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.