Medical Jurisprudence Commons^™

Medico-Legal Collaboration Regarding The Sex Offender: Othering And Resistance, Mary Lay Schuster, Brian N. Larson, Amy D. Propen

Brian Larson

We examined medico-legal collaboration regarding dangerous sex offenders where state legislators have adopted statutes that determine the criteria for commitment to and discharge from civil commitment programs. The application of these statutes relies on medical diagnoses of pathologies such as paraphilia, anti-social personality disorder, and pedophilia along with prognoses for cure or recidivism. In our study, we examined court opinions from commitment hearings and observed a trial in federal court on the constitutionality of these commitments. We found that one result of this medico-legal collaboration is the marginalization or othering of sex offenders by essentializing, dividing, shaming, and impeaching them. …

Avoiding Prolonged Dementia, Norman L. Cantor

Norman Cantor

Amicus Brief, Lebron V. Gottlieb Memorial Hospital, Neil Vidmar, Tom Baker, Ralph L. Brill, Martha Chamallas, Stephen Daniels, Thomas A. Eaton, Theodore Eisenberg, Neal R. Feigenson, Lucinda M. Finley, Marc Galanter, Valerie P. Hans, Michael Heise, Edward J. Kionka, Thomas H. Koenig, Herbert M. Kritzer, David I. Levine, Nancy S. Marder, Joanne Martin, Frank M. Mcclellan, Deborah Jones Merritt, Philip G. Peters, Jr., James T. Richardson, Charles Silver, Richard W. Wright

Nancy S. Marder

Illinois Public Act 82-280, § 2-1706.5, as amended by P.A. 94-677, § 330 (eff. Aug. 25, 2005), and as codified as 735 ILCS 5/2-1706.5(a), imposes a $500,000 “cap” on the noneconomic damages that may be awarded in a medical malpractice suit against a physician or other health care professional, and a $1 million “cap” on the noneconomic damages that may be awarded against a hospital, its affiliates, or their employees.

This brief will address two of the questions presented for review by the parties:

1. Does the cap violate the Illinois Constitution’s prohibition on “special legislation,” Art. IV, § 3, …

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 …

Blacklisted: The Constitutionality Of The Federal System For Publishing Reports Of "Bad" Doctors In The National Practitioner Data Bank, Katharine Van Tassel

Katharine Van Tassel

In order to highlight the problems with the NPDB [National Practitioner Data Bank], this Article compares physician blacklisting with other forms of blacklisting. For example, both physician and sexual predator blacklisting programs have the same goals: allowing the public to engage in self-protection by preventing “predators” from traveling to new locations to prey on a new group of unsuspecting victims. And both sexual predators and physicians suffer similar stigmatization as the result of the “badge of infamy” that comes with being blacklisted. But this is where the similarities end. Accused sex offenders get all of the trappings of due process …

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 …