scarce resources.

There’s an interesting post on NPR’s health blog about the care US healthcare teams are providing to Haiti earthquake victims on the navy hospital ship.

It deal with what is often a hypothetical question to practitioners who work in wealthy countries and facilities: what do we do when we run out of supplies, blood, ventilators? This situation seems to create nothing but uncomfortable and unsavory possibilities: don’t treat people who are likely to die? Take life support away from someone?

I think people who work in healthcare would do well to remember  these situations when we are feeling sorry for ourselves.

Selling a kidney? Read this!

http://www.npr.org/blogs/health/2010/01/iran_leads_in_innovation_on_or.html#more

Nurse: Beyond the stuff of urban legends, there really is a black market for organs– kidneys, especially, since a living donor can give one up and essentially have no ill effects. To be simplistic, the black market thrives because there are more people with kidney failure than there are willing– or cadaverous– donors. Iran has a program that allows the government– and the recipient, through a 3rd party– to pay the donor a “modest sum”. This brought up all kinds of stuff for both of us!

Lawyer: Hmm. The part about the recipients paying the donors was more immediately troubling to me. Access question — who gets the kidneys? Definitely legal issues here — in terms of ownership rights. Comes up in property law — in what way do you own your body/organs?

Nurse: I’d be inclined to say you own your body/organs more than anything else in the world– more than your shirt, more than your house. They are absolutely yours.

Lawyer: We can certainly conceive of different kinds of ownership — ownership that allows you to exclude others (you can’t just TAKE my kidney) or that allows you to give it away, or destroy it after its removal, but NOT sell it. These different sorts of rights can be separated from each other. At the minimum, we could say that you don’t own your body at all — all you have is a right to protect it against unauthorized invasion. So you can’t sell it or rent it out (prostitution, for example), and you can’t even control what happens to your body after you die (though in our society, you can) — see what I’m saying? Different types of legal rights we could or could not grant. Related question about who owns tissue excised from your body during non-elective surgery. (One case I studied involves the spleen removed from a patient with a rare form of leukemia being used for research and subsequent profit without his consent — and the court, though divided, allowing it, and granting him ZERO rights to any of the profits.)

Nurse: Is it ever ethical to pay living organ donors for their organs, as is done in this case (Iran)? There are of course lots of protections in place for the donors, including who can evaluate their suitability. Also, it’s a pretty small payment– but likely enough to be essentially coercive to someone who is hard up. in the article, doctors say they believe donors act out of altruism, but why then include a financial component at all? i can see including care for free, but why cash?

Lawyer: This might be part of the problem, too. . . people who are desperate might actually “under-price” this sort of thing. I’d venture to guess that in a real competitive market for this sort of thing, the value of all the pain and future uncertainty of giving up a kidney would be a lot more than $1200. But I agree — why cash at all? If it’s altruism, pay for their care, pay for some monitoring after the procedure, maybe even pay them for their time — but not for their organs.

Nurse: Normal consent procedures certainly won’t cut it, if you ask me– people frequently sign without understanding, knowing that the procedure is in their best interest. in this case, it’s in someone else’s interest, not their own. that changes the calculus drastically. to truly accept the risk, the donor must have a fairly sophisticated understanding.

Lawyer: How would you accomplish a “super-consent”? Is there such a thing already in place for other types of situations? Research?

Nurse: Research is the closest case I can think of, and research consents are far more extensive than a basic procedure consent. They can be pages and pages and pages, whereas a regular consent form that we’d use in the hospital is one page, with a minimal amount of information written in.

To what extent can the government intervene? it’s illegal to sell your organs, no? why? would a regulated system circumvent the concerns at all?

Lawyer: The government can intervene in that they can make it illegal to sell your organs — basically, if a doctor removes your kidney, you have no claim to payment. Of course, there can be all sorts of other “payment” that doesn’t leave a paper trail… bag of hundred dollar bills, etc. (cf. gestational surrogacy — can’t actually pay someone to do this for you. But you can over-pay them for nutrition during gestation, etc.)

Nurse: People CAN sell plasma and eggs, and both of these donation procedures carry some risk. not as much as nephrectomy, but still.

Lawyer: Is it just about the risk of the procedure itself, or also about possible compromised future health? (I mean, you definitely don’t need all your plasma or eggs, but don’t you need both your kidneys? Need as in, there’s a reason we have 2? Is the second one really just a backup? What are the increased risks of living with a single kidney? Will the health care system have to bear the cost of this risk, especially for the aforementioned patients who are indigent?)

Nurse: You really only need one. The risk of living with one is that you’re screwed if your one kidney fails. Otherwise people can live with a single kidney and have no adverse affects.

Lawyer: A further curiosity: are there really any other organs where we could see this come up? Most of the things we desperately need, we don’t have two of (e.g. liver). So, nurse, is this just, always and forever, about kidneys?

Nurse:  Well. . . for now it is. It is possible to transplant part of a liver from a living donor. I believe it’s somewhat riskier, but in general it’s fairly successful. And like our earlier discussion, things like blood, plasma,and  eggs are certainly part of the discussion.

Lawyer: I am also curious about alternatives. I know there has been work on artificial hearts — what about kidneys? (I mean, obviously, short of lifetime dialysis.)

Nurse: Well, dialysis IS really an artificial kidney.  And as of now, it’s the only other way to do it. And if we wanted to open up a can of worms about cost, both financially and in terms of quality of life, that would be a good one!

Who’s choosing what?

So, we thought we’d take a look at some of the issues surrounding the hot mess that is the Stupak amendment. And first and foremost, it’s a bitch, because there are not a lot of facts that are accessible and trustworthy. So that said, here we go.

Lawyer: In figuring out just how bad this really is, I tried to find some info. Specifically, I wanted to know what percentage of abortions are actually paid for (at least partially) by insurance. It’s patchy, out there on the web. a lot of this doesn’t seem terribly reliable to me, and I don’t vouch for it.  But I did find:

“A 2003 study by the Guttmacher Institute found that 13 percent of abortions in 2001 were directly billed by abortion providers to private insurance. Abortion opponents say that shows that eliminating abortion coverage is not much of an issue. But the Guttmacher Institute itself points out that its numbers don’t include women whose abortions were paid for by Medicaid (17 states cover Medicaid abortions using state funds); abortions for which women submitted their own reimbursement requests; or those paid for out of pocket.” (Source: NPR)

Nurse: I really wish there were better facts on this. Of course, it seems like everyone who is presenting “facts” is pushing an agenda– on both sides. I’m actually surprised to know that even that many abortions are covered by  private insurance and especially by medicaid.

I do have a few more questions: the care and support of pregnant women and their children who may not have any financial means– for food, care, diapers, clothes, health. . . is absolutely more expensive than abortions. but an abortion is an elective medical procedure, right? i mean, i absolutely agree that federal legislation shouldn’t bar insurance from covering it (isn’t this exactly the kind of government restriction and overreach that republicans profess to fear??), but i’m a little but unsure of why people seem to feel so strongly that insurance should cover it. i am playing devil’s advocate a little, but. . . does a woman who doesn’t use birth control carefully and is seeking her third abortion have a good case that someone else should pay for it? (this is actually an attitude that i think is encouraged in all kinds of medical care just by the fact that we use insurance as our primary method of payment.)

Lawyer: I don’t think saying “someone else should pay for it” is the right way to look at it. We’re talking about being able to buy insurance against that, if you so choose. Last time I checked, insurance — even subsidized insurance — wasn’t free. It’s a choice to put aside some of your own money, pooled with everyone else who makes the same choice, to deal with future possible needs.  I’m not saying all plans should cover it. I’m saying the choice should be out there. And good point about the overreach.

Nurse: It’s so hard to parse the “women’s issue” thing for me. Sure, it is– but is that relevant to the debate? I think it is in so far as the vast majority of people who are writing it and voting on it are men. But let’s not fall in to the trap of thinking that abortion opponents are all men.

Lawyer: But you want to get all controversial and stuff, here’s a theory for you. The moral hazard theory: that if you know something isn’t going to cost you, you take fewer steps to avoid it. The classic example is that people with really good car insurance don’t lock their cars as often. I don’t need to go any further with that.

Nurse: I actually think that line of reasoning is both valid and troubling. My other question is that i’ve seen it posited that if this bill was passed into law with the amendment, it would destroy any access to abortions even for women who can pay out of pocket. I don’t get this– are abortion providers that dependent on insurance payments?

Lawyer: My take was that the chief concern is for women who can’t afford it out-of-pocket. Then, without an insurance contribution, we probably do have a fairly major access question — the people whose lives (and children’s lives) would be the most dramatically altered by this sort of thing aren’t the ones with McMansions.

I wish i had better numbers:

Nurse: Who needs facts when you have righteous indignation?

After a recent essay in Slate about laws protecting doctors who apologize for medical errors, we got to thinking:

Lawyer: On apology laws: I think they are a very good idea. So long as doctors know about them. (Do they? Any doctors in the house?) And better if patients know about them too, though that will have no legal effect (i.e., if the patient runs to his lawyer thinking “got him!”, the lawyer will gently inform him that the statement is inadmissible, and if the lawyer doesn’t, the judge will.) If a doctor was truly negligent, there will usually be other evidence available to prove it. I also think it’s possible that a jury will be less likely to nail a doctor who seems genuinely sorry — as opposed to one who might come of as aloof or arrogant.

Nurse: It seems almost odd that we’d need to have such a thing to begin with. It really does stem from the fact that it seems like as a society, we feel doctors should be infallible and we are all entitled to perfect, flawless, faultless care at every juncture. Now, of course, medicine is different from other fields because our health and welfare is so dear to us, but can you imagine if there had to be a law allowing a Subway employee to apologize for putting peppers on your sandwich?

Lawyer: But apology laws are really only a very small part of the solution — a patient may be spurred on by the apology. If they’d had any doubt about whether the doctor was at fault, well, now, they don’t. I also have some kind of undefined mixed feeling about whom they’re actually serving. Yes, we rely on doctors to make important decisions for us, and as a society, we seem to have a tendency to deny the fact that doctors are human, and doing a very hard job that must be done. But there was something in that article that sounded to me almost like… how to put this… the doctor was more concerned with her own feelings of guilt than with the serious danger in which she put her patient. At what point does it become inappropriate to make it about easing the doctor’s feelings, when there is a real injured patient there? I don’t have an answer for this, and I think it’s certainly important to remember that doctors are people too, with emotional needs. It’s a balancing act, and a tough one.

Nurse: First, if a doctor IS at fault, why should they let the patient doubt that fact? That’s essentially dishonesty. Second, you’re right, she was easing a guilty conscience, but she’s also expressing genuine regret. I think there should be a way for a medical professional who’s made a genuine mistake to express this regret– even if it is partially self-serving. When we make mistakes in health care, it can be really gut-wrenching in a unique way, and we are breeding a more stressful, morally pained environment for medical practice if we as a society don’t recognize and respect that.

Lawyer: On the studies cited: The story touches on the sort of “heat of the moment” being very different from a study. I think this is a more major factor than is generally acknowledged. I also think that volunteers in a study saying that they would sue is very different from actually making the decision to do so. I can’t imagine what would suck more time and emotional energy from an already-injured patient than a lawsuit, and especially one that fails. Of course, we have to do studies, but relying on this sort of thing really worries me.

Another thing the article doesn’t touch on: what are they really calling an apology here? Should doctors be saying “my bad, I should really get more sleep” or “I’m so sorry for your pain and any way in which I may have contributed to it?”  Relevant to things like apology laws — there’s certainly room for sympathy without claiming liability. But I wonder if under the surface, this article isn’t saying that it’s the admission of fault that has value. It’s a little tough to tell. (In fact, most apology laws explicitly make this distinction — sympathy is inadmissible, but actual admissions of fault are fair game. Except, for some reason, Colorado. If you screw up in Colorado, you can come clean.)

Nurse: The article does mention the distinction between a full apology and a no-fault apology. (I’m sorry that I made this mistake, vs. I’m sorry this happened and I’m sorry for your pain and suffering.) I think there’s no question that a no-fault apology should always, always be given– but often a full apology should as well, or we should have protections for it. If we don’t let doctors own up to their mistakes, we are giving them a true incentive to lie and withhold. Do we really want to do that? Should mistakes– or even just difference of opinion in treatment– only be discussed among colleagues and behind closed doors (like at M&M’s)– I’d hope not. I think patients have a right to be more involved, and that over time, more openness could lead to a cultural shift away from litiganous behavior. There’s a movement afoot in medicine to involve patients more in their care and their decision making, both as a safety measure and out of respect for their preferences. Health care is, in many ways, a service– and from that view, we should stop patronizing our patients. There’s more going on here, but we’ll save it for another day!

Failing to wash your hands can kill!

There’s a lot of hype about hand-washing now that it’s flu season, and we have the new kid (H1N1) in town, too– but let’s not forget our good old hospital buddies, MRSA, C-diff, VRE. . .

There was a recent French study discussed on NPR’s health blog that showed that healthcare workers who move throughout a hospital working on different units– like radiology techs, physical therapists, lab techs, and others, who don’t wash their hands can become “super-spreaders.” One person who doesn’t practice good hand hygiene can cause hospital-wide outbreaks of some pretty nasty bugs.  Now, hospitals have different strategies to combat this kind of recklessness, but usually the upshot of an infraction is a reminder or a slap on the wrist. Given the severity of the problem– realistically, this behavior can kill someone– is that enough? Should a certain number of documented infractions be a fireable offense? Should licensed personnel have their licenses at risk? We’ve all forgotten a few times, or had our hands full, or been super-rushed or in an emergency situation, sure. But is that an excuse? Is there a line?

This should happen more often!

A few weeks ago, Nurse & Lawyer brought you a critique of the industry-sponsoed “Smart Choices” program, labeling foods that were. . . less horrible for you than other foods with a big green check mark. And suggesting that perhaps the FDA would be a better regulator of such labeling than the sugary-cereal industry.

Turns out everyone else thinks so, too. Pepsi is backing out, and Kellogg’s is phasing out the labeling, according to the New York Times, thinking that the FDA might be better situated after all.

Sorry folks: Froot Loops aren’t good for you after all.

ps. Can you be the first person to guess, in a comment, who Lawyer got to meet today?

Quickie: Can you prove WHY you got sick?

One of the things I’ve been studying in law school (torts again. Hi, Professor Engstrom!) is how you can prove that somebody else’s bad behavior actually caused your injury — rather than merely preceding it and being capable of causing it. This mainly comes up in the question of your trying to make them pay for your care (and possibly compensate you for your pain and suffering.)

We generally agree, these days, that agent orange caused a whole lot of health problems for the people who were exposed to it while the US used it in Vietnam. We can also be fairly certain that some of these vets would’ve had some health problems by this age, with or without agent orange. So… which ones is the VA particularly responsible for? If we made vets prove causation, the way we make most people filing tort claims prove it, they simply wouldn’t be able to. (And most of those who tried were denied, getting sicker and sicker as they tried to navigate an impossible appeals process.) To solve this problem, the Department of Veterans Affairs compiled a list of diseases known to be caused by agent orange, and if a vietnam vet presented with one of those diseases, well, okay, claim approved. (Yes, I know, oversimplified.)

The reason it’s in the news this week is that they’re adding a couple of diseases to the list. Three diseases, actually. (So reported by NYT.) And the VA is all, “Look! We’re making it easier for veterans to get the care they deserve!”

Um, okay.  Yes, you are making it easier for a few veterans to get the care they deserve. But your health care is still pretty terrible. Long waits, denials, etc, etc. This is a baby step, guys. Don’t start flying your Mission Accomplished banner.

So I ask: Is this even a good way to address the problem? Presuming that agent orange caused certain diseases, thus streamlining claims for those veterans who were in Vietnam and have those specific diseases? Is it just a good band-aid, when what we really need is a much better, much different system? Is it a bad band-aid, making things just good enough to scrape by while allowing us to ignore the greater change that needs to happen?

Hitting the bottle. . . in the hospital?

So, I have a good-old-fashioned question of “ideal vs. practical” for us.

I work in an ICU– people come in with heart attacks, sepsis, pnemounia. . . in addition to planned surgeries. As you probaly know on some level, there are A LOT of alcoholics out there– and when someone tells us they drink, and we ask how much, a good rule of thumb is to at least double that to get the truth. So people come in with some kind of critical illness (which, granted, are somewhat more common among people addicted to alcohol), and the within a few days, they’ve got the shakes, and we have to detox them and use lots of meds and close observation to keep the DT’s away– which can be lethal if untreated. This process is expensive, excrutiating (for the patients– don’t get me started on the nurses) and uses ICU beds and staff. Their stays are extended beyond what they initially would have needed. These people, by and large, don’t want to be detoxed. They aren’t going to quit drinking. Breaking the immidiate physical dependence doesn’t free them from their alcoholism– the first thing a lot of them do when they get out is get a drink.

So, why do we detox them? In our ideals about health promotion, we feel that it’s our duty. . . that it’s protecting their health, and that alcohol is a dangerous drug for these people? I know this sounds ridiculous and there are a million reasons this is an even worse idea, but why don’t we give these folks some booze– just an amount that will prevent severe withdrawl?  Is this an even bigger liability? Does it create incentives we don’t want? We certainly can’t force them into longer-term treatment options. We can counsel them and refer them, sure, but if they don’t want to quit or have no intention of doing so, what good have we done them? And at what cost?

Is there a good solution to this problem? Any thoughts?

More on flu shots. . .

As is the case with many vaccines, part of the benefit of vaccinating a lot of people is not just to stop those people from becoming seriously ill, but to prevent the spread of the virus. As a health care worker, I should be vaccinated not just so that I don’t miss work, but so that I don’t carry and pass the virus to vulnerable people. This also works in schools and nursing homes– the more people are vaccinated, the fewer potential carriers there are. Unfortunately, this argument doesn’t seem to work well with the general public: individual risk– even if it’s imagined, is more powerful. And what really gets me– even though I work at a hospital where seasonal and H1N1 shots are available free to employees, with no appointment, without even having to leave the unit, people aren’t getting them! Nurses!

Should health care workers be required to get vaccinated?

Blogging: boundaries?

I recently read an interesting post over at Code Blog about a nursing student who was expelled– and later reinstated– over her blog. She had written about clinical experiences in a way that seemed to mock the patients and conveyed a general lack of compassion and sensitivity. But she did not– and this is why she won when she sued– divulge enough information to constitute a HIPPA violation. So it’s really a first amendment issue– HIPPA is essentially an exception to the first amendment. So although she didn’t violate the law (or the school’s honor code), did she do something wrong? If you scoot on over and read some of her words, it’s hard to argue that she’s profession, ethical, and discreet, but that isn’t illegal.

So here’s my question: is there a way to identify this kind of line-crossing and discourage it without turning into a censor-happy autocracy? How can we legally protect freedom of speech while also guarding the special case of things like a nurse-patient relationship? Is this a case for the school to take up in its own code of conduct? For professional organizations and lisencing boards?

Lawyer jumping in here: It’s only a FIrst Amendment issue if the government is telling her she can’t post it.  (And you’re right, HIPAA is an exception — that’s the government telling you what you can’t disclose.)

The issue here was whether she violated the school’s honor code, and without seeing the code itself, it’s tough to know. Not being the government, the school can dismiss her by any process they themselves have set in place. (No notice, no hearing? Well, did the school’s written policy demand notice and hearing?) Basically, the government doesn’t get to say what the school can and can’t do here. (Obviously, there are exceptions protecting all kinds of groups — they can’t expel you for being black, etc.) She seems to have sued them over violating the terms of their agreement with her (the honor code, etc)  – not over unconstitutionally restricting her speech.

Leaving aside this particular incident and looking to professional codes of conduct, I think that is indeed the right place to regulate this type of behavior. Earlier this month, the Times had an article about lawyers getting in trouble with the Bar for criticizing judges on their blogs. Law, like nursing, is largely a self-regulating profession, so it was the Bar, not the government, that stepped in. I think the same would be appropriate here. Does the relevant professional association have guidelines about this sort of thing? If not, in this day and age, they should. People have blogs. And facebook. And Twitter. And they write about the things that happen to them. Especially as the “digital natives” enter the professions, they (we?) need clear guidance about where the line is. Not from the law — from our professions themselves.

UPDATE: The NBA is apparently going to issue social networking guidelines for players, coaches, owners, etc. Hat tip to lawyer’s husband for this one!