Telephone prescriptions for Plan B?

Where do Plan B and tort reform intersect?

So the Bush Administration, under pressure from the anti-sex fanatics, in turn pressured the FDA to overrule its own advisory committee and refuse to make the Plan B “morning-after” contraceptive available without prescription.

No surprise there, but a good reminder that all that pandering to the religious right isn’t just symbolism; actual human beings will die, or have their lives ruined, as a result. (Note that Planned Parenthood, with whose own family-planning and abortion services Plan B is a direct competitor, bitterly criticized the decision.)

Still, one might ask, what’s the problem? All the ruling means is that the drug requires a prescription. Yes, getting a doctor’s appointment within the 72-hour window of effectiveness can be a real problem, especially for poor women and young women.

But why can’t we organize a group of physicians to ensure that there is always someone on call via an 800 number to conduct a patient interview by telephone and then fax a prescription to the pharmacy? If that 800 number were posted at each pharmacy, the result would be (almost) functionally equivalent to OTC status, except for the issue of paying the doctors.

If you couldn’t find enough MDs to fill the rota for free, maybe a foundation would fund it (or fund that part of it provided to patients who didn’t have a credit card handy).

Well, it’s a cute idea, but it won’t work. Why not? Malpractice liability.

At least that’s what my doctor friends tell me. Any doctor who wrote such a script without physically seeing the patient would be at enormous liability risk if anything bad happened, which it sometimes would, even though there’s no actual need to do a physical before prescribing Plan B.

And while the patients would presumably be happy to get the prescriptions even if they had to waive the right to sue in order to get it, such a waiver would be invalid. The fact that the service was being provided gratis wouldn’t matter at all.

It does rather make you view “tort reform” in a different light, doesn’t it?

Yes, I know that doing tort reform right would involve:

— cracking down on the abuses of the insurance companies as well as those of the plaintiffs’ bar (e.g., by punishing bad-faith refusals to compensate and by repealing the champerty laws so plaintiffs could sell pieces of their claims);

— providing no-fault compensatory care and income support for those whose very bad medical outcomes aren’t actually anyone’s fault;

— changing the medical discipline system to make it easier to get rid of bad doctors;

and I also know that no one who’s pushing the “tort reform” agenda is actually in favor of any of that. If we’re not going to have a European-style welfare state, we’re going to have something like an American-style tort system, just because someone has to pick up the pieces when things go badly, and the tort reformers remain in denial about that elementary fact.

Still, it would be silly to pretend that the current system doesn’t have major nonfinancial costs, and the unavailability of prescriptions by phone is among them.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

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