Thursday, August 20, 2020

Medical Kidnapping. Wait. What?

You may have read about a young teenager named Justina Pelletier, from West Hartford, CT. In 2013 Justina was kidnapped by a hospital where she had been admitted for treatment.   Her kidnapping and other similar incidents have given rise to the term "medical kidnapping".  Medical Kidnapping is a growing phenomenon that bears watching.  

I think there is not a more accurate term for what happened to Justina Pelletier than kidnap.  Justina’s ordeal, and that of her family, is described here and here.  Her story is worth reading.  Fair warning:  The story will upset you, especially if you are a parent or a medical care professional


The accounts are comprehensive so I’ll add only the following observations of my own. 


 (a)  the core issue in the Pelletier case seems to be a scientific and clinical fight about whether mitochondrial disease is actually a physical ailment or primarily psychological.   This type of issue may be present in other cases where there is overlap between the physical and the psychological. Connection with insurance = Do insurers consider a diagnosis of mitochondrial disease consistently as either medical or psychological? 


(b)  It is clear that cases of Medical Kidnapping are on the rise. See here and here and here and here.   You can search for yourself by entering Medical Kidnapping and just start reading 


 Connection with insurance = How might insurance for mitochondrial disease change as the incidence of the disease rises?  

(c)  Justina’s parents sued Boston Children’s Hospital charging medical malpractice.  Nearly 7 years after Justina’s 2013 admission to BCH, a jury took fewer than 6 hours find BCH not guilty.

Connection to insurance = How might hospital and professional liability insurance coverage/ limits  be affected as the incidence of this diagnosis continues to rise?  

(d)  I have been unable to find any account of specific reasons behind the jury verdict.  For whatever reasons, the jury believed the hospital not the parents.  But consider.  Boston Children’s Hospital is widely thought to be America’s #1 pediatric hospital.  Its teaching affiliate is Harvard Medical School. BCH is also a primary source of professional expertise in child abuse cases before the Massachusetts Department of Children and Families.  No doubt there are many strong ties among BCH officials and physicians; influential Harvard officials and alumni; and DCF officials regarding medical care, politics and even the courts. Especially in Boston.  The influence of these ties naturally extends over the general public, from which jury members are selected.  One can appreciate how difficult it is for anyone not inside that circle of influence, to prevail when taking action against it.

I suppose a teaching hospital anywhere has similarly widespread influence within its community and can be similarly immunized from scrutiny and full accountability - as appears true regarding BCH and the Justina Pelletier experience.  


Connection to insurance = Same as in (c).


(e)  Aside from medical and insurance issues, the growing number of medical kidnap cases is a social problem, increasingly encountered in the care of minor children.  The Pelletier case illustrates the kinds of problems encountered.  Here are a few that stand out to me, there must be others:


1.  Significant differences of opinion among physicians treating minor children

2.  Scientific disagreement over the nature of some condition(s) affecting minor children

3.  Legislative flaws e.g., do States' children & family services bureaucracies abuse their authority? 

4.  Inadequate consultation among attending physicians

5.  Inconsistencies among insurers over terms of coverage for medical & legal liabilities

6.  HIPAA protections of minor children’s patient privacy can be used to keep parents from knowing what treatment their minor children are receiving.  This can effectively remove parents from participation in decisions involving their own minor children’s care.  

7.  Growing influence of the regulatory state, in which persons accused of regulatory violations are presumed guilty, and have the burden of proving themselves innocent.  This negates the presumption of innocence historically imbedded in our legal system.

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