Pubdate: Wed, 22 Aug 2001
Source: American Medical News (US)
Copyright: 2001, American Medical Association
Author: Tanya Albert - AMNews staff


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 said. "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 

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 
physicians: 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