Medical Jurisprudence Commons^™

Periods For Profit And The Rise Of Menstrual Surveillance, Michele E. Gilman

All Faculty Scholarship

Menstruation is being monetized and surveilled, with the voluntary participation of millions of women. Thousands of downloadable apps promise to help women monitor their periods and manage their fertility. These apps are part of the broader, multi-billion dollar, Femtech industry, which sells technology to help women understand and improve their health. Femtech is marketed with the language of female autonomy and feminist empowerment. Despite this rhetoric, Femtech is part of a broader business strategy of data extraction, in which companies are extracting people’s personal data for profit, typically without their knowledge or meaningful consent. Femtech can oppress menstruators in several …

Litigating Intraoperative Neuromonitoring (Iom), Michael Brook, Kary Irle

University of Baltimore Law Review

Statistics regarding surgical medical malpractice are staggering. The annual cost of the medical malpractice liability system has been estimated to be $55.6 billion-2.4% of the total healthcare system.' The median award for plaintiffs in actions involving spinal cords is $2.9 million, and the median value for settlements is $1.45 million. A neurosurgeon will spend approximately eleven years of his or her career with outstanding malpractice claims.

Intraoperative neuromonitoring (IOM), also known as surgical neurophysiology, is hardly a novel medical technology. In fact, it has been used in the operating room for over half a century. IOM provides real-time monitoring of …

Recent Development: Sieglein V. Schmidt: Pursuant To § 1-206(B) Of The Estates And Trusts Article, Artificial Insemination Encompasses In Vitro Fertilization Using Donated Sperm; A Court May Use The Goldberger Factors To Determine Voluntary Impoverishment; A Trial Court Can Issue A Permanent Injunction For Harassment Based On § 1-203(A) Of The Family Law Article., Virginia J. Yeoman

University of Baltimore Law Forum

The Court of Appeals of Maryland held that the term “artificial insemination” includes in vitro fertilization using donated sperm, and that a consenting husband is presumed to be the father of the child born as a result of the procedure. Sieglein v. Schmidt, 447 Md. 647, 652, 136 A.3d 751, 754 (2016). The court also held that the circuit court did not abuse its discretion in finding the husband to be voluntarily impoverished or in issuing a permanent injunction based on harassment. Id.

Book Review: Body Banking From The Bench To The Bedside, Natalie Ram

All Faculty Scholarship

How much is a kidney worth? An ounce of breast milk? Genetic material from an individual facing a Parkinson's diagnosis? In today's America, it depends on who is selling. One might think that such body products are beyond value or that their value depends on the individual characteristics of the supplier. But under existing American law and practices, what matters more is whether the seller is also the supplier of that body product, or whether the seller is another entity, such as a pharmaceutical company, hospital, or biobanker.

Solving The Problem Of Organ Donation Shortage, Samuel D. Hodge Jr., Nicole Marie Saitta-Gill

University of Baltimore Law Review

Organ donation, a medically perfected procedure, affords a second chance at life for many people. Unfortunately, organ transplantation demonstrates the stark reality of supply and demand. Thousands of individuals are added to the transplant list each day, but many more die during the same time frame waiting for new organs. The solution to this dilemma seems simple: increase the supply. This article will discuss several ways to achieve this goal. First, through the HIV Organ Policy Equity Act, which allows for HIV-positive-to-HIV-positive transplants, more transplantable organs will hopefully be available in the future. Second, the supply of organs may increase …

Non-Price Competition In “Substitute" Drugs: The Ftc's Blind Spot, Gregory Dolin

All Faculty Scholarship

As the recent case of United States v. Lundbeck illustrates, the Federal Trade Commission’s lack of knowledge in medical and pharmacological sciences affects its evaluation of transactions between medical and pharmaceutical companies that involve transfers of rights to manufacture or sell drugs, causing the agency to object to such transactions without solid basis for doing so. This article argues that in order to properly define a pharmaceutical market, one must not just consider the condition that competing drugs are meant to treat, but also take into account whether there are “off-label” drugs that are used to treat a relevant condition, …

The Dangers Of Psychotropic Medication For Mentally Ill Children: Where Is The Child’S Voice In Consenting To Medication? An Empirical Study, Donald H. Stone

All Faculty Scholarship

When a child with a mental illness is being prescribed psychotropic medication. who decides whether the child should take the medication — the parent or the child? What if the child is sixteen years of age? What if the child is in foster care: Should the parent or social service agency decide? Prior to administering psychotropic medication, what specific information should be provided to the person authorized to consent on behalf of the child? Should children be permitted to refuse psychotropic medications? If so, at what age should a child he able to refuse such medication What procedures should be …

Confine Is Fine: Have The Non-Dangerous Mentally Ill Lost Their Right To Liberty? An Empirical Study To Unravel The Psychiatrist’S Crystal Ball, Donald H. Stone

All Faculty Scholarship

This Article will examine the reverse trend in civil commitment laws in the wake of recent tragedies and discuss the effect of broader civil commitment standards on the care and treatment of the mentally ill. The 2007 Virginia Tech shooting, the 2011 shooting of Congresswoman Giffords, and the 2012 Aurora movie theatre shooting have spurred fierce debates about the dangerousness of mentally ill and serve as cautionary tale about what happens when warning signs go unnoticed and opportunities for early intervention missed. This piece will explore the misconception about the role medication and inpatient civil commitments should play in prevention …

Reverse Settlements As Patent Invalidity Signals, Gregory Dolin

All Faculty Scholarship

Over the last decade a new type of settlements, commonly referred to as “reversed payment settlements” or simply “reverse settlements,” emerged in litigation over patents covering pharmaceutical products. What differentiates these new settlements from their traditional counterparts is that whereas traditionally, the alleged trespasser on someone else's rights pays the rights-holder to settle the litigation, in these new settlements it is the rights holder that pays the alleged trespasser. These settlements are a direct consequence of the various incentives provided by the Hatch-Waxman Act - an Act designed to increase competition between brand name and generic manufactures of pharmaceutical products. …

A Defense Of Embryonic Stem Cell Research, Gregory Dolin

All Faculty Scholarship

On November 21, 2007, sensational scientific developments were reported by major newspapers, both in the United States and abroad. The media reported a new breakthrough in the area of stem cell research. According to two articles published in Science and Cell (both highly respected scientific journals), two teams of scientists were able to “reprogram” adult stem cells into embryonic stem cells, without actually having to experiment on embryos. The discovery was immediately hailed by the White House and other opponents of embryonic stem cell research. The New York Times gushed that the “stem cell wars” may be at an end. …

The Game Of Pleasant Diversion: Can We Level The Playing Field For The Disabled Athlete And Maintain The National Pastime, In The Aftermath Of Pga Tour, Inc. V. Martin: An Empirical Study Of The Disabled Athlete, Donald H. Stone

All Faculty Scholarship

Kenny Walker, a deaf football player; Jim Abbott, a one-handed professional baseball player; Tom Dempsey, a physically disabled professional football kicker; Brad Doty, a paralyzed auto racer; and Nick Ackerman, a wrestler with amputated legs, have all competed at the highest level of sports. Persons with mental illness, individuals who are blind, and students with hearing impairments are seeking an opportunity to compete in fair competition with their non-disabled competitors. Can this occur in a fair, open, and just manner between competing athletes?

Does the Americans with Disabilities Act of 1990 ("ADA"), the landmark civil rights act protecting an individual …

Time To Enter A "Do Not Resuscitate" Order On The National Resident Matching Program's Chart, Gregory Dolin

All Faculty Scholarship

This article focuses on the NRMP system and argues that the process is neither efficient nor pro-competitive. This article argues that Congress erred in bestowing an antitrust exemption on the NRMP and the participating institutions.

This article suggests that although the system may have been necessary to check the problem of early recruiting that was pervasive in the 1950s (similar to the one that plagued the federal judiciary until just two years ago), the system has outlived its usefulness. Part II will explain the Match's history and function and will discuss how the system makes participation in the Match inevitable …

Physician Liability And Managed Care: A Philosophical Perspective, Dionne L. Koller

All Faculty Scholarship

Despite the emergence of managed health care and the resulting dramatic change in the role of the third-party payer in the physician-patient relationship, the liability standards applied to physicians largely have remained unchanged. This has created a tension between physicians' legal and ethical obligations, and the requirements imposed on the physician by managed health care. Specifically, the issue confronts the physician in the context of malpractice liability. Managed Care Organizations impose a significant amount of control over the way physicians practice medicine, often forcing physicians to ration care. Notwithstanding any beneficial cost savings that might result, this approach subjects the …

A Healer Or An Executioner: The Proper Role Of A Psychiatrist In A Criminal Justice System, Gregory Dolin

All Faculty Scholarship

This article argues that despite the benefits of ridding the criminal justice system of some uncertainty and ignorance with respect to mental health issues, the very close involvement of psychiatrists in the criminal justice system as practiced in the United States is not only illogical and bad policy, but also unethical from the viewpoint of medical ethics. Part II of this article will lay the groundwork for the argument by discussing the history of the insanity defense, and of science's involvement with criminal justice; while Part III, will look into the association of science and the administration of justice in …

Giving A Voice To The Silent Mentally Ill Client: An Empirical Study Of The Role Of Counsel In The Civil Commitment Hearing, Donald H. Stone

All Faculty Scholarship

In the civil commitment arena, where a mentally ill person is allegedly a danger to the life or safety of themselves or of others and in need of in-patient care or treatment, there are two groups assigned to protect the people: one, the hospital presenter, who is responsible for investigating and presenting evidence and testimony at a hearing to secure admission to a psychiatric facility as an involuntary patient, the other, the lawyer, who represents and defends the allegedly mentally ill person from such involuntary civil commitment confinement. These are their stories.

The attorney representing a mentally ill client at …

Exploitation Of The Elite: A Case For Physician Unionization, Dionne L. Koller

All Faculty Scholarship

Our intuition tells us that physicians are elites, and therefore they cannot be exploited. Relying on this intuition, we adopt policies which attempt to provide a health care system that gives first-quality care, at the lowest prices, delivered through a “free-market” system. As the key gatekeepers to health care, physicians are thus caught in the middle. Top-notch American health care costs money and for-profit MCOs must watch their bottom line. Rationing, therefore, is key. The issue is, assuming we have decided that free-market health care is the solution, how much should physicians have to sacrifice in the name of the …

Comment: Surgically Implanted Medical Device Liability: Will The New Restatement Help The Unraveling Shield Created By Medtronic, Inc. V. Lohr?, Donna M. Senft

University of Baltimore Law Review

No abstract provided.

Government As God: An Update On Federal Intervention In The Treatment Of Critically Ill Newborns, Dionne L. Koller

All Faculty Scholarship

Whether a severely impaired or critically ill infant should receive lifesaving, and sometimes extraordinary, medical treatment, or be allowed to die, is hotly debated. The issue initially garnered public attention in 1982, when an infant who was born with Down's Syndrome, “Baby Doe,” was allowed to die from a correctable birth defect. Following this, the federal government took a lead role in determining the fate of critically ill newborns. In the meantime, doctors, philosophers, and others have debated whether federal interference in this area is appropriate.

This essay will bring the reader up to date on the “Baby Doe” issue …

The Benefits Of Voluntary Inpatient Psychiatric Hospitalization: Myth Or Reality?, Donald H. Stone

All Faculty Scholarship

Throughout the United States, mentally ill persons are confined against their will in psychiatric hospitals as a result of being accused of dangerous behavior. Some are committed involuntarily by a judge after an administrative hearing during which they are afforded legal representation, a right to be present, and important due process protections, including the right to cross-examine witnesses and present one's own witnesses. However, a significant number of individuals, initially confined in psychiatric institutions for allegedly posing a danger to life or safety, never see an impartial judge, lawyer, or even a family member. These mentally ill individuals are not …

Managed Care And Managed Sentencing — A Tale Of Two Systems, Ronald Weich

All Faculty Scholarship

The daily injustices mount. The front line professionals who administer the system cry out for more discretion to depart from the rigid rules that bind them, Congress finally hears their call, and is poised to enact sweeping reforms.

Are improvements in federal sentencing law on the way? Probably not in the near future. But the new Congress will surely take up proposals to regulate the managed health care industry, and the impending debate over a proposed "Patients' Bill of Rights" law offers important lessons for federal sentencing policy.

At first blush, sentencing reform and health care reform have about as …

Judicial Review Of Health Claims Arbitration Awards: Practice And Pitfalls, Timothy L. Mullin Jr.

University of Baltimore Law Review

No abstract provided.

Casenotes: Statute Of Limitations — Medical Malpractice — Constitutional Law — Five Year Statute Of Repose On Medical Malpractice Claims That Commences When An Injury Occurs Is Constitutional. Hill V. Fitzgerald, 304 Md. 689, 501 A.2d 27 (1985), Nancy E. Leibowitz

University of Baltimore Law Review

No abstract provided.

Comments: Blasting The Cap: Constitutional Issues Arising From Maryland's Limitation Of Noneconomic Damages In Personal Injury Claims, James R. Andersen

University of Baltimore Law Review

A topic of fervent debate in recent years has been the growing crisis in personal injury liability insurance, particularly in the area of medical malpractice. Insurers, doctors, and lawyers have presented differing theories as to the cause and solution of the problem. In 1986, the Maryland General Assembly sought to resolve the crisis by limiting the amount recoverable for noneconomic damages in a personal injury action to $350,000. Similar provisions in other states have been struck down as unconstitutional. This comment examines the constitutionality of Maryland's noneconomic damages limitation and argues that the damage limitation violates both the state and …

The Law Of Medical Malpractice In Maryland: A Plaintiff's Dilemma, Marvin Ellin

University of Baltimore Law Review

The locality rule in medical malpractice cases has evolved into varied hybrid forms throughout the United States. While the majority of the states has adopted more liberal versions of the rule, Maryland has stood fast in its application of a strict locality rule. The author discusses the history and rationale of the rule in Maryland, contrasts it with the prevailing national trend and propounds reasons for the strict locality rule's abandonment. The subsequent article takes an opposing viewpoint.