Law Commons^™

Much Ado About Nothing? A Critical Examination Of Therapeutic Jurisprudence, Dennis Roderick, Susan T. Krumholz

University of Massachusetts Law Review

In the decades since the 1970s there have been several movements designed to impact or alter the workings of the legal system. The most lasting and widespread of these movements has been the development and systemic incorporation of mediation or Alternative Dispute Resolution, especially in the arena of family law but also impacting community disagreements, a variety of commercial disputes, and civil cases in general. However mediation did not significantly impact the practice of criminal law. Rapid growth in the number of individuals being processed through the criminal courts during the 1980s and 1990s shifted the focus to the criminal …

Say Sorry And Save: A Practical Argument For A Greater Role For Apologies In Medical Malpractice Law, Matthew Pillsbury

University of Massachusetts Law Review

This article examines both the potential benefits and detriments of the use of an apology in a legal setting. This article uses the specific environment surrounding a medical malpractice case to help illustrate how and why an apology should or should not be proffered by the Defendant. Ultimately, the reader of this article should have a solid understanding of how an apology can be admissible as evidence in the litigation of a medical malpractice lawsuit.

On Apology, Robert Ward

University of Massachusetts Law Review

On February 16, 2006, Dr. Aaron Lazare, Dean and Chancellor of the University of Massachusetts Medical Center, addressed an assembly at the Southern New England School of Law on his critically acclaimed book entitled: “On Apology!” According to Dr. Lazare, to be an effective apology, there must be acknowledgement, remorse, explanation and reparation. Dr. Lazare advances the hypothesis that the current proliferation of cases in our legal system is predicated on the concept that often the aggrieved party was not the beneficiary of an effective apology. In the context of the patient-physician relationship, an effective apology means telling the patient …

Perfecting Pregnancy Via Preimplantation Genetic Screening: The Quest For An Elusive Standard Of Care, Jolene S. Fernandes

UC Irvine Law Review

No abstract provided.

Who's Swallowing The "Bitter Pill"?: Reforming Write-Offs In The State Of Washington, Lauren M. Martin

Seattle University Law Review

Washington’s application of the collateral source rule permits recovery for medical expenses that were never incurred and have no relationship to their market value. This application is set forth in Hayes v. Wieber Enterprises, Inc., where the plaintiff sued a restaurant for injuries she sustained from falling down the restaurant’s basement stairs. Why should the collateral source rule compel the defendant in Hayes to pay the original amount billed, $5,800, when the physician accepted $3,300 as payment in full? Is not $3,300 the reasonable or market value of the medical services provided to the plaintiff? This Comment discusses whether Washington …

"When Has The Grim Reaper Finished Reaping?" How Embracing One Religion's View Of Death Can Influence Acceptance Of The Uniform Determination Of Death Act, Kenneth Shuster

Touro Law Review

No abstract provided.

Momma Drama: A Study Of How Canada's National Regulation Of Surrogacy Compares To Australia's Independent State Regulation Of Surrogacy, Ailis L. Burpee

Georgia Journal of International & Comparative Law

No abstract provided.

For The Love Of The Game: The Case For State Bans On Youth Tackle Football, Adam Bulkley

University of Michigan Journal of Law Reform Caveat

This football season, millions of Americans enjoying their favorite pastime might feel pangs of a guilty conscience. Years of scientific research into the long-term neurological effects of tackle football and a recent settlement between the National Football League (NFL) and thousands of retired NFL players have made football-related traumatic brain injuries (TBI) a topic of national conversation. Current and former NFL players and even President Obama have participated in the conversation, saying that they would hesitate to let their sons play the game for fear of possible brain injury. Because research has uncovered signs of permanent brain damage in players …

The Illusion Of Autonomy In Women's Medical Decision-Making, Jamie R. Abrams

Florida State University Law Review

This Article considers why there is not more conflict between women and their doctors in obstetric decision-making. While patients in every other medical context have complete autonomy to refuse treatment against medical advice, elect high-risk courses of action, and prioritize their own interests above any other decision-making metric, childbirth is viewed anomalously because of the duty to the fetus that the state and the doctor owe at birth. Many feminist scholars have analyzed the complex resolution of these conflicts when they arise, particularly when the state threatens to intervene to override the birthing woman’s autonomy.

This Article instead considers the …

High Time For Medical Marijuana Or Buzz-Kill?: The Controlled Substances Act And The Sherman Antitrust Act May Cause Florida's Compassionate Medical Cannabis Act To Go Up In Smoke, Thu Pham

Florida A & M University Law Review

Florida is the latest state to jump into the arena of medical marijuana with the passage of SBI030 on June 16, 2014. The law, named The Compassionate Medical Cannabis Act of 2014,' allows low-THC cannabis to be prescribed to patients suffering from cancer or physical medical conditions that chronically produce symptoms of seizures or severe and persistent muscle spasms.

Impaired Physicians And The Scope Of Informed Consent: Balancing Patient Safety With Physician Privacy, Sarah Haston

Florida State University Law Review

No abstract provided.

Generic Entry Jujitsu: Innovation And Quality In Drug Manufacturing, W. Nicholson Price Ii

IP Theory

The manufacturing side of the pharmaceutical industry has been neglected in innovation theory and policy, with the unfortunate result of stagnant manufacturing techniques driving major problems for the healthcare system. This innovation failure has roots in ineffective intellectual property incentives and high regulatory hurdles to innovative change. Changes in pure regulation or intellectual property incentives have significant potential to help the innovation deficit, but are not the only possibility for change. A relatively minor regulatory change could harness the powerful dynamics of pioneer/generic competition surrounding generic drug market entry. If pioneer firms were permitted to make label claims committing to …

Surrogate's Court, Broome County, In Re Guardian Of Derek, Barry M. Frankenstein

Touro Law Review

No abstract provided.

Building A Better Laboratory: The Federal Role In Promoting Health System Experimentation, Kristin Madison

Pepperdine Law Review

While expanding federal involvement in the health care system, the Patient Protection and Affordable Care Act (ACA) preserves states' roles as policy laboratories and private providers' roles as health care delivery laboratories. State-based and provider-based laboratories suffer from many shortcomings, however, as mechanisms to develop, evaluate, and facilitate diffusion of reforms within the health system. This Article argues that the federal government can take steps to address these shortcomings. It first briefly reviews ACA provisions that promote policy and delivery experimentation. It then suggests that by tying funding to policy outcomes, making use of regulatory variation and regulatory menus, and …

Silence Is Golden...Except In Health Care Philanthropy, Stacey A. Tovino

University of Richmond Law Review

No abstract provided.

Head Injuries, Student Welfare, And Saving College Football: A Game Plan For The Ncaa, Rodney K. Smith

Pepperdine Law Review

This article sets forth a challenging but viable game plan for protecting the health and well-being of intercollegiate football players. Acting proactively will help revitalize the NCAA's brand of competitive, student-centered athletics. This article consists of three parts: The Problem of Head Injuries in College Football; Solving the Problem of Head Injuries in College Football; and Conclusion.

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.

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 …

Cook County Jail: A De Facto Hosptial For The Mentally Ill, Melissa Kong

Public Interest Law Reporter

No abstract provided.

No Longer Uninsured: Residents Of Illinois With A Preexisting Condition Of Aids, Hiv, Mental Health, Or Substance Use Are Now Covered Under The Affordable Care Act, Sonia A. Antolec, Alexis D. Figueroa

Public Interest Law Reporter

No abstract provided.

Uncle Sam Knows What’S In Your Medicine Cabinet: The Security And Privacy Protection Of Health Records Under The Hitech Act, 30 J. Marshall J. Info. Tech. & Privacy L. 667 (2014), Ranjit Janardhanan

UIC John Marshall Journal of Information Technology & Privacy Law

No abstract provided.

Legal Inconsistencies After Astrue V. Caputo: When Children Are Conceived Postmortem, Does Society Have An Obligation To Support Those Children?, 47 J. Marshall L. Rev. 1101 (2014), Catherine Durkin Stewart

UIC Law Review

No abstract provided.

Uncovering The Silent Victims Of The American Medical Liability System, Joanna Shepherd

Vanderbilt Law Review

A frequently overlooked problem with the current medical liability system is the vast number of medical errors that go uncompensated. Although studies indicate that 1% of hospital patients are victims of medical negligence, fewer than 2% of these injured patients file claims. In this Article, I explain that many victims of medical malpractice do not file claims because they are unable to find attorneys willing to take their cases. I conducted the first national survey of attorneys to explore medical malpractice victims' access to the civil justice system. The results from the survey indicate that the economic reality of litigation …

Asbestos Wars: In Three Parts, David Partlett

Washington and Lee Law Review

No abstract provided.

Statutory Solutions For A Common Law Defect: Advancing The Nurse Practitioner-Patient Privilege, 47 J. Marshall L. Rev. 1077 (2014), Rebecca Pierce

UIC Law Review

This Comment advocates the necessity for a statutory nurse practitioner-patient privilege throughout the states.

Unfinished Business: The Affordable Care Act And The Problem Of Delayed And Denied Erisa Health Care Claim, 47 J. Marshall L. Rev. 887 (2014), Katherine Vukadin

UIC Law Review

No abstract provided.

Comment: Knowledge Circles And The Duty Of Care, Jill M. Fraley

Washington and Lee Law Review

No abstract provided.

Preemption Without Borders: The Modern Conflation Of Tort And Contract Liabilities, Max N. Helveston

Georgia Law Review

Medical device jurisprudence has taken a turn for the worse recently, turning a deaf ear to patients who have been injured or killed by devices and covertly expanding the boundaries of federal preemption in ways that threaten fundamental contractual principles. Ever since the Court's holding in Riegel v. Medtronic, district and appellate courts have effectively immunized the manufacturers of certain devices from contract, as well as tort, liabilities. The lower courts' rulings are not only

problematic as a matter of law, but raise novel concerns about federal regulatory preemption undermining individuals' contract rights. A comprehensive analysis of the Court's medical …

Pinwheel Of Fortune, 13 J. Marshall Rev. Intell. Prop. L. 761 (2014), James Ming Chen

UIC Review of Intellectual Property Law

This paper examines public health law in the context of prospect theory, the leading behavioral account of risk aversion and risk-seeking. The paper first demonstrates how international environmental law can be mapped along prospect theory’s risk-seeking axis. It then completes this picture of prospect theory by examining National Federation of Independent Business v. Sebelius, which upheld the constitutionality of the Patient Protection and Affordable Care Act (“PPACA”). Although Sebelius upheld the PPACA as an exercise of the federal government’s taxing authority, it reasoned that a directive aimed at uninsured individuals to buy health insurance lay beyond the power of Congress …

A Scientific Approach To Intellectual Property And Health: Innovation, Access, And A Forgotten Corner Of The Universal Declaration Of Human Rights, 13 J. Marshall Rev. Intell. Prop. L. 794 (2014), Adam Houston

UIC Review of Intellectual Property Law

For years, there has been vigorous debate over the relationship between intellectual property and health, especially in the context of pharmaceutical patents. Despite numerous attempts to strike a balance between innovation and access, however, few have looked to Article 27 of the Universal Declaration of Human Rights for guidance. Article 27, and its further elaboration and codification under Article 15 of the International Covenant on Economic, Social, and Cultural Rights, explicitly address this balance by pairing the right of everyone “to share in scientific advancement and its benefits” with a similarly universal right of authors to “material interests resulting” from …