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Tort Law Implications Of Compelled Physician Speech, Nadia N. Sawicki Jan 2022

Tort Law Implications Of Compelled Physician Speech, Nadia N. Sawicki

Faculty Publications & Other Works

Abortion-specific informed consent laws in many states compel physicians to communicate state-mandated information that is arguably inaccurate, immaterial, and inconsistent with their professional obligations. These laws face ongoing First Amendment challenges as violations of the constitutional right against compelled speech. This Article argues that laws compelling physician speech also pose significant problems that should concern scholars of tort law.

State laws that impose tort liability on physicians who refuse to communicate a state-mandated message often do so by deviating from foundational principles of tort law. Not only do they change the substantive disclosure duties of physicians under informed consent law, …


Ethical Malpractice, Nadia N. Sawicki Jan 2022

Ethical Malpractice, Nadia N. Sawicki

Faculty Publications & Other Works

Traditional claims of medical malpractice arise from deviations from medical standards of care regarding knowledge, professional decision-making, or technical skill. While many standards of ethical behavior are just as firmly rooted in medical custom as these more technical standards, U.S. courts have typically been unwilling to acknowledge ethical violations as compensable breaches of legal duty. This Article poses a question that should be at the forefront of discussions about medical liability in the 21st century – whether malpractice law should evolve to recognize violations of professional ethical norms as a basis for tort liability. In evaluating this question, it draws …


Unilateral Burdens And Third-Party Harms: Abortion Conscience Laws As Policy Outliers, Nadia N. Sawicki Jan 2021

Unilateral Burdens And Third-Party Harms: Abortion Conscience Laws As Policy Outliers, Nadia N. Sawicki

Faculty Publications & Other Works

Most conscience laws establish nearly absolute protections for health care providers unwilling to participate in abortion. Providers' rights to refuse-- and relatedly, their immunity from civil liability, employment discrimination, and other adverse consequences--are often unqualified, even in situations where patients are likely to be harmed. These laws impose unilateral burdens on third parties in an effort to protect the rights of conscientious refusers. As such, they are outliers in the universe of federal and state anti-discrimination and religious freedom statutes, all of which strike a more even balance between individual rights and the prevention of harm to third parties. This …


Medical Device Artificial Intelligence: The New Tort Frontier, Charlotte A. Tschider Jan 2021

Medical Device Artificial Intelligence: The New Tort Frontier, Charlotte A. Tschider

Faculty Publications & Other Works

The medical device industry and new technology start-ups have dramatically increased investment in artificial intelligence (AI) applications, including diagnostic tools and AI-enabled devices. These technologies have been positioned to reduce climbing health costs while simultaneously improving health outcomes. Technologies like AI-enabled surgical robots, AI-enabled insulin pumps, and cancer detection applications hold tremendous promise, yet without appropriate oversight, they will likely pose major safety issues. While preventative safety measures may reduce risk to patients using these technologies, effective regulatory-tort regimes also permit recovery when preventative solutions are insufficient.

The Food and Drug Administration (FDA), the administrative agency responsible for overseeing the …


A Malpractice-Based Duty To Disclose The Risk Of Stillbirth: A Response To Lens, Nadia N. Sawicki Jan 2021

A Malpractice-Based Duty To Disclose The Risk Of Stillbirth: A Response To Lens, Nadia N. Sawicki

Faculty Publications & Other Works

In Medical Paternalism, Stillbirth, & Blindsided Mothers, Lens argues that physicians who fail to disclose the risk of stillbirth to pregnant patients should be liable under the doctrine of informed consent. In this Response, I suggest that courts might be hesitant to expand informed consent in the way Lens proposes. Instead, I offer an alternative avenue for imposing liability, via traditional theories of medical malpractice.


Medical Device Artificial Intelligence: The New Tort Frontier, Charlotte A. Tschider Jan 2021

Medical Device Artificial Intelligence: The New Tort Frontier, Charlotte A. Tschider

Faculty Publications & Other Works

The medical device industry and new technology start-ups have dramatically increased investment in artificial intelligence (AI) applications, including diagnostic tools and AI-enabled devices. These technologies have been positioned to reduce climbing health costs while simultaneously improving health outcomes. Technologies like AI-enabled surgical robots, AI-enabled insulin pumps, and cancer detection applications hold tremendous promise, yet without appropriate oversight, they will likely pose major safety issues. While preventative safety measures may reduce risk to patients using these technologies, effective regulatory-tort regimes also permit recovery when preventative solutions are insufficient.

The Food and Drug Administration (FDA), the administrative agency responsible for overseeing the …


State Peer Review Laws As A Tool To Incentivize Reporting To Medical Boards, Nadia N. Sawicki Jan 2021

State Peer Review Laws As A Tool To Incentivize Reporting To Medical Boards, Nadia N. Sawicki

Faculty Publications & Other Works

State medical boards have been stymied in their ability to take disciplinary action against physicians who engage in serious misconduct, in part because hospitals and other health care organizations rarely report such misconduct. This Article offers a proposal for incentivizing hospital reporting of physician misconduct, inspired by an existing but flawed model in the federal Health Care Quality Improvement Act. This Article proposes that state legislatures link state medical practice act reporting requirements with state laws establishing an evidentiary privilege for peer review activities.


The Conscience Defense To Malpractice, Nadia N. Sawicki Jan 2020

The Conscience Defense To Malpractice, Nadia N. Sawicki

Faculty Publications & Other Works

This Article presents the first empirical study of state conscience laws that establish explicit procedural protections for medical providers who refuse to participate in providing reproductive health services, including abortion, sterilization, contraception, and emergency contraception.

Scholarship and public debate about law's role in protecting health care providers' conscience rights typically focus on who should be protected, what actions should be protected, and whether there should be any limitations on the exercise of conscience rights. This study, conducted in accordance with best methodological practices from the social sciences for policy surveillance and legal mapping, is the first to provide concrete data …


On The Road Again: Revisiting State Laws That Unreasonably Restrict Drivers With Epilepsy And Burden The Physicians Who Treat Them, Katrina E. Luffy Jan 2020

On The Road Again: Revisiting State Laws That Unreasonably Restrict Drivers With Epilepsy And Burden The Physicians Who Treat Them, Katrina E. Luffy

Loyola University Chicago Law Journal

When a driver with epilepsy experiences a seizure behind the wheel, she is more likely than not to cause an accident. Consequently, all fifty states and the District of Columbia have statutes, regulations, and policies governing drivers with epilepsy and the physicians who treat them. Although these laws aim to protect the states' interest in public safety, many of them are premised on the inaccurate assumption that drivers with epilepsy have higher crash rates than the general population. They provide blanket restrictions for a highly individualized disorder and ignore evidence that drivers with other disorders or diseases should be of …


Choosing Medical Malpractice, Nadia N. Sawicki Jan 2018

Choosing Medical Malpractice, Nadia N. Sawicki

Faculty Publications & Other Works

Modern principles of patient autonomy and health care consumerism are at odds with medical malpractice law's traditional skepticism towards the defenses of contractual waiver and assumption of risk. Many American courts follow a patient-protective view, exemplified by the reasoning in the seminal Tunkl case, rejecting any attempts by physicians to relieve themselves of liability on the grounds of a patient's agreement to assume the risk of malpractice. However, where patients pursue unconventional treatments that satisfy their personal preferences but that arguably fall outside the standard of care, courts have good reason to be more receptive to such defenses. This Article …


Modernizing Informed Consent: Expanding The Boundaries Of Materiality, Nadia N. Sawicki Jan 2016

Modernizing Informed Consent: Expanding The Boundaries Of Materiality, Nadia N. Sawicki

Faculty Publications & Other Works

Informed consent law’s emphasis on the disclosure of purely medical information – such as diagnosis, prognosis, and the risks and benefits of various treatment alternatives – does not accurately reflect modern understandings of how patients make medical decisions. Existing common law disclosure duties fail to capture a variety of non-medical factors relevant to patients, including information about the physician’s personal characteristics; the cost of treatment; the social implications of various health care interventions; and the legal consequences associated with diagnosis and treatment. Although there is a wealth of literature analyzing the merits of such disclosures in a few narrow contexts, …


Informed Consent As Compelled Professional Speech: Fictions, Facts, And Open Questions, Nadia N. Sawicki Jan 2016

Informed Consent As Compelled Professional Speech: Fictions, Facts, And Open Questions, Nadia N. Sawicki

Faculty Publications & Other Works

No abstract provided.


The Global Economic Cost Of Cancer: Improving Outcomes And Cost By Reducing International Barriers To Care, Alexandra Gross Jan 2015

The Global Economic Cost Of Cancer: Improving Outcomes And Cost By Reducing International Barriers To Care, Alexandra Gross

Loyola University Chicago International Law Review

No abstract provided.


Cook County Jail: A De Facto Hosptial For The Mentally Ill, Melissa Kong Jan 2014

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 Jan 2014

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.


A New Life For Wrongful Living, Nadia N. Sawicki Jan 2014

A New Life For Wrongful Living, Nadia N. Sawicki

Faculty Publications & Other Works

No abstract provided.


Compelling Images: The Constitutionality Of Emotionally Persuasive Health Campaigns, Nadia N. Sawicki Jan 2014

Compelling Images: The Constitutionality Of Emotionally Persuasive Health Campaigns, Nadia N. Sawicki

Faculty Publications & Other Works

Legislation requiring the display of emotionally compelling graphic imagery in medical and public health contexts is on the rise-two examples include the Food and Drug Administration's recently abandoned tobacco labeling regulations, which would have imposed images of diseased lungs and cancerous lesions on cigarette packaging, and state laws requiring physicians to display and describe ultrasound images to women seeking abortions. This Article highlights the disconnect between the constitutional challenges to these laws, which focus on the perils of compelling speakers to communicate messages with which they may disagree, and the public's primary objections, which are grounded in ethical concerns about …


Abortion, Religion, And The Accusation Of Establishment: A Critique Of Justice Stevens’ Opinions In Thornburgh, Webster, And Casey, John M. Breen Jan 2014

Abortion, Religion, And The Accusation Of Establishment: A Critique Of Justice Stevens’ Opinions In Thornburgh, Webster, And Casey, John M. Breen

Faculty Publications & Other Works

It is commonplace to characterize legal arguments in favor of protecting the human embryo or fetus as “inherently religious” such that laws embodying this point of view constitute an establishment of religion in violation of the First Amendment. The practical effect of this argumentative strategy is to foreclose substantive debate on the issue of the legal status of the unborn – to preclude from consideration an entire point of view and so win an argument without ever really having one.

This claim has a long pedigree, tracing back to the founding of NARAL and Lawrence Lader’s “Catholic strategy.” Its most …


Somewhere To Go: Protecting Families Facing Mental Illness Through Healthcare Reform And The Medical-Legal Partnership Model, Amanda M. Walsh Jan 2013

Somewhere To Go: Protecting Families Facing Mental Illness Through Healthcare Reform And The Medical-Legal Partnership Model, Amanda M. Walsh

Public Interest Law Reporter

No abstract provided.


Forward Special Edition: “Innovations In Public Health Law: Exploring New Strategies”, Lawrence E. Singer Jan 2013

Forward Special Edition: “Innovations In Public Health Law: Exploring New Strategies”, Lawrence E. Singer

Faculty Publications & Other Works

No abstract provided.


Madness In The Hole: Solitary Confinement And Mental Health Of Prison Inmates, Emily Coffey Jan 2012

Madness In The Hole: Solitary Confinement And Mental Health Of Prison Inmates, Emily Coffey

Public Interest Law Reporter

No abstract provided.


Barefoot And Pregnant: How The Patient Protection Affordable Care Act Will Leave Young Mothers To Fend For Themselves, Tyler Hanson Jan 2012

Barefoot And Pregnant: How The Patient Protection Affordable Care Act Will Leave Young Mothers To Fend For Themselves, Tyler Hanson

Public Interest Law Reporter

No abstract provided.


Patient Protection And Decision Aid Quality: Regulatory And Tort Law Approaches, Nadia N. Sawicki Jan 2012

Patient Protection And Decision Aid Quality: Regulatory And Tort Law Approaches, Nadia N. Sawicki

Faculty Publications & Other Works

No abstract provided.


The Hollow Promise Of Freedom Of Conscience, Nadia N. Sawicki Jan 2012

The Hollow Promise Of Freedom Of Conscience, Nadia N. Sawicki

Faculty Publications & Other Works

Two hundred years ago, Thomas Jefferson asserted that no law "ought to be dearer to man than that which protects the rights of conscience against the enterprises of the civil authority." Since then, freedom of conscience has continued to be heralded as a fundamental principle of American society. Indeed, many current policy debates-most notably in the medical and military contexts-are predicated on the theory that claims of conscience are worthy of legal respect. This Article, which offers a comprehensive account of the contemporary treatment of conscience, challenges established assumptions and seeks to reframe the debate about the normative value of …


Illinois Nursing Home Reform: Sorting Out The Deadly Mix, Sonia Piacenza Jan 2011

Illinois Nursing Home Reform: Sorting Out The Deadly Mix, Sonia Piacenza

Public Interest Law Reporter

No abstract provided.


Illinois Judge Approves Agreement Giving Choice In Treatment For Mental Illness, Tessa Jania Jan 2011

Illinois Judge Approves Agreement Giving Choice In Treatment For Mental Illness, Tessa Jania

Public Interest Law Reporter

No abstract provided.


Character, Competence, And The Principles Of Medical Discipline, Nadia N. Sawicki Jan 2010

Character, Competence, And The Principles Of Medical Discipline, Nadia N. Sawicki

Faculty Publications & Other Works

This Article presents a first-of-its-kind analysis of the disciplinary functions of state medical licensing boards-the frequently overlooked administrative agencies designed to serve as the "gatekeepers" of the medical profession. It concludes that medical boards may have lost sight of their primary goal of patient protection and suggests that a renewed focus on professional licensing boards may go a long way towards addressing some of the quality of care problems plaguing the American medical system.

This Article identifies three fundamental legal principles underlying medical boards' authority to discipline physicians: the goal of public protection, substantive due process limitations based on fitness …


The Illinois Mental Health And Developmental Disabilities Confidentiality Act: Lest We Forget The Search For The Truth, Elinor Lynn Hart Jan 2010

The Illinois Mental Health And Developmental Disabilities Confidentiality Act: Lest We Forget The Search For The Truth, Elinor Lynn Hart

Loyola University Chicago Law Journal

No abstract provided.


Long Road To Justice: The Illinois Supreme Court, The Illinois Attorney General, And The Parental Notice Of Abortion Act Of 1995, Paul Benjamin Linton Jan 2010

Long Road To Justice: The Illinois Supreme Court, The Illinois Attorney General, And The Parental Notice Of Abortion Act Of 1995, Paul Benjamin Linton

Loyola University Chicago Law Journal

No abstract provided.


Medical Malpractice Reform: A Silver Bullet For The Health Care Crisis?, Ian Barney Jan 2009

Medical Malpractice Reform: A Silver Bullet For The Health Care Crisis?, Ian Barney

Public Interest Law Reporter

No abstract provided.