NO CLEAR MESSAGE FROM SUPREME COURT

Rulings this term on medical marijuana, drug testing and unionization have
mixed results for physicians. Justices take on the big issue -- ERISA --
this fall.

The U.S. Supreme Court was fairly friendly toward the nation's physicians
this year. But it could have been friendlier. In cases that took on issues
ranging from whether a public hospital can perform drug tests on pregnant
women without their consent and then give police the results, to whether
the National Labor Relations Board had properly defined the role of a
supervisor in a health care setting, the court set parameters for the
practice of medicine. The pattern is: There is no pattern But it's hard to
draw conclusions -- or make predictions -- based on this set of decisions
on wide-reaching cases from a court that has a reputation for being hard to
handicap. "The only pattern you find with the Supreme Court these days is
that it will do whatever it wants," said Jay Gold, MD, editor in chief of
Legal Medicine Perspectives, published by the American College of Legal
Medicine. "Because of the way the court membership is fractured, it's hard
to get five people," added Mary Anne Bobinski, director of the Health Law
and Policy Institute at the University of Houston Law Center. "The fifth
vote is hard to predict." In Ferguson v. Charleston, S.C. the swing votes
came down squarely on the side of physicians. In a 6-3 decision, the court
said a policy that the Medical University of South Carolina developed "in
good faith" with other government agencies violated the Fourth Amendment.
The policy, initiated in 1989 and discontinued five years later, led to the
arrest of pregnant women and new mothers who tested positive for cocaine.
The high court's decision marked the first time justices didn't give the
benefit of the doubt to police in a drug enforcement case. Even though the
court made the point that there was no physician-patient relationship in
the Charleston case, the decision, in and of itself, is supportive of the
traditional role of the physician-patient relationship. "It is protecting
patients from intrusion," Bobinski said. "Medical professionals, when doing
medical testing and screening, should be doing it for medical reasons,"
added Lawrence Gostin, professor of law and public health at Georgetown
University, Washington, D.C. Court united, experts divided Legal experts
are split on whether physicians and the practice of medicine can claim
victory with the court's unanimous ruling on medical marijuana in United
States v. Oakland Cannabis Buyers' Cooperative, et al. The decision
addressed the distribution of the drug and stayed out of the medical
necessity issue.

Some experts say that's a good thing, but others say the court could have
used that decision to further strengthen the physician-patient
relationship. The court said the federal government had the right to close
an Oakland, Calif., cooperative that helped supply marijuana to more than
8,000 patients who use the drug for medical reasons. On one hand, the
opinion is narrow and deals only with distribution. It does not delve into
medical necessity and leaves that issue to the states. But by not
addressing the issue, the court didn't do anything to advance the
physician-patient relationship, said Gold, who is also a senior vice
president at MetaStar, a health care quality improvement organization based
in Madison, Wis. The Canadian solution In a similar case heard by the
Canada Supreme Court last year, the court issued a very strong opinion
saying that country's law banning marijuana was a bad one because it didn't
leave an exception for medical purposes, he said. "The court said it was
appropriate for a medical decision to be left to the physician-patient
relationship," Gold said. "Maybe the [U.S. Supreme Court] decision wasn't
as friendly after all. In Canada, the court gives the authority to the
medical profession." Gostin agrees that the U.S. decision places a limit on
the physician-patient relationship. "The government is interfering," he
said. But Gold and Gostin predict the medical issue eventually will wind
its way up to the high court. "When they get the case, my guess is you are
not going to see a unanimous court," Gold said. Physicians are also waiting
to see how a decision in National Labor Relations Board v. Kentucky River
Community Care Inc. will affect their lives. The case dealt with a group of
nurses trying to unionize.

The high court upheld a decision that classified the nurses as supervisors,
disqualifying them from joining unions.

Although the case didn't deal directly with physicians and was more about
labor law than medicine, some worry that the decision could prohibit
physician collective bargaining because they'll be classified as
supervisors. On deck for next term When the court returns in October,
justices will take up at least one case that could help physicians, Rush
Prudential HMO Inc. v. Moran. At the end of its term in June, the court
said it would hear the ERISA case that deals with an Illinois independent
review law in place for when patients and health plans disagree on what is
medically necessary.

A lower court didn't see a conflict between the state law and the federal
Employee Retirement Income Security Act of 1974 and said an HMO had to pay
for a procedure it originally denied. The pending patients' bill of rights
before Congress could affect how justices rule on the case. But there is a
good chance the decision could be a positive one for physicians who say
HMOs sometimes have too much control over medical decisions. There was a
day when managed care companies always won lawsuits by using ERISA as a
defense.

But that's changed in recent years. "The court has moved away from strict
protection," Houston Law Center's Bobinski said. Still, with the court so
divided on so many issues, it will be difficult to predict what the outcome
will be. "I hope they uphold [the lower court decision]," Gold said. "ERISA
has made health reform difficult in the past."

Law and medicine

A brief overview of the 2000-2001 U.S. Supreme Court cases that affected
physicians: Ferguson v. Charleston Physicians and other public hospital
employees can't perform drug tests on pregnant women without their consent
and then give police the results. U.S. v. Oakland Cannabis Buyers'
Cooperative, et al. Instead of addressing marijuana's medical necessity,
the court narrowly ruled that distributing the drug through a buyer's
cooperative isn't legal. National Labor Relations Board v. Kentucky River
Community Care Inc. In a case involving nurses seeking to unionize, the
court said a professional who uses "independent judgment" to direct the
work of others is a supervisor who is unable to collectively bargain.
Children's Healthcare Is a Legal Duty, Bostrom and Petersen v. Vladeck and
Shalala By turning down an appeal, the court said the government does not
violate the separation of church and state by providing Medicare and
Medicaid money to Christian Science nursing homes and other religious,
nonmedical health care facilities. Richard M. Dicter, MD, v. United States
of America By denying this case, the court upheld a jury's decision to take
away a Georgia physician's medical license after he was convicted of
unlawfully distributing prescription drugs. Medical licenses are usually
regulated by the state. Rush Prudential HMO Inc. v. Moran The court in June
agreed to consider next term whether an Illinois law that calls for
independent review when a physician and the HMO disagree on a treatment
conflicts with ERISA. If the court upholds the Illinois law as the lower
court did, primary physicians may get more of a say in patients' treatments.