Category: Nadia Sawicki

Doctors who DREAM: Clearing up Confusion on Citizenship Requirements

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By Nadia N. Sawicki

Loyola University Chicago’s Stritch School of Medicine recently announced that it is accepting applications from DREAMers – undocumented immigrants who are eligible for the Deferred Action for Childhood Arrivals (DACA) program, which grants qualified applicants a two-year, renewable authorization to remain and work within the United States. This news was met with predictable responses on both sides of the immigration debate – DREAMers applauded the decision, while critics of immigration reform derided the program as a “campaign by that elites who run higher education” who are insensitive to the program’s effects on American citizens.

Media reporting on Loyola’s new policy, however, has been unclear with respect to one issue – whether DREAMer graduates will ultimately be able to obtain medical licenses in the states in which they intend to practice.  According to Geoffrey Young, senior director of student affairs and programs at the Association of American Medical Colleges in Washington, who was quoted in an article in Crain’s Chicago Business, “They’ll all be M.D.s, but whether or not they can practice legally in states is to be determined.”

Under the best interpretation of current law, however, DREAMers who successfully graduate medical school cannot be barred from obtaining a medical license on account of their citizenship status.  While some states’ licensing requirements still include a citizenship requirement (New Jersey, for example, requires that applicants for a medical license be U.S. citizens or declare their intention to be a citizen; those who fail to gain citizenship within a set period of time will have their temporary licenses revoked), Supreme Court precedent indicates that withholding medical licensure based on citizenship status would likely violate the Equal Protection clause of the Fourteenth Amendment.

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Health Law Chair Position at Loyola University Chicago

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By Nadia N. Sawicki

I’m pleased to announce that Loyola University Chicago School of Law is seeking to fill the recently created Bernard J. Beazley Chair in Health Law and Policy.  My colleagues and I at the the Beazley Institute for Health Law and Policy are excited for the opportunity to welcome a distinguished scholar of health law into the Loyola community.

Inquiries should be directed to Prof. Spencer Weber Waller, the chair of the search committee, at swalle1@luc.edu. Interested candidates should submit an application at www.careers.luc.edu.

Additional details about the position are below the fold. Read More

Lethal Injection Drug Shortage Leads to Debate

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By Nadia N. Sawicki

A recent article in the New York Times (“Death Row Improvises, Lacking Lethal Mix”) described the challenges that correctional departments in death penalty states face in obtaining the drugs needed for lethal injection. The manufacturers of pancuronium bromide and pentobarbital, for example, have refused to supply drugs for execution purposes, and the U.S. Court of Appeals for the District of the District of Columbia recently ruled that the FDA cannot approve importation of sodium thiopental. States such as Missouri, Arkansas, and California are now struggling to decide how to approach the issue.

The article quotes death penalty supporter Kent Scheidegger, of the Criminal Justice Legal Foundation, who describes the legal challenges to lethal injection drugs as a “conspiracy to choke off capital punishment by limiting the availability of drugs.”  Also quoted is Robert Blecker, a professor of criminal law at New York Law School, who refers to the drug challenges as “an abolitionist tactic to gum up the works … It’s just another tactic.”  Such comments do a disservice to those on both sides of the political spectrum who have legitimate concerns about the methods by which states execute death row prisoners.  Not every challenge to lethal injection techniques is a subversive tactic to overturn the death penalty.  In engaging in debate on this issue, commentators ought to look beyond their own political perspectives and consider that the arguments made by opponents are made in good faith and do not always reflect a predetermined political view.

While many opponents of lethal injection techniques are driven by a moral opposition to the death penalty, the arguments about the problems with these techniques are valid regardless of one’s political position. Surely, even a supporter of the death penalty can believe that the methods used to execute prisoners matter – that lethal injection techniques ought to be effective and efficient, and ought to be designed to avoid the types of errors that have caused complications in the past.  One’s support for the death penalty as a penal tool should not negate human compassion for even the most hardened criminal’s last moments on earth.  While death penalty states may be eager to move forward with executions as quickly as possible, it is foolish for this motivation to drive the adoption of untested and unproven drugs.

While there are very real logistical challenges to testing new execution techniques, death penalty supporters are wrong to describe the arguments presented by opponents of the current system of lethal injection as merely conspiratorial tactics to “gum up the works.” Rather, these arguments reflect legitimate concerns about the end-of-life experiences faced by the 40 to 60 prisoners who are executed every year.  Commentators such as Scheidegger and Blecker, if truly committed to the death penalty, ought to find ways to satisfy critics’ concerns about humane execution methods, rather than dismiss critics as politically-motivated obstructionists.

Is Paying For Medical Care Like Buying A Used Car?

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By Nadia N. Sawicki

Two recent publications prompt me to ask this question.

The first, forthcoming in JAMA Internal Medicine, is a study by Jaime Rosenthal, a student at Washington University in St. Louis.  Rosenthal and her colleagues set out to obtain pricing data for total hip arthroplasty from 20 top-ranked orthopedic hospitals and 102 representative general hospitals (two from each state and Washington DC).  Rosenthal, posing as the granddaughter of a 62-year old woman without health insurance, contacted each hospital numerous times to inquire about the total cost of the procedure.  Only 45% of the top-ranked hospitals and 10% of other hospitals were able to provide a complete bundled price; price estimates were obtained at 15% of ranked hospitals and 53% of other hospitals by contacting the hospital and physicians separately.  And perhaps most startlingly, the prices quoted for the procedure ranged from $11,000 to $125,798.  The authors’ conclusion is a modest one – that patients “may find considerable price savings through comparison shopping” – but I believe its impact is far greater.  In part because of the way health care is financed in our country, the average American consumer has little awareness of how much any given medical procedure actually costs.  But who can blame the consumer in this market, when those who provide the services themselves have no baseline against which to set costs?

This brings me to the second piece —  Steven Brill’s excellent article in Time Magazine, “Bitter Pill: Why Medical Bills are Killing Us,” which my co-blogger Patrick O’Leary blogged about last week.  ).   Brill spent half a year trying to understand why some nonprofit hospitals seem to function like prosperous businesses – with brand-new facilities, impressive executive compensation, and high profit margins.  He approached this problem by analyzing patients’ medical bills from hospitals, physicians, drug companies, “and every other player in the American health care ecosystem.”  Brill offers a scathing commentary on a system where patients are billed $18 per diabetes testing strip that can be purchased in boxes of 50 on Amazon.com for about 55 cents per strip.  Another example: one patient was billed $7,997.54 for a CT scan stress test that Medicare pays $554 for; and $3 for a reusable pen that marked where an incision would go.  These prices, Brill explains, are based on the chargemaster, a master document of prices kept by every hospital that is the basis for insurance negotiation reductions.  Nearly every executive he spoke with said that the chargemaster prices are irrelevant because “nobody gets charged those prices,” but Brill’s research suggests the contrary. Those without insurance, as we in the health law and policy community have long known, are charged more that those who are covered by insurance.  Brill’s article also follows medical billing advocates who negotiate patient bills down dramatically for patients who are willing to pay their fees; however, not every patient is so lucky.

The findings in Rosenthal’s and Brill’s articles are startling.  Few consumers, I would image, participate in the health care market with the understanding that the costs they might pay vary widely from institution to institution; that the prices they are asked to pay for a given procedure are far in excess of how much federal health programs believe the procedure is worth; or that they can “bargain down” their charges through skilled negotiation by someone with inside knowledge of the system.  Readers of this blog might chafe at the comparison between the market for health care and the market for used cars, but perhaps it is the used car dealer who should feel offended.  His customers, at least, can rely on the Kelley Blue Book.

Google, Whole Foods, and … Big Pharma?

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By Nadia N. Sawicki

Google’s informal corporate slogan is “Don’t be evil.”  Whole Foods is a Fortune 500 company with a net revenue of 10 billion dollar that prides itself on a commitment to social responsibility.  Both companies have pledged to do long-term good in the world, even at the expense of short-term gains, and both are wildly successful.

If corporations can be profitable as a result of their commitments to social justice and corporate ethics, why can’t this doctrine be extended to the pharmaceutical industry?  Someday, a company called GoodPharma might reach the Fortune 500 on the basis of a pledge to improve access to medicine, conduct international research trials in accordance with the highest standards of research ethics, engage in research on orphan diseases, publish negative research findings, promptly report information about adverse effects, and generally act as a model for ethical industry practices.  If this business model hasn’t been explored, it should be.

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Good Science and Bad Verdicts

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By Nadia N. Sawicki

On Monday, an Italian court convicted six scientists and a government official of manslaughter for providing the townspeople of L’Aquila with “inaccurate, incomplete and contradictory” information about risk of a 2009 earthquake in which 309 residents subsequently died. The prosecutors in the case successfully alleged that the scientists, all members of the National Commission for the Forecast and Prevention of Major Risk (La Commissione Nazionale per la Previsione e Prevenzione dei Grandi Rischi), downplayed the risks to the town at a meeting in which they described the possibility of a large earthquake “unlikely” despite a series of minor tremors.  Interestingly, the prosecutor in the case cited a 2009 ruling by the U.S. District Court for the Eastern District of Louisiana holding that the U.S. Army Corps of Engineers’ negligent maintenance of a navigation channel contributed to the flooding after Hurricane Katrina.

The defendants were sentenced to six years in prison and ordered to pay $10.2 million in damages and costs, a result one of the convicted defendants, a physicist, has decried as “medieval.”

The decision to criminally punish scientists for failing to predict a natural disaster that is inherently unpredictable is likely to have a chilling effect on critical research.  More importantly, it may lead to reluctance on the part of the scientific community to collaborate with government agencies for the public good. Indeed, the Department of Civil Protection (Dipartimento della Protezione Civile), of which the National Commission is a part, suggested that the first consequence of the court’s ruling would be a “paralysis of forecasting and prevention activities” (translation my own).  “This is the death of public service on the part of professors and professionals,” said Luciano Maiani, president of the National Commission, who, along with a number of colleagues, resigned his post on Tuesday.

Missouri District Court Dismisses Challenge to Contraception Mandate

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By Nadia N. Sawicki

Litigation challenging the PPACA contraception mandate continues, and last week’s decision by the U.S. District Court for the Eastern District of Missouri in O’Brien v. HHS brings the total number of decisions on the merits to two (three cases – Nebraska v. Sebelius, Wheaton College v. Sebelius, and Belmont Abbey v. Sebelius – have already been dismissed for lack of standing).

Judge Carol Jackson’s opinion dismisses all the plaintiffs’ claims, but focuses primarily on the Religious Freedom and Restoration Act (RFRA) claim.   RFRA, which was passed by Congress in response to the Supreme Court’s 1990 decision in Employment Division v. Smith, applies a stricter standard of scrutiny to burdens on religious exercise than is constitutionally required under Smith.  A plaintiff who can demonstrate that his freedom of religious exercise is being substantially burdened by a law will prevail unless the government can prove that the law serves a compelling state interest using the least restrictive means possible.

With respect to O’Brien’s RFRA claim, the District Court concluded that requiring a corporate employer to cover contraception in its health insurance plan does not impose a substantial burden on the entity’s right to religious exercise.  Or rather, the entity’s hypothetical right to religious exercise – the District Court assumed for the sake of argument that a secular corporation can, in fact, “exercise” a religion.  The court concluded, however, that whatever burdens exist on the plaintiffs’ right of free exercise, those burdens are “too attenuated to state a claim for relief.”   Unlike other cases where plaintiffs have been able to demonstrate substantial burdens on religion, the PPACA contraception mandate would not prevent the plaintiffs in O’Brien from keeping the Sabbath, raising a family according to Scripture, eschewing contraception, or expressing an opinion to employees.  Rather, the mandate merely requires indirect financial support of a practice with which the plaintiffs disagree – no different, the court suggests, than paying a salary to an employee who, through her own free will, chooses to purchase an objectionable product.  While the court did not draw this connection directly, this reasoning is similar in kind to the reasoning used by courts in rejecting claims of conscientious objection by taxpayers.

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When Is An Emergency Not an Emergency?

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By Nadia N. Sawicki

In 2010, Illinois issued an administrative rule requiring that pharmacies dispense all lawfully prescribed drugs, including emergency contraception, or face sanctions.  Last week, an Illinois appellate court in Morr-Fitz v. Quinn held that Illinois’ Conscience Act prohibits enforcement of the rule as applied to the plaintiffs, pharmacy owners with ethical convictions against distribution of emergency contraception.

The case was decided on state law grounds, and involved a rather thorough textual analysis of the Illinois Conscience Act and the administrative rule regarding pharmacies’ obligations to dispense.  The most interesting part of the court’s analysis, in my opinion, was its discussion of whether the need for emergency contraception qualifies as an emergency.

By its terms, the Illinois Conscience Act does not relieve medical providers from their legal obligations to provide “emergency medical care.”  The state defendants in this case argued that “because ‘every hour counts’ in the effectiveness of Plan B contraceptives, the provision of emergency contraceptives falls within this exception.”  The court, however, concluded that emergency medical care necessarily involves “an element of urgency and the need for immediate action,” and that a woman’s need for emergency contraception does not fall within this definition.  According to the court, unlike a ruptured appendix or surgical shock, “unprotected sex does not place a woman in imminent danger requiring an urgent response.”

What do you think?

Symposium: Freedom of Choice at the End of Life, Nov. 16

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By Nadia N. Sawicki

New York Law School’s Justice Action Center is hosting a symposium on elder law on Friday, November 16, titled “Freedom of Choice at the End of Life: Patients’ Rights in a Shifting Legal and Political Landscape.”   A number of Bill of Health bloggers (myself included) will be speaking at this event, which will address topics including legal and practical impediments to honoring end-of-life wishes, the practicalities of drafting and using advance planning tools, pain management and palliative care, futility, and ethical dilemmas in end-of-life care.  You can register here.