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When Desperate Patients Go To Court For Unproven Treatments - The Battle For Hospital Independence, Christopher Robertson, Margaret Houtz
When Desperate Patients Go To Court For Unproven Treatments - The Battle For Hospital Independence, Christopher Robertson, Margaret Houtz
Faculty Scholarship
As the Covid-19 pandemic wears on, patients have asked courts to compel hospitals to administer unproven therapies, with mixed legal results. Although talk radio hosts, politicians, and social media users have promoted various treatment approaches, they have given particular attention to ivermectin. The Food and Drug Administration (FDA) has approved ivermectin for use in humans for treating onchocerciasis (river blindness), intestinal strongyloidiasis, certain other parasitic worms, head lice, and skin conditions such as rosacea. Although this approval facilitates legal offlabel use for prophylaxis against or treatment of other conditions, both the FDA and the Centers for Disease Control and Prevention …
Smoking And The First Amendment, Kevin Outterson
Smoking And The First Amendment, Kevin Outterson
Faculty Scholarship
On June 22, 2009, President Barack Obama signed the Family Smoking Prevention and Tobacco Control Act into law. For the first time, Congress had given the Food and Drug Administration (FDA) authority to directly regulate tobacco products, with the aim of improving public health. And indeed, effective tobacco control would be a remarkable public health achievement — and might be possible if the law is allowed to stand. But on November 7, 2011, a federal judge in Washington, D.C., issued a preliminary injunction blocking some of its key provisions as unconstitutional restrictions on commercial speech, and the battle seems likely …
Higher First Amendment Hurdles For Public Health Regulation, Kevin Outterson
Higher First Amendment Hurdles For Public Health Regulation, Kevin Outterson
Faculty Scholarship
In 2007, Vermont enacted the Prescription Confidentiality Law, prohibiting pharmacies from selling “prescriber-identifiable” prescription information to data-mining companies such as IMS Health and Verispan. These companies aggregate such data and sell them to many groups, including drug companies, so when drug sales representatives visit a physician, they can know exactly what prescriptions the physician has written.
Cancer And The Constitution: Choice At Life's End, George J. Annas
Cancer And The Constitution: Choice At Life's End, George J. Annas
Faculty Scholarship
J. M. Coetzee's violent, anti-apartheid Age of Iron, a novel the Wall Street Journal termed “a fierce pageant of modern South Africa,” is written as a letter by a retired classics professor, Mrs. Curren, to her daughter, who lives in the United States. Mrs. Curren is dying of cancer, and her daughter advises her to come to the United States for treatment. She replies, “I can't afford to die in America. . . . No one can, except Americans.” Dying of cancer has been considered a “hard death” for at least a century, unproven and even quack remedies have been …
The Supreme Court And Abortion Rights, George J. Annas
The Supreme Court And Abortion Rights, George J. Annas
Faculty Scholarship
Since the Supreme Court's landmark 1973 abortion-rights decision in Roe v. Wade, the law has taken the lead in defining the contours of the continuing public debate over reproductive liberty. Ever since then, abortion opponents have tried to make abortion more burdensome by limiting Roe, and these continuing challenges are the reason there have been so many Supreme Court decisions about abortion, including the Court's 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, which unexpectedly reaffirmed the core of Roe.
Congress, Controlled Substances, And Physician-Assisted Suicide: Elephants In Mouseholes, George J. Annas
Congress, Controlled Substances, And Physician-Assisted Suicide: Elephants In Mouseholes, George J. Annas
Faculty Scholarship
The U.S. Supreme Court's decision in Gonzales v. Oregon to reject the U.S. attorney general's authority to prohibit physicians in Oregon from prescribing Schedule II drugs for their terminally ill patients to commit suicide can seem paradoxical and confusing. How is it that California cannot permit the patients of physicians who recommend marijuana, a Schedule I drug, to possess legally and use marijuana that they may need to survive, but Oregon can legally permit physicians to prescribe Schedule II drugs and patients to possess and use such drugs to end their lives?
“Culture Of Life” Politics At The Bedside: The Case Of Terri Schiavo, George J. Annas
“Culture Of Life” Politics At The Bedside: The Case Of Terri Schiavo, George J. Annas
Faculty Scholarship
For the first time in the history of the United States, Congress met in a special emergency session on Sunday, March 20, to pass legislation aimed at the medical care of one patient — Terri Schiavo. President George W. Bush encouraged the legislation and flew back to Washington, D.C., from his vacation in Crawford, Texas, so that he could be on hand to sign it immediately. In a statement issued three days earlier, he said: “The case of Terri Schiavo raises complex issues. . . . Those who live at the mercy of others deserve our special care and concern. …
Unspeakably Cruel: Torture, Medical Ethics, And The Law, George J. Annas
Unspeakably Cruel: Torture, Medical Ethics, And The Law, George J. Annas
Faculty Scholarship
Torture is a particularly horrible crime, and any participation of physicians in torture has always been difficult to comprehend. As General Telford Taylor explained to the American judges at the trial of the Nazi doctors in Nuremberg, Germany (called the “Doctors' Trial”), “To kill, to maim, and to torture is criminal under all modern systems of law . . . yet these [physician] defendants, all of whom were fully able to comprehend the nature of their acts . . . are responsible for wholesale murder and unspeakably cruel tortures.” Taylor told the judges that it was the obligation of the …
Jumping Frogs, Endangered Toads, And California's Medical-Marijuana Law, George J. Annas
Jumping Frogs, Endangered Toads, And California's Medical-Marijuana Law, George J. Annas
Faculty Scholarship
Mark Twain wasn't thinking about federalism or the structure of American government when he wrote “The Celebrated Jumping Frog of Calaveras County.” Nonetheless, he would be amused to know that today, almost 150 years later, the Calaveras County Fair and Jumping Frog Jubilee not only has a jumping-frog contest but also has its own Frog Welfare Policy. The policy includes a provision for the “Care of Sick or Injured Frogs” and a limitation entitled “Frogs Not Permitted to Participate,” which stipulates that “under no circumstances will a frog listed on the endangered species list be permitted to participate in the …
Forcible Medication For Courtroom Competence: The Case Of Charles Sell, George J. Annas
Forcible Medication For Courtroom Competence: The Case Of Charles Sell, George J. Annas
Faculty Scholarship
The right to refuse treatment is firmly recognized in U.S. law. Competent persons have the legal right to refuse treatment, even life-sustaining treatment, and incompetent patients can also refuse treatment through an advance directive, by naming a health care agent to make decisions for them or by having a person who knows their wishes express them.
Moral Progress, Mental Retardation, And The Death Penalty, George J. Annas
Moral Progress, Mental Retardation, And The Death Penalty, George J. Annas
Faculty Scholarship
Two major aspects of the death penalty in the United States directly involve physicians: how the death penalty is carried out and who is subject to execution. As a matter of constitutional law, both are governed by the prohibition against “cruel and unusual” punishment in the Eighth Amendment. The meaning of “cruel and unusual,” unlike every other part of the U.S. Constitution, is determined by public opinion as it reflects society's evolving standards of decency. With regard to how the death penalty is carried out, the role of physicians in capital punishment has been controversial for more than two decades. …
Testing Poor Pregnant Women For Cocaine: Physicians As Police Investigators, George J. Annas
Testing Poor Pregnant Women For Cocaine: Physicians As Police Investigators, George J. Annas
Faculty Scholarship
In 1989, Supreme Court Justice Thurgood Marshall surmised that “declaring a war on illegal drugs is good public policy . . . [but] the first, and worst, casualty of war will be the precious liberties of our citizens.” The same year, in the midst of President George Bush's “war on drugs,” the Medical University of South Carolina initiated a program to screen selected pregnant patients for cocaine and to provide positive test results to the police. At a time of high public concern about “cocaine babies,” this program seemed reasonable to the university and local public officials. Drug-screening programs in …
“Partial-Birth Abortion” And The Supreme Court, George J. Annas
“Partial-Birth Abortion” And The Supreme Court, George J. Annas
Faculty Scholarship
Aortion has long been, and remains, the most politicized medical procedure in the United States. It has been the subject of more state and federal legislation than all other medical procedures combined. The U.S. Supreme Court, which almost never hears cases about medical procedures, has regularly heard cases over the past 25 years concerning the constitutionality of various state laws designed to limit abortion. Thus, it was only a matter of time before the Court would hear a case on the constitutionality of laws restricting so-called partial-birth abortion. When the Court heard a challenge to Nebraska's law, statutes relating to …
Ulysses And The Fate Of Frozen Embryos - Reproduction, Research, Or Destruction?, George J. Annas
Ulysses And The Fate Of Frozen Embryos - Reproduction, Research, Or Destruction?, George J. Annas
Faculty Scholarship
On his 10-year voyage back to Ithaca from the Trojan War, Ulysses was warned by Circe to take precautions if he wanted to hear the Sirens' transfixing song, or there would be “no sailing home for him, no wife rising to meet him, /no happy children beaming up at their father's face.” Ulysses accordingly ordered his men to stop their ears with beeswax and bind him firmly to the mast and instructed them that if he gestured to be set free, they should stick to the original agreement and bind him tighter still. Making an agreement that has as a …
Burden Of Proof: Judging Science And Protecting Public Health In (And Out Of) The Courtroom, George J. Annas
Burden Of Proof: Judging Science And Protecting Public Health In (And Out Of) The Courtroom, George J. Annas
Faculty Scholarship
The breast implant cases alleging systemic disease would in all likelihood have been lost had recipients been properly warned of potential dangers by the manufacturer or their surgeons.
The Shadowlands: Secrets, Lies, And Assisted Reproduction, George J. Annas
The Shadowlands: Secrets, Lies, And Assisted Reproduction, George J. Annas
Faculty Scholarship
Americans love babies and technology, and most Americans applaud the ability of the new assisted-reproduction techniques to help infertile couples have children. But these techniques have also given birth to a wide variety of new legal issues, including questions about the identity of the mother and father of the child, the enforcement of preconception contracts, the elements of informed consent, and the disposition of frozen embryos. After almost 20 years of experience and the growth of infertility clinics into a multibillion-dollar industry, it is time to consider establishing national standards and a federal regulatory scheme. Two recent court cases, one …
Protecting Patients From Discrimination: The Americans With Disabilities Act And Hiv Infection, George J. Annas
Protecting Patients From Discrimination: The Americans With Disabilities Act And Hiv Infection, George J. Annas
Faculty Scholarship
The Americans with Disabilities Act (ADA) was passed in 1990 to expand the reach of the Rehabilitation Act of 1973 and make discrimination on the basis of disability unlawful. The wheelchair symbol has become a universal sign of disability, but there are, of course, many types of disability that have been the basis of discrimination over the years, including blindness, deafness, epilepsy, cancer, heart disease, and mental retardation. AIDS is a disability under the ADA, and most commentators have assumed that infection with the human immunodeficiency virus (HIV) also qualifies as a disability under this act. It was not, however, …
The Bell Tolls For A Constitutional Right To Physician-Assisted Suicide, George J. Annas
The Bell Tolls For A Constitutional Right To Physician-Assisted Suicide, George J. Annas
Faculty Scholarship
For Whom the Bell Tolls, Ernest Hemingway's novel about the Spanish Civil War, ends with its American hero, Robert Jordan, mortally wounded and trying to decide whether to commit suicide with a machine gun or risk capture by trying to retain consciousness long enough to cover the retreat of his comrades. Confronting his impending death, Jordan thinks, “Dying is only bad when it takes a long time and hurts so much that it humiliates you.” Hemingway, one of the most American of American writers, committed suicide with a shotgun. Most suicides in the United States are committed with guns, but …
Cowboys, Camels, And The First Amendment: The Fda's Restrictions On Tobacco Advertising, George J. Annas
Cowboys, Camels, And The First Amendment: The Fda's Restrictions On Tobacco Advertising, George J. Annas
Faculty Scholarship
The Marlboro Man and Joe Camel have become public health enemies number one and two, and removing their familiar faces from the gaze of young people has become a goal of President Bill Clinton and his health care officials. The strategy of limiting the exposure of children to tobacco advertisements is based on the fact that almost all regular smokers begin smoking in their teens. This approach is politically possible because most Americans believe that tobacco companies should be prohibited from targeting children in their advertising.
The Promised End: Constitutional Aspects Of Physician-Assisted Suicide, George J. Annas
The Promised End: Constitutional Aspects Of Physician-Assisted Suicide, George J. Annas
Faculty Scholarship
The debate over physician-assisted suicide has dramatically shifted to a discussion of constitutional issues. This spring, within a month of each other, U.S. Circuit Courts of Appeals on both coasts ruled that state prohibitions of assisted suicide are unconstitutional when applied to physicians who prescribe lethal medication for terminally ill, competent adults who wish to end their lives. The Ninth Circuit includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington, and the Second Circuit includes New York, Connecticut, and Vermont. Both courts reached the same conclusion but for different legal reasons.
When Should Preventive Treatment Be Paid For By Health Insurance?, George J. Annas
When Should Preventive Treatment Be Paid For By Health Insurance?, George J. Annas
Faculty Scholarship
In the national debate about who should have health insurance, surprisingly little attention has been focused on what medical services health insurance itself should cover. Historically, discussions of this topic have centered on concepts such as basic health care or medically necessary care. When the power of medical diagnosis and treatment was limited, these terms had boundaries as well. As physicians' diagnostic prowess has increased, however, especially in the area of genetics, such terms have become open-ended. To avoid predictable conflicts over benefit coverage, much more precise definitions will be required, so that patients and health care providers can understand …
Scientific Evidence In The Courtroom: The Death Of The Frye Rule, George J. Annas
Scientific Evidence In The Courtroom: The Death Of The Frye Rule, George J. Annas
Faculty Scholarship
In one of the most anticlimactic cases in recent years, the Supreme Court ruled on the last day of its 1992-1993 term that federal judges should admit all relevant scientific testimony and evidence that is “reliable”. The result was so uncontroversial that both sides in the case said they were satisfied; because the result was also so vague, it will probably be years before its effect can be accurately ascertained. The facts of the case, Daubert v. Merrell Dow Pharmaceuticals, Inc., are somewhat more interesting than its prosaic legal conclusion.
Informed Consent, Cancer, And Truth In Prognosis, George J. Annas
Informed Consent, Cancer, And Truth In Prognosis, George J. Annas
Faculty Scholarship
Barbara Tuchman records that during the Black Death epidemic in the early 14th century, “doctors were admired, lawyers universally hated and mistrusted”. The great plagues and wars of the Middle Ages produced a “cult of death,” including a vast popular literature that had death as its theme. As the 20th century closes, our emphasis is on the denial of death, and the honest discussion of death remains rare both in popular literature and in conversations between physicians and patients. This is one reason why Shana Alexander shocked a national conference of bioethicists last year by saying, “I trust my lawyer …
Using Genes To Define Motherhood - The California Solution, George J. Annas
Using Genes To Define Motherhood - The California Solution, George J. Annas
Faculty Scholarship
Sometimes (although not often) new forms of medical technology raise unique legal and social-policy issues that require new laws. In vitro fertilization, followed by the transfer of the embryo to a woman who did not contribute the ovum, is such a technique, because when the child's gestational mother is not the child's genetic mother, society must decide which is the child's legal mother. A California Court of Appeal, the first appellate court anywhere in the world to rule on this issue, decided in late 1991 that genes determine motherhood.
Adding Injustice To Injury - Compulsory Payment For Unwanted Treatment, George J. Annas
Adding Injustice To Injury - Compulsory Payment For Unwanted Treatment, George J. Annas
Faculty Scholarship
A New York court this year issued one of the most disturbing and aberrant appellate opinions of the past two decades concerning the right to refuse treatment.1 In my view, the judges ruling in Grace Plaza v. Elbaum made a series of errors: they assumed that institutions can have ethics apart from those of their physicians; they believed that both institutions and physicians are primarily motivated by money; and they approved the use of legal threats by institutions and physicians against patients and their families. In this court's idiosyncratic view, dying and medical care seem to be not about …