Medical Negligence Suit Filed Against Bishops

The New York Times reports:

The American Civil Liberties Union announced on Monday that it had filed a lawsuit against the nation’s Roman Catholic bishops, arguing that their anti-abortion directives to Catholic hospitals hamper proper care of pregnant women in medical distress, leading to medical negligence. 

The suit was filed in federal court in Michigan on Friday on behalf of a woman who says she did not receive accurate information or care at a Catholic hospital there, exposing her to dangerous infections after her water broke at 18 weeks of pregnancy. 

In an unusual step, she is not suing the hospital, Mercy Health Partners in Muskegon, but rather the United States Conference of Catholic Bishops. Its ethical and religious directives, the suit alleges, require Catholic hospitals to avoid abortion or referrals, “even when doing so places a woman’s health or life at risk.”

The Times labels this as "a new front in the clash over religious rights and medical care" and notes various lawsuits by the Catholic Church arguing that laws requiring health plans to cover contraception violates religious freedom.

While this does indeed involve a legal issue involving churches and medical care, I am not sure that it is very instructive to compare this suit to lawsuits against laws governing health plans.  Those laws involve questions of Catholic institutions' First Amendment rights to be free from certain legislation, while this case seems to be a case of medical negligence caused by the directives of the church.  This point seems to be the position the ACLU is taking towards the overall suit.

Of course, I cannot conclude this post without noting that this issue was raised back in 2006 in Season 2 of Boston Legal.  In that season's 15th episode, "Smile," a Catholic hospital refuses to give the plaintiff access to the morning-after pill after she is raped.  The plaintiff becomes pregnant, and she sues the hospital.  While that episode addresses the morning-after pill -- and the distinction between the use of that pill and abortion procedures -- many of the issues raised and discussed are pertinent to the ACLU's suit here.

The Limits of Judicial Knowledge and the Importance of Briefs

Linda Greenhouse has this very interesting op-ed in the October 30th New York Times where she asks:

How do judges — especially appellate judges, who don’t hear witnesses or take testimony but must rely on the record compiled in the courts below — learn what they need to know? And, of course, how do they — or any of us — choose what to make of the knowledge they have?

Greenhouse surveys a number of cases, ranging from the Supreme Court's determination in Kennedy v. Louisiana that there was a national consensus against child rape -- citing Congress's failure to add child rape to a list of federal capital crimes over a decade earlier (and missing Congress's two-year old decision to make child-rape a capital crime in military cases), Judge Richard Posner's admission that he lacked full knowledge of the consequences of his decision in the voting rights case, Crawford v. Marion County Election Board, and Justice Scalia's admission that he lacked the knowledge of genetics necessary for him to join the Court's statement of facts in Association for Molecular Pathology v. Myriad Genetics.

I will admit that what drew me to the opinion was Greenhouse's mention of Kennedy v. Louisiana. The oral argument this case was portrayed in the fictional case, Serra v. Louisiana, in one of my favorite Boston Legal episodes, "The Court Supreme" (Season 4, Episode 17; transcript available here).

But as I continued past the initial Kennedy hook, I found that I was reminded of an article I read a while back that is forthcoming in the Emory Law Review. That article is Scott Moss's, Bad Briefs, Bad Law, Bad Markets: Documenting the Poor Quality of Plaintiffs’ Briefs, Its Impact on the Law, and the Market Failure It Reflects (Lexis seems to indicate that the article has been released, giving the citation, 63 Emory L.J. 59, though the article is not yet available on the article's website).  Here is the abstract (from the version I found on SelectedWorks):

Delving Into Undue Prejudice: A Study in Profile Evidence with Denny Crane

In my evidence class last semester, we used George Fisher’s popular casebook, which began our study of evidence with a walkthrough of evidentiary “basics”: relevance (FRE 401) and unduly prejudicial evidence (FRE 403).  As the course progressed, these concepts tended to fade into the background – often playing the part of backup arguments in the event that a hearsay or character evidence objection seemed too simple or ill-founded.

While this treatment of relevance and undue prejudice was probably necessary given the time constraints of the class, this quick treatment may cause classes to overlook the rich doctrine of these rules.  Despite the relatively simple text of bans on unduly prejudicial evidence, these rules are the vehicle for an intricate web of traditional and judge-made doctrine regarding the admission of specific types of evidence.

Take, for example, profile evidence.

Testimony is profile evidence when it seeks to infer that a defendant committed a crime because that defendant fit the profile of a guilty person.  This evidence appears in a variety of contexts, most infamously in cases involving drug couriers.  In a typical case of profile evidence, a police expert is called to testify about the features of a “typical” criminal.  For instance, a typical drug courier would purchase a one-way plane ticket, would pack lightly, would walk quickly, and would meet a contact person at his/her destination.  The expert would then note how the defendant fit all of these features.

Or, to borrow an example from Boston Legal, consider the profile of the typical person looking to solicit sex for a fee in a restroom.  In “Oral Contracts” (Episode 8, Season 4), William Shatner’s character, Denny Crane, finds himself in an uncomfortable situation when he is arrested for this very crime:

Jibber Jabber About Patenting DNA

Lyle Denniston reports here on the Supreme Court’s opinion in Association for Molecular Pathology v. Myriad Genetics, Inc.  The opinion’s text is available here.

I am not particularly well-versed in patent law, but the outcome seems agreeable to me.  Most importantly, it overrides the decision by Judge Sanders in Boston Legal, Season Three, Episode 21 (Tea and Sympathy) who ruled that a doctor could obtain a patent on blood that could cure itself of HIV.  The script for the episode can be found here.  Judge Sanders’ opinion and ruling was:

Truth be told, I couldn’t understand what the hell anybody was talking about in this case. It was clear to me that Mr. Griffin, as I said, was an ass. The idea of one person getting a patent on somebody else’s DNA—!  Well, you don’t have to be a senile old goat to be befuddled by that!  But the most confusing thing of all is the idea that AIDS  maybe can be cured, and progress is repeatedly being stalled by a  bunch of drug companies and scientists going for patents and  fighting over profits. I don’t doubt the sincerity of the doctor.  Legally, I suppose, he does have a patent, but I keep coming back to—this is Simon Griffin’s blood. And he’s an ass. I rule in favor of the doctor.  Adjourned.

Notably, Sanders played the “ass card,” meaning that this case was of low precedential value due to its easy distinguishability (not to mention the fact that it was a trial-level ruling).  It is also interesting to note that the Boston Legal case illustrates a scenario where getting a patent is not necessarily a profit-driven endeavor.  The doctor in the episode sought to patent his patient’s blood in light of the patient’s plan to sell his blood to the highest bidder.  The doctor’s main aim in patenting the blood was to ensure that nobody else could get a patent on the blood, and thereby ensure that a cheap, generally available drug could be made available.

Admittedly, the Supreme Court’s opinion will have a favorable impact on prices for some genetically derived cures.  And it would be naïve to think that most people who got ahold of patents on miraculous things would pursue the greater good rather than private profit.  But it is important to also keep in mind that the patent route may not necessarily always be the path of the villain.