Medical Jurisprudence Commons^™

Correctional Discharge Planning & The Missing Linkages, D'Andre D. Lampkin

D'Andre Devon Lampkin

This research project explores correctional rehabilitation and disconnects between correctional facilities and linkage to follow up mental health treatment. One of the components to releasing inmates is providing them with services that help reintroduce them into society. For the mentally ill, linkage to mental health services after spending any amount of time in a correctional facility is heavily dependent on follow through by the former inmate and the expediency and capacity of the mental health departments’ outpatient facilities within the community the former inmate is released into.

Admissibility Of Scientific Evidence Under Daubert: The Fatal Flaws Of ‘Falsifiability’ And ‘Falsification’, Barbara P. Billauer Esq

barbara p billauer esq

Abstract: The Daubert mantra demands that judges, acting as gatekeepers, prevent para, pseudo or ‘bad’ science from infiltrating the courtroom. To do so, the Judges must first determine what “science” is? And then, what ‘good science’ is? It is submitted that Daubert is seriously polluted with the notions of Karl Popper who sets ‘falsifiability’ and ‘falsification’ as the demarcation line for that determination. This inapt philosophy has intractably infected case law, leading to bad decisions immortalized as stare decisis. Among other problems, is the intolerance of Popper’s system for multiple causation, a key component of toxic- torts. Thus, the primary …

Gandhi’S Prophecy: Corporate Violence And A Mindful Law For Bhopal, Nehal A. Patel

Nehal A. Patel

AbstractOver thirty years have passed since the Bhopal chemical disaster began,and in that time scholars of corporate social responsibility (CSR) havediscussed and debated several frameworks for improving corporate responseto social and environmental problems. However, CSR discourse rarelydelves into the fundamental architecture of legal thought that oftenbuttresses corporate dominance in the global economy. Moreover, CSRdiscourse does little to challenge the ontological and epistemologicalassumptions that form the foundation for modern economics and the role ofcorporations in the world.I explore methods of transforming CSR by employing the thought ofMohandas Gandhi. I pay particular attention to Gandhi’s critique ofindustrialization and principle of swadeshi (self-sufficiency) …

Using Inhalants To Obtain A Cheap High Is No Laughing Matter In Medical /Legal Circles, Samuel D. Hodge Jr.

Samuel D. Hodge Jr.

Much attention has been devoted to the ill effects of drug and alcohol abuse. However, there is an equally disturbing trend of people using household or industrial products to obtain a “quick high” by inhaling the fumes from these items. These gases seem innocuous but when inhaled, they can be more dangerous than street drugs with life altering consequences. The abuse of inhalants is not a problem limited to a specific segment of the population. Rather, it is a widespread issue that has no economic, social or age related boundaries. Thirty-seven states have enacted statutes concerning inhalant abuse. A few …

Responsabilidad Civil Médica: ¿Laboratorio De La Responsabilidad Civil? Breves Comentario De Derecho Extranjero A Una Sentencia De Derecho Nacional, Jose L. Gabriel Rivera

Jose L. Gabriel Rivera

El autor, desde una optica del derecho comparado, nos da a conocer como se regulan estos los casos de responsabilidad médica en el sistema juridico europeo, por lo que partiendo por la explicacion evolutiva de la responsabilidad médica a partir de dos casos jurisprudenciales célebres (francés e italiano), aconseja que en el Perú podría esbozarse un sistema de inspiracion francesa,esto es, un sistema único y especial de indemnizacion dirigido a tutelar de la mejor manera a las víctimas.

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.

Human Dignity As A Normative Standard Or As A Value In Global Health Care Decisionmaking?, George P. Smith

George P Smith

Abstract

Dignity is seen commonly as an ethical obligation owed to human persons. The dimensions of this obligation, in today’s post secular society, are—however—subject to wide discussion and debate; for, the term, human dignity, and its preservation, defies universal agreement. Yet its preservation, together with the prevention of indignity, is a guiding principle or at least a vector of force in a wide range of issues ranging from embryo research and assisted reproduction to biomedical enhancement, and the care of the disable and to the dying. In clinical medicine, safeguarding the dignity of the patient is a core responsibility of …

The "Uberization" Of Healthcare: The Forthcoming Legal Storm Over Mobile Health Technology's Impact On The Medical Profession, Fazal Khan

Fazal Khan

The nascent field of mobile health technology is still very small but is predicted to grow exponentially as major technology companies such as Apple, Google, Samsung, and even Facebook have announced mobile health initiatives alongside influential healthcare provider networks. Given the highly regulated nature of healthcare, significant legal barriers stand in the way of mobile health’s potential ascension. I contend that the most difficult legal challenges facing this industry will be restrictive professional licensing and scope of practice laws. The primary reason is that mobile health threatens to disrupt historical power dynamics within the healthcare profession that have legally enshrined …

Dumping Daubert, Popping Popper And Falsifying Falsifiability: A Re-Assessment Of First Principles, Barbara P. Billauer Esq

barbara p billauer esq

Abstract: The Daubert mantra demands that judges, acting as gatekeepers, prevent para, pseudo or bad science from infiltrating the courtroom. To do so, the Judges must first determine what is ‘science’ and what is ‘good science.’ It is submitted that Daubert is deeply polluted with the notions of Karl Popper who sets ‘falsifiability’ and ‘falsification’ as the demarcation line for that determination. This philosophy has intractably infected case law, leading to bad decisions immortalized as stare decisis, and an unworkable system of decision-making, which negatively impacts litigant expectations. Among other problems is the intolerance of Popper’s system for multiple causation, …

A Guide To The Independent Medical Examination, Samuel D. Hodge Jr.

Samuel D. Hodge Jr.

Independent medical examinations (IMEs) are physicals conducted at the request of a third party. An example is the physical examination of a workers’ compensation claimant or life insurance applicant, but IMEs are common in bodily injury claims. These examinations are very important since they can help decide whether a claimant is entitled to compensation or qualifies for life insurance or a job. Most defense attorneys have relied on medical reports and expert testimony from an independent medical examiner but little is known about the limitations or parameters of this assessment. In fact, there are a multitude of legal issues surrounding …

How Not To Make An Advert About Medical Negligence, Denver Burke

Denver Burke

No abstract provided.

Please Provide The Entire Electronic Medical Record, Jonathan H. Lomurro Esq. Llm

Jonathan H. Lomurro Esq. LLM

No abstract provided.

The Continuing Battle Of Fda Regulation Of Dietary Supplements And Their Adverse Affect On Young Adults And Other Individuals, Andrew Bernard Jaffe

Andrew Bernard Jaffe

THE CONTINUING BATTLE OF FDA REGULATION OF DIETARY SUPPLEMENTS AND THEIR ADVERSE AFFECT ON YOUNG ADULTS AND OTHER INDIVIDUALS

Abstract

Ever since the enactment of the Dietary Supplement Health and Education Act of 1994 (DSHEA) the Food and Drug Administration (FDA) has struggled to regulate dietary supplements. This is due to the definition of dietary supplements as foods in the act. This gives supplement manufacturers greater loopholes when introducing supplements on the market. The FDA’s inability to regulate dietary supplements efficiently has been present for decades. Multiple battles are still occurring today which is proven to have an adverse effect …

Transformations In Health Law Practice: The Interections Of Changes In Healthcare And Legal Workplaces, Louise G. Trubek, Barbara J. Zabawa, Paula Galowitz

Louise G Trubek

The passage and implementation of the Affordable Care Act is propelling transformations in health care. The transformations include integration of clinics and hospitals, value based care, patient centeredness, transparency, computerized business models and universal coverage. These shifts are influencing the practice of health law, a vibrant specialty field considered a “hot” area for new lawyers. The paper examines how the transformations in health care are intersecting with ongoing trends in law practice: increase in in-house positions, collaboration between medical and legal professionals, and the continued search for increased access to legal representation for ordinary people. Three health law workplace sites …

The Drug Shortage Crisis: What Happens When Generic Manufacturers "Just Say No", Stacey B. Lee

Stacey B. Lee

In the past five years, the number of drug shortages in the United States has nearly quintupled. The majority of shortages involve generic sterile injectables used to fight infectious diseases and treat cancer. These complex drugs are produced in a concentrated market consisting of only a few generic manufacturers. Any disruption in their supply can result in shortages that leave patients without access to life-saving drugs which in some cases are the only treatment for their condition. These chronic shortages have been linked to many possible factors including product quality concerns, discontinuation of product lines, changes in supply and demand, …

Consciousness And Futility: A Proposal For A Legal Redefinition Of Death, Christopher Smith

Christopher R Smith

Recent controversies in Texas (with the Marlise Muñoz case) and in California (with the Jahi McMath case) have highlighted a lamentable flaw in the current legal conception of human death, and the difficulty of defining when death finally occurs. The unworkable notion of “brain-death” remains the law in every state in the union, yet the philosophical and scientific foundations of this notion remain open to attack. This article posits that death is a fundamentally social construct, and that it is society at large (through its laws, public opinions, religious attitudes, etc.) that actually defines death. This essay then argues that …

Foreseeability Decoded, Meiring De Villiers

Meiring de Villiers

The Article reviews the conceptual and doctrinal roles of the foreseeability doctrine in negligence law, and analyzes its application in cases where a new technology or unexplored scientific principle contributed to a plaintiff’s harm. It adopts the common law definition of foreseeability as a systematic relationship between a defendant’s wrongdoing and the plaintiff’s harm, and demonstrates translation of the concept into the language of science so that the common law meaning of the foreseeability doctrine is preserved. An analysis of the foreseeability of HIV/AIDS as a blood-borne risk illustrates application of the concept to contemporary issues in medical science.

The Natural Rights Of Children, Walter E. Block

Walter E Block

No abstract provided.

"Rfra Exemptions From The Contraception Mandate: An Unconstitutional Accommodation Of Religion", Frederick Mark Gedicks, Rebecca G. Van Tassell

Frederick Mark Gedicks

Litigation surrounding use of the Religious Freedom Restoration Act to exempt employers from the Affordable Care Act’s “contraception mandate” is moving steadily towards eventual resolution in the U.S. Supreme Court. Both opponents and supporters of the mandate, however, have overlooked Establishment Clause limits on such exemptions. The fiery religious-liberty rhetoric surrounding the mandate has obscured that RFRA is a “permissive” rather than “mandatory” accommodation of religion—that is, a voluntary government concession to religious belief and practice that is not required by the Free Exercise Clause. Permissive accommodations must satisfy Establishment Clause constraints, notably the requirement that the accommodation not impose …

The Dangerousness Of The Status Quo: A Case For Modernizing Civil Commitment Law, Daniel A. Moon

Daniel C Moon

The states, private healthcare organizations, and those with psychiatric disorders are poorly served by the vague “dangerousness” standard endorsed by the United States Supreme Court in O’Connor v. Donaldson, as well as the state statutes that adhere to the high bar set in its holding. This paper explores involuntary civil commitment from a variety of perspectives in order to highlight these issues and to identify where improvements can be made. Specifically, this article proposes that the American Law Institute or the American Bar Association promulgate model rules intended to correct the system’s shortcomings and protect the various interested parties.

The Mhealth Conundrum: Smartphones & Mobile Medical Apps – How Much Fda Medical Device Regulation Is Required?, Vincent J. Roth Esq

Vincent J Roth Esq

Smartphones and tablets have provided a plethora of new business opportunities for a number of industries including healthcare. Technology, however, appears to have outpaced the regulatory environment, which has spawned criticism over the current guidance of the Food and Drug Administration (“FDA”) with regard to software and what level of regulation is required for mobile medical applications. Commentators have remarked that the FDA’s guidance in this area is complex and unclear. This article explores the current FDA regulatory scheme for mobile medical applications and adapters for mobile devices designed to provide mobile healthcare, or “mHealth.” Attention is given to further …

The Mhealth Conundrum: Smartphones & Mobile Medical Apps – How Much Fda Medical Device Regulation Is Required?, Vincent J. Roth Esq

Vincent J Roth Esq

Smartphones and tablets have provided a plethora of new business opportunities for a number of industries including healthcare. Technology, however, appears to have outpaced the regulatory environment, which has spawned criticism over the current guidance of the Food and Drug Administration (“FDA”) with regard to software and what level of regulation is required for mobile medical applications. Commentators have remarked that the FDA’s guidance in this area is complex and unclear. This article explores the current FDA regulatory scheme for mobile medical applications and adapters for mobile devices designed to provide mobile healthcare, or “mHealth.” Attention is given to further …

Consentimiento Informado: Un Derecho Fundamental En La Relación Médico Paciente., Guillermo Castorena

Guillermo Castorena

Este derecho está basado en el principio de autonomía. Se trata de un derecho humano del paciente, aunque por otra parte, podría verse también como un elemento estructural esencial del contrato de servicios médicos, esto es, la esencia misma de ese acto médico-jurídico. De esa manera, la voluntad del paciente para someterse a un procedimiento médico o quirúrgico con fines diagnósticos, terapéuticos, rehabilitatorios o paliativos, se formará por un proceso de información, entendimiento, razonamiento y manifestación de la voluntad.

The Issue Is Being Intersex: The Current Standard Of Care Is A Result Of Ignorance, And It Is Amazing What A Little Analysis Can Conclude., Marla J. Ferguson

marla j ferguson

The Constitution was written to protect and empower all citizens of the United States, including those who are born with Disorders of Sex Development. The medical community, as a whole, is not equipped with the knowledge required to adequately diagnose or treat intersex babies. Intersex simply means that the baby is born with both male and female genitalia. The current method that doctors follow is to choose a sex to assign the baby, and preform irreversible surgery on them without informed consent. Ultimately the intersex babies are mutilated and robbed of many of their fundamental rights; most notably, the right …

Perkinelmer Inc. V. Intema Ltd. And Patent-Eligibility Of Diagnostic Screening Methods After Mayo V. Prometheus, John Ye

John Ye

In December 2011, the Supreme Court issued its ruling in Mayo v. Prometheus,[1] reversing the Federal Circuit based on unpatentable subject matter in a diagnostic method patent. In Mayo, the patent disclosed a method for determining the correct drug dosage based on the drug’s metabolite in a patient’s blood. The method was declared patent-ineligible because instead of teaching an application of laws of nature, the teachings only directed doctors to “apply it” - all disguised under the conventional steps such as “administering”, “measuring” and “determining” [2].

Following the Court’s holding, the Federal Circuit in November 2012 …

Waging War On Specialty Pharmaceutical Tiering In Pharmacy Benefit Design, Chad I. Brooker

Chad I Brooker

Specialty drugs represent a growing concern for both health insurance issuers and beneficiaries given their exceedingly high (and growing) costs—representing almost half of all drug spend by 2017. Payers have sought to reduce their specialty drug spend by sharing more of the cost of these drugs with the beneficiaries who depend on them through the creation of specialty drug tiers. This has forced some patients to choose between forgoing other needs to pay for their medications or not take them at all. While several states have sought to outlaw the use of specialty drug tiers or limit pharmaceutical OOP cost-sharing, …

Rescuing Access To Patented Essential Medicines: Pharmaceutical Companies As Tortfeasors Under The Prevented Rescue Tort Theory, Richard Cameron Gower

Richard Cameron Gower

Despite some difficulties, state tort law can be argued to create a unique exception to patent law. Specifically, the prevented rescue doctrine suggests that charities and others can circumvent patents on certain critical medications when such actions are necessary to save individuals from death or serious harm. Although this Article finds that the prevented rescue tort doctrines is preempted by federal patent law, all hope is not lost. A federal substantive due process claim may be brought that uses the common law to demonstrate a fundamental right that has long been protected by our Nation’s legal traditions. Moreover, this Article …

Pirates Of The Australian Election, Matthew Rimmer

Matthew Rimmer

“Pirate parties” have proliferated across Europe and North America in the past decade, championing issues such as intellectual property (IP), freedom of speech, and the protection of privacy and anonymity.This year, the movement hit Australian shores: The Pirate Party Australia was officially registered by the Australian Electoral Commission in January 2013. (You can read its principles and platform here.)“More than ever before, there is a necessity in Australia for a party that holds empowerment, participation, free culture and openness as its central tenets”, Pirate Party founder Rodney Serkowski said in a press release announcing the group’s successful registration. Their first …

Which Is Greater: The Right To Parent Or The Rights Of A Parent? The Legal And Ethical Quandaries When A Minor Child Diagnosed With Cancer Wishes To Utilize Oocyte Cryopreservation And Advanced Reproductive Technology For Future Procreation., Jessica M. Hallgren

Jessica M Hallgren

No abstract provided.