Author Archives: Kelly Lowenberg

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This Thursday – Panel on H1N1 Influenza: Legal issues in responding to a pandemic

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present…

Panel on H1N1 Influenza: Legal issues in responding to a pandemic

Thursday, Nov. 12th
12:45-2:00 p.m.
Room 280B

Featured Panelists:

Cornelia L. Dekker, M.D.

  • Dr. Dekker is a professor at Stanford School of Medicine and the Medical Director of the Stanford-LPCH Vaccine Program.  She is currently a Member of the National Vaccine Advisory Committee and the NVAC H1N1 Subgroup. Dekker’s clinical focuses are Pediatric Infectious Disease, Vaccine Clinical Trials and Safety, and Infectious Diseases, Pediatric.

Hank Greely, J.D.

  • Hank Greely is a professor at Stanford Law School and a leading expert on the legal, ethical, and social issues surrounding health law and the biosciences.  He frequently serves as an advisor on California, national, and international policy issues. Active in university leadership, Professor Greely chairs the steering committee for the Stanford Center for Biomedical Ethics and directs both the law school’s Center for Law and the Biosciences and the Stanford Center for Biomedical Ethics’ Program in Neuroethics. Professor Greely serves on the Scientific Leadership Council for the university’s interdisciplinary Bio-X Program.

Martin Fenstersheib, M.D., M.P.H.

  • Dr. Martin Fenstersheib is the health officer for Santa Clara County. In this state-appointed role, Fenstersheib works closely with the Santa Clara County Public Health Department, part of the Santa Clara Valley Health & Hospital System. Fenstersheib has served as the health officer and public health medical director for Santa Clara County since 1994. He is board-certified in pediatrics, public health and preventive medicine. He is chair of the department of community health and preventive medicine at Valley Medical Center and vice president for community health at the Santa Clara County Medical Association.

ALL ARE WELCOME TO ATTEND AND LUNCH WILL BE SERVED!

New York Flu Shot Mandate Suspended

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On October 22, the mandate that all health care workers with direct patient contact be vaccinated against the H1N1 flu and seasonal flu was suspended.  State Health Commissioner Richard Daines suspended the mandate, not because of the lawsuits described elsewhere on this blog, but rather because New York has only a limited supply of flu vaccine.

New York has received less vaccine than expected.  Governor David Paterson explains, “Over the last week, the Centers for Disease Control and Prevention (CDC) acknowledged that New York would only receive approximately 23 percent of its anticipated vaccine supply by the end of the month.  As a result, we need to be as resourceful as we can with the limited supplies of vaccine currently coming into the State and make sure that those who are at the highest risk for complications from the H1N1 flu receive the first vaccine being distributed right now in New York State.” A mandate, in combination with the vaccine shortage, “set[s] up a dynamic where health care personnel covered under the regulation might compete for vaccine with persons with underlying risk factors for adverse outcome of influenza infection.” By suspending the mandate, the Department of Health allows the available vaccines to be used for populations at the greatest risk (especially pregnant woment and children).

Under Secion 66-3.2 of the emergency regulation that created the mandate, Commissioner Daines has the authority to suspend the vaccination requirement if  he “determines the vaccine supplies are not adequate given the numbers of personnel to be vaccinated or vaccine(s) are not reasonably available, the commissioner may suspend the requirements(s) to vaccinate and/or change the annual deadline for such vaccinations(s).”  Commissioner Daines exercised that authority and determined (given the low supply, slow delivery of more vaccine, and need elsewhere) there is not enough vaccine available to vaccinate all health care workers before the November 30 deadline.

Although there is an insufficient supply of vaccine to enforce the current mandate, Commissioner Daines believes that, when feasible, requiring health care workers to get flu shots is important for patient safety. “Patients in hospitals and other health care settings have the right to expect that they will not be infected by their health care worker with a preventable disease which could be fatal. [He] believes that New York’s experience with mandatory influenza vaccination for health care personnel in 2009 will have a positive impact on the health of New Yorkers this year. The current emergency regulation mandating influenza vaccinations for health care workers will expire on November 11, 2009, and a second emergency regulation would not have the desired effect during the current H1N1 influenza season or the expected seasonal outbreaks expected later this year and in early 2010. Therefore, no new emergency regulations will be promulgated.”

The lack of new emergency regulations, however, does not mean the conflict over mandatory flu vaccinations is over; it may just be delayed.  Commissioner Daines writes that “the [Department of Health] is advancing a permanent regulation requiring health care personnel in these settings to be vaccinated. Draft regulations will be published soon for a period of public comment.”

– Kelly Lowenberg

Update on New York Mandatory H1N1 Vaccinations

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Last Friday, Justice Thomas J. McNamara, an acting justice of the State Supreme Court in Albany, issued a temporary restraining order preventing the enforcement of the New York state mandate requiring all health care workers with direct patient contact to get the H1N1 and seasonal flu vaccines.  Justice McNamara scheduled a hearing for October 30 and consolidated three lawsuits challenging the mandate brought by a group of emergency room nurses, New York State Public Employees Federation, and the New York State United Teachers Union.  In addition to these cases, a nurse from Poughkeepsie, N.Y., filed a lawsuit in State Supreme Court in Manhattan challenging the mandatory vaccinations.

The full requirements of the New York mandate can be read here.  The New York Times blog post on the ruling cites a September 24, 2009 statement from State Health Commissioner Richard F. Daines, M.D. to explain the reasoning behind the mandate:

“Questions about safety and claims of personal preference are understandable. Given the outstanding efficacy and safety record of approved influenza vaccines, our overriding concern then, as health care workers, should be the interests of our patients, not our own sensibilities about mandates. On this, the facts are very clear: the welfare of patients is, without any doubt, best served by the very high rates of staff immunity that can only be achieved with mandatory influenza vaccination – not the 40-50 percent rates of staff immunization historically achieved with even the most vigorous of voluntary programs. Under voluntary standards, institutional outbreaks occur every flu season. Medical literature convincingly demonstrates that high levels of staff immunity confer protection on those patients who cannot be or have not been effectively vaccinated themselves, while also allowing the institution to remain more fully staffed.”

After the temporary restraining order was issued, the State Department of Health officials said in a statement (reported by the NYT):

“In two weeks the Department is scheduled to be in court, where we will vigorously defend this lawsuit on its merits. We are confident that the regulation will be upheld. The Commissioner of Health and the State Hospital Review and Planning Council have clear legal authority to promulgate the mandatory regulation. As one court said in a 1990 ruling rejecting a challenge to regulations requiring mandatory rubella vaccinations and annual tuberculosis testing for health care workers: ‘Hospitals . . . exist for the benefit of their patients. They exist to cure the sick. The Legislature of this State has charged the Commissioner of Health with the responsibility of making hospitals safe places to get well. These regulations are tailored to accomplish that end.'”

In addition to the lawsuits challenging the New York mandate, the New York Civil Liberties Union testified before the New York State Assembly Committees on Health, Labor, Education, Higher Education and Workplace Safety, and sent a letter to Mr. Daines explaining that the mandate “conflicts with well established legal principles and public health policy” and “violates the right of competent adults to direct the course of their medical care and treatment.”  The NYCLU argues the H1N1 vaccine is distinguishable from other mandatory vaccines because the mortality rate for those who contract H1N1 is lower (compared to smallpox), and the vaccine is not 100% effective in preventing the disease, treating it, or preventing transmission (unlike the vaccines for measles, mumps, and rubella, diphtheria, polio, and tuberculosis). Furthermore, the NYCLU points out that,

“If significant numbers of health care workers refuse to be inoculated and are fired, health care facilities could be seriously understaffed at the very moment HINI is expected to cause a surge in hospital visits. And if health care workers are confused and upset about compulsory vaccinations, what are their patients to think? As reports of health care workers refusing vaccinations become public, confusion and worry will grow in the general population. And even if vaccination is the appropriate medical option for individuals, people may become increasingly reluctant to choose that option.”

Part of the reasoning behind the mandate is to keep health care workers healthy, so they can care for patients.  New York already has a shortage of nurses, and maximizing the number of working nurses will be critical if H1N1 causes an influx of patients.  As the NYCLU points out, however, if a significant number of nurses (and other health care workers) are fired because they refuse the vaccination, the mandate will prevent many healthy nurses from caring for patients.  George Annas, professor of health law and bioethics at Boston University School of Public Health, adds that “if enough physicians and nurses refuse vaccination, the mandate will be unenforceable, since no responsible public health official would try to close a hospital for failure to comply with the mandate in the midst of a flu epidemic.”  How many health care workers would choose dismissal over vaccination?  Enough to close a hospital?  More than how many, without the mandate, would miss work after catching the flu?  How will these changes in staff size and flu exposure impact patient health?  In the previous post, I cited Professor Art Caplan’s estimation that if all health care workers were vaccinated against the seasonal flu, there would be 40% fewer flu-related patient deaths.  How does that number adjust for the dangers of H1N1 flu, the effectiveness of the H1N1 vaccine, and the loss of health care workers who refuse vaccination?

– Kelly Lowenberg

Mandatory H1N1 Vaccinations

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The H1N1 flu vaccine became available earlier this month, and for many health care workers getting the vaccine is mandated. New York has created a state-wide mandate that all health care workers who have direct patient contact get seasonal and H1N1 flu shots or face the possibility of losing their jobs. Many hospitals have also created mandates, including the Hospital Corporation of America, Emory hospital, the University of Pennsylvania hospital, the University of Maryland hospital, the Loyola University health system, and the Good Samaritan Hospital in San Jose.

Many health care workers are opposed to these mandates, as was demonstrated by health care workers protesting the New York mandate outside of the state capitol (video). The California Nurses Association and the National Nurses Organizing Committee have recommended that the vaccine be encouraged but “nurses should maintain their right to decline for personal reasons.” Some reasons the protesters give for objecting to the mandate (here, here, and video here) include: the vaccine is not as effective as other mandated vaccines; there are equally effective alternatives, for example, wearing face masks and washing their hands; the vaccine was not sufficiently tested and may be unsafe; and H1N1 flu is not sufficiently dangerous to warrant a mandate.  A common thread throughout the protest coverage is that health care workers do not want to be told what they must put in their bodies.  This morning a group of New York emergency room nurses announced that they would be filing a lawsuit to block the mandate later this week.

Art Caplan, professor of bioethics and the director of the Center for Bioethics at the University of Pennsylvania argues that these mandates are appropriate because they will save lives and getting vaccinated is part of the health care workers’ responsibility to patients and to each other.  Professor Caplan writes that if health care workers are vaccinated, patient mortality would decrease and nurses and doctors would remain healthy and able to care for sick patients.  He estimates that in the case of the annual flu vaccination, if 100% of health care workers were vaccinated, patient deaths from the flu would drop 40%.  Since April, 76 children have died from H1N1. [Note: As of October 23, 2009, that number rose to 86.]

In many states, hospital workers are already required to be vaccinated against measles, mumps, and rubella as a condition of their employment, but flu shots are voluntary.  In this case, however, Professor Caplan argues that mandating the H1N1 vaccine may be the only way to obtain the individual medical and public health benefits. He reports that neither voluntary vaccinations (only 50% of health care workers elect to receive the annual flu shot) nor alternative protections like face masks (20% of health care workers who wear face masks still catch the flu) are likely to achieve the same benefits as a mandatory vaccination.

Some who object to the mandate have voiced concerns about the vaccine’s safety and efficacy because they claim it was rushed through development.  But the Center for Disease Control and Prevention director, Dr. Thomas R. Frieden, assures, “We have cut no corners. This flu vaccine is made as flu vaccine is made each year, by the same companies, in the same production facilities with the same procedures, with the same safety safeguards.” The vaccine is not safe for some individuals who have egg allergies or risk factors for a rare complication known as Guilliame-Barre syndrome, and they are exempt from the mandate.  Some of the mandates, although not New York’s, also exempt people with religious objections to vaccination.

If a mandate requiring health care workers to receive the H1N1 vaccination is necessary, then the penalty for opting out should be both fair and effective.  Currently, health care workers in New York who refuse the vaccine risk losing their jobs.  Could New York still reach its pubic health goals and increase vaccination rates among health care workers with a less severe penalty?  For example, could the same purpose be served by notifying patients and other doctors that an individual has refused the vaccine, which would allow patients to choose to receive care from practitioners who are vaccinated?

Some health care workers and their advocates would prefer a program whereby adults did not have to choose between their job and taking a vaccine they have concerns about.  Individuals’ choices about their own health care should be respected, and health care professionals are likely to make informed choices.  On the other hand, health care professionals’ vaccination decisions will also affect the patients they see who are especially vulnerable to the H1N1 complications.  And requiring vaccinations might be necessary to protect those patients.

– Kelly Lowenberg

Update: https://lawandbiosciences.wordpress.com/2009/10/22/update-on-new-york-mandatory-h1n1-vaccinations/

Penn Neuroscience Bootcamp 2010 Accepting Applications

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Applications are now being accepted for Penn’s Neuroscience Boot Camp, a 9-day academic program on neuroscience for professionals and graduate students in law, ethics, and other fields. Excerpts from the website:

“The Penn Neuroscience Boot Camp is designed to give participants a basic foundation in cognitive and affective neuroscience and to equip them to be informed consumers of neuroscience research.  Penn’s Neuroscience Boot Camp has been endorsed by the Neuroethics Society as a way for non-neuroscientists to gain a better understanding of the science behind the proliferation of new “neurofields” including neuroethics…

“Through a combination of lectures, break-out groups, panel discussions and laboratory visits, participants will gain an understanding of the methods of neuroscience and key findings on the cognitive and social-emotional functions of the brain, lifespan development and disorders of brain function.  Each lecture will be followed by extensive Q&A. Break-out groups will allow participants to delve more deeply into topics of relevance to their fields. Laboratory visits will include trip to an MRI scanner, an EEG/ERP lab, an animal neurophysiology lab, and a transcranial magnetic stimulation lab. Participants will also have access to an extensive online library of copyrighted materials selected for relevance to the Boot Camp, including classic and review articles and textbook chapters in cognitive and affective neuroscience and the applications of neuroscience to diverse fields…

“The academic program spans nine days, Monday-Wednesday, with half of Saturday and all of Sunday off. We begin with a welcome reception on Sunday evening, August 1st and end with a gala dinner party on the evening of August 11th.  Complete applications are due by midnight on February 1st.”

– Kelly Lowenberg (Hat tip to Professor Adam Kolber via Neuroethics and Law Blog)

Molecular Scars of Child Abuse

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Can traumatic events during early childhood permanently affect the way the brain responds to stress at a molecular level? Moshe Szyf, a McGill University epigeneticist, and Michael Meaney, a McGill University neurologist previously found evidence for long-lasting molecular changes in stress-response brain regions of rats exposed to poor parental care. Now, in a follow-up study, they show that similar changes may occur in human suicide victims who suffered childhood abuse.

Dr. Szyf and Dr. Meaney focus on epigenetic changes, or changes “on top of the genome.” While childhood experience cannot change the actual DNA basepairs that form the genetic code, experience may permanently mark certain regions of the genome in ways that change gene expression and have long-lasting consequences on behavior. These marks include methylation of DNA basepairs and acetylation of histones, the proteins that DNA is wrapped around inside the nucleus. We are only now beginning to understand how experience can change these epigentic tags, and in turn how these epigentic tags can feedback and affect our behavior.

In 2004, Dr. Szyf and Dr. Meaney published a paper on epigenetic changes caused by maternal behavior in rats. Rats whose mothers did less licking and grooming and arched-back nursing had exaggerated behavioral and hypothalamic-pituitary-adrenal responses to stressful stimuli compared with rats whose mothers groomed them more. These rats also had altered epigentic tags — increased DNA methylation and reduced histone acetylation — in the promoter of an important stress response gene, the glucocorticoid receptor gene in the hippocampus, and reduced expression of this gene. In order to show that the maternal behavior caused the epigenetic changes, some rats whose birth mothers did not groom were fostered by mothers with high grooming behaviors, and vice versa. These adopted rats showed methylation patterns similar to the mothers that reared them, instead of their biological mothers. Interestingly, the effects of neglectful maternal behavior on methylation in the promotor, altered hippocampal glucocorticoid receptor expression, and the hypothalamic-pituitary-adrenal response to stress were reversed when the adult offspring were given a histone deacetylase inhibitor, which globally removes many epigentic tags.

Does childhood abuse and neglect produce similar epigenetic tags on this stress response gene in humans? In another study, Dr. Meaney’s group compared expression of the neuron-specific glucocorticoid receptor gene in the hippocampus of 12 suicide victims with a history of childhood abuse (including severe neglect) to those of 12 suicide victims who had no history of abuse and those of 12 controls. Again, they found increased methylation of a glucocorticoid receptor promotor, and less glucocorticoid receptor gene expression. This finding, that childhood abuse and neglect is associated with methylation of a glucocorticoid receptor promotor in the hippocampus mirrors the result in their 2004 paper that found the same epigenetic change in rats who were neglected by their mothers.

Dr. Szyf and Dr. Meaney also looked more broadly for epigentic tags associated with abuse. In a recent paper, they compared the brains of 13 people who had suffered early childhood abuse (sexual contact, severe physical abuse and/or severe neglect) and committed suicide and 11 people who had no history of abuse and had died suddenly in accidents. The hippocampus in the brains of suicide victims had higher methylation levels in DNA regions controlling the expression of ribosomal RNA (rRNA), a general purpose gene, broadly important for protein syntehsis in a given cell. The epigentic tags resulted in reduced rRNA expression in the hippocampus. Whether or not the person had had a psychiatric illness or a substance abuse problem did not account for any difference in methylation level. The methylation differences were specific to the hippocampus, which is commonly associated with psychopathology, and did not exist in the cerebellum, which is not associated with pathology (using samples from 8 brains, 4 from each of the conditions). Thus the authors provide two examples of long-lasting molecular “scars” in humans that may affect gene expression and behavior.

This research is very interesting but not without caveats. The authors acknowledge that they have not been able to account for other environmental factors besides childhood abuse and neglect that might cause these epigenetic changes. Future studies would require much larger sample sizes to address other possible causative environmental variables. Also, the authers show “scars” on two genes, one important for stress-response and one for protein synthesis, but there are twenty-thousand genes in the human genome. With new technologies to look at epigentic tags on a genome-wide level (the epigenome), future studies can look at all genes in an unbiased manner for a more complete picture of epigentic “scars” that are enriched in people who suffered from childhood abuse and neglect. Finally, we should be careful not to conflate suicidality with abuse; this research does not directly address suicide risk from abuse.

Possible legal and policy implications of this area of research remain far in the future, but could include identifying earlier critical periods for childhood intervention programs, better understanding abuse as a mitigating factor if the person is later convicted of a crime related to an abnormal stress response, or calculating damages in a civil lawsuit against the abusive caregiver. The most significant implication is better understanding epigenetic pathology caused by childhood abuse and neglect, which may be an important part of a multi-faceted approach towards treating survivors of abuse who continue to suffer from its lasting effects.

– Kelly Lowenberg (Hat tip to Alex Pollen)