Health Law and Policy Commons^™

Health Care: Yellow Lights, Red Flags, Robert B. Leflar

Robert B Leflar

Column 1 (of 5) on the health reform debate

John Contracts Skin Disease At Spa, Donna M. Hughes Dr., Melanie Shapiro Esq

Donna M. Hughes

An Empirical Examination Of The Factors Associated With The Commutation Of State Death Row Prisoners’ Sentences Between 1986 And 2005, John D. Kraemer

John D Kraemer

Commutation is usually a death row prisoner’s last hope of evading his or her capital sentence. However, unlike many other stages of the death penalty process, little research focuses on the factors that affect decisions to commute or allow a death sentence to go forward, and that which has been conducted utilizes data which is now nearly a decade old. This paper seeks to examine personal and demographic factors associated with commutation decisions and to resolve incon- sistent findings in the prior research. Using the statistical method of multiple logistic regression, this paper finds statistically significant disparities in the odds …

Screening Of Prisoners For Hiv: Public Health, Legal, And Ethical Implications, John D. Kraemer

John D Kraemer

Inmates are disproportionately impacted by HIV/AIDS in the United States. As a result, correctional health systems have often screened prisoners -- either at entry or while incarcerated -- for HIV. This paper assesses the likely public health impact of such programs and concludes that they can be beneficial so long as screening programs are linked with adequate prevention and treatment. It also assesses the conditions under which screening programs comply with or violate United States constitutional law and ethical norms.

The Regulation Of Medical Malpractice In Japan, Robert Leflar

Robert B Leflar

How Japanese legal and social institutions handle medical errors is little known outside Japan. For almost all of the 20th century, a paternalistic paradigm prevailed. Characteristics of the legal environment affecting Japanese medicine included few attorneys handling medical cases, low litigation rates, long delays, predictable damage awards, and low-cost malpractice insurance. However, transparency principles have gained traction and public concern over medical errors has intensified. Recent legal developments include courts' adoption of a less deferential standard of informed consent; increases in the numbers of malpractice claims and of practicing attorneys; more efficient claims handling by specialist judges and speedier trials; …

The Irrational Woman: Informed Consent And Abortion Decision-Making, Maya Manian

Maya Manian

In Gonzales v. Carhart, the Supreme Court upheld a federal ban on a type of second-trimester abortion that many physicians believe is safer for their patients. Carhart presented a watershed moment in abortion law, because it marks the Supreme Court’s first use of the anti-abortion movement’s “woman-protective” rationale to uphold a ban on abortion and the first time since Roe v. Wade that the Court denied women a health exception to an abortion restriction. The woman-protective rationale asserts that banning abortion promotes women’s mental health. According to Carhart, the State should make the final decisions about pregnant women’s healthcare, because …

Answering The Millennium Call For Maternal Health, Margaux Hall, Aziza Ahmed, Stephanie Swanson

Aziza Ahmed

Complications during childbirth and pregnancy are a main source of death and disability among women of reproductive age. Approximately 536,000 women die from pregnancy-related complications each year. Developing countries suffer most profoundly, accounting for 99% of deaths. The world's nations, by endorsing U.N. Millennium Development Goals, recognized that most deaths are preventable; they have pledged to reduce maternal mortality by 75% by 2015. This Article assesses the barriers presented by user fees — formal charges for health services still charged by many countries — to the attainment of MDGs. It shows that user fees hamper healthcare access, particularly in emergency …

Who Owns Your Body? A Study In Literature And Law, Lori B. Andrews

Lori B. Andrews

No abstract provided.

Blocking Humanitarian Assistance: A Crime Against Humanity?, John D. Kraemer, Dhrubajyoti Bhattacharya, Lawrence O. Gostin

John D Kraemer

Governments have the duty to respect, protect, and fulfill the right to health. During humanitarian emergencies, governments continue to have these duties. When large numbers of people are in grave risk of death or irreparable harm during humanitarian emergencies, governments have an obligation to mitigate that risk or, if they lack the resources, to allow and facilitate support from the international community. To block international assistance, as Burma did after Cyclone Nargis, can constitute a crime against humanity under international law.

Healthy Competition: What’S Holding Back Health Care And How To Free It, Michael F. Cannon

Michael F. Cannon

No abstract provided.

Mental Health Parity Laws, Louis Graham, Kisha Braithwaite

Louis F Graham

Medical Error As Reportable Event, As Tort, As Crime: A Transpacific Comparison, Robert B. Leflar, Futoshi Iwata

Robert B Leflar

All nations seek to reduce the human toll from medical error, but variations in legal and institutional structures guide those efforts into different trajectories. This article compares legal and institutional responses to patient safety problems in the United States and Japan, addressing developments in civil malpractice law (including discoverability of internal hospital documents), administrative practice (including medical accident reporting systems), and - of particular significance in Japan - criminal law. In the U.S., battles over rules of malpractice litigation are fierce; tort law occupies center stage. The hospital accreditation process plays a critical role in medical quality control, and peer …

Informed Consent And Patients' Rights In Japan: 2001 Epilogue, Robert B. Leflar

Robert B Leflar

Japan is on a steeper trajectory toward the incorporation of informed consent principles into medical practice than the “gradual transformation” observed in a 1996 article, Informed Consent and Patients’ Rights in Japan. Among the most significant recent developments from 1996 to 2001 have been these seven: (1) the 1997 enactment of the Organ Transplantation Law permitting the use of brain death criteria in limited circumstances in which informed consent is present; (2) the strengthening of patients’ rights in clinical drug trials; (3) the continued trend toward increasing disclosure to patients of cancer diagnoses; (4) initiatives by the health ministry toward …

Informed Consent And Patients' Rights In Japan, Robert B. Leflar

Robert B Leflar

This article analyzes the development of the concept of informed consent in the context of the culture and economics of Japanese medicine, and locates that development within the framework of the nation's civil law system. Part II sketches the cultural foundations of medical paternalism in Japan; explores the economic incentives (many of them administratively directed) that have sustained physicians' traditional dominant roles; and describes the judiciary's hesitancy to challenge physicians' professional discretion. Part III delineates the forces testing the paternalist model: the undermining of the physicians' personal knowledge of their patients that accompanies the shift from neighborhood clinic to high-tech …

Public Accountability And Medical Device Regulation, Robert B. Leflar

Robert B Leflar

In enacting the Medical Device Amendments of 1976, Congress instituted a flexible system of regulatory controls over a vast array of health care products. Analyzing the complex statute and its legislative history, Professor Leflar finds at the law's core a structure designed to ensure the Food and Drug Administration's accountability to the public for its regulatory actions. Reviewing the history of FDA's implementation of the medical device law, however, the author demonstrates that FDA has strayed widely and, he contends, illegally from the congressionally mandated structure of public accountability. In particular, in its review of new-model medical devices in the …