Digital Commons Network^™

Shoot Out At The Not-O.K. Corral Or Privileged Client Communications - Lost And Found In Texas., Walter W. Steele Jr.

St. Mary's Law Journal

Texas’s solutions to inadvertently disclosed privileged material are unworkable. Confidentiality of client information is a bedrock of the legal profession. Nonetheless, some confidential information invariably leaks out. The most common leak occurs when a lawyer inadvertently includes privileged material in boxes of documents produced in response to a legitimate discovery request. After the opposing lawyer finds the “hot documents” in the box, the problems begin. The Texas Supreme Court adopted what amounts to the reasonable precautions test in Granada Corp. v. First Court of Appeals. The cornerstone of the Granada holding is the involuntary nature of the production of the …

Proposed Conflict Of Interest And Confidentiality Rules., Luther H. Soules Iii

St. Mary's Law Journal

The Texas Supreme Court and the State Bar of Texas should fully adopt the proposals to the Rules of Professional Conduct 1.05–1.13 addressing attorney confidentiality and conflicts of interest. Historically, the Rules of Professional Conduct have set a floor which a lawyer may be subject to discipline, the Rules, however, do not offer bright lines for deciding questions of law, ethics, or fairness. Because the rules of professional responsibility in the legal industry are ambiguous in nature and often encumber a lawyer’s ability to effectively represent clients, the Texas Disciplinary Rules Committee recommends modification to the Rules of Professional Conduct …

The New Cigarette Paternalism, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Smoking is by far the largest single risk that most people take. Perhaps in part because of that prominence, smoking has been the target of a wide variety of regulations and legal actions. The controversy over tobacco products is at least four centuries old, but it has been largely over the past half-century that the diverse wave of public policy initiatives against tobacco products has emerged. Within a standard economic framework of consumer choice, there would seem to be little impetus for broadly based government efforts to discourage smoking. The risks of smoking are largely borne by the consumers who …

In The Interest Of The Client: Why Reform Of Texas's Rules Regarding Referral Fees Is Necessary., Samuel V. Houston Iii

St. Mary's Law Journal

Texas needs to reform its policy concerning referral fees. In Texas, an attorney is permitted to receive a fee for providing a referral to another attorney. In Brewer & Pritchard, P.C. v. Johnson, for example, the forwarding attorney received a referral fee for $3 million dollars. Proponents of referral fees argue that clients are better represented because referring attorneys have a greater economic incentive to seek out more capable attorneys. On the other hand, referring attorneys may also have the incentive to seek out attorneys who pay higher referral fees rather than those most qualified. In the end, the referred …

Tanf And Work Support Services: On The Job In Greater Philadelphia, Lisa Sprague

National Health Policy Forum

This site visit looked at programs in the greater Philadelphia area to move welfare recipients into employment and support services aimed at keeping them employed. Four years after implementation of the Personal Responsibility and Work Opportunity Reconciliation Act, welfare caseloads were much reduced, but challenges remained. Pennsylvania officials described their plans to assist beneficiaries who would reach their five-year lifetime cash assistance limit beginning in 2002. Site visitors met with state and county assistance office staff, employers, consumer advocates, and employment and training contractors. They participated in discussions of how work support services, such as medical assistance, child care, and …

Law & Health Care Newsletter, V. 9, No. 1, Fall 2001

Law & Health Care Newsletter

No abstract provided.

Department Of Managed Health Care, Amy Kay Boatright, Kelly Ann Debie, J. D. Fellmeth

California Regulatory Law Reporter

No abstract provided.

Are Medical Ethics Different From Legal Ethics?, Mervin H. Needell

St. Thomas Law Review

In this paper I shall compare and contrast some relevant ethical positions of legal and medical precepts and practices which seem to suggest or predispose to a professional bias. I derive these conclusions from official positions contained in institutional accounts, such as case law or treatises. Even if such comparisons do not make a convincing case for professional bias, they should still provide some insight into the ways in which the thought processes of lawyers and doctors do or do not differ. Although the words "moral" and "ethical" are often used interchangeably, if a distinction must be made here, I …

Federal Law Enforcement In Long Term Care, Marie-Therese Connolly

Journal of Health Care Law and Policy

No abstract provided.

The Nursing Home Crisis: Views From A Trustee In The Nonprofit Sector, Marshall B. Kapp

Journal of Health Care Law and Policy

No abstract provided.

Dispute Resolution And Dementia: Seeking Solutions, Erica F. Wood

Georgia Law Review

With the rise in dementia, 2nd and 3rd party disputes will be more frequent. The elderly population with cognitive impairments is growing rapidly. By 2030, the population aged 65 years and older is expected to reach 70 million, more than double the number in 1998.1 Moreover, the older population itself is getting older. While a decline in mental function is not an inevitable part of the normal aging process, the likelihood of dementia or related brain disorders increases with advancing age. The prevalence of dementia doubles every five years in the elderly, growing from a disorder that affects one percent …

Has The Fog Cleared - Attorney Work Product And The Attorney-Client Privilege: Texas's Complete Transition Into Full Protection Of Attorney Work In The Corporate Context., Fred A. Simpson

St. Mary's Law Journal

The following discussion in this Article fills the gaps in the substantive rules surrounding the attorney work product doctrine and the attorney-client privilege, thereby encouraging practitioners to utilize these tools more freely. Initially, the attorney-client privilege contemplated application only to individuals. As the rule developed in the United States, however, the scope of the privilege broadened until it included corporations. Since 1982, Texas has provided for the attorney-client privilege in Texas Rule of Civil Evidence 503.149. Notably, the Rule defined client in such a way as to include a corporation. Unlike the attorney-client privilege, the work product doctrine developed much …

Attorney Referral For Medical Treatment: A Wolf In Disguise., Martin J. Phipps

St. Mary's Law Journal

Texas attorneys should be obligated to disclose whether they referred their client to a pre-selected physician. Plaintiff attorneys, however, have been allowed to withhold this information from the court arguing the information is privileged. The practice of using a pre-selected physician is unethical and unfairly prejudicial. If the attorney and physician have an agreement, the attorney is likely to send numerous clients to that specific physician in order to receive a discount. The physician in turn is likely to recommend medically unnecessary procedures in order to inflate money damages. Therefore, in order to prevent potential abuse between the attorney-physician relationship, …

Getting It Right From The Beginning: A Critical Examination Of Current Criminal Defense In Texas And Proposal For A Statewide Public Defender System., Rebecca Copeland

St. Mary's Law Journal

Abstract Forthcoming.

Religion In Public Schools: Let Us Pray - Or Not., Carolyn Hanahan, David M. Feldman

St. Mary's Law Journal

This Essay addresses judicial interpretation and application of the religious protections of students in public schools. Part II addresses the evolution of the law governing prayer in public schools, including the creation of judicial tests utilized in determining whether a school district has impeded the rights of students in the area of religion. Part III examines the application of these tests to various activities, including a discussion of the disparity in judicial interpretation with respect to the permissibility of prayer at public school functions. This Essay concludes with a discussion analyzing the effect of the recent United States Supreme Court …

Caring For The Elderly: Oregon's Pioneers (Portland, Oregon), Nora Super, Lisa Sprague

National Health Policy Forum

This site visit looked at the continuum of care for its elderly and disabled citizens in the first state ever to secure Section 1915(c) and (d) waivers under Medicaid to support home- and community-based services. More than three-quarters of Oregon's Medicaid clients now receive care in these settings. Site visitors were briefed on the history and development of long-term care in the state as well as the various care settings available. Panels discussed strategies and partnerships focused on alleviating workforce shortages and highlighted Oregon nurses' authority to delegate certain caregiving tasks to laypeople. Multnomah County staff described county-level activities, especially …

Understanding Medicaid Home And Community Services: A Primer, Gary Smith, Janet O'Keeffe, Letty Carpenter, Pamela Doty, Brian Burnwell, Robert Mollica, Loretta Williams, George Washington University, Center For Health Policy Research

Center for Health Policy Research

No abstract provided.

The Fda Knows Best . . Or Does It? First Amendment Protection Of Health Claims On Dietary Supplements: Pearson V. Shalala, Amber K. Spencer

Brigham Young University Journal of Public Law

No abstract provided.

The Attorney/Client Privilege: A Fond Memory Of Things Past: An Analysis Of The Privilege Following United States V. Anderson, Michael M. Mustokoff, Jonathan L. Swichar, Cheryl Roth Herzfeld

Annals of Health Law and Life Sciences

Mr. Mustokoff, Mr. Swichar, and Ms. Herzfeld address the rudiments of the attorney/client privilege, its crime-fraud exception, corporate compliance programs, the United States government's quest for voluntary disclosure, and how those principles have been affected by United States v. Anderson.

Current Issues In The Psychiatrist-Patient Relationship: Outpatient Civil Commitment, Psychiatric Abandonment And The Duty To Continue Treatment Of Potentially Dangerous Patients--Balancing Duties To Patients And The Public, Vanessa Merton, Linda C. Fentiman

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Introduction: Fifteenth Anniversary Of The Edward V. Sparer Public Interest Law Fellowship Program, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.

Dc Consortium Of Legal Service Providers: Legal Services 2000 Symposium, Peter B. Edelman

Georgetown Law Faculty Publications and Other Works

My main point is to urge you to the see what is possible in the way of what I might call a public health approach to lawyering for the poor. In a public health approach you find something that has polluted the river and you clean it up at its source instead of just treating its victims one by one. In legal and societal terms, when we are discussing why so many children are growing up poor and dying a slow death of disappointment, the challenge is to think about it in a public health way. Of course we cannot …

Immunity Of Volunteer Health Care Providers In Texas: Bartering Legal Rights For Free Medical Care Comment, Gwendolyn Pulido

The Scholar: St. Mary's Law Review on Race and Social Justice

Texas should not rely on Congress to cure the problem of indigent access to healthcare. Despite recent proposals to create a unified healthcare system, the United States continues to allow the welfare of its poor citizens to ride the wave of the free market. Unlike the U.S., several international declarations have acknowledged the inherent human right to healthcare including the World Health Organization (WHO), the United Nations Universal Declaration of Human Rights, and the United Nations’ adoption of the Covenant on Economic, Social, and Cultural Rights (The Covenant). Despite the recognition of a right to healthcare, there is still no …

Role Of Jaffee V. Redmonds "Course Of Diagnosis Or Treatment" Condition In Preventing Abuse Of The Psychotherapist-Patient Privilege, Lynda W. Kenney

Georgia Law Review

The Supreme Court recognized the federal psychotherapist- patient privilege in Jaffee v. Redmond and conditioned its application on the existence of a "course of diagnosis or treatment" within which a psychotherapist and patient exchanged confidential communications. The Court expressly precluded trial courts from conditioning privilege application on the favorable balance of a given patient's need for privacy over the extent of evidentiary harm likely to be caused by applying the privilege. Doubting the sufficiency of Jaffee's "course of diagnosis or treatment"condition to prevent abusive application of the privilege,the First Circuit Court of Appeals recognized the crime-fraud exception to the privilege …

The Benefits Of Voluntary Inpatient Psychiatric Hospitalization: Myth Or Reality?, Donald H. Stone

All Faculty Scholarship

Throughout the United States, mentally ill persons are confined against their will in psychiatric hospitals as a result of being accused of dangerous behavior. Some are committed involuntarily by a judge after an administrative hearing during which they are afforded legal representation, a right to be present, and important due process protections, including the right to cross-examine witnesses and present one's own witnesses. However, a significant number of individuals, initially confined in psychiatric institutions for allegedly posing a danger to life or safety, never see an impartial judge, lawyer, or even a family member. These mentally ill individuals are not …

Access To Home Health Services Under Medicare's Interim Payment System, Nora Super

National Health Policy Forum

This issue brief explores the impact of the interim payment system (IPS) for home health agencies established under the Balanced Budget Act of 1997 (BBA). IPS was intended to constrain program outlays by imposing limits on spending per beneficiary and spending per visit in the existing cost-based reimbursement system. This issue brief examines the impact of the IPS on access to home health care, including home health agencies' responses to the payment system and its impact on provider availability and, ultimately, access to care for the sickest or most expensive populations

Medical Board Of California, Jane K. Babin, Debra L. Back, J. D. Fellmeth

California Regulatory Law Reporter

No abstract provided.

Competing On Quality Of Care: The Need To Develop A Competition Policy For Health Care Markets, William M. Sage, Peter J. Hammer

Law Faculty Research Publications

As American health care moves from a professionally dominated to a marketdominated model, concerns have been voiced that competition, once unleashed, will focus on price to the detriment of quality. Although quality has been extensively analyzed in health services research, the role of quality in competition policy has not been elucidated. While economists may theorize about non-price competition, courts in antitrust cases often follow simpler models of competition based on price and output, either ignoring quality as a competitive dimension or assuming that it will occur in tandem with price competition. This unsystematic approach is inadequate for the formulation of …

Competing On Quality Of Care: The Need To Develop A Competition Policy For Health Care Markets, William M. Sage, Peter J. Hammer

Faculty Scholarship

As American health care moves from a professionally dominated to a marketdominated model, concerns have been voiced that competition, once unleashed, will focus on price to the detriment of quality. Although quality has been extensively analyzed in health services research, the role of quality in competition policy has not been elucidated. While economists may theorize about non-price competition, courts in antitrust cases often follow simpler models of competition based on price and output, either ignoring quality as a competitive dimension or assuming that it will occur in tandem with price competition. This unsystematic approach is inadequate for the formulation of …

Accountable Managed Care: Should We Be Careful What We Wish For?, David A. Hyman

University of Michigan Journal of Law Reform

Managed care is exceedingly unpopular of late. Many people believe that the problem is managed care organizations (MCOs) are unaccountable. Indeed, for many people, the creation of tort-based accountability for MCOs is the touchstone for assessing legislative "reform." The case for tort-based accountability is actually quite complex, and the merits of tort-based accountability cannot be resolved with sound bites and bad anecdotes. Tort-based accountability has both costs and benefits, and little attention has been paid to the extent to which alternatives to tort-based accountability are found in existing institutional arrangements.

This Article systematically considers the extent to which alternatives to …