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Legal Issues

UT Affirmative Action Case Could Change Medical School Demographics

This fall, a Supreme Court Case will reignite the affirmative action debate in higher education and could change how students are admitted into university programs in the future.

An article by the American Medical News,  “Affirmative action: High court may rewrite med school admission policies,” explains that if the case is upheld in Fisher’s favor, it would restrict opportunities for minorities who want to enter the medical field and negatively change the future of our nations’ healthcare.

The Chief Diversity Officer of the Association of American Medical Colleges (AAMC) Marc Nivet, EdD, stated:

“It’s really important that our institutions are capable of having the most latitude in making admissions decisions…In this case, if there’s a restriction on the utilization of race and ethnicity as one factor of many, it restricts our ability to look at all areas of an individual’s background. One of the things we know is having a diversified class helps in the education process and helps build culturally competent physicians.”

The AAMC, the American Council on Education, the Obama Administration and more than 25 other health and education organizations have filed amicus briefs, asking the Supreme Court to uphold admission programs that consider race and ethnicity because rather than discriminate, they promote diversity and fair opportunity for all.

The case Fisher v. Texas arose after Abigail Fisher, a white student sued the University of Texas-Austin in 2008 because she was not admitted into the undergraduate program. She claims that she wasn’t admitted solely based on her race.

The university stated that while it aims to meet “a high standard for diversity” in order to educate tomorrow’s world leaders, they do not admit applicants solely on the basis of their race.

In 2008, UT Austin received an estimated 30,000 applications and admitted 81% of  those who placed in the top 10% of each Texas high schools graduating class. Under the institutions Top 10 Percent Plan, Abigail Fisher did not meet this requirement and was therefore considered among the other thousands of applicants where academics, leadership qualities, race, and socioeconomic status were key in admitting students.

Diversity on college campuses is essential to fostering a robust exchange of ideas and improving the quality of education. Higher education institutions have an obligation to prepare students to meet the challenges of a highly global society, said Molly Corbett Broad, president of the American Council on Education, in a statement.

As of 2011, 7% (3,215) of medical school applicants were black, 8% (3,459) were Hispanic and 20% (8,941) were Asian, the AAMC said. Still, whites accounted for 55% (545,481) of doctors in 2012 and while the number of minority medical school graduates is increasing steadily, the figures are still low compared to the nations diverse population at large, according to the article.

“With the Affordable Care Act bringing millions of previously uninsured patients to doctors’ offices, the need for minority doctors will grow…We have tremendous needs in health care delivery to minority communities, and with the ACA, there will be greater demand for services,” she said. Minorities “are underrepresented in the health professions. Affirmative action is needed due to the disadvantaged education and lack of role models in [many] of their families,” said Elena Rios, MD, president and CEO of the National Hispanic Medical Association. Read More…

While Abigail Fisher lost in the district and federal court levels, she appealed to the Supreme Court, and they accepted the case to be heard on October 10th. MCN will provide updates in the weeks to come.

U.S. Budget Experts’ Forecast: 6 Million Americans to Pay Healthcare Penalty

By 2016, virtually every American citizen will be required to have health insurance or will be faced with a penalty of about $695 per person.

While the exact number of people affected by this penalty is not certain, a new analysis by the Congressional Budget Office (CBO) estimates nearly 6 million American’s may be subject to the penalty under the Affordable Care Act’s (ACA) individual mandate.

The recent bump – about 2 million more than first estimated in 2010- is due to projection changes about the economy, unemployment and lower income rates,  as well as state opposition to expand Medicaid programs, which is most unpopular in states with Republican governors or Republican-majority legislatures, according to the CBO. Read More…

The analysis report did include the various exemptions for those who will not have to purchase health insurance or pay the penalty due to financial hardship, religious objections and other circumstances.

But it is also important to consider that many people will not have to worry about the penalty since they will already have coverage through a parents plan until they are 26, through an employer, and/or government programs like Medicare and Medicaid. Not to mention those who simply take responsibility and buy a plan.

So which 6 million Americans will this penalty affect?

A TIME magazine article, “Tax Penalty to Hit Nearly Six Million Uninsured,” explains the CBO projection and the political reactions to the announcement.

Romney’s spokeswoman, Andrea Saul says the new report is more evidence that Obama’s law is a “costly disaster.”

The Obama administration said 98 percent of Americans will not be affected by the tax penalty — and suggested that those who will be should face up to their civic responsibilities.

Erin Shields Britt of the Health and Human Services Department stated:

“This (analysis) doesn’t change the basic fact that the individual responsibility policy will only affect people who can afford health care but choose not to buy it…We’re no longer going to subsidize the care of those who can afford to buy insurance but make a choice not to buy it.” Read more…

Under the Affordable Care Act, the money raised from the penalty must be used mainly to fund government subsidies to help middle- and low-income people pay for health insurance. In the end, the outcome of  our current health care law depends on what happens in the upcoming presidential election.

A Provocative Opinion: “Men, Who Needs Them?”

This provocative op-ed, “Men, Who Needs Them?” in the New York Times was disturbing to read. Readers, especially men, would understandably become defensive or angry.

But to the degree it reports facts, one might engage in the exercise of imagining it is not referring to humans, but some other animal species in a textbook. And the piece rightfully challenges us as a society to consider the impact of current technology and trends. If a male is but a sperm donor, what does this mean for society?

Woman can and do choose to become pregnant without the presence of a male partner or engagement of the father in the child’s life. This is not new, but it is becoming popularized in the chatting classes of upper socioeconomic people who historically partnered.

The need for males is particularly provocative when one considers the premium placed on them in many cultures relative to females, and the fact that roughly half of all children born are still male. One might think that if biology determined this, that evolution would alter this percentage.

The article has indeed gotten many responses, 300+ comments and counting. Read them for additional perspectives.

How Do You Call In Sick As A Soldier?

Given the economic meltdown, the highest unemployment rate in years, and layoffs around every corner, workers are more likely to drag themselves into the office even when they really are sick with a fever or the flu. While most companies encourage sick employees to stay home, there is one government entity that hardly ever allows their members a sick day off without serious assessment. The military.

Last month, a Navy submarine worker, Casey James Fury, 24, set fire aboard the USS Miami in order to get out of work early. Faced with life in prison if convicted of two counts of arson in the fire aboard the USS Miami attack submarine, many wonder if his desperate attempt to get out of work may be warranted by the military’s impossible “sick day” policies. In the  Slate article, “Sir, Do I Really Have To  Work Today, Sir?” soldiers, airmen, sailors and Marines explain the various hoops they must jump through to get a day off due to illness.

“In most branches of the military, a service member who wakes up under the weather is expected to, well, suck it up. In extreme cases, though, he or she can inform the commanding officer of an ailing condition when reporting to first formation—a daily physical-training session at 6 or 6:30 a.m. that might include four-mile runs, push-ups, and sit-ups. It’s up to the commanding officer to decide whether to force the sick person to participate in the dawn routine or allow him or her to kill time with some stretching until sick call begins. Sick call, “a daily lineup of military personnel requiring medical attention,” takes place at the aid clinic, or infirmary. Enlisted medics assess the gathered troops, treat minor complaints, and issue further recommendations. An ailing service member might be assigned to “indoor” or “light” duty, which would exempt him from physical training and perhaps have him cleaning the barracks.”

In Casey James Fury’s case, setting fire aboard the submarine was simply an act of anxiety and desperation as civilian workers typically have the same leave policy as most workplaces do. The general procedures described above typically apply to members of the Army, Navy, Air Force, and Marines, both in training stateside and in combat overseas, according to the article. What’s more? If any service member tries to fake illness or  is perceived to exploit his unit’s leave policies (most branches cap sick leave at 13 workdays per year), he faces charges of malingering, dishonorable discharge, forfeiture of all pay and allowances, and confinement for one to three years.  Read More…

 

Medical Liability Cases Create a Destructive Chain Reaction

Medical liability cases have been on the rise in recent years, with multimillion dollar verdicts on the line. Such high awards encourage more people to sue physicians and which in turn, increases defensive medicine. The article, “The Rise of Sky-High Jury Awards,”explains how medical liability verdicts  in favor of the patient have reached an all time high and how it creates an adverse chain reaction in the medical realm.

According to the Coalition for Affordable and Reliable Health Care, the average medical liability award is about $3.5 million today. The AMA article shows that lawsuits involving children, in particular, or claims seeking lifelong compensation increase the chance of a high damages award.

Recent medical liability lawsuits in which jury awards have climbed into the tens of millions this year (AMA):

  • In May, a New York City woman won a $120 million award in a lawsuit against three hospitals and a neurologist who allegedly failed to diagnosis her with a rare skin disorder.
  • Pennsylvania jurors in May awarded a woman $78.5 million in her case against a medical center that allegedly breached the standard of care in delivering her son, who is now a quadriplegic.
  • In January, a jury awarded a patient a $178 million verdict against a Florida medical center. His family said the center failed to properly treat the patient’s complications from gastric bypass surgery.

The medical liability crisis is not only a huge issue for physicians, but also for patients, insurers and the future of medical care. Large payouts for meritless medical lawsuits creates an environment where physicians are performing unnecessary tests and procedures to prepare for possible legal defense, patients are losing access to physicians and insurers are often left with the bill after a large verdict.

While some cases are legitimate, a majority of them that make it to court don’t present valid cause-effect evidence. In fact, according to Physicians Insurers Association of America, only seven percent of suits ever go to court and nearly 80 percent of suits that go to court are found to be meritless and result in no awards. But when huge multimillion dollar verdicts are publicized in the news, it fuels more people to make these desperate claims.

In the end, costly liability claims create a chain reaction of destructive outcomes. It takes one multimillion dollar verdict in a bogus lawsuit to cause doctors to practice defensive medicine, premiums to skyrocket, patients lose access to physicians, and future medical students choose their specialty carefully for fear of malpractice lawsuits.

Life Insurance Settlements: What is Your Life Worth?

If you found out you only had a few more years to live, would you bet your life for quick cash? The New York Times article, “Are You Worth More Dead Than Alive?” presents the story of a man, Ruben Robles, who was diagnosed with brain cancer and told he had two years to live, at most. With a half a million dollars in life insurance policy, Ruben knew that he had an option to sell his life insurance policy for money upfront.  While the thought of buying a life insurance policy based on someone’s imminent death seems grim, the life settlement industry has become a common option to those with little left to lose.

In 2007, the life settlement business generated $12 billion in transactions but as the recession hit, it only brought in $3.8 billion worth of life settlement in 2010. Today there are $18 trillion worth of active life-insurance policies in the United States and very few people even know that they can sell their policies. The article states:

“Life insurance is designed to benefit the living, a spouse or heirs, not those who perish. But Carole Fiedler, who owns a firm called Innovative Settlements, knew that a life-insurance policy is an asset that can be resold to a friend or stranger just as a car, boat or house can. In a transaction known as a viatical settlement (for terminally ill patients) or a life settlement (for everyone else), the person selling his insurance gets an immediate cash payment. The buyer, in exchange, is named as the beneficiary and pays the premiums until the insured person dies. Life no longer afforded Robles a traditional way to make money, but to the right investor, Fiedler advised, his imminent death was worth a great deal.”

It’s hard to believe the business of life settlements is legal and it poses many questions as to what risks this type of transaction might bring in the future. The article makes the point that “both sides participating in settlement transactions are winners: the policy seller is paid upfront, and the buyer is paid even more later.” Yet, it’s difficult to fully understand and come to terms with a business that is gambling with someone’s life. The article is intriguing and makes valid points for both sides of the deal and I suppose it’s a decision you can’t fully judge until you are faced with terminal illness, old-age and/or short life-expectancy.

“For all the advancements that aim to make life-expectancy science more precise, death remains one of the most uncertain certainties around. When you invest in an individual life settlement, you are placing a bet. And bets hinge upon probabilities that can’t be controlled.” Read more…

Medical Identity Theft: The Fastest-Growing Type of Identity Theft In the World

Identity theft takes many guises.  It can happen to anyone at anytime and is a nightmare to fix if it’s not discovered early. In the medical realm, it has become the fastest-growing type of identity theft in the world and can ruin a person’s name, finances, career, and reputation. The article, “Medical ID theft: Double Danger for Doctors,” by American Medical News illustrates how MD identity theft creates double the amount of risk for doctors.

The articles states that there are two kinds of medical identity theft: one that involves a patient’s identity being exploited; and the other that involves a physicians professional identity being stolen and used. Both create huge consequences for doctors as their profession is compromised and they can be held responsible for the theft of a patient’s identity.

The article focuses on Los Angeles based-internist, Dr. Anne Peters, MD, who became the victim of an international crime ring who had stolen and used her medical credentials to scam Medicare out of hundreds of thousands of dollars. The article states:

“When Dr. Peters sought advice on how to resolve the situation, she not only came up empty-handed, but she soon started feeling like a criminal herself. She was visited by federal agents, she received notices from the Internal Revenue Service regarding back taxes on $750,000 she never earned, and she was even detained once at the airport for more than an hour when she returned from a trip abroad. Meanwhile, Medicare stopped sending her payments for legitimate claims.”

Six years after struggling to clear her name,  Dr. Peters became an advocate for medical identity theft awareness and helps shed light on the fast-growing crime among her colleagues and among federal agents, who have developed programs to help physicians in similar situations. The article provides a clear look into medical identity theft red flags, risks, and how to prevent it from happening in the future.  Read More…

Book Review: Reefer Madness

Too High to Fail by Doug Fine

Noted comedian, pundit and provocateur Bill Maher wrote a review in the New York Times on Doug Fine’s book “Too High to Fail,” which addresses the marijuana economy. The matter is gaining considerable public momentum. Several states permit so-called “medical marijuana” and have passed or have proposed referendum and laws to lower sanctions or decriminalize possession. The failure of drug laws as public policy are legion and a growing number of American’s, perhaps the majority, are not interested in pursuing further failed policies, and instead seek rational approaches to marijuana. The days of the drug being viewed as a gateway to narcotics and a life in society’s shadows are long past. If the ability to prosecute or judge offenders required prosecutors and judges who have themselves used marijuana to recuse themselves from the proceedings, many would be disqualified.

The U.S. has the highest percentage of individuals incarcerated in the world as this map shows. Among the reasons for incarceration, drug related offenses are a significant portion of these.

There is a disconnect between the significant criminal sanctions for marijuana use, possession, sale and growing and the actual risks and danger of the substance. While nothing in excess is without risk, any healthcare professional can easily recount the dangers of alcohol on the body, on violence rates, accidents, crime, trauma and social disruption. Tobacco and firearms, both decidedly legal, cause untold deaths.

Medical marijuana is a back-door entry and access point to something that may have medicinal impact for some, but is clearly being used by many as a legal way to get high. The indications for medical marijuana prescriptions are so varied and non-specific in practice as to put the lie to those who would claim it has limited application to cancer-related nausea, glaucoma and the like. Medical marijuana has become a cottage industry where legal, diverting attention from the big picture of whether it warrants continued criminal treatment. Local governments are in conflict with states and the Feds. Medical data supporting the severe sanctions and disparate treatment is lacking. Many in society, including law enforcement experts are questioning the status quo and attempting to seek rational, realistic, and economical solutions.

Bloomberg’s Large-soda Ban: Behavioral Economics in Action

Bloomberg’s Large-Soda Ban would prohibit restaurants, delis, sports arenas, movie theaters, and food carts from selling any soft drinks larger than sixteen ounces.

This interesting piece from the financial column of The New Yorker magazine describes an example of behavioral economics in action. The article, “The Economics of Michael Bloomberg’s Large-Soda Ban,”makes the argument that the proposed ban in New York on cups of soda larger than 16 ounces may work by setting and altering expectations of the drinkers. It describes how choices can be framed by the supplier, and in so doing, alter behaviors and consumption.

The article states, “Bloomberg’s proposal makes clever use of what economists call ‘default bias.’ If you offer a choice in which one option is seen as a default, most people go for that default… The soda ban makes sixteen ounces or less the default option for soda drinkers; if they want more, they’ll have to make an extra effort.”

Consider how we are all susceptible to being economically manipulated to buy, by the claim that an item is on sale, and the many other ways that how we view a choice is impacted by the context.  Read More…

Detection of Malingering, Not Too Hard When Clinicians are Skilled

By Brian L. Grant, MD

This excellent article from Slate addresses the popular but incorrect notion that folks can easily fake illness, including insanity. In truth, insanity is a rare defense and even rarer to be successful due to the stringent legal criteria of such a defense – that few defendants qualify for, though many may indeed have a mental illness. A mental illness is necessary but not sufficient for a successful insanity defense.

Additional requirements depending upon jurisdiction, include the inability to refrain from the act, the inability to appreciate the immorality of the act and other criteria. Furthermore, a finding of insanity may serve to alter the location of confinement to a locked psychiatric unit, but not eliminate removal of the accused from society.

The article, “Can you Fake a Mental Illness? How forensic psychologists can tell whether someone is malingering,” focuses on psychiatry, but in any setting where factors such as compensation, avoidance of responsibility, acquisition of narcotics, and other factors beyond the desire to obtain necessary diagnosis and treatment come into play, malingering must be considered. Malingering is a big word for lying or faking it. It is willful on the part of the perpetrator and goal directed. Detection of malingering requires a combination of a willingness to consider the possibility, skills appropriate to one’s specialty, and enough information in the context of the examination, along with external evidence including medical and other records, investigation and other factors to allow one to reasonably conclude that one is malingering.

Most or all who enter the medical profession while young, are aware that there are a group of individuals they may encounter in the course of their practice who have less than admirable goals which include deceiving clinicians and others. Detection of malingering is not a typical part of the training of young clinicians. It generally takes experience, on the job training, and continuing education seminars to develop the necessary skills. Needless to say, any forensic medical reviewer must have a working knowledge of the subject in their specialty.