Law Commons^™

Distinctive Factors Affecting The Legal Context Of End-Of-Life Medical Care For Older Persons, Marshall B. Kapp

Georgia State University Law Review

Current legal regulation of medical care for individuals approaching the end of life in the United States is predicated essentially on a factual model emanating from a series of high-profile judicial opinions concerning the rights of adults who become either permanently unconscious or are clearly going to die soon with or without aggressive attempts of curative therapy.

The need for a flexible, adaptable approach to medically treating people approaching the end of their lives, and a similar openness to possible modification of the legal framework within which treatment choices are made and implemented, are particularly important when older individuals are …

2016-2017 Georgia State University Law Review Symposium: Exploring The Right To Die In The U.S., Margaret Pabst Battin

Georgia State University Law Review

This transcript is a reproduction of the Keynote Presentation at the 2016–2017 Georgia State University Law Review Symposium on November 11, 2016. Margaret Battin, is a Distinguished Professor of Philosophy and Adjunct Professor of Internal Medicine at the University of Utah.

The Past And Future Of Deinstitutionalization Litigation, Samuel R. Bagenstos

Law & Economics Working Papers

Two conflicting stories have consumed the academic debate regarding the impact of deinstitutionalization litigation. The first, which has risen almost to the level of conventional wisdom, is that deinstitutionalization was a disaster. The second story does not deny that the results of deinstitutionalization have in many cases been disappointing. But it challenges the suggestion that deinstitutionalization has uniformly been unsuccessful, as well as the causal link critics seek to draw with the growth of the homeless population. This dispute is not simply a matter of historical interest. The Supreme Court’s 1999 decision in Olmstead v. L.C., which held that unjustified …

When Is Medical Care “Futile”? The Institutional Competence Of The Medical Profession Regarding The Provision Of Life-Sustaining Medical Care, Meir Katz

Meir Katz

“Medical futility,” the doctrine by which hospital ethics boards have assumed the right to authorize medical providers to unilaterally withdraw or decline to provide aggressive life sustaining medical care, has swelled in popularity in recent years and has affected the lives of countless terminal patients. The case law governing medical futility is inconsistent and appears to provide medical providers and patients alike little guidance in this extremely sensitive area of health law. Lost in the confusion created by the case and statutory law is due consideration of the normative case behind “medical futility.” “Futility,” by definition, is preceded by an …

Electroconvulsive Therapy Baby Boomers May Be In For The Shock Of Their Lives, Helia Garrido Hull

Faculty Scholarship

No abstract provided.

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Disability Discrimination In Long-Term Care: Using The Fair Housing Act To Prevent Illegal Screening In Admissions To Nursing Homes And Assisted Living Facilities, Eric M. Carlson

ExpressO

Nursing homes and assisted living facilities routinely require applicants to disclose an extensive amount of medical information. Not infrequently, these long-term care facilities use the information to deny admission to those applicants with relatively greater care needs. These denials constitute illegal discrimination under the Americans with Disabilities Act and the Rehabilitation Act, but generally consumers are unaware of these protections or find litigation too expensive and time-consuming under their generally difficult circumstances.

These illegal denials of service could be limited by active enforcement of the Fair Housing Act’s no-inquiry regulation, which prohibits a housing provider from inquiring into an applicant’s …

The Convicted Felon As A Guardian: Considering The Alternatives Of Potential Guardians With Less-Than-Perfect Records, Mike Jorgensen

ExpressO

Courts require discretion in appointing guardians. Oftentimes, the legislature prevents the courts from exercising discretion when statutes are enacted that prohibit felons from serving as guardians under any circumstances. Yet, the need for guardians is increasing and will continue to do so due to the exponential growth in the aging elder population.

At the same time, however, the pool of potential guardians is shrinking in size. Additionally, the same reducing pool of eligible guardians is being attenuated further by having a disproportionate amount of felonies.

The groups most impacted by these trends are the indigent and the minorities. The indigent …

Protecting Rights Or Waiving Them? Why 'Negotiated Risk' Should Be Removed From Assisted Living Law, Eric M. Carlson

ExpressO

Assisted living facilities claim that negotiated risk agreements give residents the freedom to act against facility advice. On the contrary, negotiated risk was proposed originally to waive a facility’s liability for inadequate care, and liability waiver remains a significant component of negotiated risk.

This Article offers the first detailed legal analysis of state negotiated risk laws. Due to negotiated risk’s dueling definitions – based either on the against-facility-advice scenario or the inadequate care scenario – state law is marked by ambiguity and inconsistency. Currently, fifteen states address negotiated risk in law, and an additional state has developed a standardized negotiated …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

Fair Housing Is Good Medicine: Applying The Fair Housing Act's No-Inquiry Regulation When Housing And Health Care Are Provided Together, Eric M. Carlson

ExpressO

The Fair Housing Act (FHA) protects individuals with disabilities from discrimination in the housing or rental markets. The FHA’s no-inquiry regulation prohibits a landlord from inquiring into an applicant’s health condition.

Although the FHA routinely has been applied to long-term care facilities – usually to protect a group home or similar facility from unfair zoning practices – the no-inquiry regulation has not been utilized to challenge the admissions practices of assisted living facilities, nursing facilities, and other long-term care facilities. Indeed, at first glance, a no-inquiry rule seems a poor fit for a facility that provides health care along with …

Blame Canada (And The Rest Of The World): The Twenty-Year War On Imported Prescription Drugs, Daniel L. Pollock

ExpressO

Rising budget deficits and sticker shock over the new Medicare drug benefit have put the issue of prescription drug costs back into the spotlight. The growth in the cost of prescription drugs continues to represent a staggering burden for taxpayer-funded health care programs, even while costs of non-drug health care services have slowed or even decreased. Among the many proposals for cutting prescription drug costs, drug importation is unique. Although bipartisan support for drug importation has existed in Congress for over five years, the federal government continues to maintain that a system of safe and effective drug importation is impossible. …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

On Hastening Death Without Violating Legal Or Moral Prohibitions, Norman L. Cantor

Rutgers Law School (Newark) Faculty Papers

While the vast majority of fatally afflicted persons have a powerful wish to remain alive, some stricken persons may, for any of a host of reasons, desire to hasten death. Some persons are afflicted with chronic degenerative diseases that take a grievous toll. Chronic pain may be severe and intractable, anxiety about a future treatment regimen may be distressing, and helplessness may erode personal dignity and soil the image that the afflicted person wants to leave behind.

A dying patient’s interest in hastening death is often said to be in tension with a bedrock social principle that respect for sanctity …

On Kamisar, Killing, And The Future Of Physician-Assisted Death, Norman L. Cantor

Rutgers Law School (Newark) Faculty Papers

In a famous 1958 article, Yale Kamisar brilliantly examined the hazards of abuse and of slippery slope extensions that subsequently, for 46 years, served to thwart legalization of physician-assisted death (PAD). This paper shows that during the same period law and culture have effectively accepted a variety of ways for stricken people to hasten death, with physicians involved in diverse roles. Those ways include rejection of nutrition and hydration, terminal sedation, administration of risky analgesics, and withholding or withdrawal of medical life support.

If these existing lawful modes of hastening death were widely acknowledged, the pressure to legalize voluntary active …

The Relation Between Autonomy-Based Rights And Profoundly Disabled Persons, Norman L. Cantor

Rutgers Law School (Newark) Faculty Papers

“The Relation Between Autonomy-based Rights and Profoundly Mentally Disabled Persons” Competent persons have fundamental rights to decide about abortion, methods of contraception, and rejection of life-sustaining medical treatment. Profoundly disabled persons are so cognitively impaired that they cannot make their own serious medical decisions. Yet some courts suggest that the mentally impaired are entitled to “the same right” to choice regarding critical medical decisions as competent persons. This article discusses the puzzling question of how to relate autonomy-based rights to never-competent persons. It argues that while profoundly disabled persons cannot be entitled to make their own medical decisions, they have …

The Bane Of Surrogate Decision Making: Defining The Best Interests Of Never-Competent Persons, Norman L. Cantor

Rutgers Law School (Newark) Faculty Papers

The medical fate of never-competent persons cannot be resolved according to the approach governing previously competent persons -- surrogate focus on self-determination via advance instructions or projections of what the now-incompetent person would want in the circumstances. For never-competent medical patients, the commonly stated approach to surrogate decision making is best interests of the incapacitated ward.

This article examines and questions the conventional wisdom regarding a "best interests of the patient" standard. When a parent is the surrogate decision maker, the medical course chosen need not be the best course, so long as it is a plausible medical option and …

Health Care Allocation For The Elderly: Age Discrimination By Another Name?, Howard C. Eglit

All Faculty Scholarship

No abstract provided.