Showing papers in "The Journal of Law and Health in 1998"

What We're Not Telling Law Students - And Lawyers - That They Really Need to Know: Some Thoughts-in-Action Toward Revitalizing the Profession from Its Roots

Abstract: I. INTRODUCTION The current state of the legal profession confirms my personal lessons as a law student, litigation attorney, and clinical law teacher:(3) students are not told in law school what they really need to know to have meaningful and healthful lives as lawyers. Unfortunately and to the contrary, it also seems to me that some of the things many of us do learn in law school--largely from the culture rather than the curriculum--affirmatively contribute to the many problems facing the profession and its practitioners today.(4) It is hardly debatable any longer that the profession and its practitioners are suffering broadly from many serious problems. Indeed, studies have concluded that lawyers and law students are much more likely than the general population to experience emotional distress, depression, anxiety, addictions, and other related mental, physical, and social problems.(5) These studies confirm the common experience of student distress during law school, the negative public perception of lawyers, and simple observation of attorney behavior: lawyers as a group tend to be stressed and relatively unhappy people.(6) A particularly striking study by psychologists Beck, Sales, and Benjamin found that, on a variety of psychological scales, from 20% to 35% of attorneys are "clinically distressed" (which the authors define as "in need of professional help").(7) These levels of distress are found in only about 2% of the general population,(8) and indicate that a very large number of attorneys are indeed living the appearance of a good life but the reality of misery. Many commentators call for law schools to address these matters directly.(9) This article offers a unifying, and hopefully clarifying, theory on many of these problems, my approach to presenting and reinforcing this theory for students and attorneys, and early indications that this approach is effective. Since becoming a law teacher, I have been struck by the number of law students I see exhibiting tension and personal malaise reminiscent of that which I, and many others I have known, have experienced as students and attorneys. After a few years of observing the particularly persistent performance anxiety in my classes, it struck me that Abraham Maslow's "Hierarchy of Human Needs,"(10) commonly taught in undergraduate psychology courses, might explain the tension I was seeing. I also began to see that the Hierarchy, in combination with basic concepts from addiction theory, might help us understand many of the current problems in the profession. Could the dissatisfaction, distress, and lack of decent behavior among attorneys be understood, in essence, as manifestations of our collective inability to grow beyond the immature levels of psychological functioning which Maslow labeled "lower needs" in his motivation theory?(11) I sensed that this analytical framework could take my classes beyond the sense of lecturing and moralizing that attends much of our efforts to encourage professionalism, and prove practically useful to students and lawyers for a variety of reasons. First, it describes the natural process of human growth toward fulfillment--precisely the quality apparently most lacking in student and attorney life. Second, the theory can explain concerns of immediate relevance to most listeners--including anxiety, incivility, excessive competitiveness, and personal dissatisfaction--as reflections of immature levels of human development. I thought that the very nature of such a perspective would motivate students and practitioners to disfavor these negative qualities (rather than accept them as inevitable concomitants of their association with the law) and to "grow up" into the mature states of adult life described by Maslow's work.(12) Further study of Maslow's work brought another level of potential usefulness to my attention: his description of self-actualizing people--the healthiest and most mature subjects he could find--describes as well the highly professional attorneys we aspire to train or become. …

Consumer-Directed Prescription Drug Advertising: Effects on Public Health

Abstract: I. INTRODUCTION Over the past two decades, and to a greater extent recently, society has been increasingly exposed to prescription drug advertisements aimed directly at the consumer. The industry's gradual shift in focus from "physician-directed" to "consumer-directed" advertisements poses a threat to the public health because it may have the effect of misleading consumers by understating a drug's adverse reactions and overstating the benefits. The increase in consumer-directed advertising has helped to foster a health care atmosphere in which it is the patient, and not the medical practitioner, who initiates a discussion regarding possible drug therapy.(2) Consumer-directed advertising also has a profound impact on the doctor-patient relationship and results in patients consuming drugs with attractive benefits and undisclosed possible adverse reactions. This creates an increased dependence on prescription drugs, and the falsified notion that there is a prescription drug to cure most any condition.(3) The effects that consumer-directed advertising of prescription drugs have on the health care system warrant a thorough review and modification of the existing United States Food and Drug Agency (FDA) regulations in order to preserve the public health.(4) To date, the FDA regulations have remained unresponsive to this change in advertising focus. In a draft guidance(5) issued by the FDA, the agency has actually made advertising of prescription drugs easier by making disclosure requirements of adverse drug reactions(6) less stringent for broadcast advertisements. The current regulatory system in place by the FDA(7) is inadequate to deal with current issues surrounding consumer-directed advertising. This is due in large part because the regulations currently in effect were implemented in 1938 before the advent of this new breed of advertising.(8) There is no doubt that the nature of advertising has changed significantly since that time and an updated version of regulations is needed to protect the public. Consumers' quest for and access to information has been accompanied by an increase in the patient's role in his or her health care treatment.(9) Prescription drug advertisements directed to the consumer have the potential to be excellent sources of consumer information and should therefore not be banned outright.(10) Greater access to patient information certainly enables the patient to take a more active role in their treatment. The public health problems discussed in this Paper are undoubtedly caused by a number of concurrently occurring problems. The solution set out here is to construct a more stringent FDA regulatory scheme which seeks to minimize this problem, while acknowledging that it will not eliminate it. This Paper will evaluate the effectiveness of the current FDA regulatory scheme regarding consumer-directed prescription drug advertising. Part II discusses the relevant history of consumer-directed advertising of prescription drugs which is a relatively new practice in the United States. Possible explanations are reviewed for why the change in focus from physicians to consumers as the targets of such advertising has occurred. Part III explains the major classifications of consumer-directed advertising that the FDA has categorized and examines the differences existing among them. Part IV focuses on the current FDA regulatory scheme and begins to expose some of the difficulties of applying the current regulations to consumer-directed advertisements. Part V explores specific effects the FDA regulations have on our current healthcare system. These include: (1) downplayed adverse drug reactions; (2) inconsistent scope and quantity of adverse drug reactions advertised; (3) the increased cost to society; (4) deterrence; and (5) increased strain on the doctor-patient relationship. Recommendations for effectively strengthening the FDA regulations are included in Part VI. …

Searching for the Holy Grail: the Human Genome Project and its implications.

Abstract: I. INTRODUCTION The Report on the Human Genome Initiative declared that uncovering the human genome is revealing the "book of man,"(2) that by mapping and understanding the human genome we will understand what it means to be human.(3) Many proponents of the Human Genome Project give a dominant place to an internal mechanism, the gene, as the source of human behavior.(4) Where we as a culture allocate responsibility has profound effects on how we construct our identity and our society. The Human Genome Project is a scientific enterprise under the auspices of the U.S. Department of Energy and the Department of Health and Human Services. Its task is to order and sequence the human genome.(5) This project will require the mapping of some three billion bases from one genome that will act as the prototype of a "normal" genome.(6) Many of the scientists involved in the Human Genome Project believe the mapping of these three billion bases will lead to major advances in medicine(7) and biotechnology,(8) as well as uncover the essential "text" of what it means to be human.(9) Supporting scientific enterprise is an important function of government; however, science is not immune from the philosophic persuasions of its scientists.(10) The methods of research our government decides to endow will reflect our own culture's belief of where causal agents reside.(11) The assumption that genes are the carrier of our destiny is a profoundly ideological stance. It places reductionist explanations(12) to behavior above all others and, in doing so, allocates other causes such as environment to subsidiary roles. Legal scholars have been quick to jump on this reductionist bandwagon and write of the legal implications resulting from the mapping of the human genome. Articles have been written on the problems of individuals obtaining insurance if a test reveals they carry the gene for a certain disease,(13) or on physicians becoming subject to torts for failing to disclose the presence of a genetic defect in a patient to her family members,(14) or on the pros and cons of genetic privacy.(15) These are important issues and ones that need to be addressed, but what underlies them is an assumption that the claims of the Human Genome Project are true. Legal scholars are not alone in their enthusiasm for this reductionist explanation of human traits. The idea that a map of identifiable sequential regions in DNA can "control" manifested traits, from disease to personality, has been easily accepted by the public.(16) After all, it is a highly plausible theory, to the layperson or even to someone with considerable education. Scientists have identified areas of DNA that, when mutated, affect a trait of the human host, such as the single gene for cystic fibrosis. Furthermore, a tenth-grade biology class can describe Mendelian genetics and how a gene from one's mother and another from one's father will determine the color of one's hair or eyes.(17) The wide adoption of DNA as master molecule in the scientific community is seen in the incredible explosion of trials for differing gene therapies.(18) "The National Institute of Health (NIH) is spending an estimated $200 million a year to develop and test tools and techniques for gene therapy. Private companies have raised hundreds of millions of dollars to enter the field and are now sponsoring most of the clinical trials. Many academic centers have created gene-therapy programs and joined the jockeying for a piece of the action."(19) To date, very little concrete data on the benefits of gene therapy have resulted from all this research.(20) Yet, the allocation of medical research resources continues to increase in this area.(21) The benefactors of the Human Genome Project will undoubtedly be the biotechnology companies. Their interests are served by fostering the "myth" of the genome; moreover, they will be the recipients of funding for new technological breakthroughs in isolating genes and will profit from the marketing of DNA tests to doctors, employers, and genetic counselors. …

International Response to Dolly: Will Scientific Freedom Get Sheared?

Abstract: "Freedom is the oxygen without which science cannot breathe." --David Sarnoff, Chairman of RCA(1) I. INTRODUCTION On February 22, 1997, the researchers at the Roslin Institute in Edinburgh shocked the scientific community as well as the world by unveiling the first clone of an adult animal from differentiated cell.(2) Their seven-month old sheep, Dolly, was created from an adult mammary gland cell.(3) Although successful nuclear transplantation ("cloning") was first reported in 1952, all of the experiments involved undifferentiated embryonic cells.(4) Scientists considered it impossible to use the same techniques on differentiated cells from an adult animal.(5) After many failed experiments, a generation of researchers believed that differentiated animal cells could not be reprogrammed to develop into a new animal.(6) Dr. Ian Wilmut, leader of the Roslin research team, and his colleagues proved conventional wisdom wrong. The theory behind Dr. Wilmut's technique is that all body cells contain the exact same genetic information as the initial fertilized egg cell (or embryo).(7) As an embryo develops, parts of the genetic message "switch off" through the process of differentiation.(8) This causes the cell to become a specific tissue or organ (the cell is now considered to be differentiated).(9) Dr. Wilmut's trick was to make the DNA of the differentiated donor cell act like the DNA of a sperm or unfertilized egg.(10) He and his team "starved" the mammary cell into a dormant stage by reducing the nutrient-laden serum to the cell,(11) which made it capable of duplicating the entire organism (like an undifferentiated cell).(12) An electrical current was then administered which caused the "starved" mammary cell to fuse, in a process called renucleation, with an unfertilized egg from which the nucleus had previously been removed through enucleation.(13) The resulting embryo was then implanted into a surrogate mother and brought to term.(14) Dolly became an exact genetic duplicate (a clone, or twin) of the mammary cell donor.(15) However, her long-term health is still an uncertainty because her cells may act like the cells of a sheep six years older--the age difference between Dolly and her mother.(16) When asked about the applications of this new technology, Dr. Wilmut told Britain's Press Association news agency it would be used "to produce more health care products. It will enable us to study genetic diseases for which there is presently no cure and track down the mechanisms that are involved."(17) Cloning technology, in general, holds the promise of tremendous benefits in agriculture and medicine,(18) and could help save endangered species such as the Hairy Nosed Wombat and China's Giant Panda.(19) Medical advances include "revolutionary medical treatments and life-saving cures for diseases such as cancer, hemophilia, cystic fibrosis, sickle cell anemia, and emphysema."(20) It can also further understanding of developmental biology and allow physicians to repair and regenerate human tissue in burn victims and those suffering from spinal cord injuries.(21) One medical application relates to tissue and organ transplants.(22) There is a greater medical need of transplantable organs than is currently available from any source.(23) It is possible using cloning techniques to grow a replacement organ with the same genetic make-up of the patient to receive it.(24) If organs are derived from the person in whom they will ultimately be transplanted, immune rejections of the implant would be prevented.(25) Although scientists have been able to clone animals since the 1950's, Dolly represents two important breakthroughs. Scientifically, she proves that differentiated cells can be "turned back on" and induced to grow into a complete animal.(26) Douglas Foster, an animal science professor at the University of Minnesota, said the event was "mind-boggling because everybody thought you could never de-differentiate cells. …

Gender Discrimination within the Reproductive Health Care System: Viagra v. Birth Control

Abstract: I INTRODUCTION Recently, Pfizer Inc drew nationwide attention by announcing the Federal Drug Administration (hereinafter "FDA") approval of its impotence pill, Viagra Dubbed as the "magic blue pill," early studies indicate that Viagra enables men diagnosed with impotence to become aroused and engage in sexual intercourse(2) National attention surrounding Viagra has prompted many insurance carriers to cover at least a part of the cost of the prescription(3) In fact, by May 1, 1998 nearly half of all Viagra prescriptions were subsidized by insurance carriers(4) However, the health care industry's warm response to Viagra has renewed debate regarding the apparent inequity of health care coverage between men and women(5) Specifically, health care critics attack those insurance carriers who continue to refuse coverage of contraceptives for women while providing prescriptive coverage of Viagra for men(6) For years women have protested the apparent inequity demonstrated by insurance carriers that claim to provide full prescriptive coverage to all enrolled members yet deny coverage of prescription contraceptives(7) Most recently, the Alan Guttmacher Institute, a national research center, conducted a survey and concluded that half of fee-for-service, large employer group health plans do not cover any method of contraception, and only fifteen percent of group health plans provide coverage for the five most common types of contraceptives: contraceptive pills, intrauterine devices (IUDS), Depo-Provera shots, Norplant inserts, and diaphragms(8) Accordingly, women pay a reported sixty-eight percent more in "out-of-pocket" medical expenses than men(9) In an effort to rectify prescriptive inequity, many state legislatures have responded by introducing state legislation requiring private health plans to include contraceptive pills and devices,(10) Since January 1998, twenty states presented various bills to their state assemblies designed to increase insurance coverage of contraceptives for women(11) As evidence of strong public support for insurance prescription regulation, six states including Hawaii, Montana, New Mexico, Texas, Virginia and West Virginia have passed either laws or regulations concerning insurance coverage of contraceptives, although none require complete contraceptive coverage(12) This past April 1998, Maryland passed into law, the strongest contraceptive coverage state legislation yet, requiring insurers to cover contraceptive benefits(13) However, other states hesitate to follow Maryland's lead For example, California's Women's Contraceptive Equity Act was vetoed for the third time by former Governor Pete Wilson after passing both the California Assembly and Senate(14) Federal legislation regarding insurance for birth control has also been proposed to the US Congress in the form of the "Snowe-Reid" bill, also known as the Equity in Prescription Insurance and Contraceptive Coverage Act (hereinafter "EPICC")(15) As proposed, EPICC would "prohibit insurers that offer prescription drug benefits coverage from excluding contraceptive drugs and devices approved by the Food and Drug [Ad]ministration (FDA) or restricting the coverage for these drugs in ways other drug Ad coverage is not restricted"(16) Since there is no uniformity between contraceptive coverage state legislation, millions of women will likely fall through the cracks and loopholes created by state laws(17) Any chance for a uniform, all encompassing law mandating prescriptive coverage of contraceptives must come from the US Congress(18) This Article begins with an examination of the prescription drug, Viagra and the medical condition it is intended to aid Additionally, this Article evaluates the five most common, and FDA approved forms of contraceptives: contraceptive pills, intrauterine devices (IUD'S), Depo-Provera shots, Norplant inserts and diaphragms A basic understanding of the above prescriptions is necessary to determine if health care inequity exists between men and women in the area of prescriptive coverage, or if there is such a difference between the medical conditions involved that insurance companies are justified in excluding contraceptive coverage while including Viagra coverage …

Race for Perfection: Children's Rights and Enhancement Drugs

Abstract: I. INTRODUCTION Today's society places a strong emphasis on perfection. Everyone strives to be the best, and often we want to become the best in the quickest way possible. Parents are no different in demanding the best from and for their children. Every parent is happy with a healthy child, but at the same time every parent wants his or her child to be as successful as possible. This success may come in the form of academic, athletic, or cosmetic excellence. Parents, however, often find themselves too caught up in this race for perfection and the children are left behind. Who represents the child's rights when a parent becomes too attached to the situation to recognize any problem? Often, we find ourselves looking for the short cut to a solution. For example, a child may have behavioral problems and may not be performing well in school. Rather than take the time to address the problem, Ritalin may be given to the child so that he or she will just "sit still" and the stigma that the child is a "problem" will be removed. Also, a boy may be perfectly healthy; but may simply be excessively short. Rather than encourage the boy's self-esteem and accept him for who he is, Human Growth Hormone may be given to the boy to "enhance" his height. This Note will address the question of what are a child's rights when the child's views differ from his or her parents regarding the child's use or refusal of enhancement drugs such as Ritalin and Human Growth Hormone. This Note will begin with a description of Ritalin and Human Growth Hormone along with the uses and abuses of each drug. It will then discuss the evolution of children's rights dealing with situations such as civil commitment, abortion, and medical treatment over religious objection. Furthermore, it will draw comparisons from the case law in these situations to a child's right to refuse or have access to enhancement drugs. Finally; this Note will discuss the possibility of creating a statutory right to provide children with procedural due process rights with regard to enhancement medication. This statutory right will give children greater access to courts and, as a result, will enhance their ability to protect their personal autonomy. This Note proposes an administrative hearing be held to determine what is truly in the best interest of the child when conflicts of interest arise. The difficulties of such a hearing will also be addressed. An administrative hearing will be difficult to implement because of the obvious obstacles: (1) intrusion on parental rights and family autonomy; (2) expenses involved in administrative hearings; and (3) the procedural difficulties associated with conducting such a hearing. II. OVERVIEW OF RITALIN AND HUMAN GROWTH HORMONE A. Ritalin Estimates show that between four and ten percent of all school age children currently suffer from Attention Deficit-Hyperactivity Disorder (ADHD).(1) Children with ADHD may exhibit symptoms such as inattention, distractibility, and impulsiveness, usually associated with excessive motor activity or hyperactivity.(2) The children who suffer from this disorder quickly frustrate teachers in the classroom because they are unable to conform to the classroom environment and thus, are often labeled as "learning disabled."(3) As a result of the teacher's frustration with this behavior, school administrators and parents react by demanding special education services or medical treatment. The symptoms of ADHD are difficult to detect and the standards related to ADHD are considered by many to be too vague.(4) Often it is difficult to determine whether a child truly suffers from ADHD or whether teachers and parents are instead dealing with an undisciplined, difficult child.(5) Guidelines have been established for each of the three major symptoms to aid in the diagnosis of ADHD.(6) These typical characteristics are variable symptoms which may not be visible to a clinician and therefore must be observed by teachers and parents. …

Domestic Partnership Benefits: Why Not Offer Them to Same-Sex Partners and Unmarried Opposite Sex Partners

Abstract: I INTRODUCTION Today, thirteen percent of all United States employers offer benefits to the domestic partners of their employees(1) Larger companies, those with more than 5,000 employees, the figure is twenty-five percent(2) Benefits offered to domestic partners often include both hard and soft benefits(3) Hard benefits, which are commonly called "cost intensive benefits," may include medical, vision, and dental insurance along with pension or retirement benefits(4) Other benefits are referred to as soft benefits and may include bereavement leave, legal services, employee discounts, health and fitness programs, relocation policies, and child care(5) The number of companies offering such benefits has increased dramatically in this decade Over the past three or four years, the number of public and private employers offering domestic partner benefits has increased from about 200 to over 600 in 1997(6) Some of the reasons cited by employers for offering such benefits include employee recruitment and retention, and the employer's own nondiscrimination policy(7) However, not every employer offering such benefits include both heterosexual and homosexual partners in their policy(8) mainly because they believe heterosexuals can legally marry, whereas, homosexuals cannot(9) Domestic partner benefits can be defined in either narrow or broad terms(10) In the broad definition, employment benefits are given to all individuals regardless of their marital status or sexual orientation(11) On the other hand, the narrow definition extends benefits only to homosexuals and their partners who are legally prohibited from getting married(12) Of the companies that offer benefits for unmarried employees' partners, about half exclude heterosexual couples(13) Employers offering these benefits to same-sex domestic partners only, may face legal challenges such as marital status and sexual orientation discrimination or equal protection arguments(14) from their unmarried heterosexual employees In addition, states and municipalities have been increasing the potential of such litigation by passing laws that prohibit discrimination based on sexual orientation and marital status especially in the areas of housing and employment(15) This Note examines the potential of such legal challenges when employers use the narrow definition in structuring their domestic partner benefit programs In addition, avoiding challenges by simply not offering benefits will be discussed However, before discussing any discrimination issues, this Note will begin with some background and definitions that will bring the reader up-to-date on domestic partner benefits as they are interpreted today II DOMESTIC PARTNERSHIP DEFINED A Background: The Changing Definition of Family Since 1970, the number of cohabitating Americans increased by more than 400 percent(16) Nearly three million of the 93 million households in the United States consist of unmarried couples(17) Single-parent households make up an additional fifteen percent of families Many of these single-parents have unmarried partners(18) As these statistics show, the traditional family--a working dad, stay-at-home mom, two kids and a dog--is near extinction(19) In fact, census data demonstrates fewer than ten percent of current households consist of this so-called traditional family(20) The concept of family has largely been founded on the existence of marriage, but the legal definition of family has become quite unsettled(21) Depending upon the purpose, courts and legislatures have defined family differently(22) However, the US Census Bureau has remained somewhat with the traditional concept of family by defining it as "two or more persons related by birth, marriage or adoption who reside in the same household"(23) More and more Americans today are expanding this concept of family by thinking of family as people to whom they have some emotional tie as opposed to merely a bloodline relationship …

Standards and Procedures for Determining Whether a Defendant is Competent to Make the Ultimate Choice - Death; Ohio's New Precedent for Death Row Volunteers

Abstract: I. INTRODUCTION Currently there are over 3,500 inmates on death row in the United States.(1) Since 1976, 500 defendants have been executed by means of either lethal injection, electrocution, the gas chamber, hanging, or the firing squad.(2) There are 38 states that authorize the death penalty for certain heinous crimes,(3) and Ohio is one of those states.(4) At the time of this writing, Ohio has approximately 190 defendants waiting to die in its execution chamber.(5) For the past several years, one of Ohio's death row inmates stood out from the rest. His name was Wilford Lee Berry Jr. He was unique because, unlike any of the other Ohio inmates currently on death row, he was ready and willing to walk the 22 steps it takes to get from a holding cell to the execution chamber.(6) While most of us would fight life and limb to avoid death, partly as a result of our innate human nature, Wilford Berry decided not to fight and instead to accept the ultimate fate the state of Ohio handed to him. Wilford Lee Berry Jr. wanted to be executed and actively fought for this punishment since his 1990 conviction for murder.(7) On December 3, 1997, the Supreme Court of Ohio, by a 7-0 vote, granted Wilford Berry's wish.(8) On February 19, 1999, Berry's death sentence was carried out and his fight to die finally ended.(9) Berry's execution marked the first time Ohio had put someone to death since 1963.(10) Berry is considered to be a death row "volunteer."(11) According to Webster's Dictionary the term volunteer means "a person who voluntarily offers himself or herself for a service or undertaking."(12) Accordingly, a death row inmate such as Berry, voluntarily offers himself for an undertaking, and in this circumstance the undertaking concerned is actual execution. The death row volunteer literally requests to be put to death.(13) The volunteer orders that the state disregard any remaining appeals that are available to him, or, may command that those appeals already in progress be terminated. Once the volunteer's wish is granted, the court is left with nothing to determine with regard to possible challenges to the conviction and sentence of the defendant; and thus may expedite the defendant's execution date. Although Berry's request was one of first impression in Ohio, surprisingly many other death row inmates throughout the United States have waived their available appeals and asked to be executed.(14) In 1997 and 1998 combined, 17 "volunteers" were executed.(15) Officials approximate that 10 percent of all the people executed in the past 20 years have requested to die.(16) National experts estimate that the number of defendants who volunteer for death is increasing.(17) Wilford Berry began his crusade for the death penalty when he entered the criminal justice system in 1989.(18) After Berry confessed to the murder for which he was convicted, he told police that he wanted the death penalty.(19) During his trial, he told the jury "You might as well sentence me to death row, because by the time I finish 20 or 30 years, I will be so institutionalized that I wouldn't hesitate to kill you for just looking at me."(20) After Berry's conviction, he arrived at his prison cell at the Mansfield Correctional Institution and continued his crusade for death.(21) He wrote letters to the Cuyahoga County Prosecutor, the Attorney General of Ohio, and the Governor of Ohio, explaining his wish for an expedient execution.(22) Berry even began one letter that he sent to the Chief Justice of the Ohio Supreme Court with an expletive to show his disdain for possible delays.(23) Berry's mother and sister could not comprehend why their loved one wanted to die, and had asked him to continue his appeals.(24) But, Berry did not see any point to continuing appeals, and said that "even if I had a second trial, I would be found guilty again, and sentenced to death again and ultimately executed."(25) Berry explained that if his conviction was overturned, the result would only be "to wait around on death row for 20 years" to later be executed. …

Current Legal Intervention Regarding Experimental Treatments Must Be Changed: An Analysis of High Doses of Chemotherapy with Autologous Bone Marrow Transplantation for Breast Cancer Patients

Abstract: I. INTRODUCTION A 35-year old woman, mother of three children, suffers from Stage IV metastatic breast cancer.(1) After finding a suspicious mass in her right breast, she underwent a mastectomy.(2) Nine months of chemotherapy and radiation followed, making the woman extremely ill.(3) Despite efforts to battle the disease, the cancer was found to have progressed.(4) The woman's doctor told her that with conventional treatment the "disease will continue to progress and she will die."(5) Given her situation, the woman's doctor suggested a relatively new approach to standard chemotherapy called High Dose Chemotherapy with Autologous Bone Marrow Transplantation ("HDC-ABMT").(6) The procedure involves the extraction of bone marrow, followed by near lethal doses of chemotherapy, finalized by the replacement of the damaged bone marrow, essentially rescuing the patient.(7) Many doctors were "encouraged by the promising preliminary data from HDC-ABMT research."(8) HDC-ABMT was not considered a cure for this woman's breast cancer. Instead, the procedure gave her a better chance of remission, a significantly less amount of time in a hospital and a shortened term of chemotherapy with its unavoidable side effects, that had previously plagued her.(9) The treatment provided an extension of time to the woman's life and ensured a modicum of comfort.(10) At this point, the woman felt that HDC-ABMT was her only chance of survival from a disease that was literally taking over her body. She decided to go though with the procedure. Before being admitted into the health care facility, however, the institution required pre-secured financing or pre-certification from a prospective patient's insurance company, guaranteeing that the treatment costs would bere imbursed.(11) The procedure costs between $100,000 and $150,000 per patient.(12) She automatically assumed that her insurance coverage would cover the expense. Her insurance company denied her request, deeming High Doses of Chemotherapy with Autologous Bone Morrow Transplantation ("HDC-ABMT") as being "experimental" and "investigative", thus falling outside of coverage.(13) The woman not only faced the emotional distress of realizing that conventional treatment could no longer help her, but now had to deal with the reality that her only course of action was now unattainable.(14) When she signed her health insurance contract she thought she would be covered for anything. She had no idea that a provision, a simple sentence of text, would essentially cost her her life. As she paid her premiums every month, she felt secure, protected from any possible health conditions that she would encounter. She had undergone treatments that had proven ineffective.(15) She had been told that death was inevitable without HDC-ABMT.(16) The health care institution which promised to provide her with such treatment required pre-paymen, that her insurance company denied. Her options looked bleak. She decided to turn to the law for remedy. Instead of entering into a personal injury lawsuit, she found herself involved in a contracts dispute. The language of the insurance contract was being scrutinized, instead of the injustice of the denial of coverage. The way in which the word "experimental" was defined became more important then how young this woman was and the number children she would leave behind if she was not able to receive HDC-ABMT treatment. The more ambiguous the term, the more likely she would receive a possible preliminary injunction, allowing her to have the amount of money to proceed with treatment.(17) Unfortunately, the woman's law suit against her insurance company was also preempted by the Employment Retirement Income Security Act of 1974 (ERISA).(18) ERISA contains a vague preemption provision that supersedes "any and all State laws insofar as they may relate to any employee benefit plans."(19) The woman could not bring any further state common law claims, such as emotional distress, against her insurance company under ERISA. …