Medical Jurisprudence Commons^™

Situational Irony? How Implementing A Medicaid Block Grant Will Exacerbate Everything It Purports To Fix, Brent Miller

BYU Law Review

No abstract provided.

Legal Principles And Seminal Legal Cases In Oocyte Donation, Jody L. Madeira, Susan L. Crockin

Articles by Maurer Faculty

Oocyte donation has played an increasingly important role in assisted reproductive technologies since the early 1980s. Over the past 30 years, unique legal standards have evolved to address issues in the oocyte donation procedure itself as well as the disputes over issues, such as parentage, that inevitably arise with new technologies, particularly for individuals seeking to build nontraditional families. This essay will explore oocyte donation's legal aspects as well as seminal law concerning the procedure, including statutory law (uniform and model provisions and enacted state laws) and selected judicial opinions concerning surrogacy and parentage, testing of oocyte donors, mix-ups of …

Halted Innovation: The Expansion Of Federal Jurisdiction Over Medicine And The Human Body, Myrisha S. Lewis

Utah Law Review

Modern medical innovations are blurring the line between medical practice and medical devices and drugs. Historically, many techniques have been developed in medicine, without any interference from the federal government, as medical practice is (and has historically been) an area of state jurisdiction. Over the past two decades, however, the U.S. Food and Drug Administration (FDA) has been exerting jurisdiction over the human body and the practice of medicine by targeting new medical techniques for oversight and subjecting the continued use of those treatments to onerous and legally questionable regulatory requirements that hinder the use of those treatments in practice. …

Halted Innovation: The Expansion Of Federal Jurisdiction Over Medicine And The Human Body, Myrisha S. Lewis

Faculty Publications

Modern medical innovations are blurring the line between medical practice and medical devices and drugs. Historically, many techniques have been developed in medicine, without any interference from the federal government, as medical practice is (and has historically been) an area of state jurisdiction. Over the past two decades, however, the U.S. Food and Drug Administration (FDA) has been exerting jurisdiction over the human body and the practice of medicine by targeting new medical techniques for oversight and subjecting the continued use of those treatments to onerous and legally questionable regulatory requirements that hinder the use of those treatments in practice. …

"Wrongful Birth" Claims And The Paradox Of Parenting A Child With A Disability, Sofia Yakren

Fordham Law Review

“Wrongful birth” is a controversial medical malpractice claim raised by the mother of a child born with a disability against a medical professional whose failure to provide adequate prenatal information denied her the chance to abort. Plaintiff-mothers are required to testify that, but for the defendant’s negligence, they would have terminated their pregnancy. Accordingly, alongside pro-life activists, disability rights advocates have opposed “wrongful birth” claims for stigmatizing and discriminating against people with disabilities by framing their very existence as a harm. Despite plaintiff-mothers’ need for caretaking resources, scholars have recommended solutions ranging from the wholesale elimination of the wrongful birth …

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. …

Reversal Of Fortune: Moving Pharmaceuticals From Over-The-Counter To Prescription Status?, Lars Noah

Villanova Law Review

No abstract provided.

Medical Malpractice Cuts Not The Answer, Ruqaiijah A. Yearby

All Faculty Scholarship

Tort reform--legislation that aims to reduce medical malpractice suits --will not cut medical costs and improve health care unless the government addresses the proliferation of unnecessary medical errors that victimize hundreds of thousands of patients every year.

Yearby's research considers how laws enacted to grant equal access to quality health care actually can pose barriers to the disenfranchised, and she is critical of health care reform efforts that do not address the far-reaching problem of medical errors. Finding ways to curb what she calls the "alarming rate of these medical errors," not only will reduce medical malpractice suits, but save …

Avoiding Prolonged Dementia, Norman L. Cantor

Norman Cantor

Health Care Referrals Out Of The Shadows: Recognizing The Looming Threat Of The Texas Patient Solicitation Act And Other Illegal Remuneration Statutes, Trenton Brown

St. Mary's Law Journal

Abstract forthcoming

Medical Negligence Proceedings In Singapore: Instilling A Gentler Touch, Dorcas Quek Anderson

Research Collection Yong Pung How School Of Law

Medical malpractice is an area that traverses a wide range of issues in any society – the qualityand cost of healthcare, the insurance industry, the cost of litigation, the impact on medicalpractice and the heightened emotions arising from injuries or even loss of lives. Evidently, thequestion of compensation for medical malpractice impinges on each of these challenges. Likemany countries, Singapore has been grappling with these issues through implementing variousreforms in the legal and healthcare sectors. Although compensation has historically beenobtained through legal proceedings in the Singapore courts, there is a growing shift towardsadopting a much gentler touch to deal with …

Informed Consent And The Role Of The Treating Physician, Eric Feldman, Holly Fernandez Lynch, Steven Joffe

All Faculty Scholarship

In the century since Justice Benjamin N. Cardozo famously declared that “[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body,” informed consent has become a central feature of American medical practice. In an increasingly team-based and technology-driven system, however, who is — or ought to be — responsible for obtaining a patient’s consent? Must the treating physician personally provide all the necessary disclosures, or can the consent process, like other aspects of modern medicine, take advantage of specialization and division of labor? Analysis of Shinal v. Toms, …

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, …

Crispr/Cas-9 Technologies: A Call For A New Form Of Tort, Kendall Lovell

San Diego International Law Journal

Once relegated to the domains of science fiction, modern day scientists and researchers are poised on the precipice of making genome editing clinically available. Once introduced into a clinical setting the effects of an off-target mutation or germline edit will remain largely unknown until health issues arise later in life or in the following generation. The novelty of the injuries that will arise require a system that is able to balance the interests of physicians with single and multi-generational plaintiffs, while providing a realistic framework for courts to follow. This comment offers a brand-new context that accounts for these needs …

Beyond Gift And Bargain: Some Suggestions For Increasing Kidney Exchanges, Nathan B. Oman

Faculty Publications

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 …

Choosing Medical Malpractice, Nadia N. Sawicki

Washington Law Review

Modern principles of patient autonomy and health care consumerism are at odds with medical malpractice law’s traditional skepticism towards the defenses of contractual waiver and assumption of risk. Many American courts follow a patient-protective view, exemplified by the reasoning in the seminal Tunkl case, rejecting any attempts by physicians to relieve themselves of liability on the grounds of a patient’s agreement to assume the risk of malpractice. However, where patients pursue unconventional treatments that satisfy their personal preferences but that arguably fall outside the standard of care, courts have good reason to be more receptive to such defenses. This Article …

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

Faculty Scholarship

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. …

Termination Of Hospital Medical Staff Privileges For Economic Reasons: An Appeal For Consistency, June D. Zellers, Michael R. Poulin

Maine Law Review

The relationship between physicians and hospitals is undergoing significant change. Historically, a physician maintained a private practice in the community and looked to the local hospital for ancillary support when his or her patients were too ill to remain at home. This community-based physician gained access to the hospital by obtaining medical staff privileges. These privileges allowed the physician to admit patients to the hospital, treat patients while they were there, and use the hospital's staff and equipment. The physician generally enjoyed the use of the privileges throughout his or her active career, losing them only if found incompetent. Today, …

A Surging Drug Epidemic: Time For Congress To Enact A Mandate On Insurance Companies And Rehabilitation Facilities For Opioid And Opiate Addiction, Alanna Guy

Journal of Law and Health

This Note begins with a discussion of both the national opioid problem as well as the specific epidemic in Ohio as an example of how it has grown within all of the states. Part II discusses the differences between prescription opioids and opiates, how they can be obtained, what effects they have on the human body, and why the government has an interest in this growing problem. Next, this Note explains how and why there was an increase in access and addiction to prescription opioid pain medication. Following this explanation, the steps the government has taken to try to rectify …

Informing Consent: Medical Malpractice And The Criminalization Of Pregnancy, Laura Beth Cohen

Michigan Law Review

Since the early 1990s, jurisdictions around the country have been using civil child abuse laws to penalize women for using illicit drugs during their pregnancies. Using civil child abuse laws in this way infringes on pregnant women’s civil rights and deters them from seeking prenatal care. Child Protective Services agencies are key players in this system. Women often become entangled with the Child Protective Services system through their health care providers. Providers will drug test pregnant women without first alerting them to the potential negative consequences stemming from a positive drug test. Doing so is a breach of these providers’ …

Reforming Regenerative Medicine Regulation, Sarah Duranske

Georgia State University Law Review

Regenerative medicine is defined as the branch of medicine that develops methods to regrow, repair, or replace damaged or diseased cells or tissues. It includes a variety of approaches, such as transplanting cells to promote healing, editing genes in cells to attack cancer, and even building organs from biological materials. Regulating regenerative medicine therapies is no easy task. Finding a balance between competing interests–enabling timely access for needy patients while simultaneously ensuring a positive benefit/risk profile and promoting the development of beneficial innovations–is hard enough at any given point in time. But add in constantly advancing scientific knowledge and increasing …

Accelerated Creative Problem Solving And Product Improvement Applied To Experimental Devices In A Bloodstain Pattern Interpretation Class--Improving The Role Of Insight Development Tools As A Generator Of New Ideas In Novel Situations, Douglas Ridolfi

Creativity and Change Leadership Graduate Student Master's Projects

This project uses an action research centered study protocol to examine the effects of a problem-based learning exercise related to bloodstain pattern interpretation in a crime scene processing and general criminalistics class taught as part of an upper division forensic chemistry major in a four year college. The goal is to apply design principles and creative problem solving methods directly adapted to a project involving interpreting a set of crime scene photographs depicting blood spatter and with the aid of guided exercises in ideation and design, lead students into the development of alternate theories of how the bloodstains were created …

A Job For Congress: Medical Marijuana Patients’ Fight For Second Amendment Rights, Kenneth Seligson

Golden Gate University Law Review

This Note begins with Part I section (A), describing the administrative rule and factual background, leading up to the suit in Wilson v. Lynch. Part I section (B) explains the arguments made at the U.S. District Court in Nevada and how the case progressed from the district court to the Ninth Circuit Court of Appeals. Then, Part I section (C) analyzes the Ninth Circuit’s application of the two-step test for Second Amendment challenges established in Chovan.

After evaluating the application of the two-step test in Wilson v. Lynch, Part II section (A) reviews the history of cannabis …

Maine Physician Practice Guidelines: Implications For Medical Malpractice Litigation, Jennifer S. Begel

Maine Law Review

This Article assesses the use of physician practice guidelines as a vehicle for medical malpractice tort reform and focuses upon the State of Maine's legislation incorporating physician practice parameters into the defense of medical malpractice litigation. The Maine Medical Liability Demonstration Project (the “Demonstration Project”) legislatively adopts practice guidelines in four different medical specialties and allows physicians in those specialties to assert compliance with the applicable guideline as an affirmative defense. The affirmative defense of compliance with such guidelines has been touted as a means of protecting physicians from, and decreasing the costs associated with, medical malpractice litigation. While the …

A Taste Of Their Own Medicine: Examining The Admissibility Of Experts' Prior Malpractice Under The Federal Rules Of Evidence, Neil Henson

Vanderbilt Law Review

Medical malpractice litigation is challenging for both plaintiffs and defendants. The intersection of legal issues with complex medical theories creates a dispute focused on expert witnesses, which leads to greater litigation expenses and cumbersome legal proceedings.' As one scholar observed, "medical malpractice has proven to be ... an unpleasant quagmire of unending skirmishes and full-scale engagements spread across a shifting battlefield." That analogy is fitting considering the stakes of a medical malpractice case-the injured patient's emotional, physical, and financial well-being may be contingent on a successful outcome, while the doctor may perceive even the threat of litigation as detrimental to …

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 …

The Role Of International Human Rights Law In Mediating Between The Rights Of Parents And Their Children Born With Intersex Traits In The United States, Cristian González Cabrera

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Understanding The Sexual Assault Kit Backlog In Pennsylvania, Kallie Crawford, Lyndsie Ferrara

Graduate Student Research Symposium

According to the FBI, to date, there are more than 400,000 untested sexual assault kits nationwide. While this is a huge issue that cannot be solved overnight, continual improvements and changes are needed to reduce and hopefully eliminate the backlog.

This research examines work going on nationwide and aims to better understand the backlog issues specifically in Pennsylvania. Furthermore, the research examines a program utilized by the law enforcement community that garnered necessary resources. First, a comprehensive review of improved practices in proactive jurisdictions of Ohio, Houston, Texas, and Detroit, Michigan was conducted to identify general policies and procedures that …

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 …