Pubdate: Mon, 20 Aug 2001
Source: American Medical News (US)
Copyright: 2001, American Medical Association
Author: Tanya Albert


Rulings this term on medical marijuana, drug testing and unionization have 
mixed results for physicians. Justices take on the big issue -- ERISA -- 
this fall.

The U.S. Supreme Court was fairly friendly toward the nation's physicians 
this year. But it could have been friendlier.

In cases that took on issues ranging from whether a public hospital can 
perform drug tests on pregnant women without their consent and then give 
police the results, to whether the National Labor Relations Board had 
properly defined the role of a supervisor in a health care setting, the 
court set parameters for the practice of medicine.

The pattern is: There is no pattern

But it's hard to draw conclusions -- or make predictions -- based on this 
set of decisions on wide-reaching cases from a court that has a reputation 
for being hard to handicap.

"The only pattern you find with the Supreme Court these days is that it 
will do whatever it wants," said Jay Gold, MD, editor in chief of Legal 
Medicine Perspectives, published by the American College of Legal Medicine.

"Because of the way the court membership is fractured, it's hard to get 
five people," added Mary Anne Bobinski, director of the Health Law and 
Policy Institute at the University of Houston Law Center. "The fifth vote 
is hard to predict."

In Ferguson v. Charleston, S.C. the swing votes came down squarely on the 
side of physicians.

In a 6-3 decision, the court said a policy that the Medical University of 
South Carolina developed "in good faith" with other government agencies 
violated the Fourth Amendment. The policy, initiated in 1989 and 
discontinued five years later, led to the arrest of pregnant women and new 
mothers who tested positive for cocaine.

The high court's decision marked the first time justices didn't give the 
benefit of the doubt to police in a drug enforcement case.

Even though the court made the point that there was no physician- patient 
relationship in the Charleston case, the decision, in and of itself, is 
supportive of the traditional role of the physician-patient relationship.

"It is protecting patients from intrusion," Bobinski said.

"Medical professionals, when doing medical testing and screening, should be 
doing it for medical reasons," added Lawrence Gostin, professor of law and 
public health at Georgetown University, Washington, D.C.

Court united, experts divided

Legal experts are split on whether physicians and the practice of medicine 
can claim victory with the court's unanimous ruling on medical marijuana in 
United States v. Oakland Cannabis Buyers' Cooperative, et al.

The decision addressed the distribution of the drug and stayed out of the 
medical necessity issue. Some experts say that's a good thing, but others 
say the court could have used that decision to further strengthen the 
physician-patient relationship.

The court said the federal government had the right to close an Oakland, 
Calif., cooperative that helped supply marijuana to more than 8,000 
patients who use the drug for medical reasons.

On one hand, the opinion is narrow and deals only with distribution. It 
does not delve into medical necessity and leaves that issue to the states.

But by not addressing the issue, the court didn't do anything to advance 
the physician-patient relationship, said Gold, who is also a senior vice 
president at MetaStar, a health care quality improvement organization based 
in Madison, Wis.

The Canadian solution

In a similar case heard by the Canada Supreme Court last year, the court 
issued a very strong opinion saying that country's law banning marijuana 
was a bad one because it didn't leave an exception for medical purposes, he 

"The court said it was appropriate for a medical decision to be left to the 
physician-patient relationship," Gold said. "Maybe the [U.S. Supreme Court] 
decision wasn't as friendly after all. In Canada, the court gives the 
authority to the medical profession."

Gostin agrees that the U.S. decision places a limit on the physician- 
patient relationship. "The government is interfering," he said.

But Gold and Gostin predict the medical issue eventually will wind its way 
up to the high court.

"When they get the case, my guess is you are not going to see a unanimous 
court," Gold said.

Physicians are also waiting to see how a decision in National Labor 
Relations Board v. Kentucky River Community Care Inc. will affect their lives.

The case dealt with a group of nurses trying to unionize. The high court 
upheld a decision that classified the nurses as supervisors, disqualifying 
them from joining unions. Although the case didn't deal directly with 
physicians and was more about labor law than medicine, some worry that the 
decision could prohibit physician collective bargaining because they'll be 
classified as supervisors.

On deck for next term

When the court returns in October, justices will take up at least one case 
that could help physicians, Rush Prudential HMO Inc. v. Moran.

At the end of its term in June, the court said it would hear the ERISA case 
that deals with an Illinois independent review law in place for when 
patients and health plans disagree on what is medically necessary. A lower 
court didn't see a conflict between the state law and the federal Employee 
Retirement Income Security Act of 1974 and said an HMO had to pay for a 
procedure it originally denied.

The pending patients' bill of rights before Congress could affect how 
justices rule on the case. But there is a good chance the decision could be 
a positive one for physicians who say HMOs sometimes have too much control 
over medical decisions.

There was a day when managed care companies always won lawsuits by using 
ERISA as a defense. But that's changed in recent years.

"The court has moved away from strict protection," Houston Law Center's 
Bobinski said.

Still, with the court so divided on so many issues, it will be difficult to 
predict what the outcome will be.

"I hope they uphold [the lower court decision]," Gold said. "ERISA has made 
health reform difficult in the past."

Law and medicine

A brief overview of the 2000-2001 U.S. Supreme Court cases that affected 

Ferguson v. Charleston Physicians and other public hospital employees can't 
perform drug tests on pregnant women without their consent and then give 
police the results.

U.S. v. Oakland Cannabis Buyers' Cooperative, et al. Instead of addressing 
marijuana's medical necessity, the court narrowly ruled that distributing 
the drug through a buyer's cooperative isn't legal.

National Labor Relations Board v. Kentucky River Community Care Inc. In a 
case involving nurses seeking to unionize, the court said a professional 
who uses "independent judgment" to direct the work of others is a 
supervisor who is unable to collectively bargain.

Children's Healthcare Is a Legal Duty, Bostrom and Petersen v. Vladeck and 
Shalala By turning down an appeal, the court said the government does not 
violate the separation of church and state by providing Medicare and 
Medicaid money to Christian Science nursing homes and other religious, 
nonmedical health care facilities.

Richard M. Dicter, MD, v. United States of America By denying this case, 
the court upheld a jury's decision to take away a Georgia physician's 
medical license after he was convicted of unlawfully distributing 
prescription drugs. Medical licenses are usually regulated by the state.

Rush Prudential HMO Inc. v. Moran The court in June agreed to consider next 
term whether an Illinois law that calls for independent review when a 
physician and the HMO disagree on a treatment conflicts with ERISA. If the 
court upholds the Illinois law as the lower court did, primary physicians 
may get more of a say in patients' treatments.
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MAP posted-by: Keith Brilhart