Medical Jurisprudence Commons^™

The Shared Ethical Framework To Allocate Scarce Medical Resources: A Lesson From Covid-19, Ezekiel J. Emanuel, Govind C. Persad

Sturm College of Law: Faculty Scholarship

The COVID-19 pandemic has helped to clarify the fair and equitable allocation of scarce medical resources, both within and among countries. The ethical allocation of such resources entails a three-step process: (1) elucidating the fundamental ethical values for allocation, (2) using these values to delineate priority tiers for scarce resources, and (3) implementing the prioritisation to faithfully realise the fundamental values. Myriad reports and assessments have elucidated five core substantive values for ethical allocation: maximising benefits and minimising harms, mitigating unfair disadvantage, equal moral concern, reciprocity, and instrumental value. These values are universal. None of the values are sufficient alone, …

National Medical Commission Act, 2019: The Need For Parity, Ov Nandimath, S. Suhas, Y. Malik, B.C. Malathesh

Articles

The National Medical Commission (NMC) has replaced the erstwhile Medical Council of India with the intention of bringing about positive reforms in medical education and enforcing ethical standards in the practice of medicine in India. The NMC Act of 2019, under clauses 3 and 4 of Section 30, details the procedure of grievance redressal. However, these clauses in their current form empower doctors and patients unequally. While the Act empowers an aggrieved medical professional to approach the relevant appellate fora under the NMC, it is silent on a similar opportunity for an aggrieved patient or caregiver to appeal against the …

Digital Health Passes In The Age Of Covid-19: Are “Vaccine Passports” Lawful And Ethical?, Lawrence O. Gostin, I. Glenn Cohen, Jana Shaw

Georgetown Law Faculty Publications and Other Works

As COVID-19 vaccination rates in high-income countries increase, governments are proposing or implementing digital health passes (DHPs) (vaccine “passports” or “certificates”). Israel uses a “green pass” smartphone application permitting vaccinated individuals’ access to public venues (eg, gyms, hotels, entertainment). The European Union plans a “Digital Green Certificate” enabling free travel within the bloc (see eTable in the Supplement). New York is piloting an IBM “Excelsior Pass,” confirming vaccination or negative SARS-CoV-2 test status through confidential data transfers to fast-track business reopenings. This paper examines the benefits of DHPs, scientific challenges, and whether they are lawful and ethical.

The Ever-Changing Landscape Of Informed Consent And Whether The Obligation To Explain A Procedure To The Patient May Be Delegated, Samuel D. Hodge, Maria Zambrano Steinhaus

Arkansas Law Review

Informed consent is an integral part of the shared decision making process and requires a patient be informed of the benefits, risks and alternatives to a medical procedure. This information, which requirement has been codified into the law and practice of every healthcare provider, helps a patient decide whether to proceed with the recommended treatment plan. Informed consent has its foundation in the ethical notion of patient autonomy and fundamental human rights. After all, it is the patient’s decision to determine what may be done to his or her body and to ascertain the risks and benefits before undertaking a …

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, …

An Alternative To Medical Assistance In Dying? The Legal Status Of Voluntary Stopping Eating And Drinking (Vsed), Jocelyn Downie

Articles, Book Chapters, & Popular Press

Medical assistance in dying (MAiD) has received considerable attention from many in the field of bioethics. Philosophers, theologians, lawyers, and clinicians of all sorts have engaged with many challenging aspects of this issue. Public debate, public policy, and the law have been enhanced by the varied disciplinary analyses. With the legalization of MAiD in Canada, some attention is now being turned to issues that have historically been overshadowed by the debate about whether to permit MAiD. One such issue is voluntary stopping eating and drinking (VSED) as an alternative to MAiD. In this paper, I will apply a legal lens …

Aging Populations And Physician Aid In Dying: The Evolution Of State Government Policy, David Orentlicher

Scholarly Works

Professor David Orentlicher explores the evolution of physician assisted suicide from illegal taboo to the passage of Death with Dignity legislation and caselaw.

The Speakers’ Bureau System: A Form Of Peer Selling, Lynette Reid, Matthew Herder

Articles, Book Chapters, & Popular Press

Physicians need to stay abreast of information about emerging drugs and devices, but the time pressures of clinical practice may limit their ability to do so independently. The companies that manufacture and sell these products have the resources and the motivation to “educate” physicians but cannot be expected to distinguish their marketing goals from physicians’ educational needs. Physicians’ professional associations and regulatory bodies, as well as medical journal publishers and editors, drug and device regulatory agencies, and academic medical institutions, have long debated their respective roles and responsibilities in ensuring the safety, efficacy, and probity of prescribing in light of …

An Incompetent's Right To Withdraw From Treatment: Cruzan V. Missouri Department Of Health , Mary A. Watson

Pepperdine Law Review

No abstract provided.

Scholastic Steroids: Is Generation Rx Cognitively Cheating? , Kelline R. Linton

Pepperdine Law Review

No abstract provided.

The Social Context Of Oncofertility, Dorothy E. Roberts

All Faculty Scholarship

A field known as oncofertility provides female cancer patients with a variety of ways to preserve their fertility so that they may bear genetically related children after successful cancer treatment. Some women delay cancer therapy so doctors can collect their eggs, which are then cryopreserved in an unfertilized state or used to create embryos through in vitro fertilization for freezing. An experimental procedure for preserving the fertility of prepubertal girls, known as ovarian tissue cryopreservation, involves surgically removing their ovarian tissue and growing the immature eggs to a mature state so they can be frozen and stored until the girls …

Patient Racial Preferences And The Medical Culture Of Accommodation, Kimani Paul-Emile

Faculty Scholarship

One of medicine’s open secrets is that patients routinely refuse or demand medical treatment based on the assigned physician’s racial identity, and hospitals typically yield to patients’ racial preferences. This widely practiced, if rarely acknowledged, phenomenon — about which there is new empirical evidence — poses a fundamental dilemma for law, medicine, and ethics. It also raises difficult questions about how we should think about race, health, and individual autonomy in this context. Informed consent rules and common law battery dictate that a competent patient has an almost-unqualified right to refuse medical care, including treatment provided by an unwanted physician. …

Lines Of Communication: Advances In Stem Cell Policy, Dena Davis, Debra Grega

Journal of Law and Health

This is a transcription of the Journal of Law and Health's Speaker Series event held on November 17, 2009 at the Joseph W. Bartunek III Moot Court Room, Cleveland-Marshall College of Law. The speakers discussed stem cell policy, ethics, oversight, funding restrictions and research restrictions.

Contraception, Abortion, And Health Care Reform: Finding Appropriate Moral Ground, Dena S. Davis

Law Faculty Articles and Essays

In this essay, I make the argument that abortion and contraception are fundamentally different actions that occupy fundamentally different moral space, and that justify fundamentally different political action. I conclude that, while it is morally licit, even morally obligatory, for people who believe that embryos are people like us, to attempt to impede access to abortion, it is morally illicit to attempt to block access to contraception (including sterilization).

Functional Neuroimaging Information: A Case For Neuro Exceptionalism?, Stacey A. Tovino

Scholarly Works

The field of neuroethics has been described as an amalgamation of two branches of inquiry: “the neuroscience of ethics” and “the ethics of neuroscience.” The neuroscience of ethics may be described as “a scientific approach to understanding ethical behavior.” The law and ethics of neuroscience is concerned with the legal and ethical principles that should guide brain research and the treatment of neurological disease, as well as the effects that advances in neuroscience have on our social, moral, and philosophical views. This Article is a contribution to the law and ethics of neuroscience.

No longer new or emerging, the burgeoning …

Stealing What's Free: Exploring Compensation To Body Parts Sources For Their Contribution To Profitable Biomedical Research, Jo-Anne Yau

ExpressO

It is undisputed in the biotechnology industry that human body parts play a vital role in research. The body parts donors, referred to as "Sources" in this article, are subjected to physical and financial exploitation. Forbidding the explosion of profits from trickling down to the Source presents an irrational inequity. Despite established law, it is evident from case analysis, prevailing social practices, and constitutional interpretation that Source compensation is a plausible solution.

This article proposes a model of compensation for Sources, whereby Sources are compensated based on a proportionate share of the research profits set aside for the Source as …

Rights And The Need For Objective Moral Limits, Charles E. Rice

Journal Articles

In this article, we will examine the natural law conception that rights are rooted in human nature, which nature itself is of divine origin through creation. We will compare this natural law concept to the premises and social consequences of the secular, relativist, and individualist approaches common to the jurisprudence of the Enlightenment. This article will offer the conclusion that only a grounding of right in the nature of persons as immortal beings created by God can offer moral and cultural security against the depersonalization characteristic of regimes premised on a relativist individualism.

Protecting Human Research Subjects: A Jurisdictional Analysis, Jennifer Llewellyn, Jocelyn Downie, Robert Holmes

Articles, Book Chapters, & Popular Press

The most recent speech from the throne contained a pledge from the federal government to "work with provinces to implement a national system for the governance of research involving humans, including national research ethics and standards." This commitment signals a desire on the part of the federal government to address concerns about the inadequacies of the current governance of health research involving humans (RIH). To this end, Health Canada's Ethics Division is currently exploring the ways in which such a national governance system for RIH might be implemented. It is important for the federal government, as it moves toward making …

The Right Of Refuse: A Call For Adequate Protection Of A Pharmacist's Right To Refuse Facilitation Of Abortion And Emergency Contraception, Donald W. Herbe

Journal of Law and Health

The purpose of this Note is not to argue for or against either the pro-life or pro-choice positions. The purpose of this Note is to shed light on a serious moral dilemma that faces many pharmacists today, to call for universal acceptance in the pharmacy profession of a right of conscience, and to suggest adequate state and national legislative measures that would protect and prevent pharmacists from having to act contrary to their basic moral convictions. Section I provides background regarding present day abortive and contraceptive drug therapies and the role of the pharmacist in providing such medications. Section II …

Tainted Prosecution Of Tainted Claims: The Law, Economics, And Ethics Of Fighting Medical Fraud Under The Civil False Claims Act, Dayna Bowen Matthew

Indiana Law Journal

No abstract provided.

Lessons Taught By Miss Evers' Boys: The Inadequacy Of Benevolence And The Need For Legal Protection Of Human Subjects In Medical Research , Donald H.J. Hermann

Journal of Law and Health

The Tuskegee study is perhaps the most notorious example of abuse in medical research in the United States. It is significant that the project was not ended until twenty-five years after the adoption of the Nuremberg Code of 1948, the first article of which establishes its principle that human subjects should not be experimented on without their consent. Continuing concern about the ethics of medical and scientific research have been fueled by finding about other research abuse such as the radiation experiments in the 1940's and 1950's that involved subjects being injected with plutonium without their knowledge and feeding radioactive …

The Ethics Of Advocacy For The Mentally Ill: Philosophic And Ethnographic Considerations, Bruce A. Arrigo, Christopher R. Williams

Seattle University Law Review

In this Article, we critically address several philosophical underpinnings of ethical decision-making that impact persons with psychiatric disorders. We focus our attention, however, upon an admittedly limited target area. Thus, we canvass a select number of significant issues that pose unique problems for humanity. The purpose of these excursions is that of reflection. In brief, we will speculatively examine: (1) the relationship between human rights and the law; (2) the relationship between mental illness and the law (i.e. the rights of the mentally ill); (3) the ethics of involuntary confinement (i.e., taking away and giving back rights to the mentally …

Genetic Research: Are More Limitations Needed In The Field, Kristie Sosnowski

Journal of Law and Health

This Note will focus on the medical achievements that have been made, in large part, because of advances in genetic research. Specifically, this Note will focus on the genetic advances associated with the Human Genome Project, Gene Therapy, Genetic Testing, and Human Embryonic Stem Cell Research. The last year of the twentieth century brought scientists one step closer to the successful completion of the Human Genome Project. The Human Genome Project is a government-funded project with the underlying goal of sequencing and mapping the entire human genome. Scientists believe that the completion of this project will aid them in answering …

Calling Dr. Love: The Physician-Patient Sexual Relationship As Grounds For Medical Malpractice - Society Pays While The Doctor And Patient Play, Scott M. Puglise

Journal of Law and Health

This note examines "consensual" sexual relationships between non-mental health physicians and patients. More specifically, it examines whether such relationships ever amount to medical malpractice. Generally, a non-mental health physician would be liable under the rubric of medical malpractice only if the sexual relationship was commenced under the guise of "medical treatment." Recent cases, however, have expanded liability in certain circumstances when the physician-patient relationship has involved "counseling matters." "Counseling matters" describes talking to patients about their feelings, or discussing personal problems not necessarily related to their proposed treatment. Medical treatment supplemented by "counseling" purportedly requires greater scrutiny due to the …

The Misperception That Bioethics And The Law Lag Behind Advances In Biotechnology, David Orentlicher

Scholarly Works

No abstract provided.

First, Do No Harm: The Use Of Covert Video Surveillance To Detect Munchausen Syndrome By Proxy- An Unethical Means Of "Preventing" Child Abuse, Michael T. Flannery

University of Michigan Journal of Law Reform

Since it was first identified in 1977, Munchausen Syndrome by Proxy has uniquely affected the way in which the medical and legal communities deal with the issue of child abuse. Inherent in the medical response to the disease are issues of suspicion, investigation, identification, confrontation, and, of course, the health of an innocent child. Given the deceptive dynamics of the disease, however, denial and disbelief naturally overshadow every action taken by medical professionals in pursuing these issues. Fortunately, as medical knowledge about the dynamics of the disease continues to develop, medical professionals become more willing and better able to identify …

Hard Cases, Carl E. Schneider

Articles

Robert Latimer was born in 1953 on a farm on the prairies of Saskatchewan and grew up to own a 1,280-acre farm. In 1980 he married, and that year Tracy, the first of four children, was born. During her birth, Tracy's brain was terribly damaged by lack of oxygen, and severe cerebral palsy ensued. By 1993 Tracy could laugh, smile, and cry, and she could recognize her parents and her siblings. But she could not understand her own name or even simple words like "yes" and "no." She could not swallow well and would so often vomit her parents kept …

The Liability Of Psychotherapists For Breach Of Confidentiality, Ellen W. Grabois

Journal of Law and Health

This paper will try to reconstruct the legal and ethical underpinnings of the confidential relationship of psychotherapist and patient, and will also touch upon the psychotherapist-patient testimonial privilege and its exceptions. It will then describe the liability of psychotherapists for breach of confidentiality based on contract and tort. It will conclude with some evaluation of this type of cause of action, and its future usefulness in the law..

Restricting Donative Choice: Fetal Tissue Transplantation And Respect For Human Life, Joanna H. Kinney

Journal of Law and Health

I propose that a woman who becomes pregnant with the intent to abort will be treated as an initial aggressor, and as such she will be denied the "abortion exception" that will be granted to the woman who aborts an accidental, unwanted pregnancy. Moreover, I shall argue that a woman should not be allowed to designate the donee of the fetal tissue from her abortion, even though her pregnancy was accidental. Without this restriction, a woman who intends to become pregnant and abort may simply claim her pregnancy was accidental, and thereby claim the exception. Central to this study is …

The Doctor And His Lawyer: Conflicts Of Interest, Richard H. Underwood

Law Faculty Scholarly Articles

This Article will not survey and catalog all available cases dealing with the "insurance counsel's tightrope." Instead, it will focus on the identification and resolution of conflicts of interest that may arise at various stages of the litigation of a medical malpractice action in which a lawyer has been retained to represent the interests of both the physician policy-holder and his insurance carrier. Many of the problems examined are applicable to all insurance defense litigation, and the combination of large claims and complex issues presented in medical malpractice cases, together with the distrust of lawyers shared by many doctors, provides …