Medical Jurisprudence Commons^™

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

Rutgers Law School (Newark) Faculty Papers

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 …

Internet Pharmacies: Why State Regulatory Solutions Are Not Enough, Linda C. Fentiman

Elisabeth Haub School of Law Faculty Publications

Internet pharmacies are an economic and communications miracle--and a regulatory nightmare. It is estimated that Americans spent some $3.2 billion in 2003 on medications from the Internet, but Internet pharmacies permit consumers to evade long-standing regulatory protections, particularly those that rely on the oversight of drug prescribing and dispensing by licensed physicians and pharmacists.

Mental Disorder And The Civil/Criminal Distinction, Grant H. Morris

University of San Diego Public Law and Legal Theory Research Paper Series

This essay, written as part of a symposium issue to commemorate the 50th anniversary of the University of San Diego Law School, discusses the evaporating distinction between sentence-serving convicts and mentally disordered nonconvicts who are involved in, or who were involved in, the criminal process–people we label as both bad and mad. By examining one Supreme Court case from each of the decades that follow the opening of the University of San Diego School of Law, the essay demonstrates how the promise that nonconvict mentally disordered persons would be treated equally with other civilly committed mental patients was made and …

Competency To Stand Trial On Trial, Grant H. Morris, Ansar M. Haroun, David Naimark

University of San Diego Public Law and Legal Theory Research Paper Series

This Article considers the legal standards for the determination of competency to stand trial, and whether those standards are understood and applied by psychiatrists and psychologists in the forensic evaluations they perform and in the judgments they make–judgments that are routinely accepted by trial courts as their own judgments. The Article traces the historical development of the competency construct and the development of two competency standards. One standard, used today in eight states that contain 25% of the population of the United States, requires that the defendant be able to assist counsel in the conduct of a defense “in a …

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

Rutgers Law School (Newark) Faculty Papers

“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 …

The Bane Of Surrogate Decision Making: Defining The Best Interests Of Never-Competent Persons, Norman L. Cantor

Rutgers Law School (Newark) Faculty Papers

The medical fate of never-competent persons cannot be resolved according to the approach governing previously competent persons -- surrogate focus on self-determination via advance instructions or projections of what the now-incompetent person would want in the circumstances. For never-competent medical patients, the commonly stated approach to surrogate decision making is best interests of the incapacitated ward.

This article examines and questions the conventional wisdom regarding a "best interests of the patient" standard. When a parent is the surrogate decision maker, the medical course chosen need not be the best course, so long as it is a plausible medical option and …

Politicizing The End Of Life: Lessons From The Schiavo Controversy, Barbara A. Noah

Faculty Scholarship

The case of Theresa Marie Schiavo raises challenging legal and ethical issues, although the events of the case are not entirely novel. It is a well-settled principle under Florida law that individuals have a right to refuse life-sustaining medical treatment. After years of litigation, numerous courts have confirmed that removal of life support is legally appropriate under the facts of this case. Nevertheless, six days after Theresa's feeding tube was removed, the Florida legislature
opted to intervene in the final judicial decision by granting the Governor the authority to overrule the court's decision and to order the tube reinserted. These …

How A Drug Becomes ‘Ethnic’: Law, Commerce, And The Production Of Racial Categories In Medicine, Jonathan Kahn

Faculty Scholarship

A drug called BiDil is poised to become the first drug ever approved by the Food and Drug Administration (FDA) to treat heart failure in African Americans - and only African Americans. This article explores the story of BiDil and considers some of its broader implications for the use of racial categories in law, medicine, and science. It argues that BiDil is an ethnic drug today as much, if not more because of the interventions of law and commerce as because of any biomedical considerations. The article is, first, a retrospective analysis of how law, commerce, science, and medicine interacted …

Discussed In Federico Stella, The Vitality Of The Covering Law Model: Considerations On Wright And Mackie, Richard W. Wright

All Faculty Scholarship

No abstract provided.

Maternity Leave Under The Fmla: An Analysis Of The Litigation Experience , Rafael Gely, Timothy D. Chandler

Faculty Publications

We begin with a brief description of trends in female labor force participation and the presence of dual-earner households in the U.S. labor market, conditions which likely led to the need for family and medical leave legislation. We then review various practices that business and government organizations have implemented to balance work and family conflicts, as well as related features of the FMLA, particularly those pertaining to childbirth and adoption. With this background in place, we introduce a framework for examining FMLA litigation. We then review cases litigated in federal court under the FMLA involving requests for family leave due …

Hippocrates To Hipaa: A Foundation For A Federal Physician-Patient Privilege, 77 Temp. L. Rev. 505 (2004), Ralph Ruebner, Leslie Ann Reis

UIC Law Open Access Faculty Scholarship

No abstract provided.

“Just Say No!”: The Right To Refuse Psychotropic Medication In Long-Term Care Facilities, George P. Smith Ii

Scholarly Articles

This Article examines the provisions of The Omnibus Budget Reconciliation Act of 1987 (OBRA '87) surveying the case law as such that deals with the rights of patients in mental institutions to refuse psychotropic medication. The article focuses first on an analysis of the different substantive and procedural rights afforded to patients under state common law, state constitutions and the federal Constitution. It then proceeds to evaluate the impact of OBRA '87 on the rights of long-term care patients who refuse medication and choose to accept minimal administrative hearings instead of pursuing full judicial proceedings designed to protect those rights. …

Damages: Using A Case Study To Teach Law, Lawyering, And Dispute Resolution, Chris Guthrie

Vanderbilt Law School Faculty Publications

Seven law school faculty members and one practicing attorney recently developed and taught a wholly new kind of law course based on an already published case study, Damages: One Family's Legal Struggles in the World of Medicine, by Barry Werth, an investigative reporter who spent several years researching to write the book. Damages, an in-depth account of a medical malpractice case, presents the perspectives of the injured family, the defendant physician, the lawyers, and the three mediators. In this Symposium Introduction, the authors provide a summary of Werth's book, explain why they decided to create a course based on his …

Steering And Rowing In Health Care: The Devolution Option?, Colleen Flood, Joanna Erdman, Duncan Sinclair

Articles, Book Chapters, & Popular Press

Publicly funded health care systems are often the subject of heated policy debates. All too often (particularly in Canada), these debates focus on the prohibitive costs, the resultant taxation levels, and the questionable efficiency and outcomes associated with a publicly funded system. Moreover, the institutionalization of the system and the entrenchment of its many stakeholders make effecting change particularly difficult. In this article, the authors begin with an assessment of the drawbacks of the Canadian health care system in the federal-provincial context and its resulting gaps in governance (steering), in management (rowing), and in overall accountability (apart from that offered …

The Boundaries Of Medicare: Tensions In The Dual Role Of Ontario's Physician Services Review Committee, Colleen Flood, Joanna Erdman

Articles, Book Chapters, & Popular Press

In this research, we describe and analyse the Physician Services Committee (PSC) in Ontario, focusing on its role in determining what physician services are publicly funded and what services are de-listed (i.e. no longer eligible for public funding). We explain how the PSC's role in determining the boundaries of Medicare is in tension with its role as a medium for labour relations between the government and the medical profession. We suggest that while the values of privacy, secrecy and a lack of transparency may enhance the PSC's fulfillment of its labour relations mandate, they impede the Committee's successful fulfillment of …

Insuring Liability Risks, Tom Baker

All Faculty Scholarship

Recent dramatic increases in prices for medical liability insurance, directors and officers insurance, and other lines of commercial liability insurance, together with the exit of some insurers from those lines of business, has placed liability insurance on the public agenda. At the same time, asbestos and environmental losses continue to mount under general liability insurance policies sold long ago, when no one could have predicted the extent or cost of such losses. In combination, these and other related events have raised serious concerns about the insurability of liability risks and have prompted calls for dramatic efforts to roll back the …

Good Enough To Use For Research, But Not Good Enough To Benefit From The Results Of That Research: Are The Clinical Hiv Vaccine Trials In Africa Unjust?, Ruqaiijah A. Yearby

All Faculty Scholarship

The epidemic of the Human Immunodeficiency Virus (HIV) infection in Sub-Saharan Africa, the region most affected by the HIV pandemic and where HIV is the leading cause of death, is reaching insurmountable proportions. In fact, out of the 36.1 million HIV infections worldwide, 25.3 million, seventy percent, are in Sub-Saharan Africa. Additionally, of the more than 15,000 people who are infected with HIV every day, ninety-five percent of the cases are in populations that live in developing countries such as those located in Sub-Saharan Africa. Due to the significant number of Africans infected with HIV, many researchers and ethicists have …

Benumbed, Carl E. Schneider

Articles

I originally intended to write a column on tort liability and research ethics, and I still plan to do so. But this column is a cri de coeur as I finish another semester teaching law and bioethics. This year, I asked with growing frequency, urgency, and exasperation, "Must law's reverence for autonomy squeeze out the impulse to kindness? Where is the beneficence in bioethics?" These questions assail me every term. Why? Consider Steele v. Hamilton County Community Mental Health Board. Mr. Steele was involuntarily "hospitalized after his family reported that he was 'seeing things and trying to fight imaginary …

Time To Enter A "Do Not Resuscitate" Order On The National Resident Matching Program's Chart, Gregory Dolin

All Faculty Scholarship

This article focuses on the NRMP system and argues that the process is neither efficient nor pro-competitive. This article argues that Congress erred in bestowing an antitrust exemption on the NRMP and the participating institutions.

This article suggests that although the system may have been necessary to check the problem of early recruiting that was pervasive in the 1950s (similar to the one that plagued the federal judiciary until just two years ago), the system has outlived its usefulness. Part II will explain the Match's history and function and will discuss how the system makes participation in the Match inevitable …

Use And Disclosure Of Protected Health Information For Research Under The Hippa Privacy Rule, The: Unrealized Patient Autonomy And Burdensome Government Regulation, Stacey A. Tovino

Scholarly Works

This article offers a legal and ethical analysis of the requirements of federal privacy regulations (herein after the “Privacy Rules”) relating to the use and disclosure of individually identifiable health information for research activities. Section II of this article provides a legal summary of the Privacy Rules’ complex research provisions. Sections III and IV of this article analyze the Privacy Rules’ research provisions from a legal and ethical perspective. Specifically, Section III addresses whether the Privacy Rules promote autonomy by analyzing certain of the legal rights attributed to individuals who are the subjects of health information including: (1) the general …

Sexually Violent Predator Laws: Psychiatry In Service To A Morally Dubious Enterprise, Eric S. Janus

Faculty Scholarship

This article discusses the role of psychiatrists in determining the treatment of sexually violent predators (SVP). Instead of being released at the end of their prison sentences, sex offenders in the USA who are judged mentally disordered and dangerous are being confined in secure "treatment facilities" for indeterminate terms. This novel and aggressive legislative tactic—embodied in US sexually violent predator laws—commandeers the traditional power of state mental health systems and puts it in service to a core function of the criminal justice system: the control of sexual violence. This transposition of "civil commitment" has forced psychiatry to legitimate and arbitrate …

Race As Proxy: Situational Racism And Self-Fulfilling Stereotypes, Lu-In Wang

Articles

In our society, race can act as a proxy for a long list of characteristics, qualities, and statuses. For people of color, the most powerful of these associations have too often been negative, and have carried with them correspondingly negative consequences. We often link color with undesirable personal qualities such as laziness, incompetence, and hostility, as well as disfavored political viewpoints such as lack of patriotism or disloyalty to the United States. Race even acts as a proxy for susceptibility to some diseases. Medical professionals so often diagnose schizophrenia in blacks, for example, that the association has come full circle, …

Deliberate Extinction: Whether To Destroy The Last Smallpox Virus, David A. Koplow

Georgetown Law Faculty Publications and Other Works

The target problem to be examined is smallpox. Specifically, what should we (the United States and the entire world) now do with the last known residual samples of the virus that causes this uniquely horrific disease? The illness itself has virtually disappeared from the catalogue of human afflictions: due to a stunningly imaginative, concerted, and resolute campaign of the World Health Organization (WHO) through the 1970s, no one has contracted this deadly impairment for twenty-five years. Yet the causative element, an insidious scourge known as the variola virus, still remains, housed for now in high-security freezers at the U.S. Centers …