The Affordable Care Act Is Not Tort Reform,
2016
American University Washington College of Law
The Affordable Care Act Is Not Tort Reform, Andrew F. Popper
Articles in Law Reviews & Other Academic Journals
On March 23, 2010, President Obama signed The Patient Protection and Affordable Care Act (PPACA). Prior to the enactment of the PPACA, Congress held several hearings focused on subrogation and relaxation of collateral source restrictions as well as caps on damages in an effort to promote tort reform. While the ACA included provisions on medical liability reform, the suggested tort reform was thwarted, and the ACA had no actual legal effect on limiting medical malpractice liability. This article argues that the reality is that the PPACA has done nothing to change the admissibility of collateral sources nor has it enhanced …
Organ Transplantation Eligibility: Discrimination On The Basis Of Cognitive Disability,
2016
Brooklyn Law School
Organ Transplantation Eligibility: Discrimination On The Basis Of Cognitive Disability, Tien-Kha Tran
Journal of Law and Policy
Congress passed the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990 in response to the extensive history of discrimination Americans with disabilities have faced. These federal statutes provide that no individual is to be precluded from enjoying the programs provided by certain entities solely on the basis of their disability. However, this is difficult in regards to organ transplantation and individuals with cognitive disabilities. The issue lies where a physician is faced with the difficult decision in pursuing their moral and ethical obligations to preserve life while determining whether a specific cognitive disability is a contraindication …
Improving The Medical Services System's Response To Domestic Violence,
2016
Florida State University College of Law
Improving The Medical Services System's Response To Domestic Violence, Nat Stern, Karen Oehme, Elizabeth Donnelly, Rebecca Melvin
Scholarly Publications
No abstract provided.
Instrumental And Transformative Medical Technology,
2016
University of Kentucky
Instrumental And Transformative Medical Technology, Nicole Huberfeld Professor Of Law
Vanderbilt Journal of Entertainment & Technology Law
This Article considers how medical technologies impact universality in health care. The universality principle, as embodied in the Patient Protection and Affordable Care Act (ACA), eliminated widespread discriminatory practices and provided financial assistance to those otherwise unable to become insured--a democratizing federal act that was intended to stabilize health care policy nationwide. This Article posits that medical technology, as with all of medicine, can be universalizing or exclusionary and that this status roughly correlates to its being "instrumental technology" or "transformative technology." Instrumental technology acts as a tool of medicine and often serves an existing aspect of health care; in …
A New Governance Recipe For Food Safety Regulation,
2016
University of Colorado at Boulder
A New Governance Recipe For Food Safety Regulation, Alexia Brunet Marks
Publications
Although food safety is a significant and increasing global health concern, international economic law does not adequately address today’s global food safety needs. While most countries rely on a collection of formalized legal rules to protect food safety, these rules too often fall short. As fiscal constraints impede raising the number of border inspections, formal international commitments (treaties) frequently limit governmental efforts to raise food safety standards. Private companies, meanwhile, can readily adopt higher standards to meet consumer demands and supply chain needs, thus demonstrating more nimbleness and flexibility in adopting the highest food safety standards available. Can countries learn …
Does Medical Malpractice Law Improve Health Care Quality?,
2016
Duke Law School
Does Medical Malpractice Law Improve Health Care Quality?, Michael D. Frakes, Anupam B. Jena
Faculty Scholarship
Despite the fundamental role of deterrence in justifying a system of medical malpractice law, surprisingly little evidence has been put forth to date bearing on the relationship between medical liability forces on the one hand and medical errors and health care quality on the other. In this paper, we estimate this relationship using clinically validated measures of health care treatment quality constructed using data from the 1979 to 2005 National Hospital Discharge Surveys and the 1987 to 2008 Behavioral Risk Factor Surveillance System records. Drawing upon traditional, remedy-centric tort reforms — e.g., damage caps — we estimate that the current …
From Rights To Dignity: Drawing Lessons From The Movements For Aid In Dying And Reproductive Rights,
2016
University of Missouri - Kansas City, School of Law
From Rights To Dignity: Drawing Lessons From The Movements For Aid In Dying And Reproductive Rights, Yvonne F. Lindgren
Faculty Works
In Roe v. Wade the Supreme Court identified the abortion right as “inherently, and primarily, a medical decision” to be decided between doctors and their patients. Early abortion case law closely linked the right to the doctor-patient relationship and situated abortion within the context of healthcare. Over the last forty years, however, the abortion right has come to be viewed almost exclusively as a constitutional right of decision-making or “choice.” Under the Court’s current analysis, the abortion right is cabined exclusively as a constitutional right to decide to terminate a pregnancy and, as a result, the Court has upheld significant …
Involuntary Consent: Conditioning Access To Health Care On Participation In Clinical Trials,
2016
Saint Louis University School of Law
Involuntary Consent: Conditioning Access To Health Care On Participation In Clinical Trials, Ruqaiijah A. Yearby
All Faculty Scholarship
Although the controversy over the lack of consent in fetal-tissue clinical trials is relatively new, history is replete with instances of medical researchers who have conducted clinical trials with minorities and the economically disadvantaged without their consent.1 Traditionally, American bioethics has served as a safety net for the rich and powerful (for they are not forced to act as research subjects to obtain access to health care for themselves or their children) while failing to protect the vulnerable, which includes minorities and the economically disadvantaged. Without access to health care, minorities and the economically disadvantaged are unduly influenced to participate …
Will The Internet Of Things Transform Healthcare?,
2016
Robert H. McKinney School of Law, Indiana Univ.
Will The Internet Of Things Transform Healthcare?, Nicolas P. Terry, Professor Of Law,
Vanderbilt Journal of Entertainment & Technology Law
Emerging technologies like health apps on mobile computing platforms and wearable devices are believed to have the potential to improve individual and population health. Increasingly, however, attention should extend to a far larger cohort of connected devices known as the Internet of Things (IoT), an environment in which devices communicate with each other, health apps, and wearables. The resulting Internet of Health Things promises to do things conventional health providers either cannot do or do them faster and cheaper. First, services are "always on, "providing twenty-four/seven monitoring of the patient or pre-patient. Second, the multiple sensors contained in smartphones or …
Power To The People: Data Citizens In The Age Of Precision Medicine,
2016
University of Houston Law Center
Power To The People: Data Citizens In The Age Of Precision Medicine, Barbara J. Evans
Vanderbilt Journal of Entertainment & Technology Law
Twentieth-century bioethics celebrated individual autonomy but framed autonomy largely in terms of an individual's power to make decisions and act alone. The most pressing challenges of big data science in the twenty-first century can only be resolved through collective action and common purpose. This Article surveys some of these challenges and asks how common purpose can ever emerge on the present bioethical and regulatory landscape. The solution may lie in embracing a broader concept of autonomy that empowers individuals to protect their interests by exercising meaningful rights of data citizenship. This Article argues that twentieth-century bioethics was a paternalistic, top-down …
Prevalence And Predictors Of Substance-Related Emergency Psychiatry Admissions,
2016
University of South Florida
Prevalence And Predictors Of Substance-Related Emergency Psychiatry Admissions, M. Scott Young, Kathleen A. Moore
Mental Health Law & Policy Faculty Publications
Background: Individuals commonly present for emergency psychiatry services for reasons related to their use of alcohol or illicit drugs. This study assessed the prevalence of these phenomena and explored characteristics distinguishing emergency psychiatry admissions with versus without presenting problems related to substance use. Methods: Data included standardized emergency psychiatry intake interviews from 2,161 consecutive admissions to three hospital-based emergency psychiatry departments in Florida’s Tampa Bay area. Admissions were classified as substanceinvolved if substance use was ascertained to be related to the presenting problem(s). Cases with only substance-related presenting problems were classified as substance-only admissions. Descriptive statistics compared substance-involved admissions to …
The Relationship Between Faculty Characteristics And The Use Of Norm- And Criteria-Based Grading,
2016
University of South Florida
The Relationship Between Faculty Characteristics And The Use Of Norm- And Criteria-Based Grading, John Robst, Jennifer Vangilder, Caroline Elliott
Mental Health Law & Policy Faculty Publications
Norm-based grading has been associated with a reduction in student incentives to learn. Thus, it is important to understand faculty incentives for using norm-based grading. This paper used two waves of the National Study of Postsecondary Faculty to examine faculty characteristics related to the use of norm-based grading. Results suggest that norm-based grading is more likely when faculty and departments are more research oriented. Faculty who are at lower rank, male, younger, in science and social science departments are more likely to use norm-based grading, while faculty who feel that teaching should be the primary promotion criterion use criteria-based grading.
En-Gendering Economic Inequality,
2016
University of Baltimore School of Law
En-Gendering Economic Inequality, Michele E. Gilman
All Faculty Scholarship
We live in an era of growing economic inequality. Luminaries ranging from the President to the Pope to economist Thomas Piketty in his bestselling book Capital in the Twenty- First Century have raised alarms about the disparity between the haves and the have-nots. Overlooked, however, in these important discussions is the reality that economic inequality is not a uniform experience; rather, its effects fall more harshly on women and minorities. With regard to gender, American women have higher rates of poverty and get paid less than comparable men, and their workplace participation rates are falling. Yet economic inequality is neither …
Law, Science, And The Injured Mind,
2016
University of Denver
Law, Science, And The Injured Mind, Govind Persad
Sturm College of Law: Faculty Scholarship
Even while we widely recognize legal liability for physical injury, we frequently discount mental, emotional, and psychological injury. We disfavor tort liability for emotional distress; we prohibit prisoners from suing for purely psychological injuries; and we tax the damages victims of emotional injury receive even while leaving damages for physical injury untaxed. This Article argues that neuroscientific, psychological, and technological advances challenge our traditional ideas about the set of injuries that are possible and that merit legal redress. The Article goes on to contend that, while these advances challenge our traditional ideas, they do not inevitably overturn traditional distinctions within …
Health Theater,
2016
University of Denver
Health Theater, Govind Persad
Sturm College of Law: Faculty Scholarship
"Security theater" has been defined as an effort to "provide the feeling of security instead of the reality. " The concept of security theater has been discussed in both the popular press and academic literature, but has not yet entered health law. This project suggests that a parallel category of "health theater" picks out a set ofpractices in medical screening and health care delivery that provide a mere simulacrum ofprotection against medical risk, rather than providing genuine medical benefit. Part I summarizes some of the distinctive advantages and disadvantages of health and security theater. Like security theater, health theater frequently …
Sufficiency, Comprehensiveness Of Healthcare Coverage And Cost-Sharing Arrangements In The Realpolitik Of Health Policy,
2016
University of Denver
Sufficiency, Comprehensiveness Of Healthcare Coverage And Cost-Sharing Arrangements In The Realpolitik Of Health Policy, Govind Persad, Harald Schmidt
Sturm College of Law: Faculty Scholarship
This chapter explores two questions in detail: How should we determine the threshold for costs that individuals are asked to bear through insurance premiums or care-related out-of-pocket costs, including user fees and copayments? and What is an adequate relationship between costs and benefits? This chapter argues that preventing impoverishment is a morally more urgent priority than protecting households against income fluctuations, and that many health insurance plans may not adequately protect individuals from health care costs that threaten to drop their financial status below a decent minimum. A design that places greater emphasis on preventing impoverishment and finances the achievement …
The Politics Of Mental Health: A Comparative Study Of Policy Adoption And Implementation In Germany And Japan,
2016
University of Central Florida
The Politics Of Mental Health: A Comparative Study Of Policy Adoption And Implementation In Germany And Japan, Luis Diego Campos
Honors Undergraduate Theses
In the aftermath of World War II, the Liberal Democratic Party of Japan followed Germany’s blueprint in fashioning a universal health coverage system. Comparisons to Germany’s welfare state during this same time period reveal markedly different social and mental health policy practices, as Germany’s Christian Democratic Union and Social Democratic Party cooperated toward progressive policies while the Liberal Democratic Party largely neglected social welfare expansion. The effect of these practices is reflected in budgetary provisions, institutionalization practices, and mental health epidemiology. This research finds that a favorable economic climate allowed the Liberal Democratic Party to politically isolate the Social Democratic …
Unfulfilled Promises,
2016
Vanderbilt University Law School
Unfulfilled Promises, Jennifer B. Shinall
Vanderbilt Law School Faculty Publications
The passage of the ACA is a source of great pride for President Barack Obama's Administration, and the President undoubtedly hopes that the ACA will be his greatest legacy. 285 As a result, it is difficult to understand why, under his administration, HHS has relinquished its rulemaking authority to the states regarding the core guarantees of the Act. For the individuals living in states in which promised essential health benefits have not yet become a reality, HHS has offered a glimmer of hope. In 2012, the agency released a bulletin stating that it would "revisit" its approach of allowing states …
Electronic Health Records And Medical Big Data: Law And Policy,
2016
Case Western Reserve University School of Law
Electronic Health Records And Medical Big Data: Law And Policy, Sharona Hoffman
Faculty Publications
This book helps readers gain an in-depth understanding of electronic health record (EHR) systems, medical big data, and the regulations that govern them. It is useful both as a primer for students and as a resource for knowledgeable professionals. The book analyzes the shortcomings and benefits of EHR systems, explores the law's response to the technology’s adoption, highlights gaps in the current legal framework, and develops detailed recommendations for regulatory, policy, and technological improvements. Electronic Health Records and Medical Big Data addresses not only privacy and security concerns, but also other important challenges, such as those related to data quality …
Contract Development In A Matching Market: The Case Of Kidney Exchange,
2016
Duke Law School
Contract Development In A Matching Market: The Case Of Kidney Exchange, Kimberly D. Krawiec, Wenhao Liu, Marc L. Melcher
Faculty Scholarship
We analyze a new transplant innovation — Advanced Donation, referred to by some as a kidney “gift certificate,” “layaway plan,” or “voucher — as a case study offering insights on both market and contract development. Advanced Donation provides an unusual window into the evolution of the exchange of a single good — a kidney for transplantation — from gift, to simple barter, to exchange with a temporal separation of obligations that relies solely on trust and reputational constraints for enforcement, to a complex matching market in which the parties rely, at least in part, on formal contract to define and …
