Medical Jurisprudence Commons^™

The Illusion Of Autonomy In Women's Medical Decision-Making, Jamie R. Abrams

Jamie R. Abrams

This Article considers why there is not more conflict between women and their doctors in obstetric decision-making. While patients in every other medical context have complete autonomy to refuse treatment against medical advice, elect high-risk courses of action, and prioritize their own interests above any other decision-making metric, childbirth is viewed anomalously because of the duty to the fetus that the state and the doctor owe at birth. Many feminist scholars have analyzed the complex resolution of these conflicts when they arise, particularly when the state threatens to intervene to override the birthing woman’s autonomy.

This Article instead considers the …

Avoiding Prolonged Dementia, Norman L. Cantor

Norman Cantor

Marijuana Agriculture Law: Regulation At The Root Of An Industry, Ryan Stoa

Ryan B. Stoa

Marijuana legalization is sweeping the nation. Recreational marijuana use is legal in eight states. Medical marijuana use is legal in thirteen states. Only three states maintain an absolute criminal prohibition on marijuana use. Many of these legalization initiatives propose to regulate marijuana in a manner similar to alcohol, and many titles are variations of the "Regulate Marijuana Like Alcohol Act." For political and public health reasons the analogy makes sense, but it also reveals a regulatory blind spot. States may be using alcohol as a model for regulating the distribution, retail, and consumption of marijuana, but marijuana is much more …

Modernizing The Emergency Medical Treatment And Labor Act To Harmonize With The Affordable Care Act To Improve Equality, Quality And Cost Of Emergency Care, Katharine A. Van Tassel

Katharine Van Tassel

This Article will propose a very simple, two-step way to modernize EMTALA [Emergency Medical Treatment and Active Labor Act (1986)] to deal with this cascade of problems. This solution converts EMTALA into a powerful tool to enhance equal access to healthcare while at the same time changing EMTALA so that it works in tandem with, instead of against, the efforts of the Affordable Care Act, Medicare and Medicaid to improve healthcare quality, cost and equal access.

This solution also works across systems to resolve the conflict between the tort, licensure and hospital peer review systems that all discourage evidence-based treatment …

Hospital Peer Review Standards And Due Process: Moving From Tort Doctrine Toward Contract Principles Based On Clinical Practice Guidelines, Katharine A. Van Tassel

Katharine Van Tassel

This Article proposes a solution to the problems associated with the current use of vague standards in peer review. This Article will examine the proposal that medical staffs switch from ad hoc judicial decision-making to rule-making. This switch will allow medical staffs to abandon the troublesome practice of applying vague 'standard of care' measures ex post facto. In its stead, express contractual terminology could be adopted, such as 'expectations of performance,' which incorporates specifically chosen and uniquely tailored clinical practice guidelines ('CPGs') directly into the medical staff by-laws. Describing the expectations of physician performance in express contractual terms enables physicians …

Regulating In Uncertainty: Animating The Public Health Product Safety Net To Capture Consumer Products Regulated By The Fda That Use Innovative Technologies, Including Nanotechnologies, Genetic Modification, Cloning, And Lab Grown Meat, Katharine A. Van Tassel

Katharine Van Tassel

This Article will use nanotechnology as an example that highlights how regulation based on novelty rather than hazard achieves the proper balance between protecting public health while encouraging innovation through the animation of the public health product safety net. In Part II, this Article starts by explaining what nanotechnology is and the remarkable growth of its use in everyday consumer products. It then summarizes the steadily increasing number of studies that suggest that there are likely to be serious health risks associated with the use of nanotech consumer products. Next, it explains how the FDA [Food and Drug Administration] is …

Beyond Canterbury: Can Medicine And Law Agree About Informed Consent? And Does It Matter?, 45 J.L. Med. & Ethics 106 (2017), Marc Ginsberg

Marc D. Ginsberg

For those of us whose scholarship focuses on medico-legal jurisprudence, the law of informed consent is a gift. It has been a fertile topic of discussion for decades, with no end in sight. Although it is not difficult to acknowledge that patient autonomy is at the core of informed consent, the doctrine is not static - it has evolved in scope and continues to engage courts in thought provoking analysis.

The Relation Between Autonomy-Based Rights And Profoundly Disabled Persons, Norman L. Cantor

Norman Cantor

“The Relation Between Autonomy-based Rights and Profoundly Mentally Disabled Persons” Competent persons have fundamental rights to decide about abortion, methods of contraception, and rejection of life-sustaining medical treatment. Profoundly disabled persons are so cognitively impaired that they cannot make their own serious medical decisions. Yet some courts suggest that the mentally impaired are entitled to “the same right” to choice regarding critical medical decisions as competent persons. This article discusses the puzzling question of how to relate autonomy-based rights to never-competent persons. It argues that while profoundly disabled persons cannot be entitled to make their own medical decisions, they have …

On Kamisar, Killing, And The Future Of Physician-Assisted Death, Norman L. Cantor

Norman Cantor

In a famous 1958 article, Yale Kamisar brilliantly examined the hazards of abuse and of slippery slope extensions that subsequently, for 46 years, served to thwart legalization of physician-assisted death (PAD). This paper shows that during the same period law and culture have effectively accepted a variety of ways for stricken people to hasten death, with physicians involved in diverse roles. Those ways include rejection of nutrition and hydration, terminal sedation, administration of risky analgesics, and withholding or withdrawal of medical life support. If these existing lawful modes of hastening death were widely acknowledged, the pressure to legalize voluntary active …

On Hastening Death Without Violating Legal Or Moral Prohibitions, Norman L. Cantor

Norman Cantor

While the vast majority of fatally afflicted persons have a powerful wish to remain alive, some stricken persons may, for any of a host of reasons, desire to hasten death. Some persons are afflicted with chronic degenerative diseases that take a grievous toll. Chronic pain may be severe and intractable, anxiety about a future treatment regimen may be distressing, and helplessness may erode personal dignity and soil the image that the afflicted person wants to leave behind. A dying patient’s interest in hastening death is often said to be in tension with a bedrock social principle that respect for sanctity …

Changing The Paradigm Of Advance Directives To Avoid Prolonged Dementia, Norman L. Cantor

Norman Cantor

Dietary Supplements Are Not All Safe And Not All Food: How The Low Cost Of Dietary Supplements Preys On The Consumer, Joanna K. Sax

Joanna K Sax

Dietary supplements are regulated as food, even though the safety and efficacy of some supplements are unknown. These products are often promoted as 'natural.' This leads many consumers to fail to question the supplements' safety, and some consumers even equate 'natural' with safe. But, 'natural' does not mean safe. For example, many wild berries and mushrooms are dangerous although they are natural. Another example is tobacco -- a key ingredient in cigarettes: it is natural, but overwhelming studies have established the harm of cigarette smoke. The Food and Drug Administration (FDA) only has limited ability to regulate the entry of …

Can The Right To Stop Eating And Drinking Be Implemented By A Surrogate?

Norman Cantor

Pregnancy Denied, Pregnancy Rejected In Stephanie Daley, Susan Ayres, Prema Manjunath

Susan Ayres

This article offers a reading of Hilary Brougher’s film Stephanie Daley (2006), in which a teen is accused of murdering her newborn (neonaticide). Brougher depicts a “phenomenology of unwanted pregnancy” and an example of therapeutic jurisprudence. Part One examines Brougher’s treatment of the “shadow side of pregnancy,” and highlights barriers to the empathetic treatment of neonaticide. Part Two emphasizes the process of therapeutic jurisprudence as experienced by the two main characters. Brougher’s film provides a social narrative and phenomenology that may influence laws and legal responses and enlarge social understanding of unwanted pregnancy.

Can Dna Be Speech?, Jorge R. Roig

Jorge R Roig

Dynamic Complementarity: Terri's Law And Separation Of Powers Principles In The End-Of-Life Context, O. Carter Snead

O. Carter Snead

The bitter dispute over the proper treatment of Theresa Marie Schiavo - a severely brain-damaged woman, unable to communicate and with no living will or advance directive - has garnered enormous attention in the media, both national and international. What began as a heated disagreement between Ms. Schiavo's husband and parents mushroomed into a massive political conflict involving privacy advocates on one side, and right-to-life and disability activists on the other. The battle raged on the editorial pages of the world's newspapers, in the courts, and ultimately, in the legislative and executive branches of the Florida state government. After nearly …

The Treatment For Malpractice – Physician, Enhance Thyself: The Impact Of Neuroenhancements For Medical Malpractice, Harvey L. Fiser

Harvey L. Fiser

Coming to a hospital near you, the medically enhanced doctor - a doctor who thinks faster, is better with short and long term memory, is calmer during surgery, can work double shifts with little cognitive fatigue, and one day may have the memories of years of experience without actually having had them. With the expanded use of cognitive enhancing pharmaceuticals such as Adderall, Provigil, and more on the way, we are already seeing changes in education and the corporate world. From reaching a “normal” status for a person with an ADHD diagnosis to creating the “supernormal” employee with cognitive enhancers, …

The Treatment For Malpractice – Physician, Enhance Thyself: The Impact Of Neuroenhancements For Medical Malpractice, Harvey L. Fiser

Harvey L. Fiser

No abstract provided.

Blood, Sweat, And Tears: Toward A New Paradigm For Protecting Donor Privacy, 7 Va. J. Soc. Pol'y & L. 141 (2000), Kevin Hopkins

Kevin L. Hopkins

No abstract provided.

Aids: Testing Democracy - Irrational Responses To The Public Health Crisis And The Need For Privacy In Serologic Testing, 19 J. Marshall L. Rev. 835 (1986), Michael L. Closen, Susan Marie Connor, Howard L. Kaufman, Mark E. Wojcik

Mark E. Wojcik

No abstract provided.

Aids: Coping With Hiv On Campus, 27 J. Marshall L. Rev. 449 (1994), Jane D. Oswald, Robert G. Johnston, Mark E. Wojcik

Mark E. Wojcik

No abstract provided.

Aids And Funeral Homes: Common Legal Issues Facing Funeral Directors, 27 J. Marshall L. Rev. 411 (1994), Mark E. Wojcik

Mark E. Wojcik

No abstract provided.

Book Review: Aids In The World, 16 Hous. J. Int'l L. 709 (1994), Mark E. Wojcik

Mark E. Wojcik

No abstract provided.

Some Lessons Learned From The Aids Pandemic, 19 Annals Health L. 63 (2010), Mark E. Wojcik

Mark E. Wojcik

No abstract provided.

Kidney Transplantation: Only For The Well-To-Do?, Jennifer M. Smith

Jennifer McMahon

No abstract provided.

The Role Of Courts In The Debate On Assisted Suicide: A Communitarian Approach, 9 Notre Dame J.L. Ethics & Pub. Pol'y 367 (1995), Donald L. Beschle

Donald L. Beschle

No abstract provided.

Autonomous Decisionmaking And Social Choice: Examining The “Right To Die”, 77 Ky. L.J. 319 (1989), Donald L. Beschle

Donald L. Beschle

No abstract provided.

Judicial Review And Abortion In Canada: Lessons For The United States In The Wake Of Webster V. Reproductive Health Services, 61 U. Colo. L. Rev. 537 (1990), Donald L. Beschle

Donald L. Beschle

No abstract provided.

Good Medicine/Bad Medicine And The Law Of Evidence: Is There A Role For Proof Of Character, Propensity, Or Prior Bad Conduct In Medical Negligence Litigation?, 63 S.C. L. Rev. 367 (2011), Marc Ginsberg

Marc D. Ginsberg

No abstract provided.

Informed Consent: No Longer Just What The Doctor Ordered - The Contributions Of Medical Associations And Courts To A More Patient Friendly Doctrine, 15 Mich. St. U. J. Med. & L. 17 (2010), Marc Ginsberg

Marc D. Ginsberg

No abstract provided.