Category: Blog

In 2014 Brittany Maynard became the face of the nation’s right-to-die debate. Maynard, 29, was diagnosed with terminal brain cancer and given six months to live. After assessing her options, Maynard and her family reluctantly decided to move from the San Francisco Bay Area to Oregon, one of five states that authorized physician-assisted suicide at the time. Maynard died on November 1, 2014 after taking a lethal dose of drugs prescribed by her physician. An ardent advocate for physician-assisted suicides, Maynard revitalized the discussion across the country and made the topic relevant to a younger generation.

The topic sparks rigorous debate and there are complex arguments on both sides of the issue. At play are legal, ethical, and moral dilemmas. Proponents of physician-assisted suicide say that it gives those suffering from terminal illnesses a right to die with dignity. They argue that in the face of a terminal illness where the prospect of unbearable pain, diminished quality of life, inevitable suffering, and death are all imminent realities, one should have the right to decide how and when to die.  Opponents say that it is dangerous and unethical. They argue that when doctor-induced death becomes an acceptable remedy for suffering, “logical extensions grease the slippery slope.” For example, one doctor who opposes the practice cited statistics from Holland, where the practice is legal, that claim more than forty people sought and received doctor-assisted death for depression and other mental illnesses.

In two 1997 cases, Vacco v. Quill and Washington v. Glucksberg, the U.S. Supreme Court ruled that physician-assisted suicide is not a fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment. Because it was not determined to be a fundamental liberty interest, the Court gave a great deal of deference to the laws in place at the time of the rulings. In particular, Washington v. Glucksberg dealt with a Washington statute that made it a felony for a person to assist in the death of another. The state of Washington argued that it had a legitimate interest in preserving lives, preventing suicides, avoiding the involvement of third parties and the use of unfair or arbitrary influence, protecting the integrity of the medical community, and avoiding future movement toward euthanasia and other abuses. The Court held that the law was rationally related to those legitimate interests. However, it left the door open for states to permit physician-assisted suicides by declining to ban the practice.

Currently California, Oregon, Washington, and Vermont have enacted “Death with Dignity” statutes, and Montana has made the practice legal through case law. Twenty more states are considering “Death with Dignity” legislation this season, and twenty-five states have no legislative activity on the topic this year. Clearly there is still a lot to be decided in this area, and it is likely to be an active area of law for many years to come.

There are currently over 1.4 million Americans living in nursing homes. When people enter a nursing home, they expect to receive the utmost quality care. However, if for any reason that care is anything less than adequate, there are not reasonable safeguards in place to hold nursing homes truly accountable to patients.

In an effort to prevent nursing home residents from suing for resident rights violations, abuse or neglect, nursing homes ask residents or their families to sign agreements prior to admission that include binding pre-dispute arbitration provisions. The arbitration clauses in these contracts require residents and their families to settle disputes through private arbitration rather than in a court of law in front of a jury. Most arbitration clauses are hidden in contracts so that consumers will not pay attention to the fact they are waiving important, constitutional rights to a jury, the right to discovery, and the right to a written record. However, instead of simply banning these pre-dispute clauses, the Centers for Medicare and Medicaid Services allows them as long as the nursing homes take steps to explain and disclose the clauses. Unfortunately, even if nursing homes explain these clauses it does not mean that residents and their families will fully understand prior to signing. Forced arbitration shields corporations from liability, but at the same time denies justice to patients, meaning that business wins and consumers lose.

In July 2015, the Centers for Medicare and Medicaid Services (CMS) issued a proposed rule to revise requirements for nursing homes, including specific requirements relating to the use of these pre-dispute arbitration clauses. In October 2015, 27 members of Congress sent a letter to CMS criticizing CMS’s proposed rule, stating it would not adequately protect residents in nursing home facilities. The letter called on CMS to issue a final rule; this ensured that residents entering these agreements will do so only on a voluntary and informed basis after a dispute arises instead of prior to a dispute. This would give residents the choice to use arbitration as an alternative dispute resolution rather than a forced resolution. Further, the congressional members wanted to ensure that signing the agreement would not be a requirement for admittance, but simply an option to handle unresolved disputes.

In July 2016, 32 members of Congress sent another letter to CMS that commended many provisions of the rule, but highlighted critical issues that must be fixed before the final version to protect our country’s most vulnerable population.  The letter applauded CMS for recognizing the problems with these pre-dispute arbitration clauses, but said CMS was not doing enough. The letter asked to explicitly prohibit these clauses from nursing home agreements for many reasons. CMS cannot expect residents and their families to make such decisions during their initial admission to a nursing home. Nursing homes must be held accountable for the care they provide to our nation’s elderly community.

The final version of the new regulations for nursing homes is expected to arrive in September.

 

 

 

Earlier this month, a federal court ruled on whether Monsanto’s Roundup herbicide is capable of causing non-Hodgkin’s lymphoma must be first determined before proceeding in a personal injury suit (Giglio v. Monsanto Co., 2016 BL 251362, S.D. Cal., No. 15-cv-2279, 8/2/16). The U.S. District Court for the Southern District of California bifurcated the trial and limited the first round of pre-trial discovery to whether Roundup can cause harm, such as cancer. If causation can be shown, then the court will weigh specific injury to plaintiff. The plaintiff, Emanuel Richard Giglio, owned and operated a turf installation business and used Roundup on a regular basis in his work. Giglio alleges that his exposure to glyphosate, the active ingredient in Roundup, caused him to develop stage three non-Hodgkin’s lymphoma.

Glyphosate is an active substance used for the production of pesticides and is the most frequently used herbicide worldwide. The term “pesticides” refers to a broad class of crop-protection chemicals: insecticides, which are used to control insects; rodenticides, which are used to control rodents; herbicides, which are used to control weeds; and fungicides, which are used to control fungi, mold and mildew. Glyphosate-based pesticides (i.e. formulations containing glyphosate and other chemicals) are used in agriculture and horticulture, primarily to combat weeds that compete with cultivated crops.

However, the United States is not the only country considering the health effects of the commonly used weed killer. Glyphosate has been thrust into the middle of a heated dispute between EU and US politicians, industry leaders, regulators, and activists. In 2015, European Food Safety Authority (EFSA) was in the process of reviewing glyphosate, when the International Agency for Research on Cancer (IARC)—which independently gathers health data for the World Health Organization—declared glyphosate a “probable human carcinogen.”  Then in May 2016, U.N.’s Food and Agriculture Organization (FAO) and World Health Organization (WHO) stated glyphosate was unlikely to pose a risk to people exposed to it through food.

The contradictory findings have spurred debate and have delayed the license for glyphosate, which expired June 30, 2016. EU member states failed to reach agreement on the renewal of the herbicide, and the European Commission were forced to temporarily grant an 18-month extension to glyphosate’s authorization in the EU.  Furthermore, new rules which restrict the conditions around the use of glyphosate in the European Union are to come into effect. These new restrictions around the use of the herbicide will apply for the duration of the 18-month extension until the European Chemicals Agency (ECHA) issues its opinion on the herbicide.

Glyphosate will continue to be at the center of debate for the next couple of years, as the EU and US await further studies on its likely impact on human and environmental health.

Studies show that growing up in poverty hurts young minds. A recent New York Times article chronicling these findings compares growing up in poverty to playing football without a helmet-everyday life causes social concussions. Brute force is not required to cause physical changes in the brain, rather these changes can result from perpetual toxic stress. How is this so? The brain is the primary mediator and target of stress resiliency and vulnerability because it determines what is threatening and also decides how to respond to that threat. When a person is stressed, the brain releases a hormone called cortisol-a hormone that is essential to the “fight or flight” response and that is important in the development of young children. Margaret Cotty, executive director of the Partnership With Children explains:

Too much cortisol changes two parts of the brain. One is your prefrontal lobe in the front of your brain. That’s how you develop executive functions — negotiating with people, telling the difference between good and bad, thinking about the consequences of your actions, your social behaviors in a classroom. Literally, how you behave. The other area is the hippocampus, deeper in the brain, which is central to creating memories of fact. The things you can declare and verbalize. Pretty important to school.

 

These concerns were highlighted in a study that was conducted by Kaiser Permanente health maintenance organization and the Centers for Disease Control and Prevention between 1995 and 1997. The study, called the Adverse Childhood Experiences Study, demonstrated an association of adverse childhood experiences (ACEs) with health and social problems as an adult. Children who develop in lower socioeconomic (SES) households, in addition to being exposed to toxic substances, excessive noise, and temperature variations, are more likely to live in unfavorable housing conditions and to be exposed to what have been termed “risky family” dynamics, characterized by conflict-laden relationships, aggressive and harsh parenting, and other forms of early life stress which may increase risk for the problems highlighted above. Also, individuals living in low SES neighborhoods may be more frequently exposed to stressful life events in association with higher concerns over community crime, pollution, and crowding, as well as unstable, effortful, and unrewarding employment opportunities related to persistent economic hardship.

This reality undoubtedly affects court systems every day. It is important to consider past and present trauma when working with clients in the court system, as many have undoubtedly been exposed to multiple stressors in their lives. In such instances, it is possible that clients may exhibit behaviors that are problematic or frustrating since their executive functioning and stress response systems have been adversely affected. In an article entitled “The Pedagogy of Trauma-Informed Lawyering,” Sarah Katz and Deeya Haldar offer suggestions for courts and attorneys. According to them, the hallmarks of a trauma-informed practice are when the practitioner puts the realities of the client’s trauma experiences at the forefront in engaging with the client, and adjusts the practice approach informed by the individual client’s trauma experience. Trauma-informed practice also encompasses the practitioner employing modes of self-care to counterbalance the effect the client’s trauma experience may have on the petitioner. By approaching the client with a trauma-informed response, the root of the problem can be addressed rather than exacerbated.

In Spring 2016, a report from the Veterans Administration (VA) Office of the Inspector General revealed that 21 of 38 VA medical facilities investigated were using improper scheduling for appointments. This is similar to a practice uncovered two years prior. In 2014, forty veterans died while waiting to be treated by the VA. In an investigation that culminated in Phoenix, Arizona, it was discovered that VA medical facility staff created secret waitlists instead of entering veterans into the actual scheduling system, and thereby hid actual wait times. The scandal exposed a pattern of practice used in VA medical facilities nationwide.

In response to the scandal, Congress passed The Veterans Access, Choice and Accountability Act (“Veterans Choice”) in 2014, with hopes it would improve veterans’ access to and quality of healthcare. Essentially, the law requires the VA to authorize veterans registered in the VA health care system as of August 1, 2014 to receive non-VA care if they live more than forty miles from the nearest VA medical facility or if the treatment they need has a wait time of more than thirty days.

Most VA patients do not have war wounds; they have “worn-out knees and [backs] from lugging heavy gear up and down,” according to Irvin Bishop Small, who served in the U.S. Navy for ten years and lives forty-five miles from the nearest VA medical facility. The Veterans Choice program was created to help veterans like him. When the doctor prescribed physical therapy and acupuncture to Small, he reached out to the nearest Choice private medical facility. He was told he would get a call back, but it was him who ended up calling back, over and over again. Because of the lack of necessary treatment, Small’s chronic pain sometimes drove him into deep depression. Legislators that created the program now admit that thousands of veterans are in the same situation.

According to a June 2016 report released by the Commission on Care, the unit Congress charged with implementing the program, Veterans Choice is thoroughly flawed in its design and operation. The report showed some racial and ethnic health care disparities and private medical facilities refusing to treat veterans because of delayed reimbursements, if any at all. It also showed aggravated wait times in some VA medical facilities. Still, it has produced some positive results. A survey showed that 90 percent of veterans were satisfied with the appointments’ timeliness. Still, VA Secretary Robert A. MacDonald said that, “until all veterans say they are satisfied…nobody at VA will be satisfied.”

Meanwhile, presidential candidates are making promises to solve the problem. Republican Nominee Donald Trump pledged that he would expand the Veterans Choice program to allow veterans to choose their doctor and medical facility, regardless of whether they are affiliated with the VA. J. David Cox, president of the American Federation of Government Employees, and a spokesman for opposing candidate Hillary Clinton, disputes that Trump’s proposed plan would lead to the VA’s privatization and private corporations making profit off of veterans suffering.

Many oppose increasing privatization because they believe that VA staff, which are largely made up of veterans themselves, will understand veterans’ needs better than a private caretaker. Bill Breeden, a Vietnam veteran, said that veterans “talk the same language…same issues, [and are] concerned about veterans’ issues.” It is curious to see if promises will be fulfilled and whether this time, the VA will create a system that actually gives each veteran a choice.