Michigan’s Unique Drug Immunity Statute Is No More
(FLINT) A Gov. John Engler-era law that shields drug manufacturers from liability if their medicine received U.S. Food and Drug Administration approval was flushed down the toilet late last month.
With Gov. Gretchen Whitmer’s signature, Sen. Jeff Irwin (D-Ann Arbor)’s SB 410 ends the 1995 Michigan Product Liability Act, a statute House Democrats and Democrats et al. used with some success on the campaign trail about 15 years ago.
The bill, which received bipartisan support in both the House and Senate, will end Michigan’s status as the only state with what Whitmer called an “immunity shield in place.”
Joined by bill sponsor Irwin, who Whitmer said has been working to overturn immunity for two decades, and Attorney General Dana Nessel, Whitmer told the story of Leslie Richter, whose husband lost his life after taking a prescription drug.
Richter became the public face of the statewide attempt to repeal the 1995 law after her husband, Richard Richter, died from a stroke, allegedly from taking the pain medication Vioxx for his arthritis
Richter’s name appeared on a New Jersey court’s case list as having filed a claim there against the company that manufactured Vioxx, Merck, which would have made her potentially eligible to receive a portion of a $4.85 billion settlement.
“Had they lived in Ohio or California or Wisconsin, they would have been able to seek recovery,” Whitmer said. “But they lived in Michigan, and so they were uniquely harmed in this horrible situation where she lost her life partner and the love of her life, and so she stayed in this fight.”
Whitmer said the pair got to know each other during her time in the Legislature, and Richter came to her office this week to celebrate the bill’s passage.
“She showed up at my office earlier this week,” Whitmer said. “Obviously, (it’s been) almost 30 years since this was changed, but her life changed forever because of it, and so she was just incredibly grateful to know that other Michiganders won’t be harmed that way.”
Whitmer said one area the legislation will really have an impact is on the opioid crisis.
“This summer, our very own Attorney General Dana Nessel fought to win a $26 billion, multi-state agreement from three major pharmaceutical opioid distributors,” she said. “Michigan will be receiving nearly $800 million, which we will use to help communities better address the opioid crisis and fund effective treatment.
“While AG Nessel was able to score this huge win for us, our drug immunity law did not help,” she said. “It made it harder for Michigan to pursue recovery against pharmaceutical distributors and opioid manufacturers.”
Despite earning bipartisan support in the House, the bill was opposed on the House floor by Republican Rep. Curtis VanderWall (R-Ludington), who chaired the Senate Health Policy Committee last term. He said he felt like the change opened the door for trial lawyers to pursue many lawsuits.
Nessel said the bill was “never about opening the floodgates of litigation.
“It’s always been about putting Michigan and its residents on an even playing field with the rest of the country,” she said.
When asked about the feedback state leaders have received from pharmaceutical companies, Whitmer said “it’s very clear when 49 other states and all the territories have a set of rules that pharmaceutical companies play by.
“We know that these are bad actors, and when we hold bad actors accountable, it actually benefits good actors,” she said, “And, so, I don’t anticipate it will change much in terms of the lay of the land, or pharmaceutical companies’ presence here in Michigan.”
Nurse Reports A Stalker; Fired For Violating HIPPA
A legal tactic a former hospital nurse used, presumably to try to get her job back, unraveled in the Michigan Supreme Court even though a couple of justices were sympathetic to her case.
Tammy McNeill-Marks was fired from the Gratiot County hospital for an unintentional HIPPA violation, and her legal team attempted to get around the mistake by claiming she’s protected by the state’s Whistleblower statute.
This legal argument fell apart at the Court of Appeals level and the Michigan Supreme Court declined to take up the case.
McNeill-Marks had a personal protection order (PPO) against Marcia Fields, the mother of a family member whose children McNeill-Marks had adopted. Fields apparently violated the PPO on a routine basis and, so, when Fields showed up at the hospital where McNeill-Marks worked, McNeill-Marks notified her attorney about the situation.
However, allegedly unbeknownst to McNeill-Marks, Fields was there as a patient. So, when the attorney’s processor showed up at the hospital with a fresh PPO, Fields was able to argue that the only way the attorney could have known she was at the hospital was if McNeill-Marks, an employee, told someone she was there.
The hospital was notified, and McNeill-Marks was fired.
McNeill-Marks tried to get her job back by claiming she was protected under the Whistleblower Protection Act and that her attorney was a “report.”
This didn’t fly at the Court of Appeals level because McNeill-Marks apparently told her attorney to “not tell anyone,” which the court ruled showed that McNeill-Marks didn’t mean to “report” anything.
Still, the Supreme Court justices had some commentary on the situation.
Justice Megan Cavanagh argued the nurse “engaged in protected activity” when she told her attorney that a patient had violated a personal protection order not to stalk her when she showed up at the plaintiff’s workplace. She argued the attorney is a “report,” under the Whistleblower Protection Act.
The appeals court also held that the State Bar of Michigan is a public body under the WPA – a question Justice Elizabeth Welch said she believes should have been answered.
“That important decision has never been reviewed by the full body of this Court,” she wrote.
Justice Richard Bernstein joined Cavanagh’s statement and Justice Brian Zahra joined Welch’s statement.
Appeals Court Gives 4th Affirmation Terminating ‘Faith-Healing’ Parents Parental Rights
The Michigan Court of Appeals has, for the fourth time, affirmed the termination of parental rights for a Lansing couple accused of not seeking medical care for a sick baby.
In a unanimous unpublished opinion, the appeals court recently rejected faith-healing parents Rachel Piland and Joshua Piland’s argument that termination of their rights regarding their child “SP” was in error.
The parents argued they could provide their son with love, food, clothing and permanency as they have a strong bond with him.
The trial court agreed the couple had a strong bond with their son, but the trial court stated the parents’ lack of judgment concerning medical care and treatment weighed in favor of terminating their parental rights.
“In fact, (the parents) declared numerous times that they would not consent to medical care and treatment for their children,” the opinion from Judge Elizabeth L. Gleicher read.
Judges Brock A. Swartzle and Christopher P. Yates concurred.
The Piland couple have fought to keep custody of their four children after their 3-day-old daughter Abigail died in 2017 of conditions related to jaundice. Abigail’s death occurred when the couple refused to seek medical care due to their religious beliefs.
Prior child protective proceedings resulted in termination of the couple’s parental rights to three of their children, which the appeals court earlier affirmed.
Former Nurses Say Staffing Ratios Would Bring Them Back
“I wish everyone could have looked into the eyes of the people I watched die because of unsafe staffing. If legislators looked into the eyes of everyone I have watched die, even in just the last few years, I guarantee you they would also suffer from insomnia and PTSD (post-traumatic stress disorder).”
Those are the words of a critical care nurse named Brandy, in a statement that was read during today’s House Health Policy Committee by registered nurse Jamie Brown, who testified on behalf of the Michigan Nurses Association.
“I have been forced into unimaginable life or death circumstances countless times because of this constant issue. It is not fair that people live or die because of short staffing,” the statement read. “It has done nothing but to continue to get worse. Last year, I coded someone in an ICU for 10 minutes all alone because there was no one to help me. I no longer can sleep because people did not have a fair chance at surviving.”
Last month, the committee took additional testimony on HB 4550 , HB 4551 and HB 4552 , also known as the “Safe Patient Care Act,” which together requires hospitals to maintain nurse-to-patient ratios and bans mandatory overtime.
Several former nurses who testified told members that eliminating mandatory overtime and requiring minimum staffing would encourage them to return to the profession.
But the bills (along with their Senate counterparts, SB 334 , SB 335 and SB 336 ) are opposed by the Michigan Health and Hospital Association, ANA-Michigan, the MNA/Covenant Healthcare, Trinity Health Oakland and the Michigan Organization for Nursing Leadership.
The opposition testifying last month agreed that something needs to be done about nursing staffing shortages, but said mandatory ratios and eliminating overtime aren’t the way to do it.
Mandates could harm hospitals and reduce access to important patient services by sending nurses home during a staffing shortage, they said.
Rep. Graham Filler (R-St. Johns) also expressed concern that the bills rely on former nurses, who right now are “sitting on the sidelines” waiting for a better ratio, but who will “flood back into practice” when the legislation is passed.
“I guess my issue would be if it does turn into law and nurses don’t flock back, or simply the stats are wrong, we’re going to severely hamper health care in the state of Michigan,” he said. “I’m talking close the wards because you can’t meet the ratio, inability for a hospital to treat an emergent patient.
“It feels kind of…like a gamble we’re taking,” he said.
Brown said the ratios will save lives, but also hospital money, by lowering negative patient outcomes, which will be accomplished by increasing staffing ratios.
“We have a leaky bucket, no matter how many nurses we graduate or bring in, nothing will change unless we address hospital working conditions,” she said.
House Calls Up Telemedicine Parity
Health insurance companies, Medicaid and Healthy Michigan must cover telemedicine services at the same rate as an in-office visit, but no provider can mandate a remote option, under legislation the House passed overwhelmingly today with Democratic support.
At a time of doctor shortages, particularly on the mental health front, telemedicine provides an option for care to those who may not seek it otherwise, according to bill sponsor Rep. Natalie Price (D-Berkley).
She argued on the House floor that an estimated 650,000 Michiganders with mental illness or 500,000 with substance abuse issues are not getting care. Meanwhile, the COVID-19 pandemic showed how effective seeing a doctor online can be, creating a “dramatic expansion” to access, she said.
State law temporarily allowed for telemedicine coverage to be paid for at the same rate as in-person visits. HB 4213 , HB 4579 , HB 4580 and HB 4131 make this permanent.
“Telemedicine helps bridge the gap,” Price said.
In committee, the bill received support from numerous medical associations, including the Michigan State Medical Society (MSMS) and the Michigan Health and Hospital Association. Blue Cross Blue Shield of Michigan opposed the bill.
The main two bills, HB 4579 and HB 4580 , passed 57-50 and 58-49, respectively, with Rep. Phil Green (R-Millington) and Rep. Jamie Thompson (R-Brownstown) joining Democrats in supporting the bills.
HB 4213 passed 75-32 with the chamber’s more conservative members voting no.
Among those was Rep. Curtis VanderWall (R-Ludington), the Senate Health Policy Committee chair last term, who has supported telemedicine in prior sessions.
He says he continues to be a supporter if it’s done in the right way.
“I felt this opened the door with very little oversight and was going to drive up costs,” VanderWall said.
Likewise, Rep. Graham Filler (R-St. Johns) said he is a supporter of telehealth and that his wife, a physician, appreciates it for some of her patients.
“That said, it was my opinion that these bills created a bit of a Wild Wild West in Michigan telehealth, which opens things up a little too much to fraud or misuse, instead of creating a narrow law,” he said.
Reproductive Health Act Package On Way To Gov’s Desk
The Reproductive Health Act (RHA), which eliminates decades of abortion rules and restrictions advocated by the anti-abortion lobby, is en route to the governor’s desk.
On a party-line vote of 20-17, the Senate took a final concurrence vote on SB 474 , SB 476 and SB 477 . Additionally, on another party-line vote, the chamber approved HB 4949 , HB 4951 , HB 4953 , HB 4954 , HB 4955 and HB 4956 (See “Abortion Restriction Repealers Pass House; 24-Hour Waiting Period, Medicaid Funding Ban Stay In Place,” 11/1/2023), (See “Senate OKs Lifting Abortion Restrictions,” 10/19/2023).
Today we made huge progress in Michigan to expand reproductive freedom with final passage of the Reproductive Health Act.
Now, I get to sign it, and I couldn’t be more excited. Here’s why.
— Governor Gretchen Whitmer (@GovWhitmer) November 7, 2023
The final package submitted to the governor’s office will lift detailed post-abortion reporting mandates a provider must provide to the Michigan Department of Health and Human Services (DHHS), and would no longer require abortion-providing facilities to be licensed as freestanding surgical outpatient facilities.
Additionally, higher education institutions in Michigan will be permitted to make abortion referrals through their pregnant and parenting student services office, and prospective abortion patients will no longer need to review certain educational and alternative option materials.
Moreover, HB 4949 would ultimately ban penalties or prosecution from occurring over a post-fetal viability abortion that was “medically indicated” to protect the pregnant individual’s physical or mental health by an attending health care professional. Sentencing guidelines concerning “partial birth abortion” would also be eliminated by the legislation.
Sen. Thomas Albert (R-Lowell) unsuccessfully attempted to amend the package to keep Michigan’s “partial birth abortion ban on the books,” especially with the federal Partial-Birth Abortion Ban Act still intact.
“Eliminating a state law and leaving only federal law in place creates issues. First off, the federal government could change their law and remove any ban of partial-birth abortion whatsoever. Additionally, relying only on federal law monumentally weakens enforcement. No state can be forced to enforce federal law,” Albert said. “One may argue that this procedure rarely happens, but that does not mean that we should not have a law prohibiting it. Many of our state laws criminalize conduct that rarely happens.”
Albert referenced a procedure where part of a fetus’ body is removed from the womb, but the brain is “sucked out and its head is crushed.” In the aftermath of his remarks, Sen. Mallory McMorrow (D-Royal Oak) said partial-birth abortion was not a medical term at all, and in 2021, “in a state of 10 million people, there were exactly two abortions performed after 28 weeks.”
McMorrow shared the story of Michal Nodel, a once-pregnant constituent, who learned at her 20-week appointment that collagen – the protein in bones, muscles and blood – was not developing for the child she was “so looking forward” to bringing into the world.
“Doctors advised then that if they decided to proceed with the pregnancy that the fetus very likely would not survive, and that if it did, (their) baby might only live a few days and only know a life of suffering – a sneeze might break a rib, that any movement, any breath would be nothing but pain and agony,” McMorrow said.
McMorrow learned from Nodel that at first, her medical providers were afraid to perform an abortion because of Michigan’s statute involving partial-birth abortions.
“We heard the previous speaker speak about the gore of the procedure in a way that really dehumanizes and demonizes the people who suddenly find themselves having to make a decision that they never anticipated they might have to make,” she said.
Ahead of taking votes on the House RHA bills, Senate Majority Leader Winnie BRINKS (D-Grand Rapids) described a situation where a couple discovered, during a 20-week ultrasound, that their daughter would suffocate at birth due to having a congenital diaphragmatic hernia, limiting her ability to bring oxygen to her body.
Brinks said they ended the pregnancy at 21 weeks, “as an act of compassion.”
The legislation continues to no longer feature a provision eliminating the 24-hour waiting period for abortion, nor does it allow for all abortion services to be reimbursed with state Medicaid funding.
McMorrow, who personally sponsored legislation to allow for Medicaid abortion coverage, said the specific proposal is something she’s committed to keep working on.
“It really devastates women without the means to afford the care that the rest of us have, and it shouldn’t matter what your income or tax bracket is to be able to get the healthcare that you need to decide,” she said.
On this week’s episode of the MIRS Monday Podcast, Dr. Rob Davidson, the executive director of the Committee to Protect Health Care, described why his advocacy organization, with more than 10,000 medical professionals involved, backs the RHA and believes more work needs to be done.
In other Senate news, the chamber approved legislation today requiring real estate brokers and real estate licensees in Michigan to spend one hour learning about local, state and federal fair housing laws.
In Michigan, the aforementioned licensees are expected to complete 18 continuing education (CE) hours in a three-year license cycle, with at least two hours of CE taking place annually. HB 4717, which passed 36-1 in the Senate this afternoon, would mandate that one of those 18 hours consists of a course on fair housing laws.
Sen. Jonathan Lindsey (R-Brooklyn) opposed the legislation.
“The challenges facing Michigan’s housing market aren’t just about the housing supply and affordability issues, but also making sure that people have access to it,” said Vice President Brad Ward of Public Policy for the Michigan Realtors to the Senate Regulatory Affairs Committee on Oct. 26. “This is an important way that we make sure that all real estate licensees continue to be trained.”