Law Commons^™

Applying The Health Justice Framework To Address Health And Health Care Inequities Experienced By People With Disabilities During And After Covid-19, Robyn M. Powell

Washington Law Review

The COVID-19 pandemic has been especially devastating for people with disabilities, as well as other socially marginalized communities. Indeed, an emerging body of scholarship has revealed that people with disabilities are experiencing striking disparities. In particular, scholars have shined a light on state and hospital triage policies that allow hospitals to ration critical health care and resources, such as ventilators, for people with disabilities if resources become limited and they cannot treat all patients during the pandemic. These injustices deserve extensive consideration from policymakers, legal professionals, and scholars.

Elucidating how the inequities that people with disabilities experience during the COVID-19 …

Choosing Medical Malpractice, Nadia N. Sawicki

Washington Law Review

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 …

Volk V. Demeerleer: An Unprincipled Divorce Of Dangerousness And The Tarasoff Duty To Protect, Jaclyn Greenberg

Washington Law Review Online

Since its inception in Tarasoff v. Regents of the University of the California, the duty to protect third parties imposed on mental health professionals (MHPs) has been the subject of considerable scrutiny. Clinicians and legal scholars alike derided the original duty to protect “anyone foreseeable” as unworkable—undermining the therapeutic relationship and placing MHPs in the impossible position of having to predict their patients’ violent future. Over time, case law and legislation narrowed the duty to something less problematic: a “duty to warn” identifiable victims who face imminent threat of serious harm. However, Volk v. DeMeerleer, reset the duty …

Pregnant And Prejudiced: The Constitutionality Of Sex- And Race-Selective Abortion Restrictions, Justin Gillette

Washington Law Review

Six states currently restrict a woman’s access to abortion based on her personal motivations for seeking the procedure. These laws, which prohibit abortions that are sought based on the fetus’s sex or race, raise challenging constitutional issues, as the restrictions do not fit neatly into the U.S. Supreme Court’s abortion jurisprudence framework. The constitutionality of these laws is also unclear because no legal challenge has been brought against them. This Comment argues that motive-based abortion restrictions are unconstitutional on several grounds. First, the laws violate the woman’s constitutional liberty rights, which protect the personal beliefs and motivations behind her decision …

Abortion, Persuasion, And Emotion: Implications Of Social Science Research On Emotions For Reading Casey, Jeremy A. Blumenthal

Washington Law Review

Although abortion jurisprudence under Planned Parenthood of Southeastern Pennsylvania v. Casey condones State efforts to persuade a woman to forego an abortion in favor of childbirth, the opinion’s “truthful and not misleading” language can be read more broadly than it traditionally has. Specifically, even a truthful message may mislead when it inappropriately takes advantage of emotional influence to bias an individual’s decision away from the decision that would be made in a non-emotional, fully informed state. Drawing on empirical research in the social sciences, I suggest that the sort of emotional information that many states now provide in their “informed …

The Applicability Of The Consumer Protection Law In Medical Malpractice Disputes In Taiwan, Ya-Ling Wu

Washington International Law Journal

The issue of whether or not no-fault liability under the Consumer Protection Law (“CPL”) applies in medical malpractice disputes has been a contentious battle in Taiwan. In Bo-Li Li v. Mackay Memorial Hospital, the Taipei District Court interpreted medical care as “services” under Article 7 of the CPL. Under this interpretation, patient services must meet “reasonably expected safety standards,” while health care providers are subject to no-fault liability. This interpretation was strenuously opposed by the medical profession and invoked much debate over its validity in the legal field. After the Bo-Li case, the lower courts expressed different views on …

Liability, Regulation And Policy In Surgical Innovation: The Cutting Edge Of Research And Therapy, Anna C. Mastroianni

Articles

This article examines the implications of the foregoing competing claims from a U.S. legal perspective, focusing particularly on how the legal system addresses patient safety concerns and autonomous decision-making of surgeons in the context of surgical innovation. The lack of oversight and the risks borne by patients during surgeons' development and subsequent refinement of a novel procedure must be balanced with the need to encourage medical progress through the development of improved techniques designed to benefit the health of current and future patients. This article argues that current reliance on the medical malpractice system and the federal regulatory system of …

Sports Medicine Conflicts: Team Physicians Vs. Athlete-Patients, Steve P. Calandrillo

Articles

Team physicians for professional sports franchises face a conflict of interest created by the competing loyalties they owe to the team that employs them and to the athlete-patient they must treat. Marketing agreements under which physicians pay significant sums of money to be designated as the team's "official healthcare provider" exacerbate this conflict. These marketing arrangements call into question the independent judgment of team physicians and cause players to question the quality of care they receive.

This paper explores several solutions to the growing conflicts between athletes and team doctors with the goal of enhancing players' trust in the medical …

Australia's "Most Extreme Case": A New Alternative For U.S. Medical Malpractice Liability Reform, Steven T. Masada

Washington International Law Journal

The United States currently confronts a severe increase in medical costs and a simultaneous decrease in the availability of health care services. A nearly identical situation recently emerged in the Commonwealth of Australia. This phenomenon, often labeled the "medical malpractice crisis," results in part from an increasing litigious trend spurred on by the appeal of potentially enormous damage awards. More lawsuits filed and increased award amounts raise the liability of health care providers and generate uncertainty in the medical malpractice insurance market. This in turn drives up the costs of insurance policy premiums and ultimately forces health care providers to …

Researcher Liability For Negligence In Human Subject Research: Informed Consent And Researcher Malpractice Actions, Roger L. Jansson

Washington Law Review

Two sets of federal regulations, the "Common Rule" and Food and Drug Administration (FDA) regulations, govern human subject research that is either federally-funded or involves FDA regulated products. These regulations require, inter alia, that: (1) researchers obtain informed consent from human subjects, and (2) that an Institutional Review Board (IRB) independently review and approve the research protocol. Although the federal regulations do not provide an express cause of action against researchers, research subjects should be able to bring informed consent and malpractice actions against researchers by establishing a duty of care and standard of care. Researchers owe human subjects a …

Telemedicine And Integrated Health Care Delivery: Compounding Malpractice Liability, Patricia C. Kuszler

Articles

This Article considers how theories of medical negligence might be applied in the context of telemedicine and integrated delivery health plans. Part Two summarizes the history of telemedicine, its increasing breadth of application and opportunity and promise for the future. Part Three reviews traditional negligence principles and precedents and demonstrates how they might be applied when a telemedicine interaction results in negligence and harm to the patient. Part Four discusses evolving theories of shared liability applicable to health plans and managed care entities. Finally, Part Five demonstrates how shared liability theories will be applied to situations involving telemedicine technologies.

Surrogate End Of Life Decisionmaking: The Importance Of Providing Procedural Due Process, A Case Review, Kathryn L. Tucker

Washington Law Review

In a hospital in the State of Washington, at the direction of family-member surrogates, the feeding tube was withdrawn from a resident patient. The patient had no advance directive or living will, nor had he expressed the desire (previously or contemporaneously) for withdrawal of life support. He had not been diagnosed as terminally ill or permanently unconscious. In fact, there was evidence that the patient had some cognitive function, desired to continue living, and desired continued life support. This evidence was presented to his caregivers immediately after the patient was advised of the withdrawal, yet life support was not resumed …

Are Pharmacists Responsible For Physicians' Prescription Errors? Mckee V. American Home Products, 113 Wash. 2d 701, 782 P.2d 1045 (1989), Elizabeth D. Smith

Washington Law Review

In McKee v. American Home Products, the Washington Supreme Court held that pharmacists' duties do not include contacting physicians who make judgment errors when prescribing medication. When physicians make obvious errors, however, juries decide whether pharmacists should contact physicians. This Note examines McKee and proposes that either juries should determine pharmacists' duties in all cases or, alternatively, the legislature should require pharmacists to contact physicians whenever prescriptions as issued could harm patients.

Gestational Substance Abuse: A Call For A Thoughtful Legislative Response, Kristen Rachelle Lichtenberg

Washington Law Review

Gestational substance abuse seriously threatens fetal health. Recently, many states have prosecuted women who abuse drugs or alcohol during pregnancy. This Cornment argues that Roe v. Wade, 410 U.S. 113 (1973), should govern state intervention in cases of gestational substance abuse. Because criminal prosecution fails to prevent gestational substance abuse, a state seeking to intervene should use civil commitment as the means of intervention.

Regulating The "Gift Of Life"—The 1987 Uniform Anatomical Gift Act, Ann Mcintosh

Washington Law Review

Demand for human transplant organs exceeds the supply. The 1987 Uniform Anatomical Gift Act provides a model for state laws intended to alleviate this shortage. This Comment analyzes these proposed laws in light of their potential impact on, first, the organ shortage and, second, the legal rights of donors and their families. Enactment of the 1987 Uniform Anatomical Gift Act can increase organ donation in Washington while intruding minimally on family and physician control of the donation process.

Informed Consent In The Prescription Drug Context: The Special Case, Gerald F. Tietz

Washington Law Review

Evaluation of the general doctrine of informed consent is the starting point for determining whether, and how, the doctrine might apply to prescription drug therapy. This article demonstrates that, unlike the decision to undergo surgery (the more typical informed consent situation), the process of prescribing drugs contains numerous considerations, many of which are inherent in and unique to prescription drug therapy. The presence of these considerations dictates that courts accord even greater significance to the need for patient participation in prescription drug therapy than that accorded in the more typical consent to surgery situation. Moreover, in light of the many …

Artificial Nutrition And The Terminally Ill: How Should Washington Decide?, Jacquelyn A. Beatty

Washington Law Review

This Comment demonstrates that artificial nutrition and hydration are life-sustaining treatments which all patients have a right to forego under Washington's common law, state constitution, and NDA. Countervailing state interests do not compel a contrary result. Moreover, artificial nutrition and hydration do not require the preclusion of surrogate decisionmaking already recognized by Washington in the life-sustaining treatment context. However, since current judicial guidelines for surrogate-made decisions are inadequate, this Comment concludes by proposing substantive guidelines for such decisions.

Corporate Negligence Actions Against Hospitals—Can The Plaintiff Prove The Case?, Susan Ward

Washington Law Review

This Comment first explains the theory of corporate negligence as adopted in Washington and describes the role of a hospital's quality review committees in fulfilling the hospital's corporate duty. It then reviews present law on the use of committee records in litigation. Next, this Comment considers the conflict between the goals of protecting medical staff committee records and permitting recovery in corporate negligence actions. It concludes that medical staff committee records should be protected from discovery in hospital corporate negligence actions and that the evidentiary use of hospital quality review committee records should be prohibited as well. Because this extended …

Equitable Jurisdiction To Order Sterilizations, Craig L. Mcivor

Washington Law Review

Part I of this comment examines the historical development of nonconsensual sterilization and contrasts the earlier statutory schemes with modem equitable principles. Part II examines both sides of the question whether authority to order nonconsensual sterilizations should be inferred from a general jurisdictional grant. Part III concludes that courts of general jurisdiction should have such authority, but that its assertion is proper only if it is based on as narrow a rationale as possible, if its exercise furthers the rights of the retarded person, and if its application is strictly circumscribed by standards consistent with its equitable nature.

Medical Malpractice Statute Of Limitations In Washington, Darryl S. Vhugen

Washington Law Review

Generally, statutes of limitations run from the date of the alleged wrongful act. Because the average person lacks a good understanding of medical science and may not be aware of a wrongful medical practice when it occurs, medical malpractice plaintiffs have a more difficult time filing their causes of action within the allotted period than do other plaintiffs. As a result, many courts have devised methods of extending the statutory period. Two common-law techniques have predominated in Washington: (1) the discovery rule, and (2) the continuing course of treatment rule. This comment examines the Washington courts' use of these judicial …

Informed Consent In Washington: Expanded Scope Of Material Facts That The Physician Must Disclose To His Patient, Edwin Rauzi

Washington Law Review

Part I of this comment charts the current contours of the informed consent doctrine and traces the general pro-plaintiff shift which has developed since Washington recognized the tort a decade ago. The model used to illustrate this shift is a continuum, with the poles representing doctrinal and social policy choices favorable either to the plaintiff-patient or to the defendant-physician. Part II examines the expanded scope of the physician's duty to disclose material facts. This comment posits that the material facts which the physician must disclose to his patient are the risks involved in a proposed treatment, the alternatives to the …

Medical Malpractice—Unconscious Patient—Liability For Defective Instruments—Hospitals And Enterprise Liability—Anderson V. Somberg, 67 N.J. 291, 338 A.2d 1 (1973), John Ludlow

Washington Law Review

In November 1967, defendant Dr. Somberg performed spinal surgery, using general anesthetic, on the plaintiff. During the procedure a jaw of the pituitary rongeur he was using broke off and lodged in the plaintiff's spine. The doctor terminated the operation after numerous unsuccessful attempts to recover the fragment. Four months later he retrieved the jaw in a second operation. The plaintiff suffered permanent injuries for which he sought recovery from the following: (1) Dr. Somberg for negligently causing the rongeur to break; (2) the hospital in which the surgery was performed for negligently furnishing a defective instrument; (3) the medical …

Physicians And Surgeons—Malpractice—Court Disregard For The Standard Of The Profession—The Legislative Response—Helling V. Carey, 83 Wn. 2d 514, 519 P.2d 981 (1974); Wash. Rev. Code § 4.24.290 (Supp. 1975), Alan J. Peizer

Washington Law Review

This note will examine the relationship between the standard of care and the role of expert medical testimony in medical malpractice actions, discuss various interpretations of the Helling decision, and suggest the most practical of those interpretations, particularly in light of the subsequent enactment of R.C.W. § 4.24.290.5 The purpose of this statute was to nullify the Helling decision and re-establish the pre-Helling standards of negligence in medical malpractice cases. As will be demonstrated, although the statute in large part succeeds in allaying the fears of medical practitioners and defense attorneys which were induced by Helling v. Carey, the case …

The Hospital-Physician Relationship: Hospital Responsibiity For Malpractice Of Physicians, Joel D. Cunningham

Washington Law Review

Since 1957 the courts in most states have moved rapidly toward imposing vicarious liability on a hospital for the torts of employee-physicians. In 1965 the Illinois Supreme Court held that a hospital could be liable for the malpractice of a nonemployee-physician. This comment attempts to describe these trends, to delineate the new rules the courts are applying and to determine the rationale for adopting these new rules. The comment assumes the patient has established that the physician committed malpractice; the only issue addressed is whether the patient can recover from the hospital for his or her injuries. The scope is …

Physicians And Surgeons—Malpractice—Informed Consent Of Patient: Duty To Inform Patient To Be Established By Expert Medical Testimony—Zebarth V. Swedish Hospital Medical Center, 81 Wn. 2d 12, 499 P.2d 1 (1972), L. D. K.

Washington Law Review

Plaintiff was suffering from a highly malignant form of cancer resulting in serious obstruction of the trachea. He was admitted to the defendant hospital where it was determined that radiation therapy was necessary to reduce the obstruction before it completely blocked the plaintiff's breathing. After completion of the radiation therapy, plaintiff began to suffer from a progressive paralysis which plaintiff claimed was caused by damage to his spinal cord, attributable to the manner in which the radiation was administered. Plaintiff sued in the Superior Court for King County, alleging that since he was neither warned of the risk of damage …

Voluntary Euthanasia, Arval A. Morris

Washington Law Review

To avoid the possibility of confusion, it is necessary to distinguish voluntary euthanasia from other similar, but not necessarily related situations. By voluntary euthanasia I refer to one specific situation, and to no other. Any definition of the principle of voluntary euthanasia must lay emphasis on the word "voluntary" as it specifically applies to the right of an adult person who is in command of his faculties to have his life ended by a physician, pursuant to his own intelligent request, under specific conditions prescribed by law, and by painless means. Thus, voluntary euthanasia involves at least two willing persons—a …

Prolonging Life, George P. Fletcher

Washington Law Review

A physician decides not to prolong the life of a terminal patient. What are the legal consequences? Is it murder, akin to a gunman's pulling the trigger? Or is the law more sensitive? Professor Fletcher proposes that a decision to interrupt life-sustaining therapy, such as that to turn off a mechanical respirator, should be classified as an omission, not an act. He arrives at this conclusion by analyzing the common sense usages of "cause" and "permit." If the decision is an omission then the law must focus on the doctor-patient relationship to define legal consequences, allowing customary standards of the …

Prolonging Life, George P. Fletcher

Washington Law Review

A physician decides not to prolong the life of a terminal patient. What are the legal consequences? Is it murder, akin to a gunman's pulling the trigger? Or is the law more sensitive? Professor Fletcher proposes that a decision to interrupt life-sustaining therapy, such as that to turn off a mechanical respirator, should be classified as an omission, not an act. He arrives at this conclusion by analyzing the common sense usages of "cause" and "permit." If the decision is an omission then the law must focus on the doctor-patient relationship to define legal consequences, allowing customary standards of the …

Dr. Bonham's Case And The Modern Significance Of Lord Coke's Influence, George P. Smith, Ii

Washington Law Review

Cognizant of the significant, yet comparatively short-lived, contribution which Lord Edward Coke made to the English society of his day and to the inadvertent, as well as permanent, effect that his theory of fundamental law and judicial review had upon the American revolutionaries and the framers of the Constitution, the scope of this article has been limited primarily to a critical examination of the raison d'etre of the noted Dr. Bonham's Case—or, that case which structured Coke's entire argument for the supremacy of the fundamental law as ensured by judicial review. It is hoped that some idea may be gleaned …

Religious Freedom And Compulsory Blood Transfusion For Adult Jehovah's Witness, Anon

Washington Law Review

In two separate instances adult Jehovah's Witnesses were admitted to hospitals with severe internal bleeding. Doctors in each instance determined that blood transfusions were required to save the patient's life. Each patient refused to consent to transfusions because of his religious beliefs. In one case the patient, who had no minor children, was pronounced incompetent, a conservator to consent to transfusion was appointed by the court, and the transfusion was administered. On appeal, the Illinois Supreme Court reversed. Held: An adult who has no minor children cannot be compelled to take lifesaving blood transfusions against his religious objection. In re …