Director for the Center for Health Law & Policy Browne C. Lewis delivered a lecture on the The Ethics of Physician-Assisted Suicide at Gresham College in London, England on January 25, 2016 as part of her semester in London as a Fulbright Scholar.
by Browne C. Lewis, Director, Center for Health Law & Policy,
Cleveland-Marshall College of Law
The public has expressed outraged over the water crisis in Flint, Michigan. In 2011, Governor Rick Snyder took control of the city of Flint and placed it under emergency management. In order to meet cost-cutting objectives, the emergency managers decided to draw the city’s water from the highly corrosive local river. As a result, for 18 months, the citizens of Flint consumed polluted water. When members of the predominately low-income African-American community complained about the appearance and taste of the water, they were ignored.
The government’s failure to acknowledge the validity of those complaints does not surprise me and others who work on environmental justice issues. Environmental justice/environmental racism refers to the disproportionate placement of environmental hazards in neighborhoods with mostly low-income and/or populations of color.
This is not the first time I have seen this story. As a native of Louisiana, I witnessed the growth of “Cancer Alley,” the highly polluted area between Baton Rouge and New Orleans that is the home to mostly African-Americans. During my time in Detroit, I watched as incinerators, medical waste facilities and other environmental hazards were placed in African-American neighborhoods. Even though those areas were already overly saturated with toxic entities, the government kept issuing permits to allow industries to place pollution-creating entities in those neighborhoods. The government failed to act to protect vulnerable people who were drowning in effluence. When the government ignores and/or fails to enforce environmental laws and regulations, it negatively impacts the public’s health. In Flint, as a consequence of the government’s disregard, children were permitted to be poisoned with lead-based water.
I practiced lead-based paint law, so I have in-depth knowledge of how devastating lead poisoning can be. There are no safe levels of lead exposure. In Flint, children who were already disadvantaged because of their race and economic status face the potential of being physically and mentally impaired. Public outrage is good; public action would be better. We need to fight to combat environmental injustice. Without action, the characters who are injured may change, but the story will remain the same.
On July 7, 2015, Delaware became the 29th state to enact a new Telemedicine Act (HB69). Telemedicine is very futuristic and allows patients to communicate with their doctor without actually having to be with the doctor. This Act has unanimous support from both Delaware’s House and Senate. The text of the Act provides this will go into effect immediately, however it may take licensing boards sometime to actually implement regulations called for by the Act.
Telemedicine is described as “a form of telehealth which is the delivery of clinical health care services by means of real time two-way audio, visual, or other telecommunications or electronic communications, including the application of secure video conferencing or store and forward transfer technology to provide or support health care delivery, which facilitate the assessment, diagnosis, consultation, treatment, education, care management and self-management of a patient’s health care by a health care provider practicing within his or her scope of practice as would be practiced in-person with a patient, and legally allowed to practice in the state, while such patient is at an originating site and the health care provider is at a distant site.” Telehealth is “the use of information and communications technologies consisting of telephones, remote patient monitoring devices or other electronic means which support clinical health care, provider consultation, patient and professional health-related education, public health, health administration, and other services as described in regulation.”
Establishing a doctor-patient relationship with telemedicine can be established by, but is not limited to: fully verifying and authenticating the location and, to the extent possible, identifying the requesting patient; disclosing and validating the provider’s identity and applicable credential(s); obtaining appropriate consents from requesting patients after disclosures regarding the delivery models and treatment methods or limitations, including informed consents regarding the use of telemedicine technologies; establishing a diagnosis through the use of acceptable medical practices, including patient history, mental status examination, physical examination (unless not warranted by the patient’s mental condition), and appropriate diagnostic and laboratory testing to establish diagnoses, as well as identify underlying conditions or contra-indications, or both, to treatment recommended or provided; discussing with the patient the diagnosis and the evidence for it, the risks and benefits of various treatment options; ensuring the availability of the distant site provider or coverage of the patient for appropriate follow-up care;and providing a written visit summary to the patient.
There are some exceptions, and some services may be provided without a doctor-patient relationship. Those include: informal consultation performed by a physician outside the context of a contractual relationship and on an irregular or infrequent basis without the expectation or exchange of direct or indirect compensation; furnishing of medical assistance by a physician in case of an emergency or disaster if no charge is made for the medical assistance; or episodic consultation by a medical specialist located in another jurisdiction who provides such consultation services on request to a person licensed in this state.
In the instances where the doctors can not diagnose or treat the person with out a face-to-face appointment, they must do at least one of the following: an appropriate examination in-person; have another Delaware-licensed practitioner at the originating site with the patient at the time of the diagnosis; the diagnosis must be based using both audio and visual communication; or, the service meets standards of establishing a patient-physician relationship included as part of evidenced-based clinical practice guidelines in telemedicine developed by major medical specialty societies, such as those of radiology or pathology. Any prescriptions made online are subject to the same standards as traditional prescriptions. Only a doctor who has formed a relationship with a patient may prescribe him or her medicine. A physician is not allowed to prescribe medicine to a person solely an the basis of an internet questioner or phone or internet consult. All medicines may be prescribed to a proper patient via telecommunications, including controlled substances in some cases.
The practice of telemedicine is not just limited to primary care doctors either. Other health care professionals can utilize this service too, including: psychologists, physician assistants, nurses, pharmacists, genetic counselors, chiropractors, respiratory care practitioners, podiatrists, dentists, occupational therapists, optometrists, mental health counselors and chemical dependency professionals, dietitians and nutritionists, and clinical social workers.
Many hospitals around Delaware are already using telemedicine to some extent. The new laws that Delaware are enacting will help guide the practitioners who already use this service and open the doors for many more. Surveys reveal that healthcare executives are optimistic about about the benefits offered by these teleservices.
There are many pros to having teleservices. These include: convenience, cost efficiency, less waiting time, quick transmission of x-rays, etc. to another doctors for a second opinion, and everything is privet because telepractice is subject to the same HIPAA standards as traditional practice. On the down side telemedicine is subject to technological glitches, inadequate assessments, resistance from physicians, and intrusion by hackers. Telemedicine is a great thing, but it should never and could never replace traditional medical services.
The conservative Chief Justice John Roberts delivered the opinion for the majority in the 6-3 decision that upheld the tax subsidies in the Affordable Care Act. In King v. Burwell, the petitioners argued that the ACA only provided eligibility for tax credits to the people in the states that used state-operated exchanges. The Court found the text to be ambiguous and decided to resolve this issue by looking at Congress’ intentions in passing the Act, rather than applying the Chevron test. The Court found that if the Act was meant to be interpreted the way petitioners describe, the tax credits would not apply and the coverage requirement would not apply in a meaningful way because many people would be exempt from it without the tax credit. The Court states that this would cause the same problem Congress was trying to resolve when passing the ACA. The Court held that Congress intended to apply the tax credits in all states nationwide, regardless if it is a state of federal exchange.
In his dissent, Justice Scalia called the Courts reasoning “jiggery-pokery.” He further ridiculed the opinion by stating that Obamacare should be renames SCOTUScare because the supreme court has saved the ACA so many times. Even the Chief Justice had to chuckle at that remark. Regardless, it looks like the ACA is here to stay.
June 29, 2015, in a 5-4 decision, the United States Supreme Court upheld the use of the controversial lethal injection drug midazolam. In 2008, the Supreme Court ruled on the constitutionality of the use of another lethal injection drug, sodium thiopenta, finding no constitutional violation. This drug has since been made unavailable as manufacturers refuse to sell it for lethal injections.States like Oklahoma have turned to using midazolam instead, which has caused a few botch executions.
The death row inmates In Glossip v. Gross brought suit against the State arguing that the use of midazolam violated the 8ths amendments ban on cruel and unusual punishment because it failed to induce a “deep coma like unconsciousness.” The inmates attorneys cited studies showing that although midazolam produced unconsciousness, the inmate can still be jolted awake from the intense pain caused by the second drug administered which causes immobilization. The State produced its own studies showing that in sufficient doses, midazolam can produce a deep enough unconsciousness that the person would be unable to feel “even extremely painful stimuli.”
Justice Alito wrote for the majority along with Chief Justice Roberts, Justice Scalia, Justice Kennedy,and Justice Thomas. They found that “the prisoners failed to identify a known and available alternative method of execution that entails a lesser risk of pain, a requirement of all Eighth Amendment method-of-execution claims,” and that “the District Court did not establish that Oklahoma’s use of a massive dose of midazolam in its execution protocol entails a substantial risk of severe pain.”
Justice Sotomayor wrote the main dissent, along with the liberal justices. She accuses the Courts new rule of legalizing torture saying that it would not matter if the State intended to use the drug or actually burn people alive. Justice Beyer, along with Justice Ginsburg wrote a second dissent that seemed to irritate Justice Scalia. In this dissent Justice Breyer outright questions the constitutionality of the death penalty and basically says that all capital punishment is cruel and unusual. Scalia responded directly to Justice Beyer in his concurrence calling their reasoning “gobbeldy gook”
The three plaintiffs in this case are currently back on death row waiting for execution. Glossip, is scheduled for lethal injection September 16, 2015 and the other two inmates are scheduled for October. Some may still argue that the death penalty is cruel but others feel that this is much less cruel and unusual than the fate of these men’s victims. Glossip hired someone to beat his boss to death with a baseball bat and one of the other men murdered his 9 month old daughter by snapping her spine in half. Some crimes are so heinous that they deserve the ultimate punishment. If the framers of the constitution intended to outlaw capital punishment, they would have. Instead they basically said “hey, we’re going to execute really bad, evil people, but were going to do it as humanly as possible.” Its not like capital punishment has fallen out of favor with Americans either, 70% of Americans do not oppose the death penalty. The Supreme Court did briefly experiment with cancelling the death penalty in the 1970’s but that only lasted 8 years. Either way, it is not likely the Court will outlaw capital punishment any time soon as 7 of the justices still support it.
It is estimated that about 1.4 million women with HIV become pregnant worldwide each year. Without treatment, they have a 15% to 45% chance of transmitting the virus to their baby. However, when antiretroviral medicines are given to mothers and children, the risk drops to slightly more than 1%.
The number of babies born with AIDS world wide has decreased substantially since 2009 and in 2013 only 240,000 babies were born with the virus as opposed to the 400,000 in 2009. The World Health Organization hopes to decrease that number even further in 2015 to less than 40,000 babies born with the virus.
Cuba recently became the first country to eliminate the transmission of HIV and syphilis from mother to child. WHO warms that preventative treatment is not 100% effective though. WHO defines “elimination” as a reduction of transmission to a number that is so low that it is no longer a public health problem. In 2013, only two babies in Cuba were born with AIDS. In order to eliminate the transmission of HIV from mothers to children, WHO, along with the Pan American Health Organization used prenatal care, HIV and syphilis testing for pregnant women and their partners, treatment for women who test positive and their babies, cesarean deliveries and breastfeeding substitution. Maternal and child health programs are also integrated with HIV and STD programs.
If WHO wants to reach its goal in decreasing HIV in infants, much work needs to be done world wide. But at least there is hope that it is possible.
Ohio currently has a ban on abortions after 24 weeks gestation, except if the mother’s life or major bodily functions are in immediate danger. If a pregnancy is between 20 and 24 weeks along, a doctor must determine whether the fetus is viable before agreeing to terminate the pregnancy.
The Ohio House of representatives passed an anti-abortion bill, known as the Heartbeat Bill in mid-March 2015. If this Bill is approved, it will make Ohio one of the most restrictive states when it comes to a woman obtaining an abortion. The Heartbeat Bill would make all abortions illegal after a fetal heartbeat is detected. This could be as early as six weeks into gestation, before most women even know they are pregnant. There is also no exceptions for incest and rape. Any doctors found guilty of violating this law would face imprisonment.
But will the Bill actually pass? This is the third time this Bill has come before the House. The first time was in 2011, where the Bill was passed in the House but died in the hands of the Senate. The second time the Bill did not even survive the House Vote. Now the Bill is currently waiting in the hands of the Senate to see if it will pass. Even if the Senate passes the bill, which is unlikely due to lack of support from some republicans, a very skeptical Gov. John Kasich would have to be convinced enough to approve the bill. There are very good reasons why even people who are on the “pro-life” side of the debate do not support this bill.
If the Bill is passed, it will likely be challenged in the courts. Supporters actually welcome this challenge and hope to appeal the case to the United States Supreme Court so they can challenge the decision in Roe v, Wade, which allows abortions up until the viability of the fetus, normally around 24 weeks gestation. Although the Court has, in more recent years, tended to uphold certain abortion restrictions, it is unlikely that the Court will go as far as to define “viability” at a time before the women knows she is pregnant. This would cause an undue burden on the woman’s right to receive an abortion and would seriously hinder the lives of victims of rape and incest by forcing them to give birth to a child conceived from crime and abuse. Some pro-life supporters fear that bringing cases such as these to the Supreme Court would actually have a detrimental affect on abortion laws and cause the Court to take a less restrictive stand. Instead of overruling Roe, they fear the Court could expand it and make abortion restrictions more lenient.
In December, Ohio Right to Life openly opposed the Bill. Instead the pro-life group endorsed another Ohio Bill, which would ban abortion after 20 weeks gestation, when the fetus can feel pain. They claim that this Bill is an effective challenge to Roe v. Wade and has the best chance of overturning the decision, or at least further reducing the time a woman could have an abortion. Thirteen states currently have laws that prohibit abortion at the point at which the fetus can feel pain. Two of those laws are being challenged in lower courts. Pro-Choice activists claim that this restriction is just as unconstitutional as the Heartbeat Bill because it underminds the supreme courts viability of the fetus test.