Sunday, March 28, 2004

Medicare: belly up or double down?

The scary news out of DC last week was from the Medicare Board of Trustees, whose 2004 Annual Report predicted that the middle-class health insurance benefit for retirees and others would go belly-up by 2019. Ellen Beck of UPI did a nice job of analyzing the dire predictions, which are less dire than the Administration would like to have you believe. Paul Krugman of the N.Y. Times added a

Saturday, March 27, 2004

Seventh Circuit Court of Appeals Backs Privacy of Hospital Abortion Records

As reported by the N.Y. Times today, the US Court of Appeals for the Seventh Circuit (in Chicago) became the first appellate court to uphold the right of hospitals to refuse to turn over abortion information to the Bush Administration's Justice Department. The opinion is here. The district court quashed the government's subpoena for Northwestern's abortion records on the ground that HIPAA does

Tuesday, March 23, 2004

SCOTUS heard oral arguments in the Texas HMO case today.

As previously discussed here (Nov. 3 and Nov. 6), SCOTUS has two taken two Texas cases, both decided (with two others) in a single Fifth Circuit opinion. The cases involve tort claims under the Texas health care liability statute, which the HMOs argue is completely preempted by ERISA. Oral argument was today. My short piece in Mealey's Managed Care Liability Report is here (requires Lexis/

Sunday, March 21, 2004

One Crucial Issue in Pledge Case: What Does "Under God" Mean?

In addition to this key question -- which Linda Greenhouse's article in today's NY Times summarizes nicely -- there is a tricky little standing question as well. Seems Michael Newdow, the plaintiff, isn't married to the student's mother and isn't the custodial parent, either. So does he have standing to sue the school district to stop the pledge? The briefs make fascinating reading (for

Law profs weigh in on Scalia's recusal decision.

Interesting piece in today's NY Times: 6 law profs grade Scalia's 21-page memorandum opinion denying the motion of the Sierra Club to recuse himself from the Cheney case. Ther's no actual grade or even conclusion, but reading between the lines, three seem to give a passing grade (Ed White, David Lubet, Ron Rotunda) and three give him an "F" (Monroe Freedman, Stephen Gillers, James Moliterno).

Saturday, March 20, 2004

More on Scalia's recusal refusal.

Much has been made in the days following Scalia's memorandum opinion denying Sierra Club's motion to recuse about "the appearance of impropriety or bias." I agree that appearances matter, and that Supreme Court justices should strive mightily to avoid even the appearance of impropriety or bias. But if "appearance" is what a well-oiled publicity machine can get a dozen editorial-page writers to

More on the "F-word"

The FCC can't have the last word, now, can it?

CMS issues guidance for exceptions to specialty-hospital moratorium.

The Centers for Medicare and Medicaid Services (CMS) announced Friday that it had issued a clarification of its "moratorium on physician investment in and referrals to certain specialty hospitals. Under the moratorium, a physician may not refer a patient to a specialty hospital in which he has an ownership or investment interest, and the hospital may not bill Medicare or any other entity for

Bush Medicare Reform Bill Become a Nightmare for GOP.

Excellent summary of the Medicare reform-law mess in today's Miami Herald. Up-to-date details on all pending investigations, and this observation:But less than four months after he signed it into law on Dec. 8, Bush's Medicare-reform dream has turned into a nightmare and a potential drag on his bid for re-election.

-- The Bush administration deliberately didn't tell Congress that the measure

Times editorial on administration's phony TV ads.

The Times ran an editorial today to make a point you would have thought did not to be made: that it's wrong for the government to create fake news clips -- replete with fake reporters ending their fake news stories with the fake signoff, "In Washington, I'm Karen Ryan reporting" -- so that gullible local news directors will run the tapes on the nightly news programs without realizing they are

Medicare Actuary Gives Wanted Data to Congress.

The NY Times reports today that on Friday Richard Foster turned over the data that shows the actual projected costs of the Medicare reform law signed into law last fall by Pres. Bush, months after it had been requested by Congress, after being ordered (Foster claims) not to give Congress the data before it voted. An inquiry is planned into Tom Scully's alleged role in plying Congress with

Friday, March 19, 2004

"F"-word illegal on broadcast airwaves (can cable be far behind?) . . .

. . . or, "Farewell, Tony Soprano. It was fun while it lasted."WARNING: Mature Content Follows. Read at your own risk.The FCC handed down its decision Thursday in the case of the NBC stations' broadcast of the Golden Globes Awards in January 2003, at which Bono (lead singer for U2) accepted his award with the immortal words, "This is really, really, fucking brilliant. Really, really great."

Thursday, March 18, 2004

Scalia responds to recusal motion: fuggeddaboudit!

His 21-pg. memorandum explaining why he won't recuse is here. Instant pundits can be expected to opine that any recusal suggestion (or motion, as this was styled) that takes 21 pages to be denied is a recusal suggestion that should be granted. No fan of Justice Scalia's legal positions, I have to concede that he makes a very good argument for staying in the case. Not only are many of the

Volunteers in Medicine Institute

A former student is working (pro bono, of course) to help set up a free medical clinic in a Dallas suburb. The hope is that by creating a clinic that can deal with the primary-care needs of the uninsured, they can take some of the pressure (and expense) off local emergency rooms, which are struggling to meet their EMTALA (anti-dumping) obligation to provide a appropriate medical screening for

Wednesday, March 17, 2004

DOD funds Swedish stem cell study.

Reuters and others reported Wednesday that the Department of Defense was awarding $240,000 in research grant money to Swedish researchers looking for a treatment for Parkinson's and similar illnesses. As long as the stem cell lines involved in the study were in existence before the Pres. Bush's August 2001 announcement of federal stem-cell funding policy, nothing would appear to be amiss in this

Lots of new stuff on the political intrigue surrounding the Medicare reform bill.

The Times is really working this story. Here's what is in Thursday's issue:A story by Sheryl Gay Stolberg and Robert Pear on "a mysterious fax" received a House Democratic health policy aide (Cybele Bjorklund) that showed the CMS chief actuary's (Richard Foster's) real cost estimate for the reform bill:Dated June 11, 2003, the document put the cost at $551.5 billion over 10 years. It appeared to

Tuesday, March 16, 2004

Beyond Human (President' Council on Bioethics).

In his recent article for Slate, Carl Elliott notes:Leon Kass, the University of Chicago social theorist and bioethicist, has had the misfortune to chair the President's Council on Bioethics under a man who inspires more revulsion among academics than any president since Richard Nixon. Last week, 170 academic bioethicists sent a petition to President Bush protesting the dismissal of two members

2 ministers charged in gay marriages

As reported in the Boston Globe and elsewehere, Ulster County (NY) DA Donald Williams has filed criminal charges against two Unitarian-Universalist ministers who have performed same-sex marriages in New Paltz. The DA's office explained that the basis of the charges was that the ministers "proclaimed their intent to perform civil marriages under the authority vested in them by New York state law,

Jerome Groopman profile in NY Times

Jerome Groopman is a top AIDS cancer researcher and clinician, but more to the point, he's a gifted writer of clinical narratives and other essays for The New Yorker. His first two books provided the inspiration for the short-lived TV series, Gideon's Crossing. His latest book, The Anatomy of Hope, is a good read. And he's profiled in today's NY Times.

Medicare-reform shenanigans.

Good editorial in today's NY Times about both elements of the Bush Administration's fraudulent campaign last fall to sell Congress on the Medicare-reform bill:An Orwellian taint is emerging in the Bush administration's big victory last year in wringing the Medicare prescription drug subsidy from a balky Congress. The plan is being sold to the public through propagandistic ads disguised as TV news

Monday, March 15, 2004

More on same-sex marriage.

Here's a good letter to the editor printed in the Chicago Tribune last week (thanks to Bill Bridge for passing this along):

Dangerous unions

Jackie Bruns
Published March 8, 2004

Clarendon Hills -- Here are reasons why same-sex marriages will ruin society:

- Heterosexual marriages are valid because they produce children. That's why infertile couples and old people

Saturday, March 13, 2004

Body Parts Suit Enters Murky Area of the Law

The LA Times provides some legal and ethical analysis of the class action against UCLA in connection with the criminal charges against the managers of its willed-body program.

White House, GOP forced to take a new look at importing drugs from Canada.

The San Francisco Chronicle provides some detail on the movement within the Administration and GOP leaders on the drug-reimportation issue, which was key to getting a vote on the nomination of Mark McClellan to head CMS.

McClellan Is Approved as CMS head.

Ceci Connolly reports that Senate confirmed FDA head Mark McClellan (son of the Texas State Comptroller Carole Keeton Strayhorn and brother of White House press secretary Scott McClellan) to head up the federal Medicare/Medicaid agency. The quid pro quo for the confirmation was an understanding that HHS/CMS/FDA would work toward a loosening up of current restrictions on the reimportation of

Inquiry Sought for Charge of Threat Over Medicare Data.

Robert Pear will have an article in Sunday's NY Times on the call of House Democrats for an inquiry in reports that the top actuary at the Centers for Medicare and Medicaid Services was ordered by his boss to withhold cost data on the Medicare reform bill passed last fall. Background on the story is here.

Salt Lake County case raises fundamental questions, ethicists, politicians warn.

The bioethicists are starting to weigh in on the murder prosecution for the woman who refused to consent to a C-section.

"Being Human" - humanities reader from the President's Council on Bioethics

Being Human -- published in December by the President's Council and available for free through their web site (1 copy per order) -- is described in Edward Rothstein's review in today's NY Times as possibly "the most unusual document ever produced by any government panel":Last month the first cloned human embryo was produced by South Korean scientists who said they would continue their research

Friday, March 12, 2004

Rx reform bill: Medicare expert says he was told to withhold true cost info.

As reported in a copyrighted story in The Philadelphia Inquirer today, the Medicare program's top actuary -- traditionally a nonpartisan expert whose numbers are freely accessible by legislators on both sides of the aisle -- claims that he was ordered during last fall's debate not to reveal the true cost estimates for the Bush Administration's Medicare reform bill's prescription drug benefit or

NEJM -- Bioethics and the Political Distortion of Biomedical Science.

NEJM e-published early a Perspective piece by Elizabeth Blackburn on the President's Council on Bioethics: Bioethics and the Political Distortion of Biomedical Science. Much of it appears to be a recital of facts and arguments presented in her earlier Washington Post piece. The PDF is apparently available to the public, not just subscribers, for free. Early, wide, and full-text dissemination

Wife-poisoner hired as medical-ethics lecturer.

The University of Manchester has hired a medical-ethics lecturer who served 7 years for trying to poison his wife (and then tried to cover his tracks by poisoning drinks in a Safeway supermarket). Here's the quote I love (from medical ethics lecturer Piers Benn of Imperial College London) in the Reuters report on this story:"Normally people who get into moral philosophy do so because they care

Maternal-fetal conflict results in murder charge against mother.

Perhaps I should reserve judgment until more facts come to light, but it is certainly a shock to see that a Salt Lake County woman has been charged with murdering her stillborn son because of her refusal to follow her doctor's recommendation and have her twins delivered by C-section. See news story and follow-up (The Salt Lake Tribune -- Charge against W. Jordan mother creates legal challenge).

Same-sex marriages, redux.

As reported this morning in, inter alia, the San Francisco Chronicle, the California Supreme Court (in response to a request by the state's attorney general) has ordered San Francisco officials to stop issuing marriage licenses to same-sex couples. See Lockyer v. City & County of San Francisco, No. S122923 (Mar. 11, 2004): order to show cause; Lewis v. Alfaro, No. S122865 (Mar. 11, 2004): order

Thursday, March 11, 2004

Cadaveric donation - ethical issues.

The June 1, 2003, issue of the Journal of Medical Ethics was devoted to the topic of cadaveric organ, tissue, and body donations. Most of the articles are focused on organ donation/transplantation, but there are also a couple of pieces on the market for cadaveric tissue.

Donated cadavers . . . the UCLA saga.

The scandal at UCLA Medical School over the unlawful sale of body parts from willed cadavers raises numerous questions. The NY Times hits a few on Friday with these articles:

"In Science’s Name, Lucrative Trade in Body Parts," by John Broder:About 10,000 Americans will their bodies to science each year, choosing a path that, in the popular imagination at least, leads to the clinical dignity of

Wednesday, March 10, 2004

Texas Company Removes Web List of Malpractice Plaintiffs.

The obnoxious and seriously misguided web site that alerted docs to the names of med mal plaintiffs has been shuttered, according to an article by Ralph Blumenthal, who broke the story in the NY Times last week. Good riddance of bad garbage.

Government Accounting Office again proves its worth.

As reported in an article in Thursday's NY Times by Robert Pear, Congress' watchdog agency, the GAO, reported Wednesday that the Bush Administration's ads last year misrepresented the Medicare prescription drug benefit. Nice to seem some recognition of the intellectually corrupt campaign waged by the Bushites on this issue, though I am not at all persuaded the mendacity was different in degree


This has nothing to do with health law, con law, or anything else this blawg cares about, but I was struck by this entry on Gregg Easterbrook's blog (Easterblogg):AND THERE'S A LONG SLOW-MOVING LINE IN EVERY ONE OF THEM: Starbucks now has 167 outlets within 20 miles of the White House, 219 stores within 20 miles of the Space Needle in Seattle, and 242 locations within 20 miles of the Empire State

Tuesday, March 9, 2004

Recess appointments: Is the Pryor appointment constitutional?

Ted Kennedy has written to the sitting judges on the 11th Circuit and suggested they might consider this question sua sponte, before Judge Pryor sits on a panel that decides a case that is then challenged on the ground that Pryor's appointment was an unlawful exercise of the President's recess appointment power under Article II, section 2, para. 3. Here's some reading you can do on the subject:

Sunday, March 7, 2004

Blackmun redux.

NPR has collected all of its reports (by Nina Totenberg) on the release of Harry Blackmun's papers in one place, and packaged them with previous interviews and other materials.PBS' NewsHour ran excerpts from Harold Koh's 38-hour oral-history interviews with Harry Blackmun.Linda Greenhouse's two articles ran in the NY Times ran on Wednesday and Thursday last week.

Norval Morris dead at 80.

Norval Morris, an author whose Brothel Boy stories have played an important part in my Law, Literature and Medicine course for many years, has died at the age of 80. The best obituary on him so far was in The New York Times, but the difficulty of finding a stable link to that article has sent me to The Seattle Times, which ran the Times' obit in full. Morris was an extraordinarily gifted writer

Saturday, March 6, 2004

A 'Full Range' of Bioethical Views Just Got Narrower (

Tomorrow's Outlook section of the Washington Post has the following article by Elizabeth Blackburn, the recently fired member of the President's Council on Bioethics. (The link will only work for 14 days.) Other material on this story can be found here, here, and here.

Friday, March 5, 2004

NY Times' second installment on the Blackmun papers.

Discussed at SCOTUSblog. I will have a complete set of links this weekend.

Just when you thought you'd heard it all.

Ralph Blumenthal's article in today's NY Times is certainly making the e-mail rounds today. It's about a website that lists medical malpractice plaintiffs and can be accessed by physicians who might decide they don't want to provide medical care to someone who has sued a doctor or hospital in the past. The website, most of which is off-limits to nonmembers is here. I have to admit, when I read

Drug testing in third-world countries.

In an article in today's NY Times, Gina Kolata explores the ethical issues confronting pharmaceutical manufacturers who test drugs in second- and third-world countries.

Thursday, March 4, 2004

Justice Blackmun's papers released.

Fascinating pieces at SCOTUSblog on the NY Times and NPR stories based on the about-to-be-released papers of Justice Harry Blackmun. Check out:NPR story 1NPR story 2NY Times storiesfull scripts for all the stories Nina Totenberg will be doing about the papers for NPR

Most excellent: U.S. Department of Faith's proposed Federal Marriage Amendment(s)

This is one great site. Have to see it to believe it.

More on the Bioethics Council firings.

Ordinarily Leon Kass could expect to find some support for his actions from the journal Reason (subtitled "Free Minds, Free Markets"), but not when it comes to his op-ed piece in the Washington Post this week: "Leon Kass Learns to Spin". Does the President's Council on Bioethics have a shred of credibility after this sorry affair? I don't think so, and that's a shame.

Federal Marriage Amendment (FMA): Outlook Cloudy.

Today's Washington Post has some encouraging tidbits if you share my lack of enthusiasm for the Bush-endorsed FMA. In a story about the politics of gay marriage, Alan Cooperman and Dana Milbank report:In Washington, the Senate held a contentious hearing on whether to amend the Constitution to restrict marriage to the union of one man and one woman. Sen. John Cornyn (R-Tex.), who presided over

Wednesday, March 3, 2004

Chairman Kass responds to charge that Bioethics Council deck is being stacked.

Leon Kass wrote a strong denial of the charge in a Washington Post op-ed today: "We Don't Play Politics With Science". Among other things, Dr. Kass spins the personnel shakeup as one that is based on neutral principles, but the spin doctor may have gotten out ahead of the facts on this one. For example, he writes that Bill May wasn't pushed off the Council: he had expressed a desire to leave.

Tuesday, March 2, 2004

Rationing in America.

For those few Americans who still believe that rationing is what the health care systems in Canada and the UK do, but not us, a subscription to the Wall Street Journal would be a real eye-opener. The Journal's been running stories about health-care rationing in the US for the past 6 months and has them collected on the home page of its special health care edition. The titles include:

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