Medical Jurisprudence Commons^™

Beyond Gift And Bargain: Some Suggestions For Increasing Kidney Exchanges, Nathan B. Oman

Nathan B. Oman

Each year, thousands of people in the United States die from end stage renal disease (ESRD), despite the fact that we have the medical knowledge necessary to save them. The reason is simple: these people need a kidney transplant and we have too few kidneys. Given our current technology, the only way to meet the massive annual shortfall between the number of kidneys that are donated and the number of kidneys that are necessary to save the lives of those with ESRD is to increase the number of living donations. The debate on how to do so has often pitted …

Organizations As Evil Structures, Cary Federman, Dave Holmes

Cary Federman

Nursing practice in forensic psychiatry opens new horizons in nursing. This complex, professional, nursing practice involves the coupling of two contradictory socioprofessional mandates: to punish and to provide care. The purpose of this chapter is to present nursing practice in a disciplinary setting as a problem of governance. A Foucauldian perspective allows us to understand the way forensic psychiatric nursing is involved in the governance of mentally ill criminals through a vast array of power techniques (sovereign, disciplinary, and pastoral), which posit nurses as “subjects of power.” These nurses are also “objects of power” in that nursing practice is constrained …

Human Genetics Studies: The Case For Group Rights, Laura S. Underkuffler

Laura S. Underkuffler

No abstract provided.

Financial Conflicts Of Interest In Science, Joanna K. Sax

Joanna K Sax

This article proposes that an analysis of behavior may be utilized to create an effective policy addressing financial conflicts of interest. Importantly, this article focuses on the academics that conduct basic science. An understanding of the background of the public-private interaction is critical to fully appreciate the rise of the financial conflicts of interest in biomedical science. Part II of this Article describes the rise of financial conflicts of interest and the types of harms that can occur in the absence of effective policy to regulate financial conflicts of interest. Part III describes the current system addressing conflicts of interest, …

Access To Prescription Drugs: A Normative Economic Approach To Pharmacist Conscience Clause Legislation, Joanna K. Sax

Joanna K Sax

The goals of this Article are two-fold: (1) to explain that pharmacist conscience clause legislation may be expanded to areas concerning controversial biomedical research; and (2) to demonstrate that welfare economics can be applied to analyze pharmacist conscience clause legislation. Regarding the first goal, the broad language of existing and proposed conscience clause legislation creates an umbrella that allows a pharmacist to escape liability for refusing to fill a prescription for almost any type of medication. With respect to the second goal, this Article applies welfare economics to demonstrate that pharmacist conscience clauses are a part of tort law and …

Introduction, Thomas L. Shaffer

Thomas L. Shaffer

No abstract provided.

A Discourse On The Public Nature Of Research In Contemporary Life Science: A Law-Policy Proposal To Promote The Public Nature Of Science In An Era Of Academia-Industry Integration, Michael J. Malinowski

Michael J. Malinowski

This article addresses the impact of integration of academia, industry, and government on the public nature of research. The article concludes that, while the integration has benefited science immensely, regulatory measures should be taken to restore the public nature of research in an age of integration.

Reform Of The United States Health Care System: An Overview, Robert B. Leflar

Robert B Leflar

This essay, written for readers unfamiliar with the details of American health law and policy, portrays the essential features of the battle for health reform in the United States and of the law that survived the battle: the Patient Protection and Affordable Care Act (PPACA). The essay summarizes key aspects of the U.S. health care system and how it compares in terms of costs and results with other advanced nations’ systems. The political and legal conflicts leading up to and following PPACA’s enactment are described. The major features of the law, attempting to address problems of access to health care, …

The Law Of Medical Misadventure In Japan, Robert B. Leflar

Robert B Leflar

This paper offers a comprehensive overview of Japanese law and practice relating to iatrogenic (medically-caused) injury, with comparisons to other nations’ medical law systems. The paper addresses criminal sanctions for Japanese physicians’ negligent and illegal acts; civil law principles of substantive law and related issues of procedure, practice, and liability insurance; and administrative measures including health ministry programs aimed at expanding and improving the quality of peer review within Japanese medicine, and a recently implemented no-fault compensation system for birth-related injuries. Among the paper’s findings are these. Criminal and civil actions increased rapidly after highly publicized medical error events at …

Public And Private Justice: Redressing Health Care Harm In Japan, Robert B. Leflar

Robert B Leflar

Japanese legal structures addressing health care-related deaths and injuries rely more on public law institutions and rules than do the common-law North American jurisdictions, where private law adjudication is predominant. This article explores four developments in 21st-century Japanese health care law. The first two are in the public law sphere: criminal prosecutions of health care personnel accused of medical errors, and a health ministry-sponsored “Model Project” to analyze medical-practice-associated deaths. The article addresses a private law innovation: health care divisions of trial courts in several metropolitan areas. Finally, the article introduces Japan’s new no-fault program for compensating birth-related obstetrical injuries. …

Medical Malpractice (Book Review), Robert B. Leflar

Robert B Leflar

This is a review of Medical Malpractice, by Frank Sloan and Lindsey Chepke. This superb book provides a balanced, comprehensive, factual overview of the structure, flaws, and merits of the U.S. legal system relating to malpractice; the causes of cyclical insurance pricing and availability difficulties; ameliorative initiatives both implemented and proposed; and the political considerations affecting the achievability of leading reform proposals. The authors' evidence-based stances will discommode many participants in the malpractice debate, physicians and trial lawyers alike. The book debunks widely-held "myths of medical malpractice" propounded by medical tort reformers. However, the authors also conclude that "no convincing …

Reasons To Pass Health Reform, Robert B. Leflar, Hershey Garner Md

Robert B Leflar

Column 5 (of 5) on the health reform debate

Health Reform: Arkansas Impacts, Robert B. Leflar

Robert B Leflar

Column 4 (of 5) on the health reform debate

Health Bills: What's At The Core, Robert B. Leflar

Robert B Leflar

Column 2 (of 5) on the health reform debate: explanation of the legislation.

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

Robert B Leflar

Column 1 (of 5) on the health reform debate

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 …

Conjoined Twins And Catholic Moral Analysis: Extraordinary Means And Casuistical Consistency, M. Cathleen Kaveny

M. Cathleen Kaveny

This article draws upon the Roman Catholic distinction between “ordinary” and “extraordinary” means of medical treatment to analyze the case of “Jodie” and “Mary,” the Maltese conjoined twins whose surgical separation was ordered by the English courts over the objection of their Roman Catholic parents and Cormac Murphy-O’Connor, the Roman Catholic Cardinal Archbishop of Westminster. It attempts to shed light on the use of that distinction by surrogate decision makers with respect to incompetent patients. In addition, it critically analyzes various components of the distinction by comparing the reasoning used by Catholic moralists in this case with the reasoning used …

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 …