Blurred image of a patient in critical condition in the ICU ward.

“An Act Improving Medical Decision Making:” An Argument in Favor of MA House Bill 3388 and Senate Bill 843

By Beatrice Brown

On September 10, 2019, the Joint Committee on Judiciary at the Massachusetts State House heard testimony regarding House Bill 3388 and Senate Bill 843, “An Act Improving Medical Decision Making.” The Massachusetts Medical Society (MMS) was among those testifying in favor of the act. As noted by MMS, Massachusetts is one of only five states in the U.S. that does not have a default surrogate consent statute for incapacitated patients without a health care proxy. The intent of a default surrogate consent statute is “to provide legal authority for health care decision-making through a non-judicial rule of law where no guardian or agent had been appointed.”

Without such a statute in place, this means that a patient who is incapacitated and has not declared a health care proxy must await treatment while a guardian is appointed by the courts. This may be a lengthy, time-consuming process that physically drains hospitals’ resources and emotionally drains families. By contrast, these default surrogate consent statutes establish a list of surrogates that can be appointed by physicians to make decisions in lieu of the incapacitated patient. For example, in the Massachusetts bills, the following persons are listed as candidates who may be appointed as surrogates: the person’s spouse, unless legally separated; the person’s adult child; the person’s parent; the person’s adult sibling; and any other adult who satisfies the requirement of subdivision seven of the bill which states, “The person’s surrogate shall be an adult who has exhibited special care and concern for the person, who is familiar with the person’s personal values, who is reasonably available, and who is willing to serve.” Read More

Photograph of a woman lying in a hospital bed holding her newborn wrapped in a blanket

Where Are the Legal Protections for People Mistreated in Childbirth?

By Alexa Richardson

A new study indicates that 28.1% of women birthing in U.S. hospitals experienced mistreatment by providers during labor, with rates even higher for women of color. The multi-stakeholder study, convened in response to World Health Organization efforts to track maternal mistreatment, included more than 2,000 participants, and defined mistreatment as including one or more occurrences of: loss of autonomy; being shouted at, scolded, or threatened; or being ignored, refused, or receiving no response to requests for help. The study newly highlights the lack of legal protections available to for pregnant and birthing people who experience these kinds of mistreatment by providers.

Campaigns like Exposing the Silence have chronicled the outpouring of people’s harrowing birth stories, riddled with abuse and violations of consent. In one typical account, a user named Chastity explained:

I had a room full of student doctors, an OB I never met come in and forcibly give me extremely painful cervical exams while I screamed for them to stop and tried to get away. They had a nurse come and hold me down. There was at least 10 students practicing on me. I was a teen mom and my partner hadn’t gotten off work yet so I was all alone.

Another user named Abriana recounted:

As I was pushing, I got on my side and it was then that I started to feel pain much different from labor pains. I asked, ‘What is going on?’ The nurse replied, ‘I am doing a perineal rub.’ I immediately said, ‘Please stop doing that. You are hurting me.’ The nurse argued, ‘It will help you’ and didn’t move. I asked her again to please stop. I then yelled, while pushing, ‘Get your hands out of me!’ The nurse continued.

The traditional modes of seeking legal recourse have little to offer those who experience these kinds of mistreatment.

Read More

Photo of a stethoscope, gavel, and book

Court Upholds Manslaughter Charge of Pregnant Mother For Death of Her Baby

By Alexa Richardson

A woman whose hours-old baby was dying admitted to her care providers that she had abused prescription and over-the-counter medications shortly before the birth. This summer, in United States v. Flute, 929 F.3d 584 (2019), the Eighth Circuit held that she could be charged with federal manslaughter for the death of her baby. While some states have charged pregnant people with manslaughter for drug use during pregnancy, Flute marks the first time that federal prosecutors have brought such charges. The decision, which reversed the district court decision dismissing the charge, opens the door for pregnant people to be criminally charged for a wide range of prenatal conduct — should it result in the baby’s death after birth — such as driving recklessly, receiving chemotherapy treatment during pregnancy, failing to obtain adequate prenatal care, or declining a medical recommendation.

Samantha Flute, an American Indian woman, gave birth at a Sisseton, South Dakota hospital on August 19, 2016. She told the medical staff that she had ingested Lorazepam, hydrocodone (possibly laced with cocaine), and cough syrup before coming to the hospital. Four hours after birth, Baby Boy Flute died. The autopsy revealed a full-term baby with no anatomical cause of death, and the pathologist determined the death to be the result of drug toxicity from the substances ingested prenatally by Flute.

Read More

A doctor from neck down wearing white coat, holding clipboard in one hand and bowl of fruit in the other.

Medically Tailored Meals and the Reverberating Impact of Public Demonstration Projects

Recent headlines highlighted a $40 million investment by a range of Blue Cross Blue Shield companies in Solera Health, a start-up focused on improving chronic disease management. Solera Health will use the investment to scale up its wellness programs, which seek to improve social determinants of health for patients.

One of Solera’s initiatives focuses on providing medically tailored meals to beneficiaries. The concept behind medically tailored meals is simple. Patients with diabetes, congestive heart failure, and other chronic illnesses can be treated only to a limited extent in doctor’s offices. By extending services like meal provision to beneficiaries—thus improving their long-term health—insurers can potentially avoid paying for more costly interventions down the line. Read More

Black silhouette of a woman looking down

The FDA’s NEST Initiative and Women’s Health

The history of medical device regulation in the United States has been shaped by the prominent failure of individual devices, many of which were indicated for women.

The Dalkon Shield intrauterine device infamously ushered in the 1976 amendments to the Federal Food, Drug, and Cosmetics Act, establishing the first pre-market notification and approval process for medical devices in the United States. Similarly, a series of failures among devices designed for women’s health—including the power morcellator, the Essure System, and pelvic mesh—has recently invigorated the FDA’s focus on its post-market regime. Read More

A yellow dentist chair, in an empty dental office.

Barriers to Dental Care Abound for Individuals with Developmental Disabilities

In early May, a New York Times article profiled the N.Y.U. College of Dentistry’s Oral Health Center for People with Disabilities. As the Times article describes, the new facility establishes an important point of service for people with developmental disabilities in New York City. It also creates a much-needed pipeline for dentists skilled in treating this special population. Read More

artistic portrayal of fingerprints of different colors

Why You Must Stop Using the Word, “Privacy” Now

In a recent New York Times Op-Ed, essayist Charlie Warzer suggests that the problem of privacy in modern life is that it’s too complex.

His diagnosis? “Privacy is Too Big to Understand.” While his piece contains important points, he’s wrong. While it is true that the many ways that our data is shared (and how) boggles the mind, the issue is not that privacy is “complex.”

The problem is the term itself. I believe we should stop using the term, “privacy.”   Read More

Image of a hand holding up a cutout of a small house to a sunset, with light streaming through the house and creating a shadow.

The Need to Improve Housing to Improve Health

Housing is a central social determinant of health, and there is extensive evidence of the negative impacts on health from a lack of access to affordable and stable housing. In March 2019, the County Health Rankings & Roadmaps program, (CHR&R) a collaboration between the Robert Wood Johnson Foundation and the University of Wisconsin Population Health Institute, released its 2019 County Health Rankings, this year highlighting the impact that secure and affordable housing has on how well and long people live.

The report discussed how the location of homes—such as proximity to good schools, jobs, grocery stores, and parks—quality of homes—such as the presence of mold or lead—and cost burdens and opportunities to accumulate wealth associated with different housing conditions—such as renting versus homeownership—all influence the health of individuals and communities. Read More

Petrie-Flom Student Fellowship Now Accepting Applications

What do a MacArthur Genius award winner, several health law professors at top schools, executive directors of leading health law centers, an associate chief counsel of the FDA, and partners and associates at top health care law firms all have in common? The Petrie-Flom Center Student Fellowship!

The Petrie-Flom Center Student Fellowship is a competitive one-year program designed to support Harvard graduate students interested in pursuing independent scholarly projects related to health law policy, biotechnology, and bioethics. With intensive mentorship from Petrie-Flom Center affiliates, student fellows are expected to produce a piece of publishable scholarship by the end of the academic year, at which point they may choose to be awarded a modest stipend and/or academic credit. Student fellows also blog regularly at Bill of Health, the Center’s blog, where their work receives substantial public exposure. Student fellows will receive training for online scholarly publishing; participate in and organize Center events; and enroll in the Health Law, Policy, Bioethics, and Biotechnology Workshop, which provides the opportunity to interact with leading scholars in the field.

 

Read More

Zoom in of a dashboard focusing on the "App Store" widget

Nobody Reads the Terms and Conditions: A Digital Advanced Directive Might Be Our Solution

Could Facebook know your menstruation cycle?

In a recent Op-ed Piece, “You Just Clicked Yes. But, Do you Know Terms and Conditions of that Health App?,” I proposed that a mix of factors have given rise to the need to regulate web-based health services and apps. Since most of these applications do not fall under the Health Insurance Portability and Accountability Act (HIPAA), few people actually read through the Terms and Conditions, and also, the explosive growth of web-based health applications, the need for solutions is dire. Read More