Archive for category Health Care

Failures in protecting the public health

I haven’t blogged in a while… apparently it took a story like the one I saw this morning to get me started again.

According to the articles I’ve read (here, here, here and here, and there are numerous others out there), Wayne Scott Harrington operated a dental clinic in Tulsa, OK and failed to take even the most basic safety precautions to protect his patients from a host of health problems. Some of these basic safety precautions include, oh, using non-rusted equipment, sanitizing the equipment, using clean and previously unused needles and drug vials, maintaining infection-protection protocols, and regular upkeep for the sterilization machines. Basic things we’d all expect our health care professionals to do to keep themselves and us, their patients, safe. Harrington’s failure to do these things (his defense is that he left issues of cleanliness, sterilization, and drug procedures to his staff) is not just disgusting; it led to some currently unknown number of his patients contracting hepatitis B, hepatitis C, and/or HIV. Government officials are notifying some 7,000 current and former patients that they should be tested. Can you imagine getting a letter from the state health department saying that you might have HIV or hepatitis because your dentist couldn’t bother cleaning his equipment or getting new equipment when the old stuff rusted? Unreal. It’s just unreal.

Notably, all of the articles I’ve read place the blame entirely on Harrington. (I’ve purposely removed the title of “Dr.” because if the allegations are true, I don’t think he deserves that kind of respect.) They make him out to be the sole bad guy. The reports also indicate that he’s been in practice for 36 years, and state investigative officials have no idea how long these unsanitary, unsafe practices have been happening. Now, I’m surely not defending this kind of behavior, but the articles seem to be missing something. How is it possible that the state or local government entities didn’t pick up on it until now? The Oklahoma Board of Dentistry is charged with investigating and punishing dentists in the state who are “a menace to the public health by reasons of practicing dentistry in an unsafe or unsanitary manner or place.” Okla. Stat. tit. 59, s. 328.32(13). (By the way, the Board is comprised of 11 people, only two of whom are women, and neither of the women are dentists. But that is a separate discussion.) Presumably, the Board issued Harrington a license to practice dentistry and continued to reissue him the same license every year, either with no inspection about the cleanliness of his practice or with reckless disregard of the unsanitary conditions. Apparently, the only reason that any inspection occurred is because a patient tested positive for HIV when the patient had no risk factors, other than having dental work done around the time his doctors estimated he contracted the disease. The OK State Department of Health has no oversight responsibilities for dental offices because they do not require a state facility license to operate. The Tulsa Health Department is involved somehow, probably because Harrington treated a number of Medicaid patients (so yes, likely that means some number of un- or underinsured children are involved), and now offers free testing to the implicated patients. I suspect, though I don’t have time to research it, that certain safety inspections are required for Medicaid providers, meaning that whatever agency office was responsible from the Medicaid perspective also missed the boat for what appears to be at least 6 years.

My point is this. Isn’t it someone’s responsibility to keep tabs on the safety and cleanliness of private practitioners’ offices? In this case, it seems the Board of Dentistry was primarily responsible for this oversight. Either the Board failed to satisfy their duties to protect the public health, or their duties are not defined to include regular health and safety investigations. Both are poor options.

If the allegations are correct, the dentist was wrong. But so was the state. Let’s not ignore the dereliction of duty either on the part of the Board, in failing to timely and appropriately investigate before years of unsafe dental practice, or on the part of the legislature, in failing to assign that duty in the first place.

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“Culturally competent” health care

A recent NYT story retells the story of a patient who needed a catheter.  The patient presented as female, engaging in certain feminine gender performative behaviors.  The day of the surgery arrived and, lo and behold, the surgeon was surprised to find a biological male.  It seems the pre-operative work-up did not include sufficient discussion with the patient or a physical examination of the patient’s body into which the surgeon was soon to cut.

The real life problem is apparent.  Non-gender-normative individuals have a much more difficult time finding meaningful access to health care.  As the article depicts, this is not the first instance of or revelation about this type of problem.

Recent HHS recommendations seem to attempt to curtail this effect.  Among other things, “HHS will encourage new and existing health profession training programs, including behavioral health … programs, to include LGBT cultural competency curricula. The lack of culturally competent providers is a significant barrier to quality health care for many LGBT people, particularly those who identify as transgender.”  But, as the article notes, this proposed future action simply hasn’t cut it.  At least, not yet.

This is where the law enters the discussion.  Recommendations from Health and Human Services are just that.  Recommendations.  What is the law doing to mandate so-called “culturally competent” health care delivery?  Frankly, nothing.

Take Massachusetts as an example.  The first state to legalize gay marriage and the 16th state to pass a gender identity equality bill governs physician licensing by statute and regulation, none of which require this cultural competency.  Medical school accreditation standards similarly do not require training on this specific type of bedside manner and patient care, though a couple of standards perhaps come close (see ED-22 and ED-23).

So, it might seem that the easy solution is to legally mandate queer-friendly interpersonal skills sensitivity training for health care professionals.  The question becomes — how?  How can the law mandate good interpersonal skills, and how could such a mandate be enforced?  Should medical malpractice lawsuits be filed based on a failure to engage with patients in a respectful and meaningful way?  In the case described in the NYT article, the patient outcome wasn’t one that would typically fall into the medical malpractice category; the catheter insertion procedure went well.  Assuming this were to become the default regulation, is it feasible given the time and money required to file a suit these days?  Would such a requirement run into conflict with conscience clauses?

The question boils down to whether the law can, and should, require sensitivity to gender identity and other non-hegemonic identities or classifications in health care delivery (and potentially in other spheres of social service systems as well).  This is a real life social problem, but to date, the law has not been a player.

I look forward to your comments.

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Mandatory sick leave in Seattle

This past week, a committee of the Seattle City Council approved an ordinance that, if approved by the full Council, will require businesses in the city to provide compensated sick leave to their employees.  Local news coverage of the developing story is available here, here, and here.  Some think of this effort as an important public health measure, designed to encourage sick employees to stay home.  Others think of it as an unnecessary increase in business operating costs.

First, let’s take a look at a few of the specifics in the ordinance.  Paid sick leave accrues at varying rates depending on the size of the employer (1 hour of leave for every 30-50 hours worked), and the rates increase with the size of the employer.  Similarly, the maximum amount of sick leave that an employee might accrue depends on the size of the employer (40-72 hours per year), and the limits increase with the size of the employer.  Unused sick time from one year rolls over to the next.  Sick leave may be used for a variety of reasons, including an employee’s personal illness (mental or physical), to get preventive health care (such as an annual check-up), to care for a sick family member, and numerous reasons associated with domestic violence, sexual assault, or stalking (including legal proceedings).  Employers may not retaliate against employees for using their sick leave.  New businesses are exempt from compliance for 2 years.

Then take a look at the details of how employees will access their sick leave.  All requests for sick leave should include the expected duration.  If possible, the request must be submitted in writing at least 10 days in advance.  Documentation (such as a doctor’s note or, in the case of domestic violence, a police report) may be required, if an employer so chooses, for leave lasting more than 3 consecutive days.

Finally, take a look at how the sick leave mandate will be enforced.  A claim by one or more employees that an employer violated the ordinance must be submitted in writing to the Seattle Office of Civil Rights within 6 months of the violation.  The Seattle OCR will investigate the claim and determine its validity.  If the claim is determined to be valid, then the parties can settle it (probably meaning that the employer pays the employee some sum of money) or the claim can go forward for additional prosecution either by the employee(s), in court, or by the Seattle City Attorney, before the Seattle Office of the Hearing Examiner.  If a hearing starts with the Office of the Hearing Examiner, then the employee(s) lose their right to proceed in court.  There is no time limit for OCR to issue its determination; the ordinance simply says that the determination must be issued “promptly.”  That determination is a precursor for any further proceedings.  In other words, an employee cannot sue in court without the OCR decision.

A few thoughts and questions about this law and real life:

  • Who is served here?  Employers?  Employees?  Customers?
  • Smaller employers may be concerned about increased operations costs, but are the costs worth the benefits?  One or two days off to recover from a cold, for example, may be better than a week’s worth of decreased productivity on the job and the risk of getting other employees sick.
  • What about the proof?  How many employees will be able to get a doctor’s note if they have the flu and it takes a week to get over it?  What about employees seeking paid sick leave because of domestic violence — is it reasonable to require that these survivors submit police reports and other documentation of abuse to their employers?
  • What about the records?  Employers are supposed to keep the proof separate from the personnel files when the proof contains medical diagnoses.  Is it reasonable to mandate that smaller employers do this?  How would employees find out about violations?
  • Employers are not allowed to fire employees for taking sick leave, but they can fire at-will employees for a variety of other legitimate business purposes, and if they can show that those other reasons exist, then the employees are probably out of luck.
  • It might take a really long time to process a claim… is a decision for the employee, issued 3 years after the violation, worth much once it finally arrives?
  • A few years back, President Obama backed the Healthy Families Act (stuck in committee since 2009), which included a similar sick leave provision.  (Read a bit about it here.)  Is it better to go national with this kind of law?  Would it ever pass?  Consider similar efforts at the local level in Milwaukee, San Francisco, Denver, Washington D.C., Philadelphia, and New York City.  Also consider efforts at the state level in Connecticut, Massachusetts, and California.  If it’s a local issue, would businesses move out of the area to avoid compliance?

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