Medical Jurisprudence Commons^™

A Historical Sketch Of Anglo-American Medical Law (With Emphasis On The Maxim Of Respondeat Superior), Dennis O. Norman

Akron Law Review

In MEDICAL JURISPRUDENCE, the medical and legal professions are united to encompass a wide range of human activity. The spectrum of medical law is so broad that a thorough consideration of its historical development would require the writing of several volumes. Consequently, this article confines itself to a discussion of the primary origins and major developments of Anglo American medical jurisprudence. Special emphasis has been placed upon the agency concept of respondeat superior, since this doctrine plays a prominent role in medical law and since the doctrine has been used of late to significantly expand the potential liability of the …

Medical Malpractice - Statute Of Limitations - Foreign Objects - The Adoption Of The Discovery Rule - Legislative Or Judicial Prerogative? Melnyk V. Cleveland Clinic, Alan J. Sobol

Akron Law Review

The rationale of the Court was that Melnyk could be distinguished with the recent case of Wyler v. Tripi, which held that a cause of action for medical malpractice accrues at the latest when the physician-patient relationship terminates, and which also recognized the legislature's authority to act in this area, on the basis that Wyler was not a foreign object case. Therefore, the Court felt it need not disturb the Wyler holding and could nevertheless hold the failure to remove the foreign objects in Melnyk was negligence as a matter of law and that equity and public policy require …

A Hypothetical: Quinlan Under Ohio Law, Wendy C. Gerzog

Akron Law Review

WITH THE DECISION by all of the respondents in In re Quinlan not to appeal their case to the United States Supreme Court, the people in this country will have to wait for a definitive statement of law on a person's right to die and on a guardian's standing to assert that right for his ward. Because of the dearth of precedent in this area, each state court that is faced with the prospect of reviewing a case like Quinlan will have to grapple with its own constitutional and statutory schemes in order to make a determination of these difficult …

Employee Medical Reimbursement Plans In The Age Of Erisa, Robert D. Rosewater

Akron Law Review

THE EMPLOYEE MEDICAL reimbursement plan presents a new dimension in the spectrum of available corporate fringe benefits. Its attractiveness lies in the relative ease by which the plan may be adopted and administered as well as the favorable federal income tax consequences to both the corporation and its participating employees. These plans undoubtedly will proliferate as other traditional fringe benefits become less attractive due to changes in tax laws,2 as medical expenses continue to increase, and as the advantages of employee medical reimbursement plans become more widely known. The scope of this article is to discuss the purposes of these …

A Hypothetical: Quinlan Under Ohio Law, Wendy C. Gerzog

Akron Law Review

WITH THE DECISION by all of the respondents in In re Quinlan1 not to appeal their case to the United States Supreme Court,2 the people in this country will have to wait for a definitive statement of law on a person's right to die and on a guardian's standing to assert that right for his ward. Because of the dearth of precedent in this area, each state court that is faced with the prospect of reviewing a case like Quinlan will have to grapple with its own constitutional and statutory schemes in order to make a determination of these difficult …

Congress Takes A Look At A No-Fault Proposal For Medical Malpractice: Some Observations, David E. Beitzel

Akron Law Review

EVEN A CURSORY GLANCE at the news media in the recent past indicates that problems in the area of medical malpractice are rising to turbulent heights. For example, newspapers are increasingly printing long and passionate letters-to-the-editor dispraising numerous circumstances and individual types, which are allegedly the cause of the problem. The primary development, which caused the initiation of this storm, is the rising premium rate for medical malpractice insurance.' The pinch on the physician's pocketbook has resulted in outcries of frustration and anger from the medical community. Objects of these attacks have included the insurance industry, the legal profession, and …

Wrongful Birth; Preconception Torts; Duty To Inform Of Genetic Risks; Becker V. Schwartz, Gail White Sweeney

Akron Law Review

Both pairs of parents sued on their own behalfs for (1) the expenses incurred in the care and treatment of the infants and for (2) the mental distress caused them by the birth of a defective child. They also sought damages on behalf of the children for (3) wrongful life. The Court of Appeals acknowledged the first claim as valid, but dismissed the second and third. It dismissed the claims for damages for emotional distress on the precedent of its 1977 decision in Howard v. Lecher and upon the difficulty of ascertaining the value of mitigated damages prescribed by Restatement …

The Buying And Selling Of Human Organs From The Living: Why Not?, Timothy M. Hartman

Akron Law Review

This article will examine the propriety of establishing a system for the sale of human organs, especially the kidney. Initially, the debilitating malady of end stage renal disease will be discussed as will the marginal "cure" of the disease via hemodialysis. Next, the superior alternative to dialysis, i.e., kidney transplantation will be discussed in two ways. First, the current procedure of using living, related donors will be examined as well as harvesting kidneys from cadaver "donors". Second, the practice of transplantation will be explored for its ramifications to society and the participants in the following areas: medicine, psychology, and the …

Wrongful Life, Turpin V. Sortini, Janet A. Laufer

Akron Law Review

In the past fifteen years, several state appellate courts have considered wrongful birth and wrongful life causes of action. While the modern trend is to allow wrongful birth causes of action, few courts have permitted wrongful life actions to be maintained. On May 3, 1982, the California Supreme Court, in Turpin v. Sortini became the first state high court to allow a wrongful life cause of action. This casenote will examine the reasoning of the Turpin court in allowing the wrongful life claim. While Turpin appears to signal a new trend in this area of tort law, there is little …

Ohio's Statute Of Limitations, Baird V. Loeffler, Amy L. O'Neil

Akron Law Review

The decision in Baird v. Loeffler is another victory for physicians and medical malpractice insurers. It will not be well accepted by plaintiff's attorneys or by others who advocate the rights of patients, especially minors, to be compensated for injuries sustained by them due to a physician's negligence. The case focuses on an amendment to the Ohio Medical Malpractice Statute which became effective July 28, 1975. The issue in Baird is the proper statutory construction that should be given to the statute where a minor's cause of action arose prior to the effective date of the statute. In effect, the …

Right To Privacy; Removal Of Life-Support Systems; Leach V. Akron General Medical Center, Stephanie Zembar

Akron Law Review

The decision in Leach v. Akron General Medical Center, marked Summit County's acceptance of the trend allowing the removal of life support systems from an incompetent terminally ill patient. Technological advancements have enabled the medical profession to maintain a person indefinitely in a chronic vegetative state. These advancements have blurred traditional definitions of death and have raised legal, medical and ethical questions to be resolved within our court system. The Leach case was one of first impression in Ohio, and the decision should aid in establishing a framework from which members of the legal and medical professions, as well …

The Unconstitutionality Of Ohio's Medical Malpractice Statute Of Limitations: Minors And Equal Protection, Eric A. Brandt

Akron Law Review

As with all laws, statutes of limitations must apply equally to all persons unless reasonable grounds permit the legislating body to make distinctions between classes of persons affected by the law. Laws that operate unequally, unfairly and unreasonably when applied to the public are unconstitutional. The Ohio Supreme Court addressed was the constitutionality of an Ohio medical malpractice statute of limitations in Schwan v. Riverside Methodist Hospital.

Statute Of Limitations: Discovery Rule For Malpractice, Linda C. Ashar

Akron Law Review

IN OLIVER V. KAISER COMMUNITY HEALTH FOUNDATION the Ohio Supreme Court adopted the discovery standard for medical malpractice actions, which are subject to Ohio's one-year statute of limitations. In Oliver the court held that a medical malpractice cause of action "accrues and the statute of limitations commences to run when the patient discovers, or in the exercise of reasonable care and diligence should have discovered, the resulting injury." Shortly after Oliver, the court applied the discovery rule to legal malpractice cases in Skidmore & Hall v. Rottman. The discovery standard replaces Ohio's previously judicially adopted rule of termination of …

Issues Complicating Rights Of Spouses, Parents, And Children To Sue For Wrongful Death, Dale Katzenmeyer

Akron Law Review

There are two types of wrongful death statutes, the personal representative type, and the beneficiary type. With the personal representative type, the action is brought by the personal representative of the deceased on behalf of all persons statutorily eligible to benefit from the action. In the beneficiary type of statute, the statutorily authorized beneficiaries are joined together and bring the action in their own names.

Irrespective of the type of statute, the statutes seem to name clearly the persons who are acceptable beneficiaries. These beneficiaries, at a minimum, include spouses, parents and children. The difficult issues arise when the plaintiff …

Breach Of Medical Confidence In Ohio, Craig E. Johnston

Akron Law Review

Fortunately, the patchwork of state and federal statutory, administrative, and case law has greatly limited unrestricted disclosure of medical secrets through the threat of civil and criminal liability. While the law governing the disclosure of medical information sorely lacks a comprehensive approach, one overriding principle emerges from this patchwork: the concern for confidentiality represented in the Hippocratic Oath is alive in Ohio and should guide the release of any medical secrets in the state. There are several statutes that regulate the release of certain types of medical information. For example, information concerning patients suffering from alcohol or drug abuse is …

Recovery For The Wrongful Death Of A Viable Fetus: Werling V. Sandy, Janet I. Stich

Akron Law Review

In Werling v. Sandy, the Ohio Supreme Court held a viable fetus, negligently injured "en ventre sa mere" and subsequently stillborn, may be the basis for a wrongful death action pursuant to Ohio Rev. Code § 2125.01.1 The court's ruling represented Ohio's explicit acceptance of the trend allowing a wrongful death action for the death of a fetus. Although Werling was not a case of first impression in Ohio, it presented the Ohio Supreme Court with the first opportunity to expand the legal rights of the unborn.

The Gift Of Life: New Laws, Old Dilemmas, And The Future Of Organ Procurement, Juliana S. Moore

Akron Law Review

In Ohio, the recent enactment of the required request law has already helped grieving families to grapple with a loved one's death. Here and across the nation, modifications to organ donation statutes may provide the impetus to change the way a seemingly willing, but apprehensive population views organ donation. But the statutes governing this area are only one component of the fascinating concept of "giving life through death." Because a wealth of material already exists detailing narrow aspects of this area, the purpose of this comment is to present the reader with an informative overview of organ donation as it …

Updating Ohio's Medical Practice Act (O.R.C. 4731): Automatic And Summary Suspensions Of Physicians' Licenses, Lynne O'Neill

Akron Law Review

The main purpose of this comment is to review two major areas of change in Ohio's Medical Practice Act. The first area deals with automatic suspensions of physicians' licenses. The second area deals with summary suspensions of physicians' licenses. In both of these areas, the Ohio State Medical Board now has the authority to suspend a physician's license before conducting a disciplinary hearing.

Part I of this comment begins by reviewing the current composition of the Board so that the reader will understand how the Board functions in taking disciplinary action against a physician. Part I then explains the new …

Is Medical Thermography A Reliable Tool In Diagnosing Soft Tissue Injuries In Personal Injury Cases?, Gary L. Evans

Akron Law Review

Behind the mundane, albeit pressing and important questions as to whether and to what extent a thermographic exam changes the value of a case, there lurks a more basic issue; is thermography a legally and medically reliable tool in diagnosing soft tissue injuries? This article will examine that issue as it pertains to personal injury litigation and reach some qualified conclusions.

Part I discusses thermography in general and describes electronic and liquid crystal thermography in particular. Part II divides reliability into two categories in an attempt to distinguish between medical and legal reliability. Part III discusses possible impacts caused by …

Johnson V. University Hospitals Of Cleveland: Public Policy Over Traditional Principles, Robert A. Williams

Akron Law Review

This Note will examine the policies and principles relating to the recovery of child rearing expenses in wrongful pregnancy or wrongful conception actions. This Note contends that the Johnson majority overemphasized certain policy considerations and was mistaken in allowing these policies to override traditional legal principles.

Blood Donation: A Gift Of Life Or A Death Sentence?, Sharon L. Dieringer

Akron Law Review

Anyone who has AIDS is a victim. If AIDS produces a victim then who is the perpetrator? AIDS can be transmitted through intimate sexual contact, by sharing contaminated needles, via infected blood or blood products, and through passage of the virus from infected mothers to their newborns.

This comment will concentrate on transmission through infected blood or blood products, and the blood donor. The discussion will focus on the civil and criminal liabilities of a blood donor with the AIDS virus.

United States V. Moore: Aids And The Criminal Law: The Witch Hunt Begins, Robert Louis Stauter Md., J.D.

Akron Law Review

The United States v. Moore opinions written by Federal District Judge Diana E. Murphy and Circuit Judge Timbers reveal a fundamental misunderstanding of the disease process of AIDS. The purpose of this article is to help the reader critically analyze these court opinions. To facilitate this discussion the article will first provide the reader with some very basic, yet very technical, vocabulary used by medical specialists who care for and study patients with AIDS.

Welsh V. United States, The Sixth Circuit Gives A Physics Lesson - For Every Action There Is An Equal And Opposite Reaction, Daniel L. Bell

Akron Law Review

This casenote will review the facts of Welsh v. United States and present the current judicial approaches to spoliation of evidence in civil litigation. Second, the note will analyze the Welsh court's proposed solution to the spoliation problem. Finally, the note will discuss the use of the Welsh approach in litigation and management implications for health care facilities.

Chalk V. United States District Court Central District Of California: A Major Victory For Aids Employees Under The Federal Rehabilitation Act Of 1973, Janet A. Michael

Akron Law Review

This note will first review the facts of Chalk v. United States District Court Central District of California and will present a broad overview of AIDS, outlining current medical knowledge of the disease. Second, this note will analyze the Rehabilitation Act, examining regulations, legislative history, and case law interpreting the Act. Finally, this note will analyze the impact of Chalk on future employment cases.

Statute Of Limitations In Ohio Medical Malpractice An Old Trend Returns And A New Trend Evolves, Sharon L. Dieringer

Akron Law Review

In Gaines v. Preterm Cleveland, Inc. the Ohio Supreme Court reversed prior law in two significant areas of medical malpractice.

First, the court held that, "a plaintiff in a medical malpractice action who reasonably did not discover the cause of their injuries until more than three years after the act constituting the alleged malpractice may not be constitutionally deprived of a full year to pursue a medical claim by virtue of the four-year statute of repose contained in R.C. 2305. II(B)."

Secondly, the court held that, "a positive misrepresentation of a patient's condition, upon which the patient reasonably relies …

Fetal Interests Vs. Maternal Rights: Is The State Going Too Far?, Robin M. Trindel

Akron Law Review

Part One of this Comment traces the historical development and examines the current status of fetal rights. Part Two discusses the implications that the courts' recognition of fetal rights has spawned upon womens' lives. This Comment concludes that forcing women to undergo medical treatment to benefit their fetuses both ignores legal precedent and violates the woman's right to privacy and bodily integrity. The use of civil and criminal sanctions to punish women for prenatal conduct greatly affects all women while accomplishing nothing in furtherance of state goals.

Someone To Watch Over Me: Medical Decision-Making For Hopelessly Ill Incompetent Adult Patients, Debra L. Dippel

Akron Law Review

This comment focuses on the predicament of the hopelessly ill incompetent adult patient. The comment first discusses the legal framework for medical decision-making in general. Next, it examines the legal and medical distinctions between competent and incompetent patients, and the implications of those distinctions. The comment then explores the options in caring for hopelessly ill incompetent adult patients, and the persons who may or should be responsible for exercising those options. The comment also considers the bases upon which the options may be exercised. Finally, the comment contains an examination of the current state of opinion and the law on …

Prozac: Another Drug Wrongfully Attacked - What Can Be Done To Stop The Legal System From Driving Good Drugs Off The Market, While Protecting State And Federal Interests, Melinda M. Katz

Akron Law Review

This Comment will examine the U.S. Food and Drug Administration (FDA) as a regulatory agency, and the status of pharmaceutical products liability. The Comment will describe Prozac, an antidepressant drug currently caught in the products liability dilemma; its compliance with FDA regulations; and opposition to the drug since FDA approval. The Comment will then review American problems with pharmaceutical products liability, and solutions that other commentators have proposed. Finally, the Comment will propose that Congress erect barriers to filing claims against manufacturers for drugs that meet or exceed a higher level of FDA approval, like Bendectin and Prozac, through a …

The Pharmaceutical Access And Prudent Purchasing Act Of 1990: Federal Law Shifts The Duty To Warn From The Physician To The Pharmacist, Michael J. Holleran R.Ph.

Akron Law Review

This article will first discuss the legislation recently enacted as part of the budget reduction package passed by Congress in late 1990 and how that legislation will affect pharmacists' liability. Second, the article will address the applicable statutes of limitation regarding pharmacists in particular and within the general area of malpractice. Third, the applicable standard of care will be explored as it pertains to pharmacists as well as physicians. Coupled with the standard of care discussion is an overview of the various theories of liability which physicians and pharmacists currently face and how these may change under the Act. Finally, …

Attorney General's Warning: Legislation May Now Be Hazardous To Tobacco Companies' Health, Scott Richardson

Akron Law Review

Part I examines the significant aspects of the revised Florida statute and the proposed federal Senate bill. Part II reviews the development and current status of the laws in Florida, Ohio, and federal courts in regards to the toxic tort theories included in the legislation. Part III of this Comment provides a review of the judicial treatment of tobacco cases and past legislative actions toward tobacco. Part IV discusses the due process challenge that could be advanced by the tobacco industry. Finally, Part V concludes with predictions as to the likely success the Medicaid Third-Party Act will have in achieving …