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June 13, 2007

Article Review

Lots of interesting posts on SSRN recently.  Below the fold, you'll find abstracts and full-text links, where available, on

  • attitudes towards end-of-life care in Japan;
  • questions regarding personhood and embryos;
  • "giant" employers & occupational health;
  • the Schiavo case;
  • healthcare utilization in Turkey;
  • genetically modified organisms and justice;
  • the boundaries between medicine and public health;
  • suicide prevention;
  • and poverty and organ transplantation.

Enjoy!

Acculturation and End-of-Life Decision Making: Comparison of Japanese and Japanese-American Focus Groups

Seiji Bito et al.

Bioethics Vol 21, no. 5 (June 2007): 251-262.

Abstract Only:

Variation in decision-making about end-of-life care among ethnic groups creates clinical conflicts. In order to understand changes in preferences for end-of-life care among Japanese who immigrate to the United States, we conducted 18 focus groups with 122 participants: 65 English-speaking Japanese Americans, 29 Japanese-speaking Japanese Americans and 28 Japanese living in Japan.

Negative feelings toward living in adverse health states and receiving life-sustaining treatment in such states permeated all three groups. Fear of being meiwaku, a physical, psychological or financial caregiving burden on loved ones, was a prominent concern. They preferred to die pokkuri (popping off) before they become end stage or physically frail. All groups preferred group-oriented decision-making with family. Although advance directives were generally accepted, Japanese participants saw written directives as intrusive whereas Japanese Americans viewed them mainly as tools to reduce conflict created by dying person's wishes and a family's kazoku no jo - responsibility to sustain the dying patient. These findings suggest that in the United States Japanese cultural values concerning end-of-life care and decision-making process are largely preserved.

This looks to be an extremely important article.  I have some deep personal connections to Japan, travel there fairly frequently, and actually have contact with some Japanese legal and bioethics scholars as well.  So, I am intensely interested in Japanese and Asian bioethics, especially inasmuch as bioethics as a field of inquiry as peculiarly Western origins.  It is more than a little fascinating to contemplate how traditional questions and methods of bioethics translate to very different cultures.  I am not surprised at the major difference in how advance directives are viewed among Japanese versus Japanese Americans.

Why Eberl is Wrong: Reflections on the Beginning of Personhood

Jan Deckers (University of Newcastle upon Tyne)

Bioethics Vol 21, no. 5 (June 2007): 270-282.

Abstract Only:

In a paper published in Bioethics, Jason Eberl has argued that early embryos are not persons and should not be granted the status possessed by them. Eberl bases this position upon the following claims: (1) The early embryo has a passive potentiality for development into a person. (2) The early embryo has not established both unique genetic identity and ongoing ontological identity, which are necessary conditions for ensoulment. (3) The early embryo has a low probability of developing into a more developed embryo. This paper examines these claims. I argue against (1) that a plausible view is that the early embryo has an active potentiality to grow into a more developed embryo. Against (2), I argue that neither unique genetic identity nor ongoing ontological identity are necessary conditions for ensoulment, and that ongoing ontological identity is established between early embryos and more developed embryos. Against (3), I argue that the fact that the early embryo has a low probability of developing into a more developed embryo, if true, does not warrant the conclusion that the early embryo is not a person. If Eberl is right that the human soul is that which organises the activities of a human being and that ensouled humans are persons, embryos are persons from conception.

Big-Box Benefits: The Targeting of Giants in a National Campaign to Raise Work Conditions

Orly Lobel (University of San Diego Law, Harvard Law School)

39 Connecticut L. Rev. (2007).

Abstract:

Wal-Mart matters to the form and substance of law and social reform in several distinct ways. This article describes Wal-Mart as serving three key purposes - as target, symbol, and model - in the contemporary social reform landscape. First, Wal-Mart, the largest employer in the United States is an effective target, serving as a deep, large pocket which impacts huge numbers of stakeholders. Second, Wal-Mart as a familiar, visible, and brazen corporation serves as a compelling symbol of the dilemmas about the costs and distribution of benefits of for-profit enterprises. And third, Wal-Mart serves as an experimental model for strategically exploring the efficacy of alternatives in legislation, litigation, and political struggles for social reform. Describing these three key purposes, the article demonstrates how recent confrontations between Wal-Mart and the environments within which it operates are shaping contemporary forms of political deliberation, legal strategies and social reform activism. In particular, the article links these three ways in which Wal-Mart has been shaping legal debates by examining developments in Wal-Mart anti-discrimination suits, including the Dukes v. Wal-Mart Stores recently certified class action, ADA suits, and wage and hour claims against the superstore. The article further focuses on efforts by local governments and state legislature to target, and use big-box retailers as a symbol of record wealth gaps and a model for welfare reform, in the areas of health care provision and living wage ordinances.

Occupational health is an important component of public health policy, especially when one considers that the current nonsystem in U.S. health care is historically rooted in the early occupational health programs run by large employers at the fin-de-siecle and into the first few decades of the 20th century (mostly mining and railroad companies).

The Schiavo Litigation: A Case-Study for Federalism

Mark Rahdert (Temple University -- Law)

15 Temple Political & Civil Rights Review (2006)

Abstract:

State courts addressing the question of the right of a patient to refuse life-sustaining medical treatment have applied common law principles protecting a patient's bodily integrity and medical autonomy in such disputes. While this question grows more complex when patients lack the capacity to make their own medical treatment decisions, end-of-life cases for incompetent patients are consistently resolved by state courts applying this common law rule and its related statutory codifications.

Given the routine treatment of such "right to die" cases by state courts, Congress's extraordinary and last-minute intervention into the recent Schiavo litigation attracted nationwide attention. At the conclusion of exhaustive litigation by Florida state courts, which resulted in the removal of life-sustaining treatment from an incapacitated patient pursuant to the directive of her surrogate-husband, Congress authorized federal jurisdiction over the Schiavo dispute. In response to this remarkable authorization, federal courts exercised customary deference to Florida's courts by refusing to issue a preliminary injunction to continue treatment and by declining to re-examine the settled state law issues. While the federal courts' deference to the decisions of the state court precluded an examination of the constitutionality of Congress's allocation of federal jurisdiction, this article explores the unresolved constitutional question with an eye on its applicability to future end-of-life disputes.

Constitutional objections to Congress's enactment characterize the statute as an overly broad exercise of federal jurisdiction, a legislative interference with a final judicial decision, a denial of equal protection to one patient, and a violation of the fundamental right to refuse medical treatment. The article addresses the validity of each of these objections in kind, ultimately finding that Congress, by stopping short of directing federal judicial review of state issues and instead leaving such review to the discretion of federal courts, narrowly managed to preserve the statute's constitutionality, while at the same time virtually ensuring that the federal courts would end up affirming the state courts' actions. While concluding that Congress's action was constitutionally valid by a narrow margin, the article nevertheless maintains that the statute unwisely undermined American federalist principles by conferring federal jurisdiction in disregard of state power. Accordingly, Congress's anomalous action in the Schiavo litigation should be viewed as a mistake not to be repeated in future end-of-life disputes.

Rahdert thus joins several legal scholars (notably Anthony D'Amato at Northwestern) in concluding the Schiavo statute was constitutional, but it should be noted that there is considerable disagreement on this point.

A Discussion on Alternative Reimbursement Schemes and Healthcare Utilization in Turkey

Nazmi Sari (University of Saskatchewan -- Economics)

Iktisat, Isletme ve Finans Dergisi (April 2007): 5-17.

Abstract Only:

Alternative options in provider reimbursement schemes are being considered to reform the Turkish healthcare system. Recently a prospective payment method based on diagnosis-related groups is offered as a reimbursement alternative for inpatient treatments. Since hospitals have the largest share in total healthcare spending, any reform in hospital reimbursement schemes should be evaluated carefully due to its overall impact on total healthcare expenditure in Turkey.

This paper reviews the existing reimbursement schemes in Turkey, and provides a detailed discussion on the prospective payment method based on diagnosis-related groups and its impact on cost efficiency in inpatient treatments. The paper suggest a mixed system as an alternative to either system in achieving efficiency and controlling costs in Turkish hospital markets.

Genetically Modified Organisms and Justice: The International Environmental Justice Implications of Biotechnology

Carmen G. Gonzalez (Seattle University -- Law)

19 Georgetown Int'l Env'l L. Rev. (2007)

Abstract:

In September 2006, a WTO dispute settlement panel issued its long-awaited decision in favor of the United States in the dispute between the U.S. and the European Union over genetically modified organisms (GMOs). The ruling was based on narrow procedural grounds, and did not resolve the controversy over the safety of GMOs, over the right of countries to regulate GMOs more stringently than conventional products, or over the consistency of the EU's GMO regulatory regime with WTO requirements. The debate over GMOs continues unabated. Unfortunately, the high profile dispute between the U.S. and the EU has eclipsed the important debate in the developing world over the socioeconomic implications of this technology. While scientific uncertainty continues to impede efforts to reach consensus on the human health and environmental impacts of GMOs, the socioeconomic perils of biotechnology in developing countries are becoming increasingly evident. Regrettably, the trade and environmental agreements governing the transboundary movement of GMOs privilege science as the arbiter of trade disputes to the exclusion of other forms of normative discourse. With limited exceptions, socioeconomic considerations may not be used to justify GMO trade restrictions. Using environmental justice as an analytical framework, this article examines the unique risks and benefits of biotechnology for developing countries, and places the debate over biotechnology in the context of the historic and ongoing controversy between developed and developing countries over the rules governing trade in conventional agricultural products. It concludes by proposing alternative regulatory strategies designed to ensure that international trade law promotes rather than frustrates environmental protection, the human right to food, and the promotion of sustainable economic development.

Medicine & Public Health: Crossing Legal Boundaries

10 J. Health Care L. & Pol'y 121 (2007).

Abstract:

In 2006, New York City began a mandatory reporting system for laboratories to submit blood sugar (A1c) test results (primarily for diabetes) to the city's Department of Health and Mental Hygiene without the patient's consent. This article examines whether this new program is an innovative way to improve New Yorkers' health, an invasion of medical privacy, or usurpation of the physician's role. The registry is an example of public health initiatives in chronic diseases, which challenge the limits of laws governing medicine care and public health programs by blurring the historical boundaries between them.

The demarcation between medicine and public health is both deeply problematic and deeply significant, IMO.  It is a topic of vehement debate among public health historians, current public health professionals and scholars, and among policy-makers in general.  In some sense, public health practices have far greater potential to impact health in the aggregate for the simple reason that public health measures are designed to impact populations, as opposed to individual health problems.  Yet, for a variety of complicated reasons, the relationship between public health and medicine is not nearly as synchronous as one might hope.  The reasons for the boundaries being drawn where they have been and continue to be are important in thinking about this trend, which has existed for many decades. 

Should We Invest in Suicide Prevention Programs?

Nazmi Sari (University of Saskatchewan -- Economics) et al.

Journal of Socio-Economics (forthcoming)

Abstract Only:

Suicide is the third leading cause of death among college aged youths in Florida. However, there is no prevention program targeting this population group. This paper examines the potential impact of making two prevention programs, general suicide education and peer support programs, available for college students. The results show that both programs increase social welfare by creating social benefits which exceed the costs of the programs. These results hold true even with conservative estimates for effect rates and benefits of the programs.

Nice to see some empirical confirmation of what most would likely presume to be the case.

Beyond Scarcity: Poverty as a Contraindication for Organ Transplantation

Mary Simmerling (University of Chicago -- Chicago Transplant Ethics Consortium)

Virtual Mentor (AMA), J. of Med. Ethics Vol. 9, no. 2 (June 2007): 405-469.

Abstract Only:

In almost every aspect of society, the resource-rich have an advantage over the resource-poor. The richer people are, the longer and healthier are their lives. The philosopher Norman Daniels has argued that social policies are responsible for the inequalities that produce health disparities and suggests that we must look upstream from the point of medical delivery when examining the fairness of the distribution of these goods. Daniels uses Rawls' theory of justice as fairness as the basis for his argument that health care is morally unique because it protects an individual's equality of opportunity:

The central moral importance, for purposes of justice, of preventing and treating disease and disability with effective health care services derives from the way in which protecting normal functioning contributes to protecting opportunity by keeping people close to normal functioning, health care preserves for people the ability to participate in the political, social and economic life of their society.

That is, by keeping people close to normal functioning, medicine also aims at the goal of protecting their equality of opportunity. In this policy forum, I consider the extent to which medicine has met this goal in the area of organ transplantation.

I've been taking a closer look at Norman Daniels' writings on justice and health care, and he, Ichiro Kawachi, and Bruce Kennedy argue in a series of papers that a gradient across and within incomes bears a strong correlation with lower health indicia.  In other words, inequality is bad for our health, and justice in the Rawlsian sense (in which inequalities are only justifiable if they benefit the least well off) is good for our health.  Interestingly, Daniels, Kawachi, and Kennedy argue that the effects they observe are relative within the socioeconomic gradient, which means that the negative health outcomes are not simply perceptible when comparing the rich to the poor, but are visible when comparing the wealthy to the less-wealthy, and so on and so forth.  Fascinating.

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