Professionalism in Medicine

By Deborah Cho

As an update to my previous post here on medical students and professionalism, Judge Sutton writing for the Sixth Circuit found that a medical school could deny a degree to a medical student for failing to meet “professionalism” requirements.  According to the opinion, the medical student had come late to classroom sessions, allegedly behaved inappropriately at a formal dance, had to repeat his internal medicine rotation due to poor performance, and had been convicted of driving white intoxicated.  The Sixth Circuit found that Ohio, where the medical school is located, treats the relationship between a university and a student as contractual in nature, with that contract’s terms supplied by the student handbook.  As the handbook in this case included professionalism as part of the academic curriculum, the university’s determination that the student failed to meet professionalism requirements was an academic judgment and thus merited deference by the court.

Last summer, Judge Gwin of the Northern District of Ohio found that the medical school went beyond its scope of duty by extending its determination of professionalism well past academic or patient related matters.  The district court found for the student, noting that the “character judgments” found by the university were “only distantly related to medical education.”  In my last post, I noted that this separation of personal character from competence to practice medicine seemed troublesome.  The Sixth Circuit’s opinion reversing the district court shows similar concerns.

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Mental Health in Law School – Part II

By Deborah Cho

We’ve come a long way in the area of mental health over the past several years. Notably, the Mental Health Parity and Addiction Equity Act of 2008 did great work to place mental health on more equal footing with physical health in the health insurance arena.  Still, there is much work to be done to raise awareness and decrease stigma so that treatment is sought appropriately.

A few weeks ago, I was speaking with a physician about some of the difficulties in addressing mental health with his patients.  He expressed disappointment at a recent conversation he had with a patient who refused to take his psychiatric medications.  As the physician recounted the story to me, he was frustrated with his patient’s misconception that “successful people don’t have mental health problems.”  Even worse, that misconception seemed to imply that in order to be successful, when one does have a mental health issue it is better to suffer through it than it is to seek help.  At the time, hearing this story was particularly upsetting for me as a law student because I felt that we were receiving and even propagating a similar message during a rather remarkable final examinations period.

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The Beginning of the Broccoli Mandate?

By Deborah Cho

In National Federation of Independent Businesses v. Sebelius, 132 S. Ct. 2566  (2012), the Court famously struck down the “individual mandate” of the ACA under the Commerce Clause.  The Chief Justice noted that the Government’s argument for regulation under the Commerce Clause — that individuals were participating in interstate commerce by not purchasing health insurance and were thereby subject to regulation — “would justify a mandatory purchase to solve almost any problem.”  He continued, “To consider a different example in the health care market, many Americans do not eat a balanced diet.  [The] failure of that group to have a healthy diet increases health care costs, to a greater extent than the failure of the uninsured to purchase insurance . . . Under the Government’s theory, Congress could address the diet problem by ordering everyone to buy vegetables.”

This hypothetical was raised as an example of a potential absurd result of accepting the Government’s line of reasoning in this case.  It was provided as an extreme outcome to catch the reader’s attention.  Justice Ginsburg even responded to this “broccoli horrible” hypothetical by stating that the Court would have to accept a lengthy chain of inferences, something that the Court has refused to do in the past, to find that a vegetable-purchase mandate would affect health-care costs.  Some of those inferences included accepting that individuals would eat the vegetables rather than throw them away once purchased, that they would cut back on other unhealthy foods, and that the healthy diet would not be offset by an individual’s lack of exercise.  In addition to this piling of inferences, Justice Ginsburg noted that the democratic process would serve as a “formidable check” to prevent a situation such as the broccoli horrible.   Discussions about this broccoli mandate outside the courtroom were framed similarly.  One article from 2012 stated that Congress would need to be “crazy” to pass such legislation and that “absurd bills like a broccoli mandate are likely to fail other constitutional tests.”

Yet, here we are, just a couple years later, and it seems that some of the weakest and most vulnerable in our population have indeed found themselves in the midst of the broccoli horrible.  Continue reading

Asian Americans as a Vulnerable Population

By Deborah Cho

I was excited to learn of an article in a recent issue of American Family Physician on the topic of caring for Asian American patients.  The contents of the article are worth a read (most of it is available here), but it generally states that medical providers should consider the Asian American health care culture in their care of Asian American patients.  That information is not new, but it does highlight important facets of the Asian American culture, such as the collectivistic approach within families to medical decisions and that many Asian American patients do not mention the use of supplements and herbals unless explicitly asked during medication review.  Though these tips were worth mentioning, the main reason this article caught my attention was because it was about a population that often seems overlooked in health care.

I think one reason that there appears to be little attention on the nuances of caring for Asian American patients is buried in this phrase: “despite the common perception that all Asians are well-educated, many Asian immigrants have low educational attainment and poor medical knowledge.” (emphasis added).  Perhaps we do not consider this population to be vulnerable or otherwise in need of particular concern.  As the author of the AFP article notes, however, this perception is possibly misguided (“30% of Vietnamese Americans 25 years or older have completed less than a high school education (compared with 11% in non-Hispanic whites)” and “A high percentage of Asian Americans have limited English proficiency”).  Continue reading

Ebola Update: Why Don’t We Seem to Care?

By Deborah Cho

It’s been over half a year since the beginning of the current Ebola outbreak in West Africa, yet the number of cases and deaths from the disease continue to rise.  The total case count as of September 29, 2014 is 6,574 and total deaths are at 3,091.  Even so, the international response, as a whole, seems to be lacking.  As I lived near the Centers for Disease Control and Prevention (CDC) in Atlanta, Georgia this past summer, I was acutely aware of the Ebola epidemic’s magnitude while it had the media’s attention.  The attention given was similar to that given to a car accident on the side of a road as onlookers drive on by without stopping to offer help.  Unfortunately, it was quite clear that aid efforts were woefully inadequate and that the disease would continue to spread rapidly without a stronger response.  It seemed that though our curiosity about this virus was at an all-time high, our national concern for the epidemic and its casualties were extremely minimal other than in the brief moments when we were faced with prospect of flying in two of our own infected citizens.  Continue reading

A Look at the ALS and Ebola Responses

By Deborah Cho

I’m a little late to this discussion, but I want to talk briefly about the ALS Ice Bucket Challenge and how we make our decisions on charitable giving.

I’m sure by now most readers understand the basic concept of the challenge: individuals can choose to either record a video of themselves pouring ice water over their heads or to donate money to the ALS Association (or both — the rules don’t seem to be particularly consistent in application).   After the challenge is undertaken, the video is shared on social media or a message is posted announcing that the individual has donated, and then the individual “nominates” others for the challenge.

This challenge has virtually taken over the web in the past couple weeks (perhaps, as one writer commented, because it lets participants “(a) exhibit his altruism publicly and (b) show off how good he looks soaking wet.”), raising over 88 million dollars as of August 26, 2014.  As expected, however, the challenge was not without its very vocal critics.  Many were opposed to the narcissistic nature of the challenge, while others, more relevantly, questioned donating so much money to a charity and to fight a disease based on an internet fad. Continue reading

Weight Status: When Ignorance May Not Be Bliss

By Deborah Cho

A recent data brief summarizing a national survey spanning from 2005-2012 on the perception of weight status in U.S. children and adolescents highlights one major finding — many children and adolescents who are overweight or obese don’t know it.  Key findings were that about 81% of overweight (defined as having age- and sex-specific BMI greater than or equal to the 85th and less than the 95th percentile of the 2000 CDC growth chart) boys and 71% of overweight girls believe they are about the right weight.  Additionally, nearly 48% of obese (defined as having age- and sex-specific BMI greater than or equal to the 95th percentile of the 2000 CDC growth chart) boys and 36% of obese girls consider themselves to be about the right weight.  

As an article on the NPR blog noted, “Kids can be cruel, especially about weight. So you might think overweight or obese children know all too well that they’re heavy.”  But it seems that this is not the case, at least according to the survey.  Furthermore, not only do overweight or obese children generally seem to be unaware of their weight status, but the misperception rate appears to be higher in those children and adolescents whose families have a lower income-to-poverty ratio.  Non-Hispanic black and Mexican American children and adolescents were also found to have higher rates of misperception than Non-Hispanic white children and adolescents.

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Medical Students and Professionalism

In one of the more interesting cases I’ve read about recently, a judge in the Northern District of Ohio granted an injunction against Case Western Reserve University, forbidding Case from expelling a medical student (a former classmate of mine) for his failures in professionalism.  As a brief summary of the case, a medical student just weeks from graduating from Case was convicted of driving while impaired.  He reported the conviction to the residency program he had matched at, and the program then notified Case before the student reported it to the school himself.  Case took the position that failing to alert the medical school of the arrest merited expulsion and withholding the medical degree that the student was to receive with distinction the very next month. Although reporting such arrests was not a requirement of graduation, the school believed that he should have reported the arrest and prosecution, particularly in light of the fact that the student had a history of other infractions throughout his time as a medical student. Continue reading

Risks and Benefits

By Deborah Cho

We often determine the value of a particular medical intervention, product, or protocol by weighing its risks against its benefits. If the risks are outweighed by the benefits, then the measure is given the green light. However, risks and benefits are not easily measured nor are they readily comparable. Countless issues arise when calculating the risk, or harm, of a measure. Must we consider the potential risk to the specific individual in question, or is consideration of risk to the average individual enough? Similarly, should individual preferences be considered when deciding how much weight ought to be assigned to the risk? Are relevant harms only those that are immediate and occur proximately from the measure, or is any future harm, no matter how attenuated, that results to be a part of the equation? These questions and many more in the same vein can also be asked regarding benefits.

To these questions, there do not seem to exist satisfactory answers. Even more difficult is the determination of the overall value of a measure that is made after weighing its risks against its benefits, as risks and benefits are measured in incomparable units and manifest in very different ways. Despite these difficulties, this calculation is regularly done in medicine, public health, and research. Though I agree that benefits should outweigh risks and that probing questions ought to be asked before a measure is pursued, perhaps the current model centered around the risk-benefit analysis is too flawed to be useful.

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Mental Health in Law School

By Deborah Cho

I was recently pointed to this poignant post on mental health within the legal profession.  The post is the first of a three-part series that is titled “We Need To Start Talking About Why So Many Lawyers Are Killing Themselves.”  Parts 2 and 3 can be found here and here, respectively.  Please refer to the original posts for a deeper exploration of the original author’s experience with depression and anxiety as a legal professional.  I am by no means an expert on this topic, nor am I able to fully grasp everything the author has written about, but I want to explore some of what is touched upon as it relates to law students.

The author, law professor Brian Clarke from Charlotte School of Law, cites the following statistics: “[B]y the spring of their 1L year, 32% of law students are clinically depressed, despite being no more depressed than the general public (about 8%) when they entered law school. By graduation this number had risen to 40%. While this percentage dropped to 17% two years after graduation, the rate of depression was still double that of the general public.”

What this signals to me is confirmation of something I’ve suspected all along: There is something wrong with our law school experience.

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A Case Against the “Noncompliant” Patient

By Deborah Cho

In recent years, providers have attempted to shift how health care is delivered so as to include the patient in the decision-making process.  This concept of shared decision-making was most memorably relayed to me in medical school through a critical lesson during which we were instructed to replace the word “noncompliant” with “non-adherent” when describing patients who were unwilling or unable to stick with treatment regimens.    Noncompliance painted a picture of a paternalistic provider mandating the rules of play, while the patient cowered below as a disobedient subordinate.  It also implied that the patient did something wrong by breaking the rules and that the actions of the patient ought to be modified to fit the rules, rather than the other way around.  On the other hand, non-adherence signified that the patient was a contributing partner in the development of the treatment plan and, further, that he may be justified for not abiding by the terms of his plan.

There were two overarching reasons for the shift to the shared decision-making model: first, that this would produce better overall clinical results and second, that this view shows more respect for patient autonomy.  Providers were learning and accepting that treatment plans prescribed within their vacuums could fail to be affordable, intelligible, or even realistic given a patient’s life circumstances.

So how does this relate to law students and lawyers?

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Tips from a former medical student – Part II

By Deborah Cho

[See Part I here]

Last week, I wrote the first of a two-part series on tips that may be helpful for law students and lawyers interested in or working in health/medical law.  I continue with Tip #4 here.

4. If you need to learn about a disease, procedure, or drug that you know nothing about, your best starting point is probably Wikipedia.  Google will lead you to some incorrect answers, and diagnose-yourself websites will give you answers that are much too broad to use practically in legal practice.  Once you have familiarized yourself with the general topic on Wikipedia, you can then go back to your search engine of choice for more specific terms and weed out the wrong information.  Starting on PubMed or GoogleScholar probably isn’t the best idea either because most of what you’re reading will be highly technical and the articles you find will likely be about novel uses or instances of whatever you’re searching.  Another fantastic source is UpToDate, an evidence-based Wikipedia-like source for healthcare providers, but many people may not have access to all the information on this site.

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Tips from a former medical student – Part I

By Deborah Cho

As a student in the Disability Litigation Clinic, one of the many fantastic clinics here at Harvard Law school, I’ve come to appreciate the value of hands-on experience as an essential component of legal education.  One issue that we as students are often faced with, however, is a lack of familiarity with the particular subject matter we are assigned to work with.  Now, I know that topic-specific knowledge typically comes on the job, but I’m starting to see that many of us trying to practice law touching the medical field never really have a chance to learn the basics of the medical world and just how essential that basic knowledge really is.

As a short introduction to this post, I will say that I spent several of my college years volunteering and doing research at various hospitals and clinics, went to medical school for two years, have an M.A. in Bioethics (noting this to add to my hours spent in a hospital), have interned in the health care division in state government, have interned in a health law nonprofit firm, and, as noted above, am enrolled in the Disability Litigation Clinic right now.  All that to say, please take everything I write here with a grain of salt.  I am by no means an expert on this, but have found that this information has helped me throughout my healthcare-related legal experience so far and I hope that this will spark dialogue and interest on this subject.

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Is CVS really doing the right thing?

By Deborah Cho

As announced earlier this month, CVS has decided to stop selling tobacco products in stores starting October 2014 because it is not in line with its goal of promoting health.  Since this announcement, there have been countless articles and editorials on whether this was a good move by CVS or not.  Those who have said that this is a good (or great) decision generally emphasize that it makes a powerful statement about the harmful health effects of smoking, while others have noted that CVS’s decision is an unwise financial move and is unlikely to actually decrease the rate of smoking in the country.

It was interesting that CVS chose October 1st as the official start date of its new initiative, as if it were signaling that it were a health entity coming into full compliance with the ACA and ready to herd in its customer-patients.  CVS has attempted to adopt the identity as a health provider, with its president hoping it evolves into an alternative to the doctor’s office.  As such, CVS must shed itself of anything that does not mesh properly with its new image.  This, however, inevitably leads to the question of why tobacco products were singled out as “unhealthy” when so many other products that are sold at drugstores like CVS provide just as little health benefit to the American population.

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Capitalizing on Fecal Transplants

By Deborah Cho

Last summer, the FDA reversed its previous decision that required researchers to file INDs for fecal transplants to treat Clostridium difficile.  This decision came without much official explanation as to the reasoning behind the reversal, but can be understood as a result of the unusually high success rates of fecal transplants in treating the deadly infection and the impracticality of applying IND requirements to the procedure.  As the FDA guidance notes, however, the agency’s “exercise of discretion regarding the IND requirements” affects only the use of fecal transplant to treat C. difficile and does not apply to the treatment of other diseases or conditions.

Despite the peculiarity of this type of treatment, researchers and patients alike seem to have embraced it for its ability to cure more than just life-threatening infections that have few other viable options.  In fact, a physician in Seattle studied the effects of fecal transplants on inflammatory bowel disease.  And, as it goes with many drugs, there even seem to be clinics claiming to use fecal transplants to treat weight loss. 

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How Drug Samples Are Being Used to Fight the Good Fight

By Deborah Cho

I would highly recommend reading the Stanford Social Innovation Review’s recent article An Rx for Surplus Meds featuring the Dispensary of Hope, a brilliant model of providing prescription medications to those who need but can’t afford them.

In a nutshell, the Dispensary of Hope, a not-for-profit enterprise, collects unused medication samples from participating physicians and pharmacies across the country and redistributes those medications to safety-net health centers.  Those health centers can then prescribe these much-needed medications to patients who are unable to obtain them otherwise.  Since many of those medications would likely sit on shelves until they had to be discarded if they were not donated, this is beneficial to both the physician practices that no longer have to worry about proper drug sample disposal and also to safety-net health centers and their patients.

More specifically, participating physician practices and pharmacies simply fill with medications the boxes that are shipped to them by the organization and then ship the box back to the organization’s headquarters.  The organization’s staff and volunteers there do all the legwork necessary to properly inventory the drugs so that they can be distributed.  This way, time and effort required on the parts of these physician and pharmacy groups is minimal (not to say that their contribution is minimal – the Stanford article states that $14 million of sample donations were expected for 2013).  The organization thus provides a missing link, acting as an intermediary between the donors and the recipients to keep the supply constant and regular.

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Health Insurance & Patient Responsibility, Part II

By Deborah Cho

In my first post, I introduced the general problem of patients not being fully informed about their health insurance policies and instead relying on providers to correctly apply each patient’s unique policy when making medical decisions.  Though patients are ultimately responsible for abiding by the terms of their individual insurance plans, there may be ways that health care providers can help patients avoid being stuck with unnecessary and unmanageable medical bills.

One solution might be to make giving a general statement about the importance of understanding how your health insurance policy relates to recommended care become standard practice during patient encounters for physicians and other health care providers.  Health care providers can, for example, add something along the lines of “You may wish to check with your insurance plan to see if this is covered” when providing a recommendation for treatment or when providing a referral.  Such practice should not place liability on health care providers to guarantee that patients have an accurate understanding of their insurance coverage.  Instead, insurance coverage and medical debt should be viewed as factors that can directly affect a patient’s health and well-being, thus deserving a few moments of the patient encounter whenever possible (perhaps similar to brief counseling on smoking cessation, which is covered only if appropriate and timely).

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Health Insurance & Patient Responsibility, Part I

By Deborah Cho

With the implementation of the Affordable Care Act, many consumers can now (or eventually…) head to HealthCare.gov to compare health insurance plans to find one that fits their needs.  Health insurance plans, however, can be complicated and fraught with exceptions and exclusions that consumers learn of only when it is too late and medical bills have already started to pile up.  Consumers are directed to consult member handbooks to learn their plan’s terms and conditions, but these handbooks are often nearly a hundred pages in length and densely packed with information.

Nonetheless, patients are held responsible for understanding and abiding by the terms of their plans, even if those terms are confusing and hard to fully appreciate.  For example, patients are expected to know what types of medical care require prior authorization from their insurance carriers and that they must obtain approval before receiving that care.  If these steps are not taken in the correct order, payment can be denied and the patient may be left to foot the bill for the services.  Similarly, patients must understand that their policies may fully cover only in-network providers and must additionally know who is in-network and who is not.  Because the member handbook and/or benefits document allegedly provide adequate notice, the patient is out of luck if he is not aware of these conditions.

The outcome is similar even when a medical provider or the provider’s staff does something to indicate that the medical care in question is covered by the patient’s insurance plan.  This can be as simple as suggesting a specific procedure to help with the patient’s condition or even merely referring the patient to a particular specialist.  A patient may accept care on the understandable yet incorrect assumption that an action recommended by his treating physician is automatically covered by his insurance plan. Though providers often verify that costly care will be covered by a patient’s insurance in order to ensure proper compensation, the instances when this does not happen can be financially devastating to patients.

So who should be responsible for knowing the ins and outs of these health insurance policies?

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Introducing Student Contributor Deborah Cho

Deborah Cho is a second-year law student at Harvard Law School interested in social justice and health law.  She graduated from UCLA with a BS in biochemistry and then attended Case Western Reserve University School of Medicine.  After two years of medical school, Deborah’s interest in social justice and inequitable access to health care prompted her to begin considering law school.  She subsequently received her MA in bioethics while doing research on expanded genetic carrier screening at the Center for Genetic Research Ethics and Law at Case Western Reserve University.  At law school, Deborah has interned at the Health Care Division in the Massachusetts Office of the Attorney General and is currently an intern at Health Law Advocates, a public interest law firm. She will also be a student editor of the forthcoming Journal of Law and Biosciences.

Representative Publications

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