Law Commons^™

A Traumatic Brain Injury Is A Headache In Both Medical And Legal Circles, Samuel D. Hodge Jr.

Samuel D. Hodge Jr.

A traumatic brain injury (TBI) is the most feared consequence of head trauma. The reason is simple - the brain is who we are, our essence, including our memories of past times, how we respond to the environment with its stresses and challenges, and how we dream and plan for the future. A TBI has become one of the hottest and most controversial areas in personal injury litigation. More and more suits are being filed asserting claims for such problems and it is the signature injury of the Afghanistan and Iraq wars. Much publicity has also been generated about the …

Hospital Chargemaster Insanity: Heeling The Healers, George A. Nation Iii

George A Nation III

Hospital list prices, contained in something called a chargemaster are insanely high, often running 10 times the amount that hospitals routinely accept as full payment from insurers. Moreover, the relative level of a particular hospital’s chargemaster prices bears no relationship to either the quality of the services the hospital provides or, to the cost of the services provided. The purpose of these fictitious list prices is to serve as a starting point or anchoring point, for negotiations with third-party payers regarding the amount that they will actually pay the hospital for it’s goods and services.

Ironically, there is widespread agreement, …

Fda Regulation Of Adult Stem Cell Therapies As Used In Sports Medicine, Mary Ann Chirba, Berkly Sweetapple, Charles P. Hannon, John A. Anderson

Mary Ann Chirba

In sports medicine, adult stem cells are the subject of great interest. Several uses of stem cells are under investigation including cartilage repair, meniscal regeneration, anterior cruciate ligament reconstruction, and tendinopathy. Extensive clinical and basic science research is warranted as stem cell therapies become increasingly common in clinical practice. In the United States, the Food and Drug Administration (FDA) is responsible for regulating the use of stem cells through its “Human Cells, Tissues, and Cellular and Tissue-Based Products” regulations. This report provides a brief overview of FDA regulation of adult stem cells. Several common clinical case scenarios are then presented …

For Goodness’ Sake: A Two-Part Proposal For Remedying The U.S. Charity/Justice Imbalance, Fran Quigley

Fran Quigley

The U.S. approach to addressing economic and social needs strongly favors individual and corporate charity over the establishment and enforcement of economic and social rights. This charity/justice imbalance has a severely negative impact on the nation’s poor, who despite the overall U.S. wealth struggle with inadequate access to healthcare, housing, and nutrition. This article suggests a two-part approach for remedying the charity/justice imbalance in the U.S.: First, the U.S. should eliminate the charitable tax deduction, a policy creation that does not effectively address economic and social needs, forces an inequitable poverty relief and tax burden on the middle class, and …

Eliminating Undue Burdens To Women's Health: Reproductive Justice Under A “Contexual Intent” Standard, Katie L. Filous

Katie L. Filous

By examining Jackson Women’s Health Organization, et. al. v. Mary Currier, et. al., this article will advocate for the position that the Supreme Court should utilize a “contextual intent” standard in reproductive justice cases in which “undue burdens” and “substantial obstacles” are being evaluated. Part I of the article will discuss the shift from reproductive “rights” to reproductive “justice” by discussing various state legislatures’ attempts at restricting abortion in conjunction with Ian Haney Lopez’s “contextual intent” theory. Part II will discuss the historical roots of varying analyses of reproductive justice cases, from public health and safety to fetal viability to …

Does The Right To Elective Abortion Include The Right To Ensure The Death Of The Fetus?, Stephen G. Gilles

Stephen G Gilles

Is the right to an elective abortion limited to terminating the woman’s pregnancy, or does it also include the right to ensure the death of the fetus? Important as this question is in principle, in today’s world the conduct that would squarely raise it cannot occur in practice. The right to elective abortion applies only to fetuses that are not viable, which by definition means that they have been determined to have no realistic chance of surviving outside the uterus. Even if abortion providers used fetus-sparing methods rather than the fetus-killing methods they currently prefer, pre-viable fetuses would die within …

Health, The Fruit Of The Earth’S Wealth: The Role Of Government And The Private Sector In Advancing Health, Kay Boulware-Miller

Kay Boulware-Miller

Health, The Fruit of The Earth’s Wealth:

The Role of Government and the Private Sector in Advancing Health

Development is critical to the security, stability and survival of a nation. This paper will examine how each of government and the private sector assumes a critical role in furthering development and prosperity and in advancing health. First, the paper will posit that development, at its core, depends on wealth in its multiple and variable forms, and that every country, even the poorest, has the potential to be a healthy country. Wealth, properly developed and utilized from the earth’s hereditary riches, typically …

Addressing Prescription Opioid Abuse Concerns In Context: Synchronizing Policy Solutions To Multiple Public Health Problems, Kelly Dineen

Kelly Dineen

No abstract provided.

Regulatory Updates To Health Care Reform: Law And Practice, Mary Ann Chirba, Alice Noble, Michael Maddigan

Mary Ann Chirba

No abstract provided.

Is The Turkey Halal? Genetically Modified Animal Feed Regulation Where East Meets West, Jennifer Spreng

Jennifer E Spreng

Turkey’s Biosafety Law (2010) imposes some of the world’s most stringent restrictions on the import, release and marketing of genetically modified foodstuffs. The Biosafety Board has not approved a single food event; the Council of State has suspended approval of MON 810; Turks have endured meat and milk price spikes; herders are going bankrupt for lack of affordable feed; and importers have been arrested and prosecuted for trace contamination with unapproved GMOs. It’s a pox an all their houses: Turks want nothing do with GM foodstuffs.

The culprit? The “precautionary principle,” which authorizes taking precautions in the face of scientific …

The Law's Duty To Promote The Kinship System: Implications For Assisted Reproductive Techniques And For Proposed Redefinitions Of Familial Relations, Scott T. Fitzgibbon

Scott T. FitzGibbon

Kinship relations, in our society and in most, are organized systematically. That is to say, each kinship connection is constructed, conducted, and considered, not in isolation but by reference to the others. Your uncle is your father’s brother, in just about the same way as your own sibling is your brother and your children are one another’s brothers and sisters. Your spouse is the mother or father of your children, in just about the same way as your mother and father are your parents and the parents of your siblings. One’s beliefs and expectations about what each kinship relationship entails …

Workshop Democracy: Making Policy In Cote D'Ivoire, Max Levin

Max Levin

Development experts would benefit from a better understanding of how policy is made in developing countries. In this article, I describe how health policy is made in Cote d’Ivoire, from the perspective of a Westerner embedded in the Ministry of Health for 10 months. I provide a narrative of how one health system reform—performance-based financing—moved from policy idea to enacted reform. I describe the origins of the reform in Cote d’Ivoire, how the government came to support the reform, and then the mechanics of how the reform was enacted. I then present observations on how policymaking in Cote d’Ivoire differs …

The Opioid-Dependent Criminal: Improving The Criminal Justice System To Account For Their Needs, Courtney Priolo

Courtney E Priolo

Over the past twenty-five years national concern over the drug-crime relationship has been increasing. This increase has led to growth of criminal justice penalties as opposed to therapeutic approaches such as medication-assisted treatment, resulting in an expansion of the drug-involved criminal justice population. Individuals who are opioid-dependent are vulnerable at the time of arrest, and at the time of their initial detention due to their chemical dependence and impairment of their neurocognitive functioning. The denial of medication to inmates in order to alleviate withdrawal symptoms is stigmatizing, punishing, and potentially life-threatening. This article argues that medication-assisted treatment for the criminal …

Mutual Pharmaceutical Co. V. Bartlett: A Need For “Explicit” Congressional Action And State Tort Law Reform, Kara A. Ritter

Kara A Ritter

No abstract provided.

Toward Healing And Restoration For All: Reframing Medical Malpractice Reform, Jonathan Todres

Jonathan Todres

The medical malpractice liability system is blamed for everything from the high cost of health care to quality assurance issues. This Article suggests that that one of the problems with the current approach to medical malpractice is that legal remedies for medical error are not viewed as part of the continuum of care. Thus, a new model - driven by the principle of care and the goal of healing - is needed to address medical errors more effectively. Building from these core principles of care and healing, the author develops a new healing-centered framework which provides a better assessment of …

A Public Health Approach To Human Trafficking, Jonathan Todres

Jonathan Todres

Trafficked individuals experience physical, sexual and emotional violence at the hands of traffickers, pimps, employers, among others, and are exposed to various workplace, health and environmental hazards. The breadth of the harm suggests a role for a currently underutilized approach: public health methodologies. The field of public health offers vital skills and expertise in the fight against human trafficking.

Health And Human Rights, Jonathan Todres

Jonathan Todres

No abstract provided.

Please Provide The Entire Electronic Medical Record, Jonathan H. Lomurro Esq. Llm

Jonathan H. Lomurro Esq. LLM

No abstract provided.

Female Genital Mutilation And Designer Vaginas In Britain: Crafting An Effective Legal And Policy Framework, Lisa Avalos

Lisa Avalos

The prevalence of female genital mutilation (FGM) in Britain and Europe has grown in recent years as a result of international migration, and European institutions have grown increasingly concerned with eradicating the practice. According to the European Parliament, approximately 500,000 girls and women living in Europe have undergone FGM and are suffering with the lifelong consequences of the procedure, and more than 30,000 girls in Britain are thought to be at risk of future FGM. Although Britain strengthened its law against FGM in 2003, the number of girls at risk continues to grow, and there have been no convictions for …

Teaching The Biological Clock: Age-Related Fertility Decline And Sex Education, Kerry Macintosh

Kerry L Macintosh

Fertility in women declines significantly at age thirty-two and takes a sharp downward turn at age thirty-seven. Miscarriages also increase with age. In vitro fertilization cannot reverse the effects of aging, and embryo screening, egg freezing, and egg donation are imperfect solutions.

Unfortunately, many women fail to grasp these facts until it is too late. Various factors are to blame, including physicians who shy away from the topic of age-related fertility decline, persistent messaging about the need for pregnancy prevention (implying that conception is easy), and media accounts of celebrities who are pregnant in their forties.

This Article argues that …

What Impact The Supreme Court’S Recent Hobby Lobby Decision Might Have For Lgbt Civil Rights?, Vincent Samar

Vincent J. Samar

Abstract

What Impact the Supreme Court’s Recent Hobby Lobby

Decision Might Have for LGBT Civil Rights?

Vincent J. Samar

The U.S. Supreme Court’s recent decision in the Hobby Lobby case has created shockwaves of concern among civil rights groups questioning whether for-profit corporations can assert a religious exemption from civil rights legislation under a 1993 federal law, the Religious Freedom Restoration Act. The matter is of particular concern in the LGBT community given the possible impact it could have on services traditionally offered to those getting married as more and more states legalize same-sex marriage. Though the Court’s conservative majority …

Probiotics: Achieving A Better Regulatory Fit, Diane E. Hoffmann, Claire M. Fraser, Francis Palumbo, Jacques Ravel, Virginia Rowthorn, Jack Schwartz

Diane Hoffmann

In 2007, the National Institutes of Health (NIH) launched the Human Microbiome Project (HMP), a $150 million initiative to characterize the microbial communities found at several different sites on the human body and to analyze the role of these microbes in human health and disease. Many lines of research have demonstrated the significant role of the microbiota in human physiology. The microbiota is involved, for example, in the healthy development of the immune system, prevention of infection from pathogenic or opportunistic microbes, and maintenance of intestinal barrier function. The HMP findings are helping us understand the role and variation of …

The Continuing Battle Of Fda Regulation Of Dietary Supplements And Their Adverse Affect On Young Adults And Other Individuals, Andrew Bernard Jaffe

Andrew Bernard Jaffe

THE CONTINUING BATTLE OF FDA REGULATION OF DIETARY SUPPLEMENTS AND THEIR ADVERSE AFFECT ON YOUNG ADULTS AND OTHER INDIVIDUALS

Abstract

Ever since the enactment of the Dietary Supplement Health and Education Act of 1994 (DSHEA) the Food and Drug Administration (FDA) has struggled to regulate dietary supplements. This is due to the definition of dietary supplements as foods in the act. This gives supplement manufacturers greater loopholes when introducing supplements on the market. The FDA’s inability to regulate dietary supplements efficiently has been present for decades. Multiple battles are still occurring today which is proven to have an adverse effect …

Transformations In Health Law Practice: The Interections Of Changes In Healthcare And Legal Workplaces, Louise G. Trubek, Barbara J. Zabawa, Paula Galowitz

Louise G Trubek

The passage and implementation of the Affordable Care Act is propelling transformations in health care. The transformations include integration of clinics and hospitals, value based care, patient centeredness, transparency, computerized business models and universal coverage. These shifts are influencing the practice of health law, a vibrant specialty field considered a “hot” area for new lawyers. The paper examines how the transformations in health care are intersecting with ongoing trends in law practice: increase in in-house positions, collaboration between medical and legal professionals, and the continued search for increased access to legal representation for ordinary people. Three health law workplace sites …

Navigating The Law Of Defense Counsel Ex Parte Interviews Of Treating Physicians, Joe Regalia, Drew Cass

Joe Regalia

The rising costs of litigation have hit those involved in healthcare-related cases — including patients, doctors, the courts and lawyers — perhaps hardest of all. Litigation costs have triggered rising malpractice insurance rates for doctors, extensive risk for malpractice attorneys on both sides of the aisle, clogged dockets for courts, and rising fees for clients. Not surprisingly, there is a constant debate about ways that litigation costs in these cases might be reduced. One practice that may alleviate at least some of this waste would cost nothing to implement and has the potential to create large savings: allowing ex parte …

Defining Death: A Call For The Reformation Of The Standard For Declaration Of Death In The Modern Era, Jayme M. Reisler

Jayme M Reisler

Prior to the mid 20th century, a declaration of death was a relatively definite determination because the functioning of each vital organ was inextricably linked to the other. With the advent of the positive-pressure mechanical ventilator, however, came the loss of integration among these organ systems. The ability to maintain metabolic functioning of a patient as well as the ability to successfully transplant viable organs have given rise to a host of legal issues revolving around the determination of death. The main issue that arises is two fold. On one hand, such medical technology can prolong an individual’s life even …

The Presentment Clause Meets The Suspension Power: The Affordable Care Act’S Long And Winding Road To Implementation, Mitchell Widener

Mitchell Widener

The presentment clause MEETs the Suspension Power: The Affordable Care Act’s Long and Winding Road to Implementation

Mitchell J. Widener

Abstract

To enact a law, the Presentment Clause of the Constitution mandates that both Houses of Congress present a bill to the President who either signs it into law or vetoes it. The Founders included this provision to prevent presidents from emulating King James II, who would routinely suspend Parliament’s laws to favor political constituents. Additionally, the Presentment Clause served to enhance the separation-of-powers principle implied in the Constitution.

Within the past year, President Obama has suspended multiple portions of …

California Egg Toss - The High Costs Of Avoiding Unenforceable Surrogacy Contracts, Jennifer Jackson

Jennifer Jackson

In an emotionally charged decision regarding surrogacy contracts, it is important to recognize the ramifications, costs, and policy. There are advantages to both “gestational carrier surrogacy” contracts and “traditional surrogacy” contracts. However, this paper focuses on the differences between these contracts using case law. Specifically, this paper will focus on the implications of California case law regarding surrogacy contracts. Cases such as Johnson v. Calvert and In Re Marriage of Moschetta provide a clear distinction between these contracts. This distinction will show that while gestational carrier surrogacy contracts are more expensive, public policy and court opinions will provide certainty and …

California Egg Toss - The High Costs Of Avoiding Unenforceable Surrogacy Contracts, Jennifer Jackson

Jennifer Jackson

In an emotionally charged decision regarding surrogacy contracts, it is important to recognize the ramifications, costs, and policy. There are advantages to both “gestational carrier surrogacy” contracts and “traditional surrogacy” contracts. However, this paper focuses on the differences between these contracts using case law. Specifically, this paper will focus on the implications of California case law regarding surrogacy contracts. Cases such as Johnson v. Calvert and In Re Marriage of Moschetta provide a clear distinction between these contracts. This distinction will show that while gestational carrier surrogacy contracts are more expensive, public policy and court opinions will provide certainty and …

Consciousness And Futility: A Proposal For A Legal Redefinition Of Death, Christopher Smith

Christopher R Smith

Recent controversies in Texas (with the Marlise Muñoz case) and in California (with the Jahi McMath case) have highlighted a lamentable flaw in the current legal conception of human death, and the difficulty of defining when death finally occurs. The unworkable notion of “brain-death” remains the law in every state in the union, yet the philosophical and scientific foundations of this notion remain open to attack. This article posits that death is a fundamentally social construct, and that it is society at large (through its laws, public opinions, religious attitudes, etc.) that actually defines death. This essay then argues that …