Friday, October 07, 2005
Eddy Curry and Genetic Discrimination
The notion of genetic discrimination conjures up images of a Gattaca-type future where opportunities are only available for those with superior DNA. But there's a situation developing now in which an employee may be prevented from working if he doesn't submit to a DNA test. And my sympathies may actually lie with the employer.
Eddy Curry is a talented 6' 11" center who was just traded from the Chicago Bulls to the New York Knicks. Last spring, while playing a crucial rule on a team with playoff hopes, Curry was diagnosed with an irregular heartbeat and an enlarged heart. Some doctors believe he is at risk for hypertrophic cardiomyopathy, or HCM. HCM is the same heart problem that lead to the deaths of Hank Gathers and Reggie Lewis while playing basketball.
Curry was benched after his diagnosis. The Bulls wanted Curry to undergo a battery of tests, including a DNA test, to determine his condition. Apparently there are no conclusive tests to find HCM, but a DNA test can be dispositive in some situations. Curry refused the DNA test. And the Bulls refused to play him until he took it.
The stalemate has been broken by this week's trade. The Knicks are willing to let Curry play without the DNA test. Some have argued that the Knicks' decision doesn't make sense from a basketball-skills perspective. But others (namely New York Times sports columnist Bill Rhoden, and I can't link to him thanks to the NYT's self-defeating new policy) have argued that the trade doesn't make sense from a league perspective. As Rhoden points out, if Curry does have HCM and the NBA still lets him play, the league will bear some responsibility for the consequences. Rhoden argues that the NBA needs to step in and determine Curry's condition as a league matter.
Because of the medical issues involved, it's hard to say whether Curry is being unreasonable. The Bulls' doctor wanted Curry to take the DNA test, while other doctors think that it wouldn't be all that conclusive. But it's hard to see why Curry wouldn't want to take the test -- unless, of course, he's willing to risk his life to stay in the NBA.
If the Knicks allow Curry to play, this will not be a case of genetic discrimination. But the NBA could adopt a policy, similar to the Bulls' position, saying that players at risk are required to undergo DNA testing. Pauline Kim at Wash. U. has suggested that protections against genetic discrimination should be framed as an issue of privacy rights, rather than as an issue of discrimination based on immutable characteristics. The Curry case offers a nice example of this. Curry wants to keep his DNA private. But by doing so, he seems to place himself at greater risk of catastrophic heart failure. It's not hard to think that the Bulls, rather than the Knicks, are doing the right thing here.
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Tracked on Oct 16, 2005 3:24:02 PM
I thought that Curry's objection was having to share this information with the Bulls, the Knicks, or the NBA. Has Curry said that he will not take this test, even on his own and keeping the results private? If the test can provide valuable information (there seems to be some debate over this), it would appear that he has every incentive in the world to take it. Nonetheless, I agree entirely that the Bulls' position (which apparently also included paying Curry a significant salary for the rest of his life if the test came back positive) is tough to fault.
Posted by: Joshua Wright | Oct 7, 2005 4:00:51 PM
If the guy wants to risk his life to play for the NBA, isn't that his right? As long as the NBA and/or the relevant team can limit their liability, why should we care whether the guy undertakes what we might personally consider unnecessary risks to life or limb. It strikes me that professional sports players undertake such risk all the time.
Posted by: Ethan Leib | Oct 7, 2005 4:07:19 PM
It's not a pure privacy matter, of course; the clashing interests are Curry's (in playing, more than just asserting a naked privacy interest) vs. everyone else's (who want to not have an NBA player suddenly drop dead of a heart condition, particularly on the court, if it can be avoided).
There's liability involved - the league, the teams, the doctors, the coaches. Can you let a player get injured? If it's not on purpose, sure. Can you let a player play, _knowing_ you could have lowered the odds that he'll die on the court dramatically? Well, a court (or a jury) might take a dim view.
It's not just about sympathy - what does Learned Hand's B vs PL tell us?
What's efficient here? And are we willing to end this guy's dream just because it might kill him?
Posted by: Eh Nonymous | Oct 7, 2005 4:10:45 PM
Ethan: are you advocating getting rid of all paternalistic laws or only those that apply to professional athletes?
Posted by: Kate Litvak | Oct 7, 2005 4:33:37 PM
Kate: Not advocating anything. Asking a question. Even Milton Friedman (you like him, no?) acknowledges that we need paternalism sometimes. The action is really about where, when, and how it is appropriate.
Are we arguing about whether the NBA should require such tests as a policy matter? Or are we arguing about whether the government should allow the NBA to adopt such a policy? These are separate questions, which invoke different ideas of paternalism; reasonable people could differ on either question.
In the particular context we are discussing, I suppose I think it would be an odd society that allows people to take their bodies to dangerous limits in boxing, hockey, and football but thinks it makes sense to prevent people from risking their lives in basketball by refusing to take an inconclusive test. Maybe more a coherence principle than an anti-paternalist instinct is where my comment is coming from. But notice, in any case, that if the NBA wants to take a "paternalistic" stance and not allow people at risk to play, I suppose that's their right too. Or are you such an anti-paternalist that you try to prevent organizations from being paternalist themselves?
Posted by: Ethan Leib | Oct 7, 2005 5:16:05 PM
Do you ask that question on all posts relating to paternalistic laws, or only posts that you disagree with?
Posted by: Kaimi | Oct 7, 2005 5:54:34 PM
I just want to understand the extent of Ethan's argument. For example, should we allow stupid people to put their *bodies* in danger, but not allow them to put their *money* in danger? (The latter would affect one's position on securities and debtor-creditor laws). Should we allow stupid people put their bodies in danger by participating in crazy sports, but not by taking medicine that's not FDA-approved? How about putting one's body in danger by not wearing a motorcycle helmet? By knowingly eating food at a restaurant that's not approved by local health officials? By knowingly living in a house full of asbestos? By knowingly hiring a "doctor" who is not licensed to practice medicine? The list can continue. Just wondering how far Ethan wants to take his “leave-me-alone” position.
Posted by: Kate Litvak | Oct 7, 2005 6:21:15 PM
Curry wants to keep his DNA private. But by doing so, he seems to place himself at greater risk of catastrophic heart failure.
Why isn't he entitled to make this choice for himself?
And Kate, since I'm adopting Ethan's position, I'll hazard an answer to your challenge to Ethan's position too (yes, in law school I was one of those horrible gunners who took questions for others): Presumably, since he is no doubt insanely wealthy, he can afford the services of competent doctors to advise him! He is in a very different position from an ordinary person facing decisions about credit cards, home loans, etc. and staring at incomprehensible documents, or making decisions about risk on things like motorcycle helmets when they have no information. He can afford doctors, who can advise him on the health risks so that he will make an intelligent and free decision.
Eh nonymous: the clashing interests are Curry's (in playing, more than just asserting a naked privacy interest) vs. everyone else's (who want to not have an NBA player suddenly drop dead of a heart condition, particularly on the court, if it can be avoided).
Why does anyone else have anything more than a di minimis interest in the fate of an NBA player? (Or any other person not in their family or circle of friends.)
Posted by: Paul Gowder | Oct 7, 2005 7:54:50 PM
Framing the discussion as Curry’s “right” to determine his own career despite attendant risks versus the NBA’s paternalism doesn’t seem quite right to me for a couple reasons.
First, the NBA's objection is, I suspect, more in the nature of self-interest than paternalism. If Curry dies on the court in a very public way (or even during practice) from a disease the NBA was aware of, they'll have a public relations disaster on their hands, as they will likely be accused (however wrongly) of complicity in the death by some vocal subset of the public and the media.
And as for the question whether Curry should be permitted to make his own decision regarding his future, I find Ethan’s anti-paternalism appealing, but what makes me wonder about it are some of the behavioralist insights about how people assess catastrophic risks. For example, people tend to exhibit unwarranted optimism about risks they face. So Curry may wrongly think that the disease that killed Hank Gathers and others won’t create problems for him, and choose to play, despite that an objective analysis of the costs and benefits (if one were available) would suggest a different result. The idea that people systematically make errors in judgment when making these kinds of risk assessments suggests that a simple anti-paternalistic approach won’t result in fair (or, if you prefer, socially optimal) outcomes.
Posted by: Dave | Oct 7, 2005 8:42:29 PM
Dave: do you think that wealthy people with access to numerous professional advisers make the same kinds of systematic errors that ordinary people do in these risk assessments?
Posted by: Paul Gowder | Oct 7, 2005 8:51:31 PM
Paul's proposed rule of emancipation upon reaching a certain wealth level has interesting ramifications. It would be interesting to see what political consensus would develop for where to set the Gowder Line. Would college professors lobby for the same emancipation rights as wealthy millionaires because they're already sufficiently sophisticated? And once that happens, would the NEA dare to suggest that teachers aren't entitled to the same status? Before you know it, every Sneech will have a star on his belly.
Posted by: Ted | Oct 7, 2005 10:24:40 PM
Also, let me be the first to mention Johnson Controls, since no one else is. Discuss.
Posted by: Ted | Oct 7, 2005 11:00:11 PM
Ted mon ami, surely you can tell the difference between suggesting that it is inappropriate to act paternalistically toward someone who unquestionably has access to highly competent advisers and a wealth-emancipation rule. If you can't, may I respectfully suggest you refrain from voting, teaching, driving breeding, or operating heavy equipment?
If you want a general rule, I'll give you one. People with a good reason for not being held personally responsible for their decisions in complea situations requiring risk analysis, financial analysis, etc. Ought not to be held responsible if it is at all practical to so relieve them. There are, however, personal characteristics which preclude most claims that it is reasonable to relieve people of responsibility for decisions which might be problematic for normal people, like medical risk management and complex financial resources. Those personal characteristics include, but are not limited to, expertise in the area st issue, extremely advanced general education, extensive experience in similar situations, and ample resources and incentive to obtain expert advice.
Sorry for disappointing your desire to see me endorse a wealth emancipation rule.
Posted by: Paul Gowder | Oct 7, 2005 11:09:37 PM
Johnson Controls doesn't really apply in this context. I know because I lost the relevant case in the Supreme Court -- Chevron USA v. Echazabal.
Posted by: Sam Bagenstos | Oct 7, 2005 11:27:26 PM
Paul's proposed rule of emancipation upon reaching a certain wealth level has interesting ramifications. It would be interesting to see what political consensus would develop for where to set the Gowder Line. Would college professors lobby for the same emancipation rights as wealthy millionaires because they're already sufficiently sophisticated?
This is an interesting line of thought, because such a rule actually exists in securities law. Those who are considered "qualified investors" are allowed to make certain investments that others can not. This became a problem in the IPOs of various Linux companies, who wanted to extend "friends and family" share purchase arrangements to linux contributors. As I recall, one of the banks involved explicitly told programmers to lie on the forms, and no one would check.
Posted by: Adam | Oct 8, 2005 12:05:48 AM
Living in Chicago, this got a fair bit of coverage...
I could be wrong, but I was under the impression that an echo cardiogram would actually be dispositive with regard to whether or not Curry was *currently* suffering from an HCM related heart problem and that the DNA test could not be used for positive diagnosis, but rather to determine predisposition. The genetic mutation in question only occurs in something like 50% of the people who suffer from HCM, which is hardly conclusive (but certainly a risk factor).
It would seem to me that if the concern of the Bulls was really Curry's current health, insisting on an echo would be completely reasonable. But other than economic motives (such as low-balling his contract) what purpose would a DNA test serve for the Bulls? If he currently has a healthy heart, he can play. He could be required to have regular echoes and benched if a problem develops.
Bull's management aren't known for their concern for the players or their paternalism. I question if their motives for wanting the DNA test had much to do with Curry putting himself at risk or more to do with contract negotiations.
Posted by: Dave! | Oct 8, 2005 12:21:45 AM
I'm not saying Johnson Controls applies; it doesn't, because it dealt with a particular statutory construct. I'm saying that Johnson Controls raises similar questions to that which Matt raised. So does Echazabal, which deals with a particular regulatory construct.
Posted by: Ted | Oct 8, 2005 8:30:29 AM
One person will be allowed to take risk X, while another person won't be allowed to take the exact same risk, because of a judgment that the former is smarter, better educated, or better advised.
Can you put aside your feigned indignation and craft an actually workable rule? (An "actually workable rule," that is, in contrast to what you term a "general rule," which is actually just a sort of vague mission statement?) For the rule to be "actually workable," it needs to let people know a priori whether to allow a particular person to take a particular risk. The wealth emanicipation rule that you created and then denied you created would be such a rule; the "There are, however, personal characteristics which preclude most claims that it is reasonable to relieve people of responsibility for decisions which might be problematic for normal people, like medical risk management and complex financial resources. Those personal characteristics include, but are not limited to, expertise in the area st issue, extremely advanced general education, extensive experience in similar situations, and ample resources and incentive to obtain expert advice." would not be.
Posted by: David Nieporent | Oct 9, 2005 4:21:12 PM
David: live is not so simple as to permit one to make perfectly crystal rules "a priori [sic]." One hopes that people, acting in good faith and exercising their reasoning faculty in the public sphere, can come to fair conclusions on a case-by-case basis as to when it makes sense to charge someone with responsibility for managing complex situations and when it doesn't.
Posted by: Paul Gowder | Oct 14, 2005 4:08:58 PM
This is what I call DNA discrimination.
Posted by: Peter | Nov 10, 2005 5:28:24 AM
Some key points to this argument that should probably be taken into consideration:
A) Disclosure: Of course Eddy Curry already knows if he has hypertrophic cardiomyopathy or not. Any doctor worth his weight in salt would automatically give him this test because of his previous history. The question here is one of disclosure - whether Curry wants his employer to know his medical history.
B) Privacy: Of course the Bulls want to know if Curry has hypertrophic cardiomyopathy. Every employer in this country wants to know the history of his/her prospective employee. They already check on your credit background, criminal records, past employers, and possible drug use. Your medical history is one of the last vestiges of privacy left, and they're almost already there with the drug testing.
C) Self-determination: Eddy Curry does know he has a heart arrhythmia. But it's his own life. I don't know anyone who would regret dying doing what he loved doing. This country illegally rebelled against its government because its citizens decided death was a better option than the inability to determine their own course in life. I'd consider it a travesty if any American expected any less of him or herself.
The question is, why shouldn't they have access to this information? The most common justification I keep hearing is "the NBA is a very physical profession and teams should have the right to assess the risk of its players." Here's a newsflash - most of the manual labor jobs in this country are very physical, and those manual labor jobs make up the majority of the jobs in this country. You ever work at Lowe's? Or Wal-Mart? You don't think every computer contractor would like having privy to prospective employees' DNA records which may indicate that they may have propensities to back injury, carpal tunnel syndrome, or ocular disease?
It becomes almost laughable at this point, as the reality of the situation comes to bear: most people don't even take medical test anymore, even possibly ones that can indicate whether they are susceptible to certain diseases, in spite the fact that that knowledge could help them in terms of getting medication to alleviate that disease. Why? Simple - that knowledge can be used against them. Have you filled out an application for health insurance recently? Here's how it goes - "Have you ever been diagnosed or treated for (insert disease here)?" Of course, indicating yes will automatically disqualify you for getting coverage. And it's all perfectly legal and it happens thousands of times a day. Welcome to the United States, where only the healthy people get coverage and the jobs to be able to pay for that coverage. And now, apparently, the genetically disposed to be healthy may only get the real interviews for those jobs.
This phenomenon is not new. It's actually very ancient and it goes back thousands of years. It's obviously discrimination, but it's a special type of discrimination. It's something you're born into and you become immediately pegged for it in every facet of society. It dictates who you can to, who will talk with you, what kind of job you are allowed to hold, and the type of neighborhood you're allowed to live in. And you're marked for it for the rest of your life. It's not something they can tell by looking at you or talking with you. What we have today is the modern rebirth of the ultimate social descrimination mechanism: the caste system. The Genetic Caste System will be based upon what your DNA records show you are physically capable of. And you thought "Gattaca" was just a Hollywood movie.
Posted by: Mel Gibson | Jan 28, 2006 5:21:52 AM