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Articles 1 - 16 of 16
Full-Text Articles in Medical Jurisprudence
U.S. Law And Discrimination In Health Care, Kimani Paul-Emile
U.S. Law And Discrimination In Health Care, Kimani Paul-Emile
Faculty Scholarship
No abstract provided.
"Wrongful Birth" Claims And The Paradox Of Parenting A Child With A Disability, Sofia Yakren
"Wrongful Birth" Claims And The Paradox Of Parenting A Child With A Disability, Sofia Yakren
Fordham Law Review
“Wrongful birth” is a controversial medical malpractice claim raised by the mother of a child born with a disability against a medical professional whose failure to provide adequate prenatal information denied her the chance to abort. Plaintiff-mothers are required to testify that, but for the defendant’s negligence, they would have terminated their pregnancy. Accordingly, alongside pro-life activists, disability rights advocates have opposed “wrongful birth” claims for stigmatizing and discriminating against people with disabilities by framing their very existence as a harm. Despite plaintiff-mothers’ need for caretaking resources, scholars have recommended solutions ranging from the wholesale elimination of the wrongful birth …
Confronting The Ghost: Legal Strategies To Oust Medical Ghostwriters, Deanna Minasi
Confronting The Ghost: Legal Strategies To Oust Medical Ghostwriters, Deanna Minasi
Fordham Law Review
Articles published in medical journals contribute significantly to public health by disseminating medical information to physicians, thereby influencing prescribing practices. However, the information guiding treatment decisions becomes distorted by selective publishing and medical ghostwriting, which negatively affects overall patient care. Although there is general consensus in the medical community that these practices of publication bias represent a moral failing, the issue is rarely framed as a wrong that necessitates legal consequences. This Note takes the stance that medical ghostwriting constitutes an act prohibited under the Racketeer Influenced and Corrupt Organizations Act (RICO) and argues that physicians fraudulently named as authors …
The Contours Of The Parallel Claim Exception: The Supreme Court's Opportunity To Define The Ill-Defined, Jarret Sena
The Contours Of The Parallel Claim Exception: The Supreme Court's Opportunity To Define The Ill-Defined, Jarret Sena
Fordham Urban Law Journal
No abstract provided.
A Fair Trial: When The Constitution Requires Attorneys To Investigate Their Clients' Brains, Ellen G. Koenig
A Fair Trial: When The Constitution Requires Attorneys To Investigate Their Clients' Brains, Ellen G. Koenig
Fordham Urban Law Journal
The U.S. Constitution guarantees every criminal defendant the right to a fair trial. This fundamental right includes the right to a defense counsel who provides effective assistance. To be effective, attorneys must sometimes develop specific types of evidence in crafting the best defense. In recent years, the U.S. Supreme Court has found that defense attorneys did not provide effective assistance when they failed to consider neuroscience. But when must defense attorneys develop neuroscience in order to provide effective assistance? This question is difficult because the standard for determining effective assistance is still evolving. There are two leading approaches. First, in …
Patient Racial Preferences And The Medical Culture Of Accommodation, Kimani Paul-Emile
Patient Racial Preferences And The Medical Culture Of Accommodation, Kimani Paul-Emile
Faculty Scholarship
One of medicine’s open secrets is that patients routinely refuse or demand medical treatment based on the assigned physician’s racial identity, and hospitals typically yield to patients’ racial preferences. This widely practiced, if rarely acknowledged, phenomenon — about which there is new empirical evidence — poses a fundamental dilemma for law, medicine, and ethics. It also raises difficult questions about how we should think about race, health, and individual autonomy in this context. Informed consent rules and common law battery dictate that a competent patient has an almost-unqualified right to refuse medical care, including treatment provided by an unwanted physician. …
Making Sense Of Drug Regulation: A Theory Of Law For Drug Control Policy , Kimani Paul-Emile
Making Sense Of Drug Regulation: A Theory Of Law For Drug Control Policy , Kimani Paul-Emile
Faculty Scholarship
This article advances a new theory of drug regulation that addresses two previously unexamined questions: how law-makers are able to regulate drugs differently irrespective of the dangers the drugs may pose and independent of their health effects, and the process followed to achieve this phenomenon. For example, although tobacco products are the leading cause of preventable death in the U.S. they can be bought and sold legally by adults, while marijuana, a substantially safer drug, is subject to the highest level of drug control. This article posits a conceptual model for making sense of this dissonance and applies this model …
Identity Crisis: The Obsolescence Of Jasopersaud V. Rho And The Medical Malpractice Expert Exception, Mark D. Shifton
Identity Crisis: The Obsolescence Of Jasopersaud V. Rho And The Medical Malpractice Expert Exception, Mark D. Shifton
Fordham Urban Law Journal
This Comment discusses the provision of the New York Civil Practice Law and Rules ("CPLR") governing the disclosure of medical malpractice expert witnesses, and how medical malpractice litigants strive to protect the identities of their experts. The Comment discusses the initial judicial decisions dealing with the amended CPLR 3101, and how courts initially struggled to apply the medical malpractice expert exception. Special attention is paid to Jasopersaud v. Rho, which attempted to create a workable standard to further the competing goals of CPLR 3101(d)(1)(i) and Thomas v. Alleyne. The Comment further discusses whether the policy goals behind the medical malpractice …
Mother Still Knows Best: Cancer-Related Gene Mutations, Familial Privacy, And A Physician's Duty To Warn, Alissa
Fordham Urban Law Journal
The vows of the Hippocratic Oath which include a vow to abstain from sharing a patient's personal information remains an important tenet of medical care today. Physician-patient confidentiality even abstains sharing information with patients' families. However, when medical information affects the health of the patient's relatives, many medical professionals assert that they have a duty to share the information, with or without the patient's consent, particularly in the context of children of patients with genetic diseases and disorders, where forewarning may significantly decrease the risks or increase prevention of the effects of the disease or disorder. Currently, while physicians respect …
Disease Prevention As Drug Policy: A Historical Perspective On The Case For Legal Access To Sterile Syringes As A Means Of Reducing Drug-Related Harm, Mark Parts
Fordham Urban Law Journal
This article integrates the historical medical literature and the current research, so that we can see the full extent of the harm caused by limiting availability of sterile syringes and the importance of policies providing access to sterile syringes as a part of our efforts to fight the epidemics of today and tomorrow. This article concludes that a thorough understanding of the damage created by sterile syringe restrictions is crucial to the development of effective disease prevention policies.
Attorneys And Social Workers Collaborating In Hiv Care: Breaking New Ground, Randye Retkin, Gary L. Stein, Barbara Hermie Draimin
Attorneys And Social Workers Collaborating In Hiv Care: Breaking New Ground, Randye Retkin, Gary L. Stein, Barbara Hermie Draimin
Fordham Urban Law Journal
This article identifies and analyzes the complex ethical and service questions that arise when attorneys and social workers collaborate on behalf of their clients. These issues include: client confidentiality; attorney-client privilege and client waiver of the privilege; identification of the primary client and multi-party representation; legal requirements versus ethical obligations appropriate division of professional responsibilities; case reviews and consultations; and models for combing law and social work practices This article is intended to increase the understanding of and respect for the contributions of both disciplines, promote dialogue among professionals, and enhance service collaborations where appropriate.
Charleston Policy: Substance Or Abuse, The , Kimani Paul-Emile
Charleston Policy: Substance Or Abuse, The , Kimani Paul-Emile
Faculty Scholarship
In 1989, the Medical University of South Carolina (MUSC) adopted a policy that, according to subjective criteria, singled out for drug testing, certain women who sought prenatal care and childbirth services would be tested for prohibited substances. Women who tested positive were arrested, incarcerated and prosecuted for crimes ranging from misdemeanor substance possession to felony substance distribution to a minor. In this Article, the Author argues that by intentionally targeting indigent Black women for prosecution, the MUSC Policy continued the United States legacy of their systematic oppression and resulted in the criminalizing of Black Motherhood.
An Incompetent Individual's Right To Die, Carol M. Friedman
An Incompetent Individual's Right To Die, Carol M. Friedman
Fordham Urban Law Journal
Individuals must be fully informed and comprehend the consequences of refusing medical treatment before doing so. At the time of publication, New York courts used a subjective intent test to determine a patient's intentions before he or she became medically incompetent. The author argues that this test is ineffective where the patient did not have ability or forethought to make his or her intentions known. In such a case, the author contends that a surrogate should be appointed and given the discretion to consider what the surrogate believes would be the intent of the incapacitated person as well as the …
Wrongful Birth And Wrongful Life Actions Arising From Negligent Genetic Counseing: The Need For Legislation Supporting Reproductive Choice, Kathryn J. Jankowski
Wrongful Birth And Wrongful Life Actions Arising From Negligent Genetic Counseing: The Need For Legislation Supporting Reproductive Choice, Kathryn J. Jankowski
Fordham Urban Law Journal
The Note discusses wrongful birth and wrongful life actions arising from negligent genetic counseling and explains why they should be recognized statutorily. It details the technological advances in the field of genetics and their implications for the legal duty imposed upon the medical profession. The author traces the judicial developments that led to the gradual recognition of wrongful birth actions and the refusal to recognize wrongful life actions, as well as the recent legislation that has barred both wrongful birth and wrongful life actions. The author proposes a model statute based on the following policy considerations: (1) procreative choice is …
To Die Or Not To Die: The New York Legislature Ponders A Natural Death Act, Edward M. Joyce
To Die Or Not To Die: The New York Legislature Ponders A Natural Death Act, Edward M. Joyce
Fordham Urban Law Journal
In December, 1984, New York's Governor Mario Cuomo appointed a twenty-three member commission to recommend ways for the New York State Legislature to respond to a vast range of issues concerning medicine and morality. One of the major issues the commission will examine is the medical and legal implications arising from doctors' withholding or withdrawing life-sustaining medical treatment from terminally ill patients. This Note first examines how states other than New York have settled the question of withholding or withdrawing life-support treatment from dying patients by judicial decision or by statute. The Note then discusses recent New York decisions addressing …
Medical Malpractice Damage Awards: The Need For A Dual Approach, Janice Kabel
Medical Malpractice Damage Awards: The Need For A Dual Approach, Janice Kabel
Fordham Urban Law Journal
Damage awards in medical malpractice cases have risen steadily in New York state courts over the past ten years. This increase has resulted in higher medical insurance premiums, which insured physicians pass along in higher prices to health care consumers. There are several theories as to why increased damages has occurred, but few legislative actions have deterred the process. Ultimately, this Note proposes reform in the tort/litigation/insurance system.