Law Commons^™

Who Pays First?: Medicaid Third-Party Liability In Florida And Virginia’S Birth-Related Neurological Injury Compensation Programs, Alexandra M. Robbins

Saint Louis University Journal of Health Law & Policy

In response to an impending obstetrician shortage and medical malpractice crisis, the states of Florida and Virginia adopted no-fault birth-related neurological injury compensation programs in the 1980s. Both of these programs provide lifetime coverage for eligible children with serious birth-related neurological injuries; however, both programs treated themselves as the payer of last resort and required families to submit claims to Medicaid first based on an inaccurate interpretation of Medicaid third party-liability (“TPL”) laws and the program-enabling statutes. Both programs’ policies treating themselves as the payer of last resort not only violated Federal and State Medicaid laws, they caused harm to …

Giving Heroes Their Shields: Providing More Immunity To The Healthcare Industry During The Covid-19 Pandemic, Gabriella Levine

Journal of Civil Rights and Economic Development

(Excerpt)

The year is 2022. We are experiencing a global pandemic and economic uncertainty. And while traffic might have improved, as many work remotely and socially distance, everything else is unknown as people are face-to-face with death. The future has never looked bleaker.

As of September 12, 2022, there were 1,044,461 Coronavirus (“COVID-19”) related deaths and 94,973,074 reported COVID-19 cases in the United States (“U.S.”). The effects of COVID-19 impacted people who contracted the disease, family members who lost someone, and people at risk who have been in isolation for over one year.

Another group that has been heavily affected …

Immunization And Indemnification: Rethinking The Us Approach To Liability Protections For Vaccine Manufacturers During The Covid-19 Pandemic, Samantha Topper Berns

University of Miami International and Comparative Law Review

This note analyzes the legal mechanisms in the United States that provide compensation for vaccine injuries sustained as a result of inoculation against pandemic viruses when a public health emergency has been declared. While the United States has an every-day compensation scheme that deters litigation by providing just compensation yet upholds the right of injured parties to seek damages in court, it has a special compensation scheme applicable to vaccines developed to address public health emergencies that bars litigation by effectively providing vaccine manufactures with complete indemnification and severely restricts the ability of injured parties to receive compensation. Meanwhile, in …

Rationing Healthcare During A Pandemic: Shielding Healthcare Providers From Tort Liability In Uncharted Legal Territory, Frederick V. Perry, Miriam Weismann

University of Miami Business Law Review

As the coronavirus pandemic intensified, many communities in the U.S. experienced shortages of ventilators, ICU beds, and other medical supplies and treatment. There was no single national response providing guidance on the allocation of scarce healthcare resources. There has been no consistent state response either. Instead, various governmental and nongovernmental state actors in several but not all states formulated “triage protocols,” known as Crisis Standards of Care, to prioritize patient access to care where population demand exceeded supply. One intended purpose of the protocols was to immunize or shield healthcare providers from tort liability based on injuries resulting from a …

Achieving Better Care In Pennsylvania By Allowing Pharmacists To Practice Pharmacy, Travis Murray

Dickinson Law Review (2017-Present)

Traditionally, state legislatures implemented Prescription Drug Monitoring Programs (“PDMPs”) to assist prescribers, pharmacists, and law enforcement in identifying patients likely to misuse, abuse, or divert controlled substances. PDMP databases contain a catalog of a patient’s recent controlled substances that pharmacies have filled, including the date, location, the quantity of medication filled, and the prescribing health care provider. Prescribers in Pennsylvania have a duty to query the PDMP before prescribing controlled substances in most clinical settings. Pharmacists have a similar duty in Pennsylvania to dispense safe and effective medication therapy to patients and to screen patients for potential signs of misuse, …

Torts: Covid-19 Pandemic Business Safety Act & Executive Order By The Governor Designating Auxiliary Management Workers And Emergency Management Activities, Angelena Velaj, Troy Viger

Georgia State University Law Review

The Executive Order expanded immunity from liability for volunteer health care workers as emergency management workers performing emergency management activities. The Order was not limited to only COVID-19-related activities. When the legislature reconvened, legislators passed the Georgia COVID-19 Pandemic Business Safety Act, which provided liability limitation to businesses against tort claims arising from the pandemic.

The Ncaa's Special Relationship With Student-Athletes As A Theory Of Liability For Concussion-Related Injuries, Tezira Abe

Michigan Law Review

The National Collegiate Athletic Association (NCAA) is the primary governing body of college athletics. Although the NCAA proclaims to protect student-athletes, an examination of its practices suggests that the organization has a troubling history of ignoring the harmful effects of concussions. Over one hundred years after the NCAA was established, and seventy years after the NCAA itself knew of the potential effects of concussions, the organization has done little to reduce the occurrence of concussions or to alleviate the potential effects that stem from repeated hits to the head. This Note argues for recognizing a special relationship between the NCAA …

When Food Is A Weapon: Parental Liability For Food Allergy Bullying, D'Andra Millsap Shu

Marquette Law Review

Food allergies in children are rising at an alarming pace. Increasingly, these children face an added threat: bullies targeting them because of their allergies. This bullying can take a life-threatening turn when the bully exposes the victim to the allergen. This Article is the first major legal analysis of food allergy bullying. It explores the legal system’s failure to adequately address the problem of food allergy bullying and makes the case for focusing on the potential tort liability of the bully’s parents. Parents who become aware of their child’s bullying behavior and fail to take adequate steps to stop it …

State Liability For A Mishandled Response: Strategic Remedies On The Heels Of Covid-19, Captain Matthew H. Ormsbee Usaf

Marquette Law Review

In early 2020, as the novel coronavirus (COVID-19) shocked many health experts and world leaders with its ease of transmission and slow but unyielding spread from Wuhan, China, the initial state response centered on how to contain an epidemic and help those who are infected. Many months later, as some states enjoy a flattened curve following austere social distancing measures, many states may turn their attention from health response to legal response for China’s initial mishandling of the COVID-19 outbreak. China is certainly not alone in implementing containment measures that were not maximally prompt or effective. Still, China occupies a …

Due Process Supreme Court Appellate Division Second Department

Touro Law Review

No abstract provided.

Solving The Opioid Epidemic In Ohio, Lacy Leduc

Journal of Law and Health

On May 31, 2017, Ohio Attorney General Mike DeWine took a step in fighting Ohio's opioid epidemic, bringing the first of many lawsuits against five top pharmaceutical companies. However, under Federal and State law, there is an exception called the Learned Intermediary Doctrine, which can absolve drug manufacturers of liability from any misconduct that might be found and transfer that liability to a treating physician. This exception is the way many drug manufacturers were able to avoid being held responsible in the past. This Note proposes that with the current pending lawsuit in the State of Ohio, an exception to …

Two & A Half Parents: Three-Parent Ivf And Medical Malpractice In The United States, Jay M. Fulk

Concordia Law Review

Fertility medicine is seeing a rapid advancement with the emergence of a new procedure called three-parent in vitro fertilization (IVF). This novel procedure provides an opportunity for women who have defective mitochondria to bear their own healthy genetic children. As women encounter fertility issues, they will often turn to regular IVF by receiving an egg from a donor—ultimately resulting in a child with no genetic relation to the mother. Women with defective mitochondria will likely pass down a mitochondrial disease to their children, therefore, bearing a child without the assistance from a donor does not present a viable option. Mitochondrial …

Renovations Needed: The Fda's Floor/Ceiling Framework, Preemption, And The Opioid Epidemic, Michael R. Abrams

Michigan Law Review

The FDA’s regulatory framework for pharmaceuticals uses a “floor/ceiling” model: administrative rules set a “floor” of minimum safety, while state tort liability sets a “ceiling” of maximum protection. This model emphasizes premarket scrutiny but largely relies on the state common law “ceiling” to police the postapproval drug market. As the Supreme Court increasingly holds state tort law preempted by federal administrative standards, the FDA’s framework becomes increasingly imbalanced. In the face of a historic prescription medication overdose crisis, the Opioid Epidemic, this imbalance allows the pharmaceutical industry to avoid internalizing the public health costs of their opioid products. This Note …

Save Thousands Of Lives Every Year: Resuscitate The Peer Review Privilege, Alan G. Williams

Journal of Law and Health

Doctors make mistakes—preventable medical mistakes—that kill or seriously injure patients. The best way to reduce these preventable errors is through a medical peer review process typically referred to as a "morbidity and mortality conference." However, over the past twenty years, federal and state courts, state legislatures, and state voters have effectively gutted the morbidity and mortality conference (M&M) as a remedial and preventative tool, resulting in tens of thousands of unnecessary deaths every year. Doctors need our help restoring the effectiveness of M&Ms. Congress has created the means to do so; now, all the courts need do is use it. …

Provider Liability And Medical Identity Theft: Can I Get Your (Insurance) Number?, Thomas Clifford

Northwestern Journal of Law & Social Policy

No abstract provided.

The Heartbreak Of Not Making Automated External Defibrillators Available For Public Use, Samuel D. Hodge Jr., Daria Koscielniak

University of Miami Law Review

An automated external defibrillator (AED) is one of the greatest advancements in defibrillator technology in the past several decades. Its purpose is to treat sudden cardiac arrest, the leading cause of death in this country. An AED checks the heart’s rhythm and will dispatch an electric jolt when needed to reestablish the organ’s normal electrical pattern. The magic of this portable device is that anyone can use it and it is relatively inexpensive to purchase. Studies have shown that access to AEDs can improve the odds of surviving a cardiac arrhythmia outside of the hospital and the American Heart Association …

The Affordable Care Act, Experience Rating, And The Problem Of Non-Vaccination, Eric Esshaki

University of Michigan Journal of Law Reform Caveat

Polio, the whooping cough, and the mumps, among many other communicable diseases, were once prevalent in communities within the developed world and killed millions of people.1 The advent of vaccinations contained or eradicated several of these diseases.2 However, these diseases still exist in the environment3 and are making a comeback in the United States.4 Their persistence is directly attributable to the rising trend among parents refusing to vaccinate their children.5 One proposed solution to this problem is to hold parents liable in tort when others are harmed by their failure to vaccinate. Another proposed solution argues that parents should pay …

The Failure Of The Federal Courts To Incorporate O'Connor's Dangerousness Requirement Into The Standards Utilized In Actions Challenging Wrongful Civil Comments, Svetlana Walker

Touro Law Review

No abstract provided.

Liability Cure-All For Insidious Disease Claims, Susan Frankewich

Pepperdine Law Review

Recent decisions handed down in various circuits have created virtual chaos in predicting the liability and damage amounts of insidious disease claims. At least three substantially divergent theories have been adopted to impute liability to the manufacturers of the disease catalysts. Additionally, a new trust fund concept has been used on a limited basis to reconcile differences in court decisions. The trust fund approach is relatively flexible and simple to apply in apportioning damages for insidious disease claims. The author examines and analyzes these three liability theories. In conclusion, the adoption of the trust fund concept is recommended.

Vaccines And The Law, Michael Sanzo Ph.D.

Pepperdine Law Review

The last twenty years have seen a sea-change in the area of proving causation in the toxic tort setting, with courts demanding stronger, scientifically tested evidence. At the same time, a closely related debate has been raging about separating cause from coincidence under the National Childhood Vaccine Injury Act compensation program for injuries that might have been the result of vaccinations. The Vaccine Act created a no-fault compensation fund financed by a tax on childhood vaccines to address harms resulting from those vaccines. Unfortunately, Congress gave little direction with regard to the level of causal certainty that would be required …

Health Care Providers Meet Erisa: Are Provider Claims For Misrepresentation Of Coverage Preempted, Jeffrey A. Brauch

Pepperdine Law Review

No abstract provided.

Addressing Liability And Clinical Decision Support: A Federal Government Role, Jodi G. Daniel

Saint Louis University Journal of Health Law & Policy

No abstract provided.

On Optimizing Ddi Alerts And Liability Under Cds: The Authors Respond, Michael D. Greenberg, M. Susan Ridgely

Saint Louis University Journal of Health Law & Policy

No abstract provided.

Incentivizing The Utilization Of Pharmacogenomics In Drug Development, Valerie Gutmann Koch

Journal of Health Care Law and Policy

No abstract provided.

Causing Infringement, Mark Bartholomew, Patrick F. Mcardle

Vanderbilt Law Review

In its most recent contributory infringement pronouncement, the Supreme Court advised courts wrestling with these issues to consult tort law's own contributory liability framework, which it described as "well established."31 The conventional wisdom among legal scholars agrees with the Court. Most scholarship in this area contends that obeisance to traditional tort law principles of contributory liability will fill the void in infringement law with answers that are adequately calibrated to the balance between incentivizing creation and permitting downstream use. This Article challenges that conventional wisdom. Although we agree that tort law can shed some much-needed light on contributory infringement, we …

Respecting The Concept And Limited Liability Of A Series Llc In Texas Comment., Bernie R. Kray

St. Mary's Law Journal

The primary advantage of a limited liability company (LLC) is to shield owners from personal liability for the contract and tort obligations of their business entities. To further protect business assets, practitioners often advised clients to form multiple LLCs, each containing single assets. Yet, business owners managing multiple assets and LLCs often found this approach ineffective and cost-prohibitive. Allowing for a single “master” LLC to compartmentalize different series of properties without the need for a distinct holding company, the “series” LLC was the next step. The series LLC permits companies to partition assets and liabilities among various cells or “series,” …

What's All The Headache: Reform Needed To Cope With The Effects Of Concussions In Football, Erika A. Diehl

Journal of Law and Health

In order to effectively manage this public health concern, it is imperative to gain an understanding of the issues surrounding head injuries in sporting events. This Note will discuss the increasing frequency and dangers of concussions in amateur and professional football. It will suggest that athletes, schools, coaches, and doctors must become more educated on the causes and dangers of concussions in order to ensure the safety of participants. In order to do so, this Note introduces a medical overview of concussions, while briefly outlining the diagnosis, long-term effects, and management of concussions. Part III discusses the legal theories athletes …

Parents Should Not Be Legally Liable For Refusing To Vaccinate Their Children, Jay Gordon

Michigan Law Review First Impressions

Should a parent who takes advantage of a personal belief exemption to avoid vaccinating a child be held liable if that child infects other people? No, because there are valid medical reasons for choosing this exemption and tracing direct transmission of these illnesses from an unvaccinated child to another person is virtually impossible.

The Problem Of Vaccination Noncompliance: Public Health Goals And The Limitations Of Tort Law, Daniel B. Rubin, Sophie Kasimow

Michigan Law Review First Impressions

Imposing tort liability on parents who fail to vaccinate their children would not serve the public health and public policy interests that drive childhood immunization efforts. The public policy goals of vaccination are to slow the spread of disease and to reduce mortality and morbidity. Our country’s public health laws already play a substantial role in furthering these goals. Although application of tort law may be an appropriate response to some of the problems that result from vaccination noncompliance, there also is a need to cultivate public understanding of the connection between individual actions and collective wellbeing. It is doubtful …

Gambling With The Health Of Others, Stephen P. Teret, Jon S. Vernick

Michigan Law Review First Impressions

The health and wellbeing of the public is, in part, a function of the behavior of individuals. When one individual’s behavior places another at a foreseeable and easily preventable risk of illness or injury, tort liability can play a valuable role in discouraging that conduct. This is true in the context of childhood immunization.