lying to their patients, and that’s what this bill does,” said Blake Rocap, legislative counsel for National Abortion Rights Action League / Pro-Choice Texas.  He said doctors should not be held liable for disabilities “they did not cause,” and that doctors “may overcautiously seek out all potential disabilities and promote abortions in order to avoid liability.”  Despite the objections, the committee voted unanimously to send the bill to the full Senate.

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Where does Neil Gorsuch Stand on key Public Health Issues?

President Trump announced Neil Gorsuch as his Supreme Court nominee in late January 2017.  Judge Gorsuch, a 49-year-old federal appellate judge based in Colorado, currently sits on the Tenth Circuit Court of Appeals.  His legal career reflects a rapid ascent to the upper echelons of the American judicial system.  After graduating from Harvard Law School in 1991, Judge Gorsuch clerked for the Supreme Court, worked at a high-profile Washington law firm, and served as a Principal Assistant to the Deputy Attorney General in the Department of Justice.  Then, in 2006,  President George W. Bush appointed him to the Tenth Circuit.

Since his nomination, public health advocates have been anxious to understand where he stands on key public health issues.  Judge Gorsuch has a reputation for being an originalist, and many hail Judge Gorsuch as the “most natural successor to [the late] Justice Antonin Scalia.”  In his eleven years on the 10th circuit, Judge Gorsuch has stuck to conservative values and support of religious freedom.  But he also has a history of pushing back on federal agencies and regulations—including the centers for Medicare and Medicaid Services.

So where does Judge Gorsuch stand on key healthcare issues?  First, he’s against assisted suicide.  In fact, Judge Gorsuch authored a book, The Future of Assisted Suicide and Euthanasia, which argued against the practice.  In The Future of Assisted Suicide and Euthanasia, Judge Gorsuch railed against assisted suicide, with the argument that all human life is fundamentally valuable and that it’s always wrong to intentionally kill.  Unsurprisingly, organizations that support assisted suicide publicly opposed Judge Gorsuch’s nomination.

Second, he’s against the ACA Contraceptive Mandate.  In two separate 2013 cases, Judge Gorsuch sided with the corporations’ right to exemption of the Affordable Care Act’s contraceptive mandate on religious grounds.  See Hobby Lobby Stores v. Sebelius, 723 F.3d 1114 (10th Cir. 2013); Little Sisters of the Poor Home for the Aged v. Burwell, No. 13-1540 (10th Cir. July 14, 3015).  According to Judge Gorsuch, “[t]he ACA’s mandate requires them to violate their religious faith by forcing them to lend an impermissible degree of assistance to conduct their religion teaches to be gravely wrong.”

Third, Judge Gorsuch supported defunding Planned Parenthood in Utah.  In October 2016, the 10th Circuit sided with Planned Parenthood holding that Utah Governor Gary Herbert had likely pulled $270,000 in grants from Planned Parenthood in retaliation for the group’s abortion advocacy.  Judge Gorsuch dissented, however, arguing that Governor Herbert had lawfully defunded Planned Parenthood because he believed the group was involved in fetal tissue trafficking.

Finally, Judge Gorsuch’s stance on abortion is unclear, however, his opinions on contraception and assisted suicide signal that he opposes it.  Gorsuch’s ruling in favor of Hobby Lobby and Utah’s Planned Parenthood further support this assumption.  Thus, his nomination is concerning for abortion rights advocates.

Congress has yet to confirm Judge Gorsuch, but whoever becomes the ninth Supreme Court Justice will undoubtedly affect public health law and policy.  Advocates on both sides are holding their breath to see what happens next.  At the moment, all eyes are on Judge Gorsuch.

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The VA Proposes a New Rule to Combat Wait Times-Will it Help?

The U.S. Department of Veterans Affairs (VA) has an infamous reputation for providing poor service to U.S. Veterans. Stories of veterans failing to receive adequate care for serious illnesses, or even dying while waiting for care, are ubiquitous. The situation erupted in 2014 when whistleblowers revealed that records of deceased veterans had been changed or physically altered to hide how many people died while waiting for care at the Phoenix VA hospital. “Deceased” notes on files were removed so veterans would not be counted as having died while waiting for care, but that was only one situation in one hospital.

Take, for instance, the story of Barry Coates. Mr. Coates was having excruciating pain and rectal bleeding in 2011. He went to several VA clinics and hospitals in South Carolina trying to get help. Eventually, a VA hospital diagnosed him with hemorrhoids, prescribed simple pain medication, and told him he might need a colonoscopy. As the pain worsened, Mr. Coates begged VA officials for colonoscopy, but found himself on a waiting list. Finally, about a year after complaining to his doctor about the pain, Mr. Coates got a colonoscopy where doctors discovered a cancerous tumor about the size of a baseball. Mr. Coates underwent chemotherapy for his Stage 4 cancer, but it was too progressed. Mr. Coates passed away in January 2016.        

Responding to these scandals, Congress and the VA came up with a solution—the Veterans Choice Program. Veterans Choice was a $10 billion program that was supposed to give veterans a card that would let them see a non-VA doctor if they were more than forty miles away from a VA facility, or they were going to have to wait longer than thirty days for a VA provider to see them. This solution hasn’t seemed to work. Wait times have gotten worse, and compared to early 2015, there are 70,000 more appointments that took vets at least a month to be seen. While the VA says there has been a massive increase in demand for care, it seems the problem has more to do with the way Veterans Choice was set up. The program is confusing and complicated, and veterans and doctors don’t understand it.

To address these continued problems, the VA proposed a new rule that would expand the scope of practice of advanced practice registered nurses (APRNs) who work for the agency. Under the proposed rule, the VA said it intends to expand the pool of qualified healthcare professionals who are authorized to provide primary healthcare and other services to the full extent of their education and abilities without the clinical supervision of physicians.

More than sixty organizations, including veterans’ groups, healthcare professional organizations, and eighty Democratic and Republican members of Congress, have voiced support for the proposed rule. For example, the American Nurses Association released a letter in support of the proposal consistently reiterating that the proposal is in line with best practice recommendations. There have also been studies that have shown that granting nurses greater authority would have significant benefits such as achieving healthcare cost savings and increasing access to care. However, support has not been unanimous. For instance, the American Medical Association released a statement saying it was disappointed by the VA’s “unprecedented proposal,” and that the rule would significantly undermine the delivery of care within the VA.

If the VA does implement this proposed rule, it could become a leader in the occupational licensing arena and spur state governments to follow suit. Currently, a majority of U.S. states limit what nurse practitioners can do, requiring them to work under the direct supervision of a doctor and prohibiting them from prescribing drugs. One thing is certain—the VA needs to take substantive steps to address the problems that have been rampant for years. Perhaps, this proposed rule is a step in the right direction.

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Key Healthcare Issues and the 2016 Election

The 2016 Presidential election is only a few weeks away. While healthcare has not been central to the Presidential campaign, the election’s outcome will be a major determining factor in the country’s future healthcare policy. The outcome of the 2016 election is likely to influence several key healthcare issues, including the Affordable Care Act (ACA), rising prescription drug costs, and women’s health issues. As Americans go to the voting polls, understanding where each candidate (and party) stands is important as the two parties are in stark contrast with each other on most key issues.

The future of the ACA is one of the biggest healthcare issues likely to be affected by the outcome of the 2016 election. Democratic Presidential Candidate Secretary Hillary Clinton supports policies to maintain and build upon the Act. Specifically, Secretary Clinton would increase premium subsidies in the marketplace so no participant would be required to pay more than 8.5 % of their income for coverage. Secretary Clinton has stated that she would also fix the “family glitch” to allow people to buy coverage through the marketplace regardless of their immigration status. Additionally, Secretary Clinton has maintained that she would incentivize states to expand Medicaid and would make enrollment through Medicaid and the ACA easier by dedicating more funding for outreach and enrollment efforts. Further, Secretary Clinton claims she would make a public plan option available in every state, giving people the option of buying into Medicare starting at age 55.

Republican Presidential Candidate Donald Trump has proposed a much different approach to healthcare policy relying more on the principles of the free market to regulate healthcare and less on government involvement. Mr. Trump supports a complete repeal of the ACA, including the individual mandate to have coverage. In lieu of requiring insurers to provide coverage to everyone regardless of health status, Mr. Trump has stated he would work with states to create high risk pools for individuals who have not maintained continuous coverage.  Specifically, this means to fund pools at the state level that would subsidize premiums for people with pre-existing medical conditions (high risk individuals) so that they can get affordable insurance coverage. Mr. Trump also supports a law that would allow Medicaid to be transformed into a state block grant program, and he would modify existing laws that inhibit the sale of health insurance across state lines. Further, Mr. Trump has maintained that he would encourage increased use of health savings accounts and allow people receive tax deductions for insurance premium payments.

The different positions of both candidates highlight an emerging truth: President Obama’s signature domestic achievement will almost certainly have to change to survive. The Democratic and Republican parties each agree that for too many people, health plans in the individual insurance market are still too expensive and inaccessible.

Another key issue in this election is the rising price of prescription drugs. Secretary Hillary Clinton believes in reducing prescription drugs costs and protecting consumers from unjustified price increases from companies that face little to no competition. The Democratic Presidential nominee has proposed increasing generic competition by prohibiting “pay-to-delay” deals whereby companies make payments to competitors for agreeing to delay market entry. She also supports eliminating tax deductions for direct-to-consumer advertising; requiring approval of advertisements by the Food and Drug Administration; tying federal support for drug companies to their investment in research and development; increasing transparency of the additional value new drugs have over existing treatments; and allowing Medicare to negotiate drugs and biologic prices. To address out-of-pocket spending on prescriptions, Secretary Clinton has proposed a $250 per month cap on cost sharing for covered drugs, and a rebate program for low-income Medicare beneficiaries that mirror those in Medicaid.

To contrast, Mr. Trump supports allowing importation of drugs from overseas that are safe and reliable but priced lower than in the U.S. He also supports greater price transparency from all health providers, especially for medical exams and procedures performed at doctors’ offices, clinics, and hospitals. However, he does not specify whether this policy would also apply to retail prescription drugs, which typically are not considered services or procedures.

Finally, an important topic to consider in the 2016 election is each candidate’s position on women’s health issues. For women, a key provision of the ACA has been the requirement that all new private insurance plans and Medicaid expansion programs cover certain categories of benefits, including maternity care, mental health, and prescription drugs, that were commonly excluded by individual insurers prior to the ACA. Under Secretary Clinton, these policies would remain intact. She has also proposed making maternal depression screening standard practice under Medicaid. Mr. Trump’s plan to repeal the ACA would eliminate minimum scope of benefits standards, jeopardizing coverage of no-cost preventive services.

Additionally, Secretary Clinton supports women’s access to reproductive health care including access to preventive care, affordable contraception, and safe and legal abortion. She also supports paid leave for parents and caregivers. Mr. Trump supports establishing more federal regulations on women’s access to abortion. He has also proposed a family leave plan that includes six weeks of paid maternity leave that would be paid for by eliminating unemployment insurance fraud.

One thing that is clear this election season is that the candidates (and their respective parties) have contrasting views on several issues. The 2016 election will be important in determining the future of these key healthcare issues.

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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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