Law Commons^™

Measles And Misrepresentation In Minnesota: Can There Be Liability For Anti-Vaccine Misinformation That Causes Bodily Harm?, Dorit Rubinstein Reiss, John Diamond

San Diego Law Review

Balancing protecting and compensating victims of harmful fake news and protecting freedom of speech and the information flow is both important and challenging. Vaccines are one area where misinformation can directly cause harm. When misrepresentation leads people to refuse vaccines, disease outbreaks can happen, causing harm, even deaths, and imposing costs on the community. The tort of negligent misrepresentation that causes physical harm appears a custom-made remedy for those affected. However, courts—appropriately— narrowed the tort to protect freedom of speech and the flow of information. This Article uses an especially egregious example of anti-vaccine misrepresentation to examine the boundaries of …

The Duality Of Provider And Payer In The Current Healthcare Landscape And Related Antitrust Implications, Julia Kapchinskiy

San Diego Law Review

Health care landscape has changed with the introduction of the ACA and will keep changing due to the proposed repeal. The only constant is the desire of health plans and providers to maximize profits and minimize costs, which is attainable through consolidation. This Comment advocates a revision of the existing antitrust guidelines that would (1) recognize unique nature of health care market, (2) be independent from the current or proposed legislation to the maximum possible extent, and (3) reflect the insurer-provider duality, which heavily influences the quality and accessibility of the healthcare for the consumer.

Masking Your Rights: Facemask Requirements Under Mandatory Influenza-Vaccination Policies Violate Privacy Rights Of Health Care Workers, Janet S. Kim

San Diego Law Review

Hospitals should abandon the facemask requirements in their mandatory influenza-vaccination programs because the facemasks can infringe on the privacy rights of health care workers, and hospitals can still achieve their vaccination goals through less restrictive practices. Part II introduces the recent rise of mandatory influenza-vaccination policies for health care workers, how hospitals exempt certain employees, and the consequences for those exempted. Part III discusses the legal implications of requiring exempted employees to wear facemasks and other identifying material under federal and state privacy law. Part IV recommends that health care employers abandon facemask requirements in their mandatory-vaccination programs in order …

Byrne: Closing The Gap Between Hipaa And Patient Privacy, Austin Rutherford

San Diego Law Review

HIPAA’s lack of an individualized remedy harmed individuals and left the law a toothless monster, but Byrne begins to fill the longstanding gap by offering greater protection for individuals and their sensitive information. Byrne will also incentivize better compliance with HIPAA by instilling in companies a fear of sizeable tort suit damage awards.

Part II of this Note introduces HIPAA and its ability to protect sensitive health information. Part III discusses the facts, holding, and reasoning of Byrne, in which a state supreme court, for the first time, recognized HIPAA requirements as a duty owed in negligence claims. Part IV …

Whose Genome Is It Anyway?: Re-Identification And Privacy Protection In Public And Participatory Genomics, Sejin Ahn

San Diego Law Review

This Comment advocates for a comprehensive solution to achieve the balance between privacy rights and availability of information. In particular, a strong ban on malicious re-identification and broader anti-discrimination and privacy legislation are necessary to ensure the participants' privacy protection and encourage participation in genomics projects. In addition, the scientific community should establish data standards that can aid in implementation of protective measures to minimize privacy violations. Part II provides an overview of recent developments in genomic technologies and public and participatory genomics. Part III summarizes the privacy issues present in public genomics. Part IV reviews current legislation on genetic …

Matched Preferences And Values: A New Approach To Selecting Legal Surrogates, Nina A. Kohn

San Diego Law Review

Every day, hospitals are filled with incapacitated patients whose healthcare decisions are made by someone else. The law recognizes such decisions as the patient’s own, and accordingly, the primary purpose of surrogate decisionmakers is to make the decisions that patients would make if able. Unfortunately, surrogate decisionmakers frequently make choices for patients that are inconsistent with patient wishes. Indeed, social psychology literature on surrogate decisionmaking finds a stronger correlation between surrogates’ decisions for patients and what the surrogates would want for themselves, than between the surrogates’ decisions and what the patients actually would want. Although others have treated surrogates’ tendency …

Toward Coherent Federal Oversight Of Medicine, Patricia J. Zettler

San Diego Law Review

The conventional wisdom in U.S. health law and policy holds that states regulate medical practice—the activities of physicians and other health care professionals—while the federal government regulates medical products. But relying on states as the principal regulators of medical practice has, at times, driven law and policy in directions that are problematic from a public health perspective, as demonstrated by a deadly 2012 outbreak of fungal meningitis that was linked to a primarily state-regulated practice known as drug compounding. This Article argues that the federalism concerns underlying the conventional wisdom are misplaced. It demonstrates that, contrary to conventional wisdom, the …

When Condoms Fail: Making Room Under The Aca Blanket For Prep Hiv Prevention, Jason Potter Burda

San Diego Law Review

Given the alarming upward trend in HIV infection rates and the downward trend in condom usage, the United States needs a new approach to HIV prevention. One such approach, HIV pre-exposure prophylaxis, commonly known as “PrEP,” has the potential to significantly reduce HIV incidence. The FDA recently approved a daily dose of Truvada®—an antiretroviral drug that suppresses the virus in HIV-positive individuals—for daily use by high-risk HIV-negative individuals to prevent infection. Despite an efficacy above ninety percent and significant regulatory momentum, this pharmacological prevention modality has proven difficult to implement. This Article addresses the social, legal, and policy challenges that …

After Caronia: First Amendment Concerns In Off-Label Promotion, Stephanie M. Greene

San Diego Law Review

The government has successfully prosecuted pharmaceutical companies for off-label promotion of drugs, maintaining that such promotion impermissibly undermines the FDA’s premarket approval process and jeopardizes the public health. In several recent cases, however, pharmaceutical companies have alleged that regulations prohibiting such promotion are unconstitutional because off-label promotion is protected under the First Amendment. Two recent U.S. Supreme Court cases contain language that gives broad protection to advertising and marketing in the pharmaceutical field. This Article questions the reach of these cases as applied to the practice of off-label promotion through detailing.

Mental Disorder And The Civil/Criminal Distinction, Grant H. Morris

San Diego Law Review

This essay, written as part of a symposium issue to commemorate the 50th anniversary of the University of San Diego Law School, discusses the evaporating distinction between sentence-serving convicts and mentally disordered nonconvicts who are involved in, or who were involved in, the criminal process–people we label as both bad and mad. By examining one Supreme Court case from each of the decades that follow the opening of the University of San Diego School of Law, the essay demonstrates how the promise that nonconvict mentally disordered persons would be treated equally with other civilly committed mental patients was made and …

Genetic Interventions: (Yet) Another Challenge To Allocating Health Care, Arti K. Rai

San Diego Law Review

Much of the existing literature on genetic intervention addresses questions of discrimination or reproductive decisionmaking. Although this book discusses those questions,

it takes as its major focus an issue that is perhaps even more vexing—the issue of how we should, from the standpoint of distributive justice, allocate genetic interventions. In other words, given the wide range of genetic interventions that may become available, how should we divide such interventions? Implicit in this problem is the reality that scarcity will prevent individuals from having access to all genetic interventions that would be of benefit to them. In this brief Essay, I …

The Ethics Of Genetic Intervention: Human Research And Blurred Species Boundaries, Rebecca Dresser

San Diego Law Review

From Chance to Choice: Genetics and Justice1

is a well-written and tightly argued analysis. This Essay addresses two topics meriting more attention than they received from these authors. First, this Essay considers in greater detail a topic the book briefly addresses—the human research necessary to support clinical use of genetic interventions. What appears as simply a step along the way to clinical benefits may actually present serious impediments. Second, this Essay expands on a point the authors mentioned only in passing. They noted that developments in

genetics are blurring traditional species boundaries. Blurred boundaries between humans and other species raise …

Deconstructing Binary Race And Sex Categories: A Comparison Of The Multiracial And Transgendered Experience, Julie A. Greenberg

San Diego Law Review

Millions of people are transgendered

and cannot easily be categorized as either male or female. Similarly, millions of people are multiracial and cannot be classified as being of one distinct race. Race classification systems have existed for centuries and have been the subject of extensive commentary and critique for decades. Sex and gender classification systems, on the other hand, have just started to become the subject of litigation in the last half of the twentieth century

and it is only during the last decade that sex classification systems have become the topic of extensive scholarly discussion.

Does Technological Enhancement Of Human Traits Threaten Human Equality And Democracy?, Michael H. Shapiro

San Diego Law Review

This Article outlines some of the moral, legal, and general policy difficulties that societies and individuals will face if technological enhancements via germ line and somatic mechanisms become possible. It identifies and analyzes some of the conceptual structures necessary to explain the nature of these difficulties, suggests some alternative basic scenarios—such as greater or lesser scarcity of technological enhancement resources, impacts on how we perceive each other, and different remediation patterns—and then maps and reverse maps the projected technological developments against the value and legal structures. This Article also describes and comments on what may seem to be, from our …

Punishing Reproductive Choices In The Name Of Liberal Genetics, Alexander Morgan Capron

San Diego Law Review

When the four American moral philosophers who individually have already made the most significant contributions to the ethical analysis of contemporary health care and medicine collaborate, it should come as no surprise that their joint effort is a lucid and powerful analysis of the principles that a just and humane society would employ in setting policies about how the new tools of molecular genetics should be used for human betterment. In From Chance to Choice: Genetics and Justice, Allen Buchanan, Dan W. Brock, Norman Daniels, and Daniel Wikler aimed to steer a middle course between two extreme models. The first …

Genetic Enhancement, Distributive Justice, And The Goals Of Medicine, Mark A. Hall

San Diego Law Review

In this brief Essay, I focus on chapter 4 of the book’s discussion of the distinction between treatment and enhancement.

This distinction is at the core of many of the most challenging problems of ethics and public policy raised by genetics. This is also the place where there appears to be disagreement or ambivalence among these authors

and where fault

lines appear in their otherwise remarkably united front.

Is Moral Theory Perplexed By New Genetic Technology?, Richard J. Arneson

San Diego Law Review

From Chance to Choice: Genetics and Justice

intelligently addresses difficult issues at the intersection of medical ethics and the theory of justice. The authors Allen Buchanan, Dan W. Brock, Norman Daniels, and Daniel Wikler repeatedly emphasized their opinion that advances in genetic technology force upon us entirely new ethical questions that previous moral theories lack the resources to resolve.

The claim that

new scientific discoveries render previous moral theories obsolete should be regarded with suspicion. Suspicion should be further aroused when readers note another feature of the authors’ theorizing that neatly fits the claim that we stand at the dawn …

How Not To End Disability, Janet Radcliffe Richards

San Diego Law Review

When advances in genetic technology offer the chance of preventing or curing disease and disability, it is one thing to recommend caution on the grounds that these obvious benefits may be outweighed by associated harms. It is quite another to deny even that there are benefits to be outweighed, and that attempts to prevent disability by these means should be resisted outright. That, however, is a view that is increasingly widespread in the disability rights movement.

A Rawlsian Approach To Solving The Problem Of Genetic Discrimination In Toxic Workplaces, Robert A. Bohrer

San Diego Law Review

The Human Genome Project (HGP) may well be the beginning of a technological leap that rivals the advent of the Industrial Age.2 The principal goal of the project is to map and fully sequence3

the twenty- four chromosomes that contain the complete genetic contents of a

normal human cell. The human genome consists of twenty-two pairs of chromosomes plus the X and Y chromosomes that determine gender.4 As would be expected for such a technologically adventurous undertaking, the HGP has been accompanied by a substantial outpouring of concern about the ethical, legal, and social issues that will arise from this …

Regulation Of Physician Self-Referral Arrangements: Is Prohibition The Answer Or Has Congress Operated On The Wrong Patient, Christian D. Humphreys

San Diego Law Review

Rapidly increasing health care costs have created a national crisis. Perceiving physician referral behavior as the principal cause, Congress and several state legislatures have prohibited certain referrals. This Comment analyzes the data that spawned such legislation and critiques prohibition of referrals as a solution to the crisis. The Comment asserts that the prohibition remedy is overly broad and largely ineffective. The author recommends a more farsighted solution, such as the creation of a prepaid physician compensation system. The author argues that such a system would minimize the incentive to make unnecessary referrals while simultaneously reducing the level of health care …