Medical Jurisprudence Commons^™

Foreseeability Decoded, Meiring De Villiers

Meiring de Villiers

The Article reviews the conceptual and doctrinal roles of the foreseeability doctrine in negligence law, and analyzes its application in cases where a new technology or unexplored scientific principle contributed to a plaintiff’s harm. It adopts the common law definition of foreseeability as a systematic relationship between a defendant’s wrongdoing and the plaintiff’s harm, and demonstrates translation of the concept into the language of science so that the common law meaning of the foreseeability doctrine is preserved. An analysis of the foreseeability of HIV/AIDS as a blood-borne risk illustrates application of the concept to contemporary issues ...

Positive Prognosis For Judges: A Look Into Judge-Directed Negotiations In Medical Malpractice Cases, Kristine Gamboa

Pepperdine Dispute Resolution Law Journal

The article examines the effectiveness of the judge-directed negotiation program in the Unified Court System of New York State under the analysis of various medical malpractice lawsuits, which plays a vital role in the legislational reform in the field of medical malpractice. It informs that Douglas McKeon, Judge of the Bronx County Supreme Court had developed the concept of judge-directed negotiations. It overviews the praises and criticisms behind the success of the program.

"Toiling In The Danger And In The Morals Of Despair": Risk, Security, Danger, The Constitution, And The Clinician's Dilemma, Michael L. Perlin, Alison Julia Lynch

Michael L Perlin

Abstract: Persons institutionalized in psychiatric hospitals and “state schools” for those with intellectual disabilities have always been hidden from view. Such facilities were often constructed far from major urban centers, availability of transportation to such institutions was often limited, and those who were locked up were, to the public, faceless and often seen as less than human.

Although there has been regular litigation in the area of psychiatric (and intellectual disability) institutional rights for 40 years, much of this case law entirely ignores forensic patients – mostly those awaiting incompetency-to-stand trial determinations, those found permanently incompetent to stand trial, those acquitted ...

“Friend To The Martyr, A Friend To The Woman Of Shame”: Thinking About The Law, Shame And Humiliation, Michael L. Perlin, Naomi Weinstein

Michael L Perlin

The need to pay attention to the law‘s capacity to allow for, to encourage, or (in some cases) to remediate humiliation, or humiliating or shaming behavior has increased exponentially as we begin to also take more seriously international human rights mandates, especially – although certainly not exclusively – in the context of the recently-ratified United Nations Convention on the Rights of Persons with Disabilities, a Convention that calls for “respect for inherent dignity,” and characterizes "discrimination against any person on the basis of disability [as] a violation of the inherent dignity and worth of the human person...."

Humiliation and shaming, as ...

Ex-Post Right, Ex-Ante Wrong, Ariel Porat

Notre Dame Law Review

Should a doctor be held liable under negligence law for harmful treatment she administered to a patient, if the treatment should have been considered negligent at the time it was administered, but is now considered reasonable at the time of trial? Should a manufacturer be held liable for harm caused to a consumer from a product that is considered reasonable, and therefore nondefective, at the time of trial, but that should have been considered unreasonable, and therefore defective, at the time of its distribution? More generally put: Should the law impose liability for ex-post right but ex-ante wrong behaviors? The ...

From Sex For Pleasure To Sex For Parenthood: How The Law Manufactures Mothers, Beth A. Burkstrand-Reid

College of Law, Faculty Publications

As soon as sperm enter a woman, so do law and politics, or so the decades-long disputes surrounding abortion suggest. Now, however, renewed debates surrounding contraceptives show legal and political interference with women’s sexual and reproductive autonomy may actually precede the sperm. This Article argues that, increasingly, women even thinking about having sex are defined socially and legally as “mothers.” Via this broad definition of who is a “mother,” the State extends its reach into women’s decision-making throughout their reproductive lifetime.

This Article argues that the State simultaneously devalues women’s choices to have sex for pleasure, which ...

Speech As A Weapon: Planned Parenthood V. American Coalition Of Life Activists And The Need For A Reasonable Listener Standard, Alex J. Berkman

Touro Law Review

No abstract provided.

The Natural Rights Of Children, Walter E. Block

Walter E Block

No abstract provided.

Selling Art: An Empirical Assessment Of Advertising On Fertility Clinics' Websites, Jim Hawkins

Indiana Law Journal

Scholarship on assisted reproductive technologies (ART) has emphasized the commercial nature of the interaction between fertility patients and their physicians, but little attention has been paid to precisely how clinics persuade patients to choose their clinics over their competitors’. This Article offers evidence about how clinics sell ART based on clinics’ advertising on their websites. To assess clinics’ marketing efforts, I coded advertising information on 372 fertility clinics’ websites. The results from the study confirm some suspicions of prior ART scholarship while contradicting others. For instance, in line with scholars who are concerned that racial minorities face barriers to accessing ...

Selling Art Or Selling Out?: A Response To Selling Art: An Empirical Assessment Of Advertising On Fertility Clinics' Websites, Jody L. Madeira

Indiana Law Journal

Roundtable on Regulating Assisted Reproductive Technology 2012

Economic Analysis Of Medical Malpractice Liability And Its Reform, Jennifer Arlen

New York University Law and Economics Working Papers

This Chapter provides an economic analysis of medical error employing a model in which physicians who provide suboptimal medical care may have done so knowingly (as in the traditional model) or accidentally. Accidental medical error is a leading cause of medical negligence: many if not most physicians who provided suboptimal care did not know they were doing so but instead misdiagnosed the patient, unintentionally selected the wrong treatment or erred in treatment provision. Accordingly, in order to promote optimal health care markets, malpractice liability must be structured to both induce physicians to want to provide optimal treatments (when they are ...

Economic Analysis Of Medical Malpractice Liability And Its Reform, Jennifer Arlen

New York University Public Law and Legal Theory Working Papers

This Chapter provides an economic analysis of medical error employing a model in which physicians who provide suboptimal medical care may have done so knowingly (as in the traditional model) or accidentally. Accidental medical error is a leading cause of medical negligence: many if not most physicians who provided suboptimal care did not know they were doing so but instead misdiagnosed the patient, unintentionally selected the wrong treatment or erred in treatment provision. Accordingly, in order to promote optimal health care markets, malpractice liability must be structured to both induce physicians to want to provide optimal treatments (when they are ...

At And Along: A Review Of The Law And Ethics Of Medicine, Adam Macleod

Adam MacLeod

No abstract provided.

"Rfra Exemptions From The Contraception Mandate: An Unconstitutional Accommodation Of Religion", Frederick Mark Gedicks, Rebecca G. Van Tassell

Frederick Mark Gedicks

Litigation surrounding use of the Religious Freedom Restoration Act to exempt employers from the Affordable Care Act’s “contraception mandate” is moving steadily towards eventual resolution in the U.S. Supreme Court. Both opponents and supporters of the mandate, however, have overlooked Establishment Clause limits on such exemptions.

The fiery religious-liberty rhetoric surrounding the mandate has obscured that RFRA is a “permissive” rather than “mandatory” accommodation of religion—that is, a voluntary government concession to religious belief and practice that is not required by the Free Exercise Clause. Permissive accommodations must satisfy Establishment Clause constraints, notably the requirement that the ...

Public Assistance, Drug Testing And The Law: The Limits Of Population-Based Legal Analysis, Candice T. Player

Candice T Player

In Populations, Public Health and the Law, legal scholar Wendy Parmet urges courts to embrace population-based legal analysis, a public health inspired approach to legal reasoning. Parmet contends that population-based legal analysis offers a way to analyze legal issues—not unlike law and economics—as well as a set of values from which to critique contemporary legal discourse. Population-based analysis has been warmly embraced by the health law community as a bold new way of analyzing legal issues. Still population-based analysis is not without its problems. At times Parmet claims too much territory for the population-perspective. Moreover Parmet urges courts ...

The Dangerousness Of The Status Quo: A Case For Modernizing Civil Commitment Law, Daniel A. Moon

Daniel C Moon

The states, private healthcare organizations, and those with psychiatric disorders are poorly served by the vague “dangerousness” standard endorsed by the United States Supreme Court in O’Connor v. Donaldson, as well as the state statutes that adhere to the high bar set in its holding. This paper explores involuntary civil commitment from a variety of perspectives in order to highlight these issues and to identify where improvements can be made. Specifically, this article proposes that the American Law Institute or the American Bar Association promulgate model rules intended to correct the system’s shortcomings and protect the various interested ...

The Mhealth Conundrum: Smartphones & Mobile Medical Apps – How Much Fda Medical Device Regulation Is Required?, Vincent J. Roth Esq

Vincent J Roth Esq

Smartphones and tablets have provided a plethora of new business opportunities for a number of industries including healthcare. Technology, however, appears to have outpaced the regulatory environment, which has spawned criticism over the current guidance of the Food and Drug Administration (“FDA”) with regard to software and what level of regulation is required for mobile medical applications. Commentators have remarked that the FDA’s guidance in this area is complex and unclear.

This article explores the current FDA regulatory scheme for mobile medical applications and adapters for mobile devices designed to provide mobile healthcare, or “mHealth.” Attention is given to ...

The Mhealth Conundrum: Smartphones & Mobile Medical Apps – How Much Fda Medical Device Regulation Is Required?, Vincent J. Roth Esq

Vincent J Roth Esq

Smartphones and tablets have provided a plethora of new business opportunities for a number of industries including healthcare. Technology, however, appears to have outpaced the regulatory environment, which has spawned criticism over the current guidance of the Food and Drug Administration (“FDA”) with regard to software and what level of regulation is required for mobile medical applications. Commentators have remarked that the FDA’s guidance in this area is complex and unclear.

This article explores the current FDA regulatory scheme for mobile medical applications and adapters for mobile devices designed to provide mobile healthcare, or “mHealth.” Attention is given to ...

Consentimiento Informado: Un Derecho Fundamental En La Relación Médico Paciente., Guillermo Castorena

Guillermo Castorena

Este derecho está basado en el principio de autonomía. Se trata de un derecho humano del paciente, aunque por otra parte, podría verse también como un elemento estructural esencial del contrato de servicios médicos, esto es, la esencia misma de ese acto médico-jurídico.

De esa manera, la voluntad del paciente para someterse a un procedimiento médico o quirúrgico con fines diagnósticos, terapéuticos, rehabilitatorios o paliativos, se formará por un proceso de información, entendimiento, razonamiento y manifestación de la voluntad.

Perkinelmer Inc. V. Intema Ltd. And Patent-Eligibility Of Diagnostic Screening Methods After Mayo V. Prometheus, John Ye

John Ye

In December 2011, the Supreme Court issued its ruling in Mayo v. Prometheus,[1] reversing the Federal Circuit based on unpatentable subject matter in a diagnostic method patent. In Mayo, the patent disclosed a method for determining the correct drug dosage based on the drug’s metabolite in a patient’s blood. The method was declared patent-ineligible because instead of teaching an application of laws of nature, the teachings only directed doctors to “apply it” - all disguised under the conventional steps such as “administering”, “measuring” and “determining” [2].

Following the Court’s holding, the Federal Circuit in November 2012 issued ...