Amicus Briefs

The following Amicus Briefs were recently supported by the American College of Legal Medicine:

In the Supreme Court of the United States

ALBERTO R. GONZALES,
ATTORNEY GENERAL, et al.,
Petitioners,
v.
STATE OF OREGON, et al.,
Respondents

Click here to view the Petitioners Brief.

On January 17, 2005 the United States Supreme Court decided, by a 6-3 vote, the case of Gonzales v. State of Oregon. The Court affirmed the 9th Circuit Court of Appeals as well as the federal district court in Portland, Or., holding that the federal Controlled Substances Act ("CSA") did not preclude Oregon physicians from asssiting those who wish to end their lives pursuant to that state's Death With Dignity Act. Scalia dissented, joined by Roberts (voting in his first high-profile case) and Thomas. Kennedy wrote for the majority. (The College was an amicus party in the 9th Circuit and before the USSCt.)

While much of the majority opinion is couched in terms of discussing statutory provisions and how to interpret the CSA , the opinion's significance is the continued recognition that the practice of medicine is traditionally state-based and state-regulated. Also, while "regulation of health and safety is 'primarily, and historically, a matter of local concern', the court stated that there is no question that the Federal Government can set uniform national standards in these areas." The court additionally comments, "The silence (within the CSA) to regulate medicine is understandable given the structure and limitations of federalism, which allows the States " 'great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons.' "

The CSA did not give the Attorney General ("AG") the power to declare what is a "legitimate medical purpose". Adopting what the (ACLM) placed in its brief, the court noted that the AG had neither the expertise nor authority granted to him as an executive official to make any such declaration. Moreover, again as proferred in the College's brief, the AG was required to go outside his offices for medical expertise in order to determine whether a Class II drug prescribed in furtherance of the Oregon statute violated the CSA. The location for this required expertise was the Secretary of HHS, which the AG failed to do here.

The government advanced the proposition, too, that the ordinary usage of "medical" or "medicine" ineluctably refers to a healing or curative art, which could not possibly embrace the "intentional hastening of a patient's death". The government also points to the teachings of Hippocrates, positions of prominent medical organizations, the Federal Government and 49 states which have not legalized physician-assisted suicide aas support for the proposition that the practice (assistance in death) is not legitimate medicine.

Standing alone, the above seems reasonable; however, in the context of the CSA, the court wrote, there is no implicit authorization by an Executive officer, viz, the AG, to declare the administration of a Class II drug under the CSA unlawful because that may be inconsistent with one reasonable understanding of medical practice. The CSA cannot be read so expansively. Concomitantly, the scheme of the CSA is to make it more difficult to prescribe substances the more habit-forming or addictive those drugs are to the user. But the court goes on to say, "To read presciptions for assisitng with suicide as constituting "drug abuse" under the CSA is "discordant" with the phrase, "drug abuse" used throughout the statute.

In concluding, the court found, "The Government, in the end, maintains that the prescription requirement delegates to a single Executive officer the power to effect a radical shift of authority from the States to the Federal Government to define general standards of medical practice in every locality. The text and structure of the CSA show that Congress did not have this far-reaching intent to alter the federal-state balance and the congressional role in maintaining it."

In his dissenting opinion, Scalia believed that the AG had the authority under the CSA to interpret "legitimate medical purpose" (as Ashcroft did), under the substantial deference doctrine; alternatively, prohibiting prescriptions of Class II drugs under the CSA in furtherance of assisting with suicide falls within the plain meaning of what should not be a legitimate medical purpose; or, third, that deference should have been given the AG in his interpretation of the phrase "public interest" and what was implicit in the phrase, "public health and safety" so as to preclude the dispensing of Class II drugs under the CSA for assisted suicide.

This opinion leaves open the door for other states to attempt passage of bills similar to Oregon's. California and Vermont are two states considering such bills, and voters/legislatures in Connecticut, Hawaii and Maine have in recent years defeated such legislation. The 6-3 majority is also, from a political view I suppose, a rebuke of the government's attempted "power grab" in this particular area of medical care and treatment.

On behalf of the Amicus Committee, I thank the College for allowing the Amicus Committee to once again serve it here.

Miles J. Zaremski, JD, FCLM
Chair, Amicus Committee
1-20-06
mzaremski@kr-law.com

IN THE SUPREME COURT OF THE UNITED STATES

AETNA HEALTH INC.,
Petitioner,
v.
JUAN DAVILA,
Respondent.
CIGNA HEALTHCARE OF TEXAS, INC.,
Petitioner,
v.
RUBY R. CALAD, et al.,
Respondents.
---------------•--------------
On Writs Of Certiorari To The
United States Court Of Appeals
For The Fifth Circuit
---------------•--------------
BRIEF AMICUS CURIAE OF THE
AMERICAN COLLEGE OF LEGAL MEDICINE
IN SUPPORT OF RESPONDENTS
---------------•--------------
MILES J. ZAREMSKI, ESQ.
Counsel of Record
KAMENSKY & RUBENSTEIN
7250 North Cicero Avenue
Lincolnwood, Illinois 60712-1693
847-982-1776
MAXWELL J. MEHLMAN, ESQ.
CASE WESTERN RESERVE UNIVERSITY
SCHOOL OF LAW
11075 East Blvd.
Cleveland, Ohio 44106-7148
216-368-3600
---------------•--------------
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED
Whether ERISA is intended to preempt remedial relief
provided by state law when an HMO entity, acting through one or more of those in its employ or on its behalf, denies on a prospective basis a request for care and treatment as not medically necessary where the denial results from medical decision-making based upon the exercise of discretionary judgment.

IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

State of Oregon, et. al.,
Plaintiffs-Appellees
v.
John Ashcroft, in his official capacity as United States Attorney General, et. al.,
Defendants-Appellants

Click here to view the Brief

IN THE SUPREME COURT OF THE UNITED STATES

Kentucky Association of Health Plans, Inc.,
et. al., Petitioners
v.
Janie A. Miller, Commissioner, Kentucky
Department of Insurance, Respondents

Summary
To: Miles Zaremski
From: Gary Birnbaum
Subject: Executive Summary, Kentucky Association of Health Plans, Inc. v. Miller
Date: Nov. 11, 2002

This case is being heard by the U.S. Supreme Court during the 2002-2003 term and involves a challenge by a group of managed care organizations ("MCOs") to the any willing provider ("AWP") section of Kentucky's insurance code. Ky. Rev. Stat. Ann. Sec. 304.17A-270 provides that "A health insurer shall not discriminate against any provider who is located within the geographic coverage of the health benefit plan and who is willing to meet the terms and conditions for participation established by the health insurer…."

The petitioner MCOs filed suit to enjoin the Kentucky Department of Insurance from enforcing the AWP law claiming that it was preempted by ERISA. The district court held that although the AWP statute "relate[s] to"ERISA plans, it was saved from preemption by the saving clause because it "regulates insurance." The Sixth Circuit Court affirmed the district court's decision. The Sixth Circuit unanimously ruled that the AWP law relates to employee benefit plans ("EBPs") because it has both a "connection to" and "refers to" EBPs. A majority of the panel held that the statute was saved from preemption under the saving clause as a law that "regulates insurance."

The petitioners filed for a writ of certiorari to the U.S. Supreme Court. The petitioners asserted that the AWP law did not regulate insurance based on the analysis of Group Life & Health Insurance Co. v. Royal Drug Co., 440 U.S. 205 (1979). In that case, the Court announced a common sense test and a three part inquiry (McCarran-Ferguson inquiry)
to decide whether there was regulation of insurance. This analysis was used in the recent case of Rush Prudential HMO, Inc., v. Moran, 122 S. Ct. 2151 (2002) where the Court held that an Illinois external review statute related to EBPs but regulated insurance and was thus saved from preemption.

The petition for writ of cert. was granted. Petitioners filed a brief on the merits in September 2002 and the respondent filed its brief in late October 2002. Amici for the petitioners included the American Association of Heath Plans, a trade organization representing the managed care industry. Amici for the respondents included ACLM, the U.S. Solicitor General's office, the AMA, and a group of state Attorney Generals.

The respondents brief on the merits asserted that the AWP law regulates insurance as a matter of common sense because it targets health insurers, similar to the statute in Rush Prudential. The brief also argued that the statute satisfies all three prongs of the McCarran-Ferguson inquiry which the Court has said may act as guide posts for the common sense inquiry. Specifically, the AWP law 1) spreads risk from the insured to the insurer, 2) involves an integral part of the insurance policy relationship, and 3) is limited to entities within the insurance industry.

In its amicus brief, ACLM argues that the AWP law does not relate to EBPs because it does not refer or connect to such plans. Alternatively, the second argument claims that the AWP law regulates insurance in order to regulate the practice of medicine by regulating the scheme of high volume physician practices and the continuity of the patient-physician relationship.

STATE OF NEW HAMPSHIRE SUPREME COURT

Exeter Hospital Medical Staff and
Mark R. Windt, MD, President, Exeter Hospital Medical Staff
v.
Board of Trustees of Exeter Health Resources, Inc., and
Board of Trustees of the Exeter Hospital

New Hampshire Order | New Hampshire Brief | New Hampshire Decision

United States Supreme Court Amicus Brief.
Dennis C. VACCO, et al., Petitioners,
v.
Timothy E. Quill, M.D., at al., Respondents.
Nos. 95-1858, 96-110.
October Term, 1996.
Nov. 12, 1996.

Vacco 1996 - Amicus Brief

United States Supreme Court Amicus Brief.
William DAUBERT and Joyce Daubert,
Individually and as Guardians Ad Litem for Jason Daubert, and Anita De Young,
Individually and as Guardian Ad Litem for Eric Schuller, Petitioners,  
v.
MERRELL DOW PHARMACEUTICALS, INC., Respondent.
No. 92-102.
October Term, 1992.
January Term 1993.

Daubert Amicus Brief