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09/21/2019 - 2:19pm

I just discovered a  tremendous show on BBC Two called "Miriam's Dead Good Adventure." Inimitable actress Miriam Margolyes is on a mission to confront her fear of ageing and death and tackle our greatest taboo - our own mortality.

09/20/2019 - 5:56pm

by Craig Klugman, Ph.D.

Over 530 (as of 9/17) users of e-cigarettes have been stricken with a vaping-related lung illness and 8 people have died from this new affliction.  The reports span 38 states and the U.S. Virgin Isles. The FDA and CDC have begun investigations into these lung illnesses resulting in a September 10 letter to Juul—a large manufacturer of e-cigarettes and cartridges—that they violated federal law by stating their product is “safer” than other forms of tobacco.…

09/20/2019 - 7:00am

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.

Tort Law

Bringing a claim under medical malpractice, assault or battery initially seems plausible for these incidents. However, while some incidents of obstetric mistreatment can result in physical injury, most do not. Without the presence of a physical injury, these claims have little value, unless punitive damages can be obtained. Claims for lack of informed consent also require establishing identifiable harm or injury–in a society where highly medicalized births are the norm, demonstrating the harm, for example, of a forced and unnecessary cesarean birth has proven difficult. Finally, claims for intentional infliction of emotional distress (IIED) or negligent infliction of emotional distress (NIED) are notoriously difficult to bring in any realm, with standards that vary by state for how “outrageous” an act must be, the level of intent necessary on the part of the defendant, and whether the plaintiff must have been at risk for a physical injury from the conduct making such claims a long shot even in the most dire of cases.

Another problem is proving breach. In the case of medical malpractice, or where provider conduct is being judged, breach is typically defined in relationship to how a reasonably prudent provider would behave. In a system where certain types of mistreatment in labor are normalized as part of routine medical care, finding expert witnesses and proving that such conduct is a breach of care can be challenging. In many cases, providers cite concern for the fetus as a reason for overriding patients’ consent or mistreating them, and courts have been sympathetic to this narrative.

The above challenges, as well as a lack of literacy among lawyers about obstetric mistreatment, has made obtaining a lawyer to bring a tort claim a major barrier for plaintiffs. Kim Turbin, for example, a California woman whose doctor cut her perineum twelve times while she repeatedly refused the procedure, and who had a video fully documenting the incident, spoke to over 80 lawyers over the course of 18 months before finding one willing to represent her. Most of the lawyers she spoke to didn’t see an episiotomy as something that was the patients’ choice–rather, it was a decision for the doctor to make. The Birth Rights Bar Association, recognizing this barrier, provides a template to individuals seeking legal counsel, which helps potential plaintiffs explain their experiences in ways that might translate to lawyers unfamiliar with the issue.

Regulatory Bodies

Another possible route to accountability is through licensure boards, but these entities have been reluctant to respond to complaints for mistreatment. Advocates from Improving Birth report that licensing boards have been “glacially slow and investigations, if they are conducted, take place behind closed doors.” Studies on related licensing complaints for sexual misconduct by providers to medical boards show that 70% of providers facing such complaints are not disciplined, and that, of those disciplined, the vast majority keep their medical licenses. Action by licensing boards requires that providers be willing to police each others’ behavior, and that states devote resources to properly investigation incidents and complaints. These processes again raise issues around what kinds of provider acts are considered normal within the scope of U.S. obstetric care, where mistreatment is prevalent.

Legislative Solutions

While the U.S. has yet to put legislative solutions in place, Venezuela, Argentina, Brazil, and some Mexican states have passed obstetric violence laws criminalizing these abuses. The law in Venezuela, like many of the statutes, puts obstetric mistreatment in the context of broader gender-based violence, and describes the prohibited conduct as:

the appropriation of the body and reproductive processes of women by health personnel, which is expressed as dehumanized treatment, an abuse of medication, and to convert the natural processes into pathological ones, bringing with it loss of autonomy and the ability to decide freely about their bodies and sexuality, negatively impacting the quality of life of women.

Under these laws, most of the conduct allows for civil penalties such as fines and licensing discipline, but some conduct, such as performing a cesarean section with out a patient’s voluntary consent, is criminalized. These laws have not been universally successful, as many courts have continued to treat the incidents like medical malpractice complaints, often siding with providers, despite the new laws. However, they have allowed for successful claims to be brought in cases of obstetric mistreatment, and have the potential to shift power dynamics in all births between providers and patients in favor of greater patient autonomy and respect.

Increasingly, advocates and scholars are endorsing such an approach in the U.S. This kind of legislation would radically reframe the incentives for providers in the birthing room, and offer the possibility of real accountability for mistreatment in labor. Substantial legal change of this kind feels a long way off in the current climate, however, increasing data on the prevalence of mistreatment, like that offered in the recent study, provides a step in the right direction to establishing the impetus for legal change in this arena.

The post Where Are the Legal Protections for People Mistreated in Childbirth? appeared first on Bill of Health.

09/20/2019 - 2:30am

Marcos Ariel Hourmann is the first and only doctor to be convicted for practicing euthanasia in Spain. “I Will Celebrate My Death” is a documentary theater production (tickets here) with Hourmann himself about why (in 2005) he have a lethal injection to an 82-year-old woman named Carmen.

09/20/2019 - 2:30am

Marcos Ariel Hourmann is the first and only doctor to be convicted for practicing euthanasia in Spain. “I Will Celebrate My Death” is a documentary theater production (tickets here) with Hourmann himself about why (in 2005) he have a lethal injection to an 82-year-old woman named Carmen.

Hourmann is staging his own trial — on a stage. Eight audience members sit on the spartan stage as the doctor recounts his story. The performance ends with the “jury members” writing down their verdict on a piece of paper. Responses have been overwhelmingly “not guilty,” but there have been a handful of “guilty” verdicts.

09/19/2019 - 10:59pm

Human Flourishing in an Age of Gene Editing is a new collection of essays, edited by Erik Parens and Josephine Johnson.  In the introduction, the editors explain they are concerned with “nonphysical harms” of human gene editing.  That is, these harms would not affect bodily systems, but harm “people’s psyches…[their] experiences of being persons,” and …

Continue reading "“Velvet Eugenics”"

09/19/2019 - 11:54am

By Nicolas Terry

This episode was recorded at the 2019 meeting of the Southeastern Association of Law Schools during a panel reviewing the year in healthcare financing. In this episode I take a look at state regulation of health insurance, first, from the perspective of states playing defense and shoring up their own laws in case the ACA is “disappeared” and, second, how some are playing post-ACA offense, actually seeking to improve upon the ACA baseline. The slides accompanying this talk are here.

The Week in Health Law Podcast from Nicolas Terry is a commuting-length discussion about some of the more thorny issues in health law and policy. Subscribe at Apple Podcasts or Google Play, listen at Stitcher Radio, Spotify, Tunein or Podbean, or search for The Week in Health Law in your favorite podcast app. Recent episodes are also available on YouTube.

Show notes and more are at If you have comments, an idea for a show or a topic to discuss you can find me on Twitter @nicolasterry and @WeekInHealthLaw.

Subscribe to TWIHL here!

The post New TWIHL; Too Much Information About State Health Insurance Law appeared first on Bill of Health.

09/19/2019 - 7:00am

By Phebe Hong

Protective orders, confidentiality agreements, and sealed court files significantly impair public access to vitally important records. Recent news coverage highlighting two high-profile drug product liability cases are ongoing examples of how our court system prevents crucial public health information from reaching the public domain.

Two Cases, Many Secrets

On September 11, 2019, Reuters released an article on the multidistrict litigation against Merck for sexual and mental problems caused by its hair loss drug, Propecia. More than 1,100 patients filed against Merck for not adequately warning patients of Propecia’s possible side effects, though the majority of patients later settled with the company.

Reuters noted that many of the court documents associated with the suit were heavily redacted or filed under seal. Reuters criticized the presiding judge in the case for “allow[ing] the medical secrets contained in the documents to be kept out of public view” and “without explanation, allow[ing] Merck and plaintiffs’ lawyers to keep information submitted in court confidential.” Due to faulty redactions and filing errors, Reuters was still able to obtain and report confidential information from the documents, including the fact that Merck knowingly underreported the number of men who experienced sexual side effects during an extended study of Propecia. The Propecia litigation demonstrates how court secrecy can prevent dissemination of important public health information.

Similarly, on September 12, 2019, the American Medicine and Public Health Historians and the Organization of American Historians filed a brief with the Ohio district court requesting for “full and permanent access to the records” related to settlements in the ongoing massive opioid litigation. The group of historians expressed fears that opioid companies would bargain to keep important documents under seal as part of settlement negotiations. The scholars argue that the documents, including internal company communication, reports, and databases, could be useful for public health research, and thus advocate for their availability through a public website. The brief is an effort to combat the growing use of confidential agreements to keep drug information secret.

Court-Sanctioned Secrecy

Trial courts generally have broad discretion over discovery matters, including protective orders and secrecy agreements. In most states, judges are supposed to weigh a request for redaction or secrecy against the public interest in making the evidence public. In practice, however, as a study by Reuters revealed, judges provide no explanation for allowing secrecy in 85% of cases in which health and safety information was kept under seal. Secrecy has become an accepted practice in our court system.

Protective orders and confidentiality agreements were intended to protect the privacy and business interests of litigants and third parties. In the context of drug product liability cases, however, they often prevent crucial health information from being disseminated to the public. Regulatory agencies and patient organizations often depend on the judicial system to learn about health and safety hazards. The growing use of court-sanctioned secret settlements and protective orders in product liability cases, therefore, poses risk to overall public health and safety, by denying the public access to the information and hampering the ability of parties to take legal action against bad actors. As the two recent cases highlight, efforts are still needed to reduce secrecy in our court system.

The post Court Secrecy in Drug Product Liability Cases appeared first on Bill of Health.

09/19/2019 - 5:45am

Written by Stephen Rainey.   I’ve been thinking, lately, about lying. Not doing it, just puzzling over what it means. We all know lying can be morally wrong. But sometimes it can also be a kindness, when the truth might serve no good. Within the constraints of a job, lying might be a professional obligation, […]

09/19/2019 - 3:00am

We have had a long debate in the United States about who can marry whom. But can you marry the dead?

But perhaps pushing the concept of marriage too far is a recent story reported by Taiwanese media about a man marrying his girlfriend after she was determined dead but before organ procurement. Prior debates concerned what KIND of person you can marry. But at least we all agreed that you may only marry PERSONS. ...