NEJM vs the South Dakota abortion script

gavelIn the recent US election, several pieces of legislation that aimed to limit reproductive rights were voted down.  Colorado said no to the Definition of a person initiative that would have given fertilized eggs the same rights as humans, and California rejected a proposition that would have required parents to be notified when a patient under 18 has an abortion. Importantly, in South Dakota Measure 11 – which sought to ban abortion in all cases bar incest, rape and danger to the the health or life of the mother – was narrowly defeated.

Despite all this good news, one hefty piece of reproductive rights legislation slipped through the net this year.  In July, following the Planned Parenthood Minnesota vs Rounds court case, statute 34-23A-10.1 was passed.  This measure states that the physician performing an abortion must inform the pregnant mother that “the abortion will terminate the life of a whole, separate, unique, living human being”, that she “has an existing relationship with that unborn human being “, and that she is, supposedly, at “increased risk of suicide ideation and suicide”.

The New England Journal of Medicine has taken up the case of the ‘South Dakota abortion script’, which seems to have been largely ignored by the media.

The Perspective article ‘South Dakota’s Abortion Script — Threatening the Physician–Patient Relationship‘, published in November, outlines the small print of the legislation and issues at stake.  The authors write:

The law requires that doctors give pregnant women a description of medical and “statistically significant” risks of abortion, among which it includes depression and other psychological distress, suicide, danger to subsequent pregnancies, and death. Physicians must tell women the approximate gestational age of the fetus and describe its state of development … The physician must answer all the woman’s questions in writing and enter them into her medical record … Physicians who do not satisfy the statute are subject to license suspension or revocation and may be charged with a class 2 misdemeanor.

In addition, the authors state that the increased risks of psychological distress, depression, and suicide included in the script are not supported by the bulk of the scientific literature, and that the legislation should be viewed in the context of South Dakota’s repeated attempts to outlaw abortion outright, not least in 2005 and 2008.

The article also points out that in forcing doctors to parrot the state’s message as if it were their own opinion, the law violates physicians’ First Amendment rights.  The December 4 Editorial ‘Physicians and the First Amendment‘ picks up on this issue of the right of the physician to freedom of speech.  The “ideological speech” included in the script is clearly in breach of the First Amendment, which enshrines “both the right to speak freely and the right to refrain from speaking at all.”  If the state is able to dictate that doctors give emotive and partisan information about abortions, there is a precedent for the state determine the medical advice given on other contentious issues such as contraception.  The authors of the editorial call for prompt overturning of the law and boldly state:

The South Dakota ‘script law’ is an affront to the First Amendment rights of physicians and an embarrassment to the people of South Dakota.

The New England Journal of Medicine certainly has a lot of clout in the medical community and beyond, but whether they will succeed in overturning law is another matter. What is needed is for the journal and the physician community to mobilize behind this issue and either as a body or via a proxy patient take on South Dakota law the way that the landmark Roe vs Wade case took on the state of Texas. Let’s hope that this issue gets some wider publicity and that someone is willing to take on the state to protect the reproductive and constitutional rights of the people of North Dakota.

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And while we’re talking about patient privacy…

Today Pulse reports that pharmaceutical companies are directly approaching NHS staff to try to get their grubby paws on patient-identifiable data. The story reports that “two staff members had been approached by a pharmaceutical company while at a conference in London, given access to a website and asked to upload patient-identifiable data”.

A spokesperson for Poole Hospital NHS Foundation Trust went on to say: “For some time the trust has been concerned about the lengths to which pharmaceutical companies, or companies working on their behalf, will go to seemingly bypass the research governance route and encourage staff to release person-identifiable data onto third-party databases. A number of attempts have been thwarted by the trust.” So it seems that for some time pharmaceutical companies have been trying to weasel patient information out of NHS employees.

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Blogging and doctoring: a hazardous mix

Medical blogs, in particular those written by doctors, have come into the spotlight thanks to a study of 271 medical blogs published recently in the Journal of General Internal Medicine, titled ‘Content of Weblogs Written by Health Professional‘.

The study found that over half of the medical blogs examined contained enough information to identify the doctor writing the blog. In addition, 42% described individual patients, and 16% included enough information for users to figure out the identity of the doctor or patient. (The Pharmalot blog helpfully has a PDF of the full text version if you want to peruse the data yourself) Granted, this study was looking at blogs that published in 2006, so the conclusions may well not reflect the level of professionalism among doctors who blog today, but it raises some important issues about patient privacy.

Of course, the study got the media frothing about whether blogs written by doctors compromise patient confidentiality and prompted the American Medical Association ethics committee to discuss the issue.

Most doctors and medical bodies seem to agree that medical blogs have an important role in providing medical information and demystifying the medical profession. However, the issue of unguarded blogging and patient privacy is real, and there are many instances of doctors’ blog posts coming back to bite them.

Canadian Medicine describes the case of pediatrician Robert Lindeman, who blogged anonymously about the death of a patient and the subsequent malpractice trial under the pseudonym “Flea”. As the Boston Globe reported: “Unexpectedly, during cross-examination, the prosecutor asked Dr Lindeman if he was ‘Flea’. The case was lost, his lawyers realized immediately. They settled the next day.” Dr Lindeman used his blog – and his anonymity – to say on permanent record things that he would not otherwise have said in the open. He lost his case and his professional reputation was trampled on.

The main point of the Journal of General Internal Medicine study and the case of Flea seems to be that, anonymous or not, doctors who blog should always remember that the internet is a public space and write about patients with this fact in mind. Of course, this concept brings up questions of free speech, but inappropriate blogs could comprise the trust that forms the foundation of the patient-doctor relationship and undermine the authority of the medical profession.

However, as Canadian Medicine points out: “Whatever the subject, blogging is a positive development in medicine and something that doctors should not and must not abandon because of some medical association analysts’ largely unfounded fears”

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