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.

Medical Malpractice Reform Measures And Their Effects, Robert Leflar

Robert B Leflar

New rules and methods for medical injury dispute resolution have been launched in New Hampshire and New York, and demonstration projects are underway elsewhere. This article describes major medical malpractice reforms undertaken and proposed in recent years. Reforms are classified as (1) liability-limiting initiatives favoring health-care providers; (2) procedural innovations promoted as improving dispute resolution processes, such as patient compensation funds, “sorry” laws, disclosure and early offer laws, health courts, and safe harbor laws; and (3) major conceptual reforms to move liability away from physicians to hospitals or administrative no-fault compensation systems. Empirical evidence about the practical effects of already-implemented …

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.

Brain Trauma, Pet Scans And Forensic Complexity, Jane Moriarty, Daniel Langleben, James Provenzale

Jane Campbell Moriarty

Positron Emission Tomography (PET) is a medical imaging technique that can be used to show brain function. Courts have admitted PET scan evidence in cases involving brain damage, injury, toxic exposure, or illness ("brain trauma") and to support claims of diminished cognitive abilities and impulse control. Despite the limited data on the relationships between PET, brain trauma and behavior, many courts admit PET scan evidence without much critical analysis. This article examines the use of PET as proof of functional impairment and justification of abnormal behavior by explaining its diagnostic use and limitations, the limited support for claims of its …

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, …

Legal Barriers To Implementing International Providers Into Medical Provider Networks For Workers' Compensation, Richard Krasner

Richard Krasner

Over the last twenty years, medical costs associated with lost time workers’ compensation claims has risen dramatically, despite efforts to reform the system. Medical tourism, a popular option for many seeking lower cost health care, is one option that has yet to catch on. Issues of quality of health care in other countries is no different for workers’ compensation patients, as it is for health care patients, and with accreditation from the Joint Commission International (JCI), hospitals that cater to medical tourists offer better care at lower cost than most U.S. hospitals offer. Certain procedures, common to workers’ compensation claims, …

Locke And Berkeley At Twenty Paces, Frederick J. White Iii

Frederick J White III

Does the world exist? Or more properly questioned, does anything of the world exist beyond our ideas of it? Locke and Berkeley have become seconds at twenty paces on this dichotomy, and we are asked to consider the outcome of the duel.

The Paradox In Madness: Vulnerability Confronts The Law, Marie Failinger

Marie A. Failinger

Using personal narrative, this article engages the durable power of attorney and the abuses that can occur when the maker of a power is mentally ill. It proposes some basic safeguards necessary to protect the dignity and autonomy of the maker.

Indian Courts And Social Change: A Case Study Of The ‘Doctrine Of Informed Consent’ In Medical Law And Ethics, Dharmendra Chatur

Dharmendra Chatur

The doctrine of informed consent in medical law and ethics has a strong grounding in the principle of bodily autonomy and self-determination of human beings. This emphasis on the freedom of every individual to decide what is best for his/her body and health has led to several controversies in the area of medical law and ethics in India and abroad, especially in the United Kingdom. Being a legal and ethical doctrine, ‘informed consent’ has been discarded, accepted, modified and emulated by various judgments of courts. This paper will examine the ingenuity of courts in bringing about social change by upholding …

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 …

Medical Malpractice From A Surgeons Surgical Instruments, Andre77 S. Brown

andre77 S Brown

Hello, My name is Andre Brown and I’m a medical researcher for HNM Medical. I’ve written an article about medical malpractice that I would like to share you to post on your site. You may have full reprint rights to this article as long as you include the 3 links with do follow attributes that I have included in the body. - Please see the attachment for the article

Healthcare In Cuba, Carmen M. Cusack J.D.

Carmen M Cusack

Poor Americans who lack health-insurance or have little opportunity to access specialized or non-emergency medical treatment in the U.S. should be permitted by the U.S. State Department to spend money in Cuba in order to receive inexpensive medical treatment, and should be allowed to stay (and spend) in Cuba as long as necessary in order to receive inexpensive medical treatment. If Americans were permitted by an exception in the Helms-Burton Act to spend money in Cuba and visit for medical purposes, then Cuba would likely treat these Americans for a very low cost. This can be argued because 1) Cuba …

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

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.

An Open Letter To The Citizens Of Northwest Louisiana, Frederick J. White Iii

Frederick J White III

We, the undersigned physicians, want to publicly address our community regarding the health system debate in Congress. This is a historic time, and decisions made in these next days will impact you as citizens and as patients for generations. We recognize that the health system needs change. But the path that the Congress has taken is unwise and unnecessary. And although the American Medical Association has endorsed both the House and Senate bills, (1) we want to be clear—the AMA does not speak for us on these issues.

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

The Regulation Of Medical Malpractice In Japan, Robert Leflar

Robert B Leflar

How Japanese legal and social institutions handle medical errors is little known outside Japan. For almost all of the 20th century, a paternalistic paradigm prevailed. Characteristics of the legal environment affecting Japanese medicine included few attorneys handling medical cases, low litigation rates, long delays, predictable damage awards, and low-cost malpractice insurance. However, transparency principles have gained traction and public concern over medical errors has intensified. Recent legal developments include courts' adoption of a less deferential standard of informed consent; increases in the numbers of malpractice claims and of practicing attorneys; more efficient claims handling by specialist judges and speedier trials; …

The Regulation Of Xenotransplantation In The Uk After Ukxira: Legal And Ethical Issues’, Laura Williamson, Marie Fox, Sheila Mclean

Dr Laura Williamson

Xenotransplantation - the transfer of living tissue between species - has long been heralded as a potential solution to the severe organ shortage crisis experienced by the United Kingdom and other `developed' nations. However, the significant risks which accompany this biotechnology led the United Kingdom to adopt a cautious approach to its regulation, with the establishment of a non-departmental public body - UKXIRA - to oversee the development of this technology on a national basis. In December 2006 UKXIRA was quietly disbanded and replaced with revised guidance, which entrusts the regulation of xenotransplantation largely to research ethics committees. In this …

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 …