Medical Jurisprudence Commons^™

Feigned Consensus: Usurping The Law In Shaken Baby Syndrome/Abusive Head Trauma Prosecutions, Keith A. Findley, D. Michael Risinger, Patrick D. Barnes, Julie A. Mack, David A. Moran, Barry C. Scheck, Thomas L. Bohan

Articles

Few medico-legal matters have generated as much controversy--both in the medical literature and in the courtroom--as Shaken Baby Syndrome (SBS), now known more broadly as Abusive Head Trauma (AHT). The controversies are of enormous significance in the law because child abuse pediatricians claim, on the basis of a few non-specific medical findings supported by a weak and methodologically flawed research base, to be able to “diagnose” child abuse, and thereby to provide all of the evidence necessary to satisfy all of the legal elements for criminal prosecution (or removal of children from their parents). It is a matter, therefore, in …

Conant V. Walters: A Misapplication Of Free Speech Rights In The Doctor-Patient Relationship, Katharine M. Mccarthy

Maine Law Review

In Conant v. Walters, the United States Court of Appeals for the Ninth Circuit addressed the application of the First Amendment's right of free speech to a federal policy that prohibited the recommendation of medical marijuana by physicians. This class action suit, brought by physicians and severely ill patients, successfully enjoined the federal government from enforcing its policy revoking the federal prescriptive licenses of physicians who recommend or approve of marijuana use by patients suffering from certain severe illnesses. The federal government's policy, issued in 1996 through a statement of Barry McCaffrey, director of the Office of National Drug Control …

The Treatment For Malpractice – Physician, Enhance Thyself: The Impact Of Neuroenhancements For Medical Malpractice, Harvey L. Fiser

Pace Law Review

This article will introduce some of the issues and offer some possible guidelines which may eventually guide cases of medical malpractice and medical care in the face of neurointerventions. First, I will briefly address the standard of care in medical malpractice cases in general. Second, I will discuss some of the existing and potential physical and neurological enhancements available for physicians. Finally, I will explore how these neurointerventions could alter the standards for medical malpractice for both the enhanced doctors and the entire medical profession.

Piercing The Veil: The Limits Of Brain Death As A Legal Fiction, Seema K. Shah

University of Michigan Journal of Law Reform

Brain death is different from the traditional, biological conception of death. Although there is no possibility of a meaningful recovery, considerable scientific evidence shows that neurological and other functions persist in patients accurately diagnosed as brain dead. Elsewhere with others, I have argued that brain death should be understood as an unacknowledged status legal fiction. A legal fiction arises when the law treats something as true, though it is known to be false or not known to be true, for a particular legal purpose (like the fiction that corporations are persons). Moving towards greater transparency, it is legally and ethically …

The North Carolina Woman’S Right To Know Act: An Unconstitutional Infringement On A Physician’S First Amendment Right To Free Speech, Ryan Bakelaar

Michigan Journal of Gender & Law

The North Carolina Woman’s Right to Know Act represents the crossroads of the Supreme Court’s First Amendment, informed consent, and abortion-related jurisprudence. The Act requires physicians to perform an obstetric ultrasound, verbally convey specific information regarding ultrasonographic findings, and communicate a host of other information to patients seeking abortions. The purported goal of the Act is to ensure that physicians obtain appropriate informed consent from such patients. By compelling a physician to convey this information, the State violates the physician’s First Amendment rights. Indeed, the State may not compel an individual to convey the State’s ideological message. Further, any statute …

Access To Medicaid: Recognizing Rights To Ensure Access To Care And Services, Colleen Nicholson

University of Michigan Journal of Law Reform Caveat

The Supreme Court has defined Medicaid as “a cooperative federal-state program through which the Federal Government provides financial assistance to States so that they may furnish medical care to needy individuals.” In June 2012, the Court found the Patient Protection and Affordable Care Act’s (PPACA) Medicaid expansion unconstitutional. The Court took issue with the threat to withhold all of a state’s Medicaid funding if they did not comply with the expansion, finding it coercive and a fundamental shift in the Medicaid paradigm. However, Medicaid in its current form may not always be effective at providing beneficiaries with timely access to …

Abortion And Informed Consent: How Biased Counseling Laws Mandate Violations Of Medical Ethics, Ian Vandewalker

Michigan Journal of Gender & Law

If we slightly change the facts of the story about the discouraging doctor, it becomes a story that happens every day. Abortion patients face attempts to discourage them from terminating their pregnancies like those the imaginary doctor used, as well as others-and state laws mandate these attempts. While the law of every state requires health care professionals to secure the informed consent of the patient before any medical intervention, over half of the states place additional requirements on legally effective informed consent for abortion. These laws sometimes include features that have ethical problems, such as giving patients deceptive information. Unique …

Shaken Baby Syndrome, Abusive Head Trauma, And Actual Innocence: Getting It Right, Keith A. Findley, Patrick D. Barnes, David A. Moran, Waney Squier

Articles

In the past decade, the existence of shaken baby syndrome (SBS) has been called into serious question by biomechanical studies, the medical and legal literature, and the media. As a result of these questions, SBS has been renamed abusive head trauma (AHT). This is, however, primarily a terminological shift: like SBS, AHT refers to the two-part hypothesis that one can reliably diagnose shaking or abuse from three internal findings (subdural hemorrhage, retinal hemorrhage, and encephalopathy) and that one can identify the perpetrator based on the onset of symptoms. Over the past decade, we have learned that this hypothesis fits poorly …

Malpractice Suits And Physician Apologies In Cancer Care, Eugene Chung, Jill R. Horwitz, John A.E. Pottow, Reshma Jagsi

Articles

Conside the following case: The patient is a 44-year-old woman who presents for radiation treatment of an isolated locoregional recurrence of breat cancer in her chest wall, 3 years after undergoing masectomy. At the time of diagnosis, she had T2N2M0 disease, with four of 15 lymph nodes involved with tumor. She received a masectomy with negative margins and appropriate chemotherapy, but none of her physicians talked to her about postmasectomy radiation therapy, which would clearly have been indicated to reduce her risk of locoregional failure and would have been expected to improve her likelihood of survival. She asks the radiation …

Social Factoring The Numbers With Assisted Reproduction, Bridget J. Crawford, Lolita Buckner Inniss

Publications

In early 2009 the airwaves came alive with sensational stories about Nadya Suleman, the California mother who gave birth to octuplets conceived via assisted reproductive technology. Nadya Suleman and her octuplets are vehicles through which Americans express their anxiety about race, class and gender. Expressions of concern for the health of children, the mother's well-being, the future of reproductive medicine or the financial drain on taxpayers barely conceal deep impulses towards racism, sexism and classism. It is true that the public has had a longstanding fascination with multiple births and with large families. This is evidenced by a long history …

Jesting Pilate, Carl E. Schneider

Articles

I have two goals this month. First, to examine a case that's in the news. Second, to counsel skepticism in reading news accounts of cases. Recently, I was talking with an admirable scholar. He said that transplant surgeons sometimes kill potential donors to obtain their organs efficiently. He added, "This isn't just an urban legend - there's a real case in California." A little research turned up California v. Roozrokh. A little Googling found stories from several reputable news sources. Their headlines indeed intimated that a transplant surgeon had tried to kill a patient to get transplantable organs. CNN.com: …

Doctors & Juries, Philip G. Peters Jr.

Faculty Publications

Legislation is pending in both houses of Congress to transfer medical malpractice cases from civil juries to administrative health courts. The Institute of Medicine also wants to take malpractice cases away from juries through a system of binding early settlement offers. Each of these proposals is premised on the assumption that juries lack the capacity to resolve medical malpractice disputes fairly. This article evaluates that premise. It collects and synthesizes three decades of empirical research on jury decision-making, updating the seminal review done by Neil Vidmar over a decade ago.Four important findings emerge from the data. First, negligence matters. Plaintiffs …

Drugged, Carl E. Schneider

Articles

The Supreme Court's recent decision in Gonzales v. Oregon, like its decision last year in Gonzales v. Raich (the "medical marijuana" case), again raises questions about the bioethical consequences of the Controlled Substances Act. When, in 1970, Congress passed that act, it placed problematic drugs in one of five "schedules," and it authorized the U.S. attorney general to add or subtract drugs from the schedules. Drugs in schedule II have both a medical use and a high potential for abuse. Doctors may prescribe such drugs if they "obtain from the Attorney General a registration issued in accordance with the …

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 …

Experts, Carl E. Schneider

Articles

George Bernard Shaw famously said that all professions are conspiracies against the laity. Less famously, less elegantly, but at least as accurately, Andrew Abbott argued that professions are conspiracies against each other. Professions compete for authority to do work and for authority over work. The umpire in these skirmishes and sieges is the government, for the state holds the gift of monopoly and the power to regulate it. In Abbott's terms, "bioethics" is contesting medicine's power to influence the way doctors treat patients. If it follows the classic pattern, bioethics will solicit work and authority by recruiting government's power. A …

Exploitation Of The Elite: A Case For Physician Unionization, Dionne L. Koller

All Faculty Scholarship

Our intuition tells us that physicians are elites, and therefore they cannot be exploited. Relying on this intuition, we adopt policies which attempt to provide a health care system that gives first-quality care, at the lowest prices, delivered through a “free-market” system. As the key gatekeepers to health care, physicians are thus caught in the middle. Top-notch American health care costs money and for-profit MCOs must watch their bottom line. Rationing, therefore, is key. The issue is, assuming we have decided that free-market health care is the solution, how much should physicians have to sacrifice in the name of the …

The Limits Of Law At The Limits Of Life: Lessons From Cannibalism, Euthanasia, Abortion, And The Court-Ordered Killing Of One Conjoined Twin To Save The Other, George J. Annas

Faculty Scholarship

The subject is law at the beginning and end of life. Most of my work is in the area of general health law: law and medicine, public health law, and health and human rights. But this is my favorite subject area, and I expect you to ask me the hardest questions you can. I am not saying I can answer them, but if I cannot that is my fault, not yours. I am going to make a pretty broad argument today about law and medicine; specifically about how new medical technology and medical practice standards have eclipsed religion (and sometimes …

An Emerging Ethical And Medical Dilemma: Should Physicians Perform Sex Assignment Surgery On Infants With Ambiguous Genitalia?, Hazel Glenn Beh, Milton Diamond

Michigan Journal of Gender & Law

This article discusses the development of a surgical approach to treating intersex infants and others with genital anomalies that began in the late 1950s and 1960s and became standard in the 1970s. Although professional literature has recently questioned the surgical approach to the treatment of infants, controversy surrounding treatment persists and the medical community now is divided. How sex reassignment surgery for intersex infants became a routine recommendation of practitioners and how parents were persuaded to consent to such radical surgeries provide a cautionary tale that is relevant to both medicine and law.

Government As God: An Update On Federal Intervention In The Treatment Of Critically Ill Newborns, Dionne L. Koller

All Faculty Scholarship

Whether a severely impaired or critically ill infant should receive lifesaving, and sometimes extraordinary, medical treatment, or be allowed to die, is hotly debated. The issue initially garnered public attention in 1982, when an infant who was born with Down's Syndrome, “Baby Doe,” was allowed to die from a correctable birth defect. Following this, the federal government took a lead role in determining the fate of critically ill newborns. In the meantime, doctors, philosophers, and others have debated whether federal interference in this area is appropriate.

This essay will bring the reader up to date on the “Baby Doe” issue …

Revisionism Misplaced: Why This Is Not The Time To Bury Autonomy, David J. Rothman

Michigan Law Review

For the past twenty years, bioethics has exerted a profound influence on American medicine. Although its full impact cannot be precisely measured, one need only speak to European physicians and clinical investigators to grasp the full extent of the change. Americans may debate the sufficiency of the information that physicians share with their patients, but hear a European doctor exclaim angrily that it is criminal to ask a woman to decide whether to have a radical mstectomy or lumpectomy, and you know that bioethics has made a significant difference in the United States. So too, Americans, far more intensely than …

Managed Care And Managed Sentencing — A Tale Of Two Systems, Ronald Weich

All Faculty Scholarship

The daily injustices mount. The front line professionals who administer the system cry out for more discretion to depart from the rigid rules that bind them, Congress finally hears their call, and is poised to enact sweeping reforms.

Are improvements in federal sentencing law on the way? Probably not in the near future. But the new Congress will surely take up proposals to regulate the managed health care industry, and the impending debate over a proposed "Patients' Bill of Rights" law offers important lessons for federal sentencing policy.

At first blush, sentencing reform and health care reform have about as …

The Future Of Physician-Assisted Suicide, Yale Kamisar

Articles

I believe that when the Supreme Court handed down its decisions in 1997 in Washington v. Glucksberg and Vacca v. Quill, proponents of physician-assisted suicide (PAS) suffered a much greater setback than many of them are able or willing to admit.

Making Sausage: The Ninth Circuit's Opinion, Carl E. Schneider

Articles

As I write, the Supreme Court has just agreed to hear Compassion in Dying v. Washington and Quill v. Vacco, the two cases in which United States circuit courts of appeals held that a state may not constitutionally prohibit physicians from helping a terminally ill person who wishes to commit suicide to do so. These cases have already received lavish comment and criticism, and no doubt the Supreme Court's opinion will garner even more. Reasonably enough, most of this analysis addresses the merits of physician-assisted suicide as social policy. I, here, want to talk about how setting bioethical policy …

The Reasons So Many People Support Physician-Assisted Suicide - And Why These Reasons Are Not Convincing, Yale Kamisar

Articles

It would be hard to deny that there is a great deal of support in this country-and ever-growing support-for legalizing physician-assisted suicide (PAS). Why is this so? I believe there are a considerable number of reasons. In this article, I shall discuss five common reasons and explain why I do not find any of them convincing.

A Doctor's Duty To Disclose Life Expectancy Information To Terminally Ill Patients, Denise Ann Dickerson

Cleveland State Law Review

It is the purpose of this Note to review and evaluate the benefits to making full disclosure to a terminally ill patient. It is this author's position that a patient's well-being and dignity dictate that the physician be forthright with all information regarding a patient's diagnosis and the range of treatments available, including both active and passive treatments.

Toward A More Perfect Union: A Federal Cause Of Action For Physician Aid-In-Dying, Todd David Robichaud

University of Michigan Journal of Law Reform

Part I of this Note investigates the possible foundations of a constitutional right to physician aid-in-dying triggering section 1983 protection and the opposing state interests in preventing suicide. Part II examines the nature and scope of and obstacles to a request for section 1983 relief. Finally, Part III focuses on the public policy implications associated with recognizing a federal cause of action.

Assisted Suicide And Euthanasia: The Cases Are In The Pipeline, Yale Kamisar

Articles

When I first wrote about this subject 36 years ago, the chance that any state would legalize assisted suicide or active voluntary euthanasia seemed minuscule. The possibility that any court would find these activities protected by the Due Process Clause seemed so remote as to be almost inconceivable. Not anymore. Before this decade ends, at least several states probably will decriminalize assisted suicide and/or active voluntary euthanasia. [Editor's note: In November, Oregon became the first state to legalize physician-assisted suicide, allowing doctors to prescribe lethal medication for competent, terminally ill adults who request it.] A distinct possibility also exists that …

Should Active Euthanasia Be Legalized? No: Preserve Traditional Restraints, Yale Kamisar

Articles

The distinction between letting people die and killing them by lethal injection is now an integral part of the medico-legal landscape. This is the compromise we have arrived at in the struggle to take a humane approach toward seriously ill patients while still preserving as many traditional restraints against killing as we possibly can. This may be neither the logician's or the philosopher's way to resolve the controversy, but it may nevertheless be a defensible pragmatic way to do so.

Active V. Passive Euthanasia: Why Keep The Distinction?, Yale Kamisar

Articles

In the past two decades, we have witnessed a "sea change in public, medical, and legislative judgments" about "letting die" and the "right to die." But it is no less true today than it was 35 years ago, when I first wrote about this subject, that in Anglo-American jurisprudence active euthanasia (what used to be called "mercy killing") is murder.

Bioethics And The Family: The Cautionary View From Family Law, Carl E. Schneider

Articles

For many years, the field of bioethics has been specially concerned with how the authority to make medical decisions should be allocated between doctor and patient. Today the patient's power-indeed, the patient's right-is widely acknowledged, at least in principle. But this development can hardly be the last word in our thinking about how medical decisions should be made. For one thing, sometimes patients cannot speak for themselves. For another, patients· make medical decisions in contexts that significantly include more participants than just the patient and doctor. Now, as this conference demonstrates, bioethics is beginning to ask what role the patient's …