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Remembering Jacobson v. Massachusetts

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By Deborah Cho

In light of the measles outbreaks in California and now in Nevada, many, including myself, have wondered how we’ve come to this point where a completely preventable disease seems to threaten the lives of so many.  While there are recognized legitimate reasons to opt-out of receiving vaccinations, such as for medical and religious reasons, several states allow for opting-out based only on personal beliefs against a scientifically proven fact.  As California suffers from the greatest measles outbreak in this country in over a decade, lawmakers have begun to consider repealing the personal belief exemption.  If repealing the provision proves to be impossible, seeing as how the parents of over 10,000 kindergarteners in California have already chosen to take advantage of the exemption for non-religious reasons, it may be necessary to consider other strategies to encourage a rate of vaccination high enough to maintain herd immunity within our communities.

Jacobson v. Massachusetts was a seminal case in public health law from the early 20th century because it held that the State could mandate vaccinations, or other public health measures, when necessary to protect public health and safety.  The Court recognized some limits to this intrusion of liberty, such as when an individual would suffer harm from the measure or when the individual would be unduly burdened — as in the case of someone with strong religious beliefs against the measure.  Furthermore, the Court articulated some general standards: the measure must have a real and substantial relation to the public health goal and the burden caused must not be disproportionate to the benefit.  The public health measure in Jacobson met these standards — it compelled smallpox vaccination during an outbreak or required payment of a nominal monetary fine for those who refused to comply without a legitimate reason.  As Jacobson had no medical reason to opt-out of receiving the vaccination and had not asked for a religious exemption,  the Court found that he was required to either be vaccinated or to pay the fine.  His skepticism toward the medicine and doubt in the government were not enough.  Jacobson’s reasoning sounds strikingly familiar to the reasoning of many who choose to opt-out today, yet today the science is even more advanced and the benefits of vaccination are even clearer.

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Professionalism in Medicine

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By Deborah Cho

As an update to my previous post here on medical students and professionalism, Judge Sutton writing for the Sixth Circuit found that a medical school could deny a degree to a medical student for failing to meet “professionalism” requirements.  According to the opinion, the medical student had come late to classroom sessions, allegedly behaved inappropriately at a formal dance, had to repeat his internal medicine rotation due to poor performance, and had been convicted of driving white intoxicated.  The Sixth Circuit found that Ohio, where the medical school is located, treats the relationship between a university and a student as contractual in nature, with that contract’s terms supplied by the student handbook.  As the handbook in this case included professionalism as part of the academic curriculum, the university’s determination that the student failed to meet professionalism requirements was an academic judgment and thus merited deference by the court.

Last summer, Judge Gwin of the Northern District of Ohio found that the medical school went beyond its scope of duty by extending its determination of professionalism well past academic or patient related matters.  The district court found for the student, noting that the “character judgments” found by the university were “only distantly related to medical education.”  In my last post, I noted that this separation of personal character from competence to practice medicine seemed troublesome.  The Sixth Circuit’s opinion reversing the district court shows similar concerns.

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Mental Health in Law School – Part II

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By Deborah Cho

We’ve come a long way in the area of mental health over the past several years. Notably, the Mental Health Parity and Addiction Equity Act of 2008 did great work to place mental health on more equal footing with physical health in the health insurance arena.  Still, there is much work to be done to raise awareness and decrease stigma so that treatment is sought appropriately.

A few weeks ago, I was speaking with a physician about some of the difficulties in addressing mental health with his patients.  He expressed disappointment at a recent conversation he had with a patient who refused to take his psychiatric medications.  As the physician recounted the story to me, he was frustrated with his patient’s misconception that “successful people don’t have mental health problems.”  Even worse, that misconception seemed to imply that in order to be successful, when one does have a mental health issue it is better to suffer through it than it is to seek help.  At the time, hearing this story was particularly upsetting for me as a law student because I felt that we were receiving and even propagating a similar message during a rather remarkable final examinations period.

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The Beginning of the Broccoli Mandate?

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By Deborah Cho

In National Federation of Independent Businesses v. Sebelius, 132 S. Ct. 2566  (2012), the Court famously struck down the “individual mandate” of the ACA under the Commerce Clause.  The Chief Justice noted that the Government’s argument for regulation under the Commerce Clause — that individuals were participating in interstate commerce by not purchasing health insurance and were thereby subject to regulation — “would justify a mandatory purchase to solve almost any problem.”  He continued, “To consider a different example in the health care market, many Americans do not eat a balanced diet.  [The] failure of that group to have a healthy diet increases health care costs, to a greater extent than the failure of the uninsured to purchase insurance . . . Under the Government’s theory, Congress could address the diet problem by ordering everyone to buy vegetables.”

This hypothetical was raised as an example of a potential absurd result of accepting the Government’s line of reasoning in this case.  It was provided as an extreme outcome to catch the reader’s attention.  Justice Ginsburg even responded to this “broccoli horrible” hypothetical by stating that the Court would have to accept a lengthy chain of inferences, something that the Court has refused to do in the past, to find that a vegetable-purchase mandate would affect health-care costs.  Some of those inferences included accepting that individuals would eat the vegetables rather than throw them away once purchased, that they would cut back on other unhealthy foods, and that the healthy diet would not be offset by an individual’s lack of exercise.  In addition to this piling of inferences, Justice Ginsburg noted that the democratic process would serve as a “formidable check” to prevent a situation such as the broccoli horrible.   Discussions about this broccoli mandate outside the courtroom were framed similarly.  One article from 2012 stated that Congress would need to be “crazy” to pass such legislation and that “absurd bills like a broccoli mandate are likely to fail other constitutional tests.”

Yet, here we are, just a couple years later, and it seems that some of the weakest and most vulnerable in our population have indeed found themselves in the midst of the broccoli horrible.  Read More

Asian Americans as a Vulnerable Population

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By Deborah Cho

I was excited to learn of an article in a recent issue of American Family Physician on the topic of caring for Asian American patients.  The contents of the article are worth a read (most of it is available here), but it generally states that medical providers should consider the Asian American health care culture in their care of Asian American patients.  That information is not new, but it does highlight important facets of the Asian American culture, such as the collectivistic approach within families to medical decisions and that many Asian American patients do not mention the use of supplements and herbals unless explicitly asked during medication review.  Though these tips were worth mentioning, the main reason this article caught my attention was because it was about a population that often seems overlooked in health care.

I think one reason that there appears to be little attention on the nuances of caring for Asian American patients is buried in this phrase: “despite the common perception that all Asians are well-educated, many Asian immigrants have low educational attainment and poor medical knowledge.” (emphasis added).  Perhaps we do not consider this population to be vulnerable or otherwise in need of particular concern.  As the author of the AFP article notes, however, this perception is possibly misguided (“30% of Vietnamese Americans 25 years or older have completed less than a high school education (compared with 11% in non-Hispanic whites)” and “A high percentage of Asian Americans have limited English proficiency”).  Read More

Ebola Update: Why Don’t We Seem to Care?

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By Deborah Cho

It’s been over half a year since the beginning of the current Ebola outbreak in West Africa, yet the number of cases and deaths from the disease continue to rise.  The total case count as of September 29, 2014 is 6,574 and total deaths are at 3,091.  Even so, the international response, as a whole, seems to be lacking.  As I lived near the Centers for Disease Control and Prevention (CDC) in Atlanta, Georgia this past summer, I was acutely aware of the Ebola epidemic’s magnitude while it had the media’s attention.  The attention given was similar to that given to a car accident on the side of a road as onlookers drive on by without stopping to offer help.  Unfortunately, it was quite clear that aid efforts were woefully inadequate and that the disease would continue to spread rapidly without a stronger response.  It seemed that though our curiosity about this virus was at an all-time high, our national concern for the epidemic and its casualties were extremely minimal other than in the brief moments when we were faced with prospect of flying in two of our own infected citizens.  Read More

A Look at the ALS and Ebola Responses

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By Deborah Cho

I’m a little late to this discussion, but I want to talk briefly about the ALS Ice Bucket Challenge and how we make our decisions on charitable giving.

I’m sure by now most readers understand the basic concept of the challenge: individuals can choose to either record a video of themselves pouring ice water over their heads or to donate money to the ALS Association (or both — the rules don’t seem to be particularly consistent in application).   After the challenge is undertaken, the video is shared on social media or a message is posted announcing that the individual has donated, and then the individual “nominates” others for the challenge.

This challenge has virtually taken over the web in the past couple weeks (perhaps, as one writer commented, because it lets participants “(a) exhibit his altruism publicly and (b) show off how good he looks soaking wet.”), raising over 88 million dollars as of August 26, 2014.  As expected, however, the challenge was not without its very vocal critics.  Many were opposed to the narcissistic nature of the challenge, while others, more relevantly, questioned donating so much money to a charity and to fight a disease based on an internet fad. Read More

Weight Status: When Ignorance May Not Be Bliss

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By Deborah Cho

A recent data brief summarizing a national survey spanning from 2005-2012 on the perception of weight status in U.S. children and adolescents highlights one major finding — many children and adolescents who are overweight or obese don’t know it.  Key findings were that about 81% of overweight (defined as having age- and sex-specific BMI greater than or equal to the 85th and less than the 95th percentile of the 2000 CDC growth chart) boys and 71% of overweight girls believe they are about the right weight.  Additionally, nearly 48% of obese (defined as having age- and sex-specific BMI greater than or equal to the 95th percentile of the 2000 CDC growth chart) boys and 36% of obese girls consider themselves to be about the right weight.  

As an article on the NPR blog noted, “Kids can be cruel, especially about weight. So you might think overweight or obese children know all too well that they’re heavy.”  But it seems that this is not the case, at least according to the survey.  Furthermore, not only do overweight or obese children generally seem to be unaware of their weight status, but the misperception rate appears to be higher in those children and adolescents whose families have a lower income-to-poverty ratio.  Non-Hispanic black and Mexican American children and adolescents were also found to have higher rates of misperception than Non-Hispanic white children and adolescents.

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Medical Students and Professionalism

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In one of the more interesting cases I’ve read about recently, a judge in the Northern District of Ohio granted an injunction against Case Western Reserve University, forbidding Case from expelling a medical student (a former classmate of mine) for his failures in professionalism.  As a brief summary of the case, a medical student just weeks from graduating from Case was convicted of driving while impaired.  He reported the conviction to the residency program he had matched at, and the program then notified Case before the student reported it to the school himself.  Case took the position that failing to alert the medical school of the arrest merited expulsion and withholding the medical degree that the student was to receive with distinction the very next month. Although reporting such arrests was not a requirement of graduation, the school believed that he should have reported the arrest and prosecution, particularly in light of the fact that the student had a history of other infractions throughout his time as a medical student. Read More

Risks and Benefits

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By Deborah Cho

We often determine the value of a particular medical intervention, product, or protocol by weighing its risks against its benefits. If the risks are outweighed by the benefits, then the measure is given the green light. However, risks and benefits are not easily measured nor are they readily comparable. Countless issues arise when calculating the risk, or harm, of a measure. Must we consider the potential risk to the specific individual in question, or is consideration of risk to the average individual enough? Similarly, should individual preferences be considered when deciding how much weight ought to be assigned to the risk? Are relevant harms only those that are immediate and occur proximately from the measure, or is any future harm, no matter how attenuated, that results to be a part of the equation? These questions and many more in the same vein can also be asked regarding benefits.

To these questions, there do not seem to exist satisfactory answers. Even more difficult is the determination of the overall value of a measure that is made after weighing its risks against its benefits, as risks and benefits are measured in incomparable units and manifest in very different ways. Despite these difficulties, this calculation is regularly done in medicine, public health, and research. Though I agree that benefits should outweigh risks and that probing questions ought to be asked before a measure is pursued, perhaps the current model centered around the risk-benefit analysis is too flawed to be useful.

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