Category: Health Law

Minding the Obesity Epidemic

supersize.jpgJeanne Whalen at the WSJ has a fascinating piece on a slew of new obesity drugs now in clinical trials. There’s a lot to comment on, but I was struck by a chart on the front page, giving the following rates of obesity (BMI > 30) in different countries in 2005:

US: 39%

UK: 23%

France: 7%

China: 2%

Japan: 2%

These are pretty shocking figures. The chart mentions that the obesity rate in the US was 35% in 2002….so the percentage by which obesity increased in the US in three years is double the overall percentage in the Asian countries mentioned. How is it that twenty times as many Americans are obese than Chinese or Japanese nationals?

I plan to look for answers in Avner Offer’s The Challenge of Affluence: Self-Control and Well-Being in the United States and Britain Since 1950. The book is a masterpiece of meta-analysis, reportage, and Jon Elster-style explication of the microfoundations of social action. Offer’s thesis is (inadequately) summarized below:

Resources and cravings do not map precisely on to well-being. . . .Over the last two decades, a new understanding began to emerge, especially from psychology and economics, that what we want and choose can often fail to deliver, and can even be counter-productive. . . . This understanding is the work of many inquiries and disciplines. My effort here is to extrapolate it to the personal dynamics of affluence during the last six decades. . . .

Offer has a whole chapter explaining the ways in which high levels of competition, stress, and inequality in American and British society contribute to compulsive, mindless, or otherwise unhealthy eating.

Kudos also to Cass Sunstein for exploring the issue in his review of Brian Wansink’s diet book Mindless Eating . Bottom line:

Wansink has concluded that much eating is mindless. Americans are fat not because they have made a rational calculation that French fries are so yummy that they are worth the costs in health and svelte. Nor are French fries essentially irresistible. Often Americans eat because of contextual cues, or “hidden persuaders,” to which they are blind, but which greatly affect their behavior. . . . Wansink’s real subject is choosing, not eating, so even thin people should read it.

Philosophers ranging from Aristotle to Dewey recognized the ultimate importance of habit, and Wansink brings their insights into a world of diet fads sorely in need of philosophical perspectives.

So what’s the bottom line for law? Well, given the insights of Offer and Wansink, the agenda for regulation currently pushed at The Situationist makes a lot more sense.

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Your money or your life

A flurry of scholarship on Lochner v. New York surrounded its 100-year anniversary in 2005. It’s clear why Lochner gets so much attention. But as a matter of constitutional doctrine, I wonder if we pay insufficient attention to the stealth anti-Lochner, Jacobson v. Massachusetts. The two U.S. Supreme Court opinions were announced just a few months apart, Jacobson in February 1905 and Lochner in April. Both involved claims of individual liberty pitted against public health laws—a mandatory vaccination law in Jacobson, a limitation on work hours (as well as regulations of working conditions) in Lochner. But the outcomes could hardly be more different. Jacobson embraced a broad police power to use coercion to ensure public health; Lochner infamously struck down restrictions on bakers’ working hours as a violation of economic liberty. (Justice Peckham dissented in Jacobson and wrote the Lochner majority opinion; Justice Harlan dissented in Lochner and wrote the Jacobson majority opinion.) Lochner didn’t last, of course, but for a while it seemed that the state could use coercion to protect your life (or health) only if it didn’t mess with your money along the way.

I’ve been thinking about Jacobson and Lochner as I work on an article about the state’s interest in the preservation of life. Jacobson (and maybe, to some degree, the renunciation of Lochner) reflects a widespread assumption that the state has such an interest and may use coercion against citizens’ bodies to further that interest. So we see Jacobson cited in abortion cases to support the state’s interest in the preservation of fetal life, in refusal of medical care or “right to die” cases, and to support indefinite civil commitment (Kansas v. Hendricks) or indefinite detention (Justice Thomas’s dissent in Hamdi v. Rumsfeld) in the name of public safety. In fact, Jacobson has been cited by the Supreme Court more often than Lochner, and the Jacobson references are almost universally favorable while the Lochner references are usually not. A pedagogical question: Should Jacobson get more attention in constitutional law casebooks? And a political / philosophical question: Is it so obvious that the state has an interest in preserving individual lives—especially those of individuals who do not themselves wish to continue living?

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The Death Spiral

Uninsured.jpgAccording to a new Gallup Poll, 69 percent of Americans believe that “it is the responsibility of the federal government to make sure that all Americans have health care coverage,” 10 percentage points higher than in 2000. Law conferences at Hamline, Cumberland, and Kansas have focused on innovations in state health care this academic year. What has happened in the past 7 years to make comprehensive health care reform more of a “when” than an “if”?

I think Sered and Fernandopoulle’s book Uninsured in America provides some excellent answers. They tell the stories of ordinary Americans devastated by lack of health coverage. Consider the story of Kim, whose uncontrolled diabetes may be a prelude for critical illness:

Untreated diabetes not only makes her feel worse day to day but also hastens the onset of the serious complications the disease can cause. Because she is unable to monitor and manage her blood sugars and get recommended preventive care, she is at high risk for premature blindness, heart disease, limb amputations, and kidney failure. Standard medical treatment aims to prevent or at least significantly forestall such outcomes, but Kim does not see a way to access standard treatment.

Apropos of Dan’s post below, Kim’s story also show how the market drives dominant employers to slash benefits: Walmart, for instance, “has cut health costs per worker to $3,500 per year, fully 40 percent less than the US average . . . and 30% less than the average paid by other retailers” (34). Here’s how Kim’s employer, Walgreens, fattens up the bottom line:

Kim works part-time at a Walgreens drugstore. Though she isn’t thrilled with the work (which doesn’t utilize her college training), she would agree to work full-time, except that Walgreens isn’t hiring full-time employees either. Kim explained that she tried working more hours there after her boss told her that she would need to work full-time for twelve weeks in order to be eligible for insurance. But when she approached the twelve-week mark, her hours were cut, making her ineligible for insurance.

On a personal note–my father was an assistant manager at Walgreens, and saw that sad story played out more than a few times by managers driven to “beat last year’s numbers.” Moreover, after he was recovering from a broken leg, his boss there repeatedly forced him to do work that would be painful and exhausting for him (and easily assigned to others at the store)–almost certainly in an effort to get rid of him, since his seniority made him one of the higher paid workers there. It’s “just business” for the companies–they really can only expect to be undercut by competitors if they try to be more humane.

These market realities have led more and more Americans into (or to be aware of) a “death spiral” of lost employment, lost insurance due to that lost employment, and future inability to find work due to poor health. As Sered and Fernandopoulle explain:

Because employment and health insurance are tightly linked, job disruptions such as layoffs or firings, starting one’s own business, or taking time off to care for small children or elderly parents can lead to the loss of health coverage. That loss can easily lead to health concerns going untreated, a situation that can exacerbate employment problems by making the individual less able to work. Alternatively, the downward spiral can begin with health problems that lead to employment problems, making it less likely that one will have health insurance and thus reducing the chances of solving the original health issues.

If we see universal health insurance after 2008, I think it will be largely because of fear of such a death spiral. Americans are, by and large, willing to accept the vagaries of a globalization that destabilizes incomes and reduces job security. But they are not willing to die for it.

Pharmaceutical Law Symposium

I just wanted to invite readers in the greater NYC region to the Seton Hall Law Review’s symposium on pharmaceutical law tomorrow (Friday, Feb. 16). We’ve got some interesting panels lined up, and the general counsel of HHS (Daniel Meron) will be giving the keynote.

The Symposium will focus on how the FDA’s drug approval process affects public health, intellectual property protections, and the economy. Panels will explore the FDA’s role in determining whether a drug is safe and effective for its intended uses and how its approach addresses public health needs, affects research and development, and influences insurance coverage decisions.

We’ll also have a panel on global public health, including Terry Fisher, Shamnad Basheer, and me. My presentation, inspired in part by this Laurie Garrett article, will focus on the public health infrastructure necessary to assure the proper distribution of drugs in LDCs.

Competing Ourselves to Death

In the run up to the Superbowl, the NYT has a disturbing story on the fate of Ted Johnson of the New England Patriots. Johnson suffered several concussions while playing and now suspects that they have permanently diminished his mental capacity. Johnson’s case is not isolated, and is leading to worries about “the N.F.L.’s record of allowing half of players who sustain concussions to return to the same game.” What’s next, the return of the flying wedge?

From a brute lawyerly perspective, the controversy raises some interesting issues. Are coaches and trainers negligently encouraging the injured to play? Could the players sign away any right to sue their teams (or the league) in cases like these? Might some political pressure need to be brought to bear here, like that which finally got baseball to face up to its steroid mess?

From a broader social perspective, other concerns arise. I’m presenting tomorrow at the Int’l Association of Science and Technology Studies on biotechnological enhancement that raises cognate issues. I’ll address a potential inversion of the traditional relationship between technology and values. Usually we think of values as guideposts that allow us to judge the worth of certain technological advances. But what happens when technology itself alters our cognitive capacities? Can it undermine our values? Certain drugs, trainings, or even game strategies might blunt or otherwise obscure our understanding of the world and ourselves. If we share Martha Nussbaums’s account of emotions as judgments of value, might these so-called performance-enhancements diminish the possibility of our rightly discerning our ends?

Any sporting pursuit that requires its participants to systematically risk their health in competition is troubling. But concussions like Johnson’s are doubly so, since they appear not merely to diminish or distort cognition, but to compromise one’s ability to even recognize the diminution taking place. The difficult question for regulators of various performance-enhancing neuropharmacological interventions is whether they have the potential to blunt users’ perceptions of the deep changes they wreak in users themselves. Substance addiction has been modeled as a case of “increasing marginal utility,” where the more one uses, the more one wants. New neural performance enhancement addiction might work in a far subtler way–by blunting the appeal of alternate sources of value and satisfaction.

Trans-Scientific Facts on Endless Trial

late doctor.jpgIs there a doctor shortage? Judging from the fact that physician salaries in the US are much higher than in comparable OECD countries, and given that leading trade associations and experts finally are calling for the training of more doctors, you might think so. Consider the Association of American Medical Colleges’ position, reported in the Chronicle of Higher Education:

Instead of a glut, experts now fear the nation will face a serious shortage of physicians just when the aging population will need them most. That stunning about-face began in 2002 with an admission by the Association of American Medical Colleges and other groups that the surplus projections by health-care analysts and policy makers may have been a mistake. “It is now evident that those predictions were in error,” the association stated last year in a report that called on medical schools to increase their enrollments by 30 percent by 2015, both by expanding existing schools and creating new ones.

When I made that point at a health law workshop in 2005, some skeptics quickly piped up: “That’s contestable. Some people think there are way too many doctors.” Neighsayers pop up in the Chron. article, too:

David C. Goodman, a professor . . . at Dartmouth Medical School, [says that] “[r]ather than spending more resources on training more physicians, we should be focusing on building more-efficient delivery systems.” . . .Simply graduating more physicians will not ensure that care is getting to the people who need it most, the Dartmouth researchers argued. Most will probably crowd into regions of the country that already have large numbers of doctors, rather than moving to rural areas or inner cities where more medical care is needed. A larger number of graduating physicians also does not guarantee that the physician work force will be appropriately distributed among specialties.

As if the government couldn’t use its subtantial role in funding medical education to condition support on schools’ addressing such issues.

Such advocacy appears increasingly irresponsible as the US imports more and more medical personnel away from less developed countries (for example, “604 out of 871 medical officers trained in [Ghana] between 1993 and 2002 now practice overseas.”). Yet reporters, ever-eager to give the appearance of objectivity, continue “balancing” overwhelmingly dominant positions with half-baked contrarian challenges.

The endless debate over the physician shortage reminds me of a classic administrative law issue–the “trans-scientific fact,” or factual judgment infused with values and assumptions about future policy. Certainly the statement “there is a doctor shortage” can never be as objective as, say, “the earth orbits the sun.” But when someone challenges it in the face of massive consensus to the contrary, don’t they have the obligation to at least respond to the most basic arguments undermining their position? And don’t journalists have an obligation to ask these types of questions? Without that kind of substance, objectivity becomes mechanical, a mere tool for the “social construction of ignorance.”

Photo Credit: Flickr/sarcasmo, “Doctor Come Lately.”

What Would Europe Do?

Muni Wifi Router.jpgI went to a few trying panels at the annual law prof conference, but overall I felt presentations in my fields were great. (Perhaps it’s just like Congress–people hate the institution but love their own representative). My two favorite panels were on the internet & telecommunications, and on health insurance. But I felt the latter was ultimately more satisfying than the former, largely because many of the health scholars were deeply aware of comparative health policy, but the internet/telephony panel focused very tightly on U.S. policies.

That’s not to say the internet/telephony panel was at all bad–many big names in the field were there, they directly argued with one another, and a high-level senate staffer injected some political realism into what could have become a speculative discussion. Perhaps the most compelling arguments for the status quo (as opposed to “net neutrality intervention“) were offered by Christopher Yoo, who put forward a quasi-Gilderian vision of Darwinian competition unleashing quantum advances in communication services. For example, Yoo said it would be foolish for the FCC to protect Google from “gouging” by broadband networks, since the danger of such discrimination might just drive Google to massively invest in a satellite network to provide a third alternative to the the telephone/cable duopoly. Some would say it’s that duopoly that’s largely responsible for the US’s pathetic ranking of 21st in the world (right behind Estonia) in broadband penetration.

That makes a lot of sense as far as it goes, and reminds me generally of Schumpeterian visions of innovation–let monopolies rack up rents so they’ll either use profits to innovate or provoke someone else to swipe their customers. But another, gentler vision animates some European policy on the matter, where most customers get much lower prices for much faster services than Americans do.

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Employer-Based Health Insurance as Social Darwinism

social darwinism.jpgThe NYT has done a great job chronicling the social costs of diabetes this year. A recent article focuses on the ADA struggles caused by the illness. Consider the following situations:

A mortgage loan officer in Oregon was denied permission to eat at her desk to stanch her sugar fluctuations, and eventually was fired. A Sears lingerie saleswoman in Illinois with nerve damage in her leg quit after being told she could not cut through a stockroom to reach her department. A worker at a candy company in Wisconsin was fired after asking where he could dispose of his insulin needles.

Some of these workers have rights under the ADA, but many live in circuits where judges consistently refuse to recognize diabetes as a disability under the Act. The employers sound heartless, but face an unavoidable market logic: when the health cost of diabetics average “five times that of workers without diabetes,” those who can eliminate “bad risks” from their workforce can gain an edge over competitors.

Our unique system of employer-based health insurance promotes Social Darwinism on two levels. First, the chronically ill individuals most in need of health care are the first to be shut out of it. Second, small employers are often the ones most vulnerable to catastrophic consequences of sick workers because they can’t afford to spread risk around (or buy plans that can).

This is one reason why I hope Jacob Hacker’s The Great Risk Shift lives up to its billing as “the essential policy book of the year.” Hacker realizes that there is something deeply wrong with a system that punishes people for being sick. There is little reason to expect some “private” or “charitable” solution to the problem of the uninsured, since nonprofit institutions have been stretched to the limit here and “good employers” that provide insurance will, as often as not, be undercut by more cutthroat competitors.

Much like the debate over net neutrality, the debate over employer-based health insurance will come down to our sense of the nature of fair competition. Hopefully we can all agree that a system that encourages employers to dump the most vulnerable workers is suboptimal.

Photo Credit: Flickr/beigeinside.

The Courtier Society

Just a quick note on an issue I’ve been covering a bit here: the fast-growing “beauty business” of cosmetic surgery. The NYT has a good piece on the topic, reporting that

Five years ago, cosmetic medicine was primarily the domain of plastic surgeons, facial surgeons and dermatologists — medical school graduates who undergo several years of training in facial skin and its underlying anatomy. But now obstetricians, family practitioners and emergency room physicians are gravitating to the beauty business, lured by lucrative cosmetic treatments that require same-day payments because they are not covered by insurance and by a medical practice without bothersome midnight emergency calls.

The new trend toward doctor-courtiers has raised interesting issues for licensing boards; though “all doctors with state medical licenses are allowed to administer all kinds of treatments . . . doctors have not commonly set up shop in fields far outside their expertise.” But that’s becoming common now. The president of the American Board of Medical Specialties criticizes the trend, but we can expect it to grow as the demand for favored appearance grows.

What to do? Well, I’d like to float two suggestions. Medical education is pretty heavily subsidized by the federal government. Perhaps, to the extent doctors opt out of traditional healing fields and take on the vocational equivalent of celebrity hairdressing, some of that subsidy could be “clawed back,” ala extant Medicaid lookback provisions that scrutinize beneficiaries’ spending habits in the years before they apply for benefits. I would only propose this going forward, so as not to upset current doctors’ reliance interests.

Another approach would build on legal challenges to cosmetology regulation. If these cosmetic interventions are really so easy that one can do a weeklong course to understand them, why require the involvement of doctors at all? I know we need to look out for the safety of those who opt for the procedures. But perhaps not at the cost of diverting qualified doctors from the healing arts to utterly frivolous ars amatoria.

From the New Property to the New Responsibility

apple small.jpgJust as Charles Reich was a premier theorist of rights to government largesse, Peter Schuck and Richard Zeckhauser are leading exponents of the responsibilities it entails. In Targeting Social Programs, S&Z focus on the denial of benefits to “bad bets” and “bad apples:”

Bad bets are individuals who are likely to benefit little from social resources relative to other [beneficiaries]. . . . Bad apples are individuals whose irresponsible, immoral, or illegal behavior in the past—and predictably, in the future as well—marks them as unsuitable to receive the benefits of social programs.

This may sound a bit cold-hearted at first, but S&Z make a good case that, behind a veil of ignorance, we’d quite sensibly allocate resources to, say, the transplant recipient who is most likely to benefit, rather than the one who has been on the wait list the longest. They also show how often “bad apples'” worst effects are on the disadvantaged citizens near them. (For an example, see Kahan and Meares on anti-loitering ordinances.)

The West Virginia Medicaid program provides an interesting case study of “bad apple screening.” Consider the fate of one beneficiary who refuses to sign a “health responsibility contract:”

Mr. Johnson. . . goes to a clinic once a month for diabetes checkups. Taxpayers foot the bill through Medicaid . . . [b]ut when doctors urged him to mind his diet, “I told them I eat what I want to eat and the hell with them. . . . I’ve been smoking for 50 years — why should I stop now? . . . This is supposed to be a free world.”

Traditionally, there was little Medicaid could do to encourage compliance. But now, “[u]nder a reorganized schedule of aid, the state, hoping for savings over time, plans to reward “responsible” patients with significant extra benefits or — as critics describe it — punish those who do not join weight-loss or antismoking programs, or who miss too many appointments, by denying important services.” But as the article notes, “Somewhat incongruously, [Johnson] appears to be off the hook: as a disabled person he will be exempt under the rules.”

Critics claim the program is unduly intrusive: “What if everyone at a major corporation were told they would lose benefits if they didn’t lose weight or drink less?” asked one doctor. Certainly in some manifestations it could be; consider this 1997 proposal by Judge John Marshall Meisburg:

Congress should . . . consider legislation stipulating that no one can be granted disability by SSA if s/he continues to smoke against the advice of his physician, and smoking is a factor material to the disability, because such claimants are bringing illness and disability upon themselves. Such a law would reduce the burden of proof now needed to deny benefits to persons who fail to heed their doctors’ advice, and would dovetail with legislation just passed by Congress to abolish disability benefits for persons addicted to drug and alcohol. In many cases, smoking is akin to “contributory negligence” and the SSA law should recognize it as such. [From Federal Lawyer, 44-APR FEDRLAW 56 on Westlaw.]

I think S&Z frame the debate in a nuanced enough way to avoid this kind of draconian proposal. But I do have a few quibbles with the framing of their work, if not its substance.

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