Medical Jurisprudence Commons^™

Medical Malpractice: The Italian Experience, Claudia Dimarzo

Chicago-Kent Law Review

Beginning with an investigation into the problematic nature of medical liability, the Article overviews the most significant approaches taken by courts and scholars in order to establish whether the physician's position before the patient is comparable with that of either a tortfeasor or a contractor.

Having explained that the most recent approaches in this regard tend toward the recognition of the contractual nature of medical liability, the Author discusses the implications of such a solution, making specific reference to the following issues: 1) the assignment of the burden of proof (along with the distinction between obligations of means and obligations …

Medical Malpractice In Austria, Bernhard A. Koch

Chicago-Kent Law Review

This article presents the Austrian law governing compensation for medical malpractice in an overview. After a glimpse at the healthcare and social insurance system, the regulatory framework is outlined, with an obvious particular focus on tort and contract law. Apart from the special case where informed consent is lacking, the various elements of a claim that patients may have mirror the general requirements of tort and contract liability in Austria, which is why the brief sketch may also serve to give at least some basic insight into that part of the legal system in general. Furthermore, peculiar approaches in handling …

Unnecessary Hysterectomy: The Lack Of Informed Consent, Patricia Quintilian

Golden Gate University Law Review

Women, as well as men, are socialized to believe that the ethics and expertise of the medical community ensure competent behavior on the part of physicians. This belief, however, is misguided; the evidence indicates that women's health care is grossly inadequate and in dire need of effective external control and regulation. The power necessary for such regulation may be found in the judiciary. Several courses are available to the legal practitioner when faced with claims of medical misconduct. But because profit motivation dominates the health field, the reality of malpractice suits and their accompanying awards may act as an effective …

When Doctors Become “Patients”: Advocating A Patient-Centered Approach For Health Care Workers In The Context Of Mandatory Influenza Vaccinations And Informed Consent, Christine N. Coughlin, Nancy King, Kathi Kemper

Christine Nero Coughlin

Today’s health care delivery has evolved from the physician-centered model showcased in The Doctor into a more patient-centered model. Although the definition and boundaries of the patient-centered health care movement are still being developed and refined, patient-centered care is arguably distinguishable, both historically and conceptually, from public health. Nonetheless, just as public health concerns and individual medical choices have come together in some health care decision-making contexts for centuries, contemporary questions such as whether hospitals should mandate annual influenza vaccinations for their health care workers involve legal and ethical principles underlying the patient-centered movement, most notably that of informed consent. …

Finding The Middle Ground: Acuna V. Turkish And The New Jersey Supreme Court's Reaffirmation Of A Doctor's Role Under The Doctrine Of Informed Consent In The Digital Age, Allyson M. Rucinski

Pace Law Review

No abstract provided.

The Failure Of Breast Cancer Informed Consent Statutes, Rachael Anderson-Watts

Vanderbilt Law School Faculty Publications

Informed consent is a common law concept rooted in the idea that "[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body."' Its aim is to ensure that each patient gets the information she needs to meaningfully consent to medical procedures. Coming of age in the 1970s alongside other important rights movements, informed consent purported to solve medicine's paternalism: doctors too often dictating treatments rather than discussing options. Combating medical paternalism seems a worthwhile goal, given abuses in the past century, but moreover to improve everyday physician-patient encounters. …

The Genographic Project: Traditional Knowledge And Population Genetics, Matthew Rimmer

Matthew Rimmer

This article considers the debate over patent law, informed consent, and benefit-sharing in the context of biomedical research in respect of Indigenous communities. In particular, it focuses upon three key controversies over large-scale biology projects, involving Indigenous populations. These case studies are representative of the tensions between research organisations, Indigenous communities, and funding agencies. Section two considers the aims and origins of the Human Genome Diversity Project, and criticisms levelled against the venture by Indigenous peak bodies and anti-biotechnology groups, such as the Rural Advancement Foundation International. It examines the ways in which the United Nations Educational, Scientific, and Cultural …

Federally Mandated Informed Consent: Has Government Gone Too Far, Linda P. Mckenzie

Journal of Law and Health

Laws mandating disclosure of particular information are known as informed consent laws. They exist primarily in the area of reproductive health and most often apply to women seeking abortion. This article discusses the legal and ethical issues that arise when lawmakers decide what patients must be told before they can access certain medical procedures. Part II examines some of the ethical implications of informed consent laws. Physicians have a duty to obtain a patient's informed consent before acting. Part III discusses legal concerns raised by informed consent laws. These include the First Amendment free speech rights of physicians and patients' …

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 …

Genetics And Artificial Procreation In The U.S.A., Carl E. Scheider, Lynn Wardle

Book Chapters

We national reporters have been asked to provide in a few pages such a range of information about the law and practice of medicine generally, genetic and artificial reproductive techniques specifically, and related family law and human rights issues that probably no country's reporter could pretend to have succeeded. We reporters for the United States, particularly, must stress the limitations of our report at the outset. It is difficult to summarize the American law and practice because they are so extraordinarily various and dynamic. There are several reasons for this, most of which will in uncanny ways confirm many of …

Informed Consent And Patients' Rights In Japan: 2001 Epilogue, Robert B. Leflar

Robert B Leflar

Japan is on a steeper trajectory toward the incorporation of informed consent principles into medical practice than the “gradual transformation” observed in a 1996 article, Informed Consent and Patients’ Rights in Japan. Among the most significant recent developments from 1996 to 2001 have been these seven: (1) the 1997 enactment of the Organ Transplantation Law permitting the use of brain death criteria in limited circumstances in which informed consent is present; (2) the strengthening of patients’ rights in clinical drug trials; (3) the continued trend toward increasing disclosure to patients of cancer diagnoses; (4) initiatives by the health ministry toward …

Mental Health Advance Directives: Having One's Say?, Justine A. Dunlap

Faculty Publications

First, this Article traces the extension of the right to refuse treatment to the psychiatric realm. Next, the Article addresses advance directives for health care and their utility for mental health issues. Then, the Article examines state statutory and judicial responses to mental health advance directives. Finally, the Article analyzes why the right to control future psychiatric treatment, including the right to refuse treatment, has been slow to gain acceptance. Although mental health advance directives present real challenges, legally and otherwise, this Article concludes that they are firmly rooted in the law and their rejection is, more often than not, …

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.

Surgery By An Unauthorized Surgeon As A Battery, Thomas Lundmark

Journal of Law and Health

This article examines the policy issues behind the doctrine of informed consent and reviews the decisional law and policies on the topic of ghost surgery. Jury instructions employed in California are also addressed. The author concludes that substitution of surgeons should not automatically prompt liability for a battery. The public policy behind the informed consent doctrine is to favor patients' self-determination over the doctor's paternalism. Imposition of liability for battery in a case where the defendant does not knowingly deviate from the consent is not necessary to effectuate this purpose.

Beyond Autonomy: Coercion And Morality In Clinical Relationships, Maxwell Gregg Bloche

Georgetown Law Faculty Publications and Other Works

This article considers the problem of line-drawing between autonomy-preserving and autonomy-negating influence in clinical relationships. The author’s purpose is not to propose particular boundaries, either with respect to reproductive decisions by HIV-infected women or for other clinical choices. Rather, he attempts to shed some light on what drives our disputes about whether one or another influence method is compatible with autonomous choice.

The author argues that such disagreements reflect underlying conflicts between normative commitments, and that resolving these conflicts is essential to settling controversies over whether particular influences unduly interfere with autonomous choice. Alternative understandings of the prerequisites for autonomous …

Informed Consent And Patients' Rights In Japan, Robert B. Leflar

Robert B Leflar

This article analyzes the development of the concept of informed consent in the context of the culture and economics of Japanese medicine, and locates that development within the framework of the nation's civil law system. Part II sketches the cultural foundations of medical paternalism in Japan; explores the economic incentives (many of them administratively directed) that have sustained physicians' traditional dominant roles; and describes the judiciary's hesitancy to challenge physicians' professional discretion. Part III delineates the forces testing the paternalist model: the undermining of the physicians' personal knowledge of their patients that accompanies the shift from neighborhood clinic to high-tech …

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.

True Protection For Persons With Severe Mental Disabilities, Such As Schizophrenia, Involved As Subjects In Research - A Look And Consideration Of The Protection Of Human Subjects , Anne J. Ryan

Journal of Law and Health

This article begins with an in-depth discussion of the UCLA incident followed by the history of protecting human research subjects and a review of the current law intended to protect research participants. Next, it explains the nature of schizophrenia and discusses the topic of schizophrenia and the informed consent process, explaining why persons with schizophrenia warrant more protection than is currently given, especially in the areas of monitoring and informed consent. This article also examines proposed ideas, from various sources, for better protection of the mentally disabled as research subjects. This article concludes with this writer's proposal as to how …

Medical Law And Ethics In The Post-Autonomy Age, Roger B. Dworkin

Articles by Maurer Faculty

No abstract provided.

Mandatory Hiv Testing Issues In State Newborn Screening Programs, John M. Naber, David R. Johnson

Journal of Law and Health

The newborn screening model is fairly straightforward. Typically, before the infant is discharged from the hospital (around 24 to 36 hours of age), heel stick blood is placed on special filter paper, dried, and mailed to the state health department for testing. Medical and laboratory research has led to the discovery that other diseases could also be screened in newborns using these dried blood specimens. Currently, all states and the District of Columbia test all newborns for at least PKU and congenital hypothyroidism. There are generally five criteria to satisfy before a disease is considered appropriate for newborn screening: 1. …

Compelled Medical Procedures Involving Minors And Incompetents And Misapplication Of The Substituted Judgment Doctrine, Lynn E. Lebit

Journal of Law and Health

In many cases, courts have incorrectly applied the doctrine of "substituted judgment" to violate the bodily integrity of a minor (who is usually physically or mentally disabled), or an adult incompetent, to bring about a result which on its face seems beneficial to all involved. What courts have failed to do, however, is protect the best interests of these incompetent persons and to recognize their right to be protected, especially when they cannot consent, from non-therapeutic bodily invasions. In this context, "best interests" are determined by weighing the risks, needs and benefits to the affected person. The type of "non-therapeutic" …

Bioethics And Law: The Second Stage – Balancing Intelligent Consent And Individual Autonomy, Judith C. Areen

Georgetown Law Faculty Publications and Other Works

The principle that government rests on the consent of the governed eventually spread beyond the political arena to alter such private behavior as the relationship between physician and patient. This Article examines the successive transformations of the principle of consent as it has developed in the field of law and bioethics from bare consent to informed consent, and then, more strikingly, to beyond informed consent. This most recent form of the principle may prove to be every bit as revolutionary as the idea of popular sovereignty in 17th century England.

An Incompetent Individual's Right To Die, Carol M. Friedman

Fordham Urban Law Journal

Individuals must be fully informed and comprehend the consequences of refusing medical treatment before doing so. At the time of publication, New York courts used a subjective intent test to determine a patient's intentions before he or she became medically incompetent. The author argues that this test is ineffective where the patient did not have ability or forethought to make his or her intentions known. In such a case, the author contends that a surrogate should be appointed and given the discretion to consider what the surrogate believes would be the intent of the incapacitated person as well as the …

Substituted Judgment And The Right To Refuse Shock Treatment In Washington: In Re Schuoler, Gregory S. Marshall

Seattle University Law Review

This Note will first analyze and evaluate two competing decision-making models established in other jurisdictions. The Note will then apply that analysis to Schuoler and critically evaluate that decision. The Note will conclude that while the Washington court follows the more appropriate judicial substituted judgment model, its poor articulation of that model may defeat the purpose of the decision: to protect a mental patient's right to refuse ECT.

Death And The Magic Machine: Informed Consent To The Artificial Heart, George J. Annas

Faculty Scholarship

Jay Katz introduces his remarkable and insightful book, The Silent World of Doctor and Patient, by recounting a portion of Solzhenitsyn's Cancer Ward. He describes an encounter between a patient, Oleg Kostoglotov, and his doctor, Dr. Ludmilla Afanasyevna. The doctor wanted to use experimental hormone treatment, but the patient refused. Katz argues that what made conversation impossible between them was the patient's undisclosed intention of leaving the hospital to treat himself with "a secret medicine, a mandrake root from Issyk Kul." He could not trust the doctor with this information because the doctor would make the decision for the patient …

Informed Consent In Washington: Expanded Scope Of Material Facts That The Physician Must Disclose To His Patient, Edwin Rauzi

Washington Law Review

Part I of this comment charts the current contours of the informed consent doctrine and traces the general pro-plaintiff shift which has developed since Washington recognized the tort a decade ago. The model used to illustrate this shift is a continuum, with the poles representing doctrinal and social policy choices favorable either to the plaintiff-patient or to the defendant-physician. Part II examines the expanded scope of the physician's duty to disclose material facts. This comment posits that the material facts which the physician must disclose to his patient are the risks involved in a proposed treatment, the alternatives to the …

The Right To Refuse Medical Treatment: Under What Circumstances Does It Exist, Henry Zee Shaub

Duquesne Law Review

No abstract provided.

The Florida Medical Malpractice Act Of 1975, Theresa Hooks

Florida State University Law Review

No abstract provided.

Judicial Review Of Medical Treatment Programs, H. Richard Beresford

Cornell Law Faculty Publications

No abstract provided.

Failure To Inform As Medical Malpractice, Stephen L. Edwards

Vanderbilt Law Review

It has long been recognized in American law that a proper patient-physician relationship is founded upon the technical competency of the physician. Before the advent of cases dealing with informed consent, a patient who had given his consent to proposed treatment could recover for injuries only when the physician had acted incompetently in the administration of the treatment. Within the past fifteen years, however, the courts have recognized that the maintenance of a proper patient-physician relationship depends not only upon the technical competency of the physician, but also upon the presence of effective communication between the two parties. Therefore, recent …