Law Commons^™

Government As God: An Update On Federal Intervention In The Treatment Of Critically Ill Newborns, Dionne L. Koller

All Faculty Scholarship

Whether a severely impaired or critically ill infant should receive lifesaving, and sometimes extraordinary, medical treatment, or be allowed to die, is hotly debated. The issue initially garnered public attention in 1982, when an infant who was born with Down's Syndrome, “Baby Doe,” was allowed to die from a correctable birth defect. Following this, the federal government took a lead role in determining the fate of critically ill newborns. In the meantime, doctors, philosophers, and others have debated whether federal interference in this area is appropriate.

This essay will bring the reader up to date on the “Baby Doe” issue …

The Benefits Of Voluntary Inpatient Psychiatric Hospitalization: Myth Or Reality?, Donald H. Stone

All Faculty Scholarship

Throughout the United States, mentally ill persons are confined against their will in psychiatric hospitals as a result of being accused of dangerous behavior. Some are committed involuntarily by a judge after an administrative hearing during which they are afforded legal representation, a right to be present, and important due process protections, including the right to cross-examine witnesses and present one's own witnesses. However, a significant number of individuals, initially confined in psychiatric institutions for allegedly posing a danger to life or safety, never see an impartial judge, lawyer, or even a family member. These mentally ill individuals are not …

The Second Revolution In Informed Consent: Comparing Physicians To Each Other, Neil B. Cohen, Aaron D. Twerski

Faculty Scholarship

No abstract provided.

The Second Revolution In Informed Consent: Comparing Physicians To Each Other, Aaron Twerski, N. B. Cohen

Faculty Scholarship

No abstract provided.

A Ray Of Light For Judges Blinded By Science: Triers Of Science And Intellectual Due Process, Erica Beecher-Monas

Law Faculty Research Publications

No abstract provided.

Erisa Preemption Of Medical Malpractice Claims In Managed Care: Asserting A New Statutory Interpretation, Karla S. Bartholonew

Vanderbilt Law Review

Congress enacted the Employee Retirement Income Security Act of 1974 ("ERISA) to protect employee interests and ensure a uniform body of law for pension and benefit plans. The statute's expansive preemption clause and preclusion of extra-contractual damages have since been used to immunize Managed Care Organizations ("MCOs") from liability for patients injuries resulting from medical malpractice. Because plaintiffs with preempted claims may receive only the remedies provided for under ERISA-the right or benefit due under the plan-many injured patients have been left with no meaningful remedy.

"[N]ot a model of legislative drafting,"" the statute's broad preemption clause provides that state …

Erisa Preemption Of Medical Malpractice Claims In Managed Care: Asserting A New Statutory Interpretation, Karla S. Bartholomew

Vanderbilt Law Review

If Congress wants the American citizens to have access to adequate health care, then Congress must accept its responsibility to define the scope of ERISA preemption and to enact legislation that will ensure every patient has access to that care.' Congress enacted the Employee Retirement Income Security Act of 1974 ("ERISA) to protect employee interests and ensure a uniform body of law for pension and benefit plans. The statute's expansive preemption clause and preclusion of extra-contractual damages have since been used to immunize Managed Care Organizations ("MCOs") from liability for patients injuries resulting from medical malpractice. Because plaintiffs with preempted …

Bajakajian: New Hope For Escaping Excessive Fines Under The Civil False Claims Act, Melissa Ballengee Alexander

Faculty Articles

No abstract provided.

Patient Safety, Risk Reduction, And The Law, Larry I. Palmer

Cornell Law Faculty Publications

"Patient safety" has come of age. With the publication of several empirical studies of medical injuries and the recent Institute of Medicine Report, To Err is Human: Building a Safe Health System, scholars from a variety of disciplines are advocating "systems thinking" as a way of preventing medical accidents. These scholars have been influenced by efforts to reduce accidents in other high risk industries such as aviation and scholarship in law proposing "no fault systems" for compensating medical accident victims. This article proposes that in order to incorporate "systems thinking" about medical error reduction, legal scholarship on the health care …

Regulating Risk In A Managed Care Environment: Theory Vs. Practice, The Minnesota Experience, Barbara Colombo, Robert P. Webber

Faculty Scholarship

The purpose of this Article is to illustrate the challenges state regulators face when attempting to translate theory into practice in the context of health care risk regulation. Section I reviews the evolution of the risk-bearing market in health care, recognizing that while risk is an inherent part of everyday life, it takes on a delicate meaning when used in the context of health care. Cost and demographic data will be discussed to provide a compelling rationale for the ongoing forceful movement toward cost containment strategies embodied in managed care strategies, as well as the need to develop the next …

The Maladaptation Of Miranda To Advance Directives: A Critique Of The Implementation Of The Patient Self-Determination Act, Thaddeus Mason Pope

Faculty Scholarship

In this Article, Thaddeus Pope argues that the Patient Self Determination Act (PSDA) is a failure on its own terms. The Article first identifiesthe central purpose of the Act as the protection of patient autonomy. The Article then reviews much of the empirical research on the implementation of the Act. This research suggests that the medical preferences expressed in advance directives completed pursuant to the PSDA are usually not based on real understanding because patients are merely "Mirandized" of their right to direct their post-autonomous medical care. Although some scholars contend that this is the most that can be expected …

Annual Survey Of Virginia Law: Damages For Medical Malpractice In Virginia, Michael L. Goodman, Kathryn Freeman-Jones, Kathleen M. Mccauley

University of Richmond Law Review

As a general rule, a plaintiff in actions for personal injury and wrongful death in Virginia, regardless ofwhether the cause derives from medical malpractice, may state a claim for any medical expenses incurred as a result of the alleged injury or death. By definition, an expense is incurred when it has been paid or one "become[s] legally obligated to pay it." A tortfeasor is bound and obligated to make the plaintiff whole, which means the injured party or his estate must be reasonably compensated for the fair and reasonable value of incurred medical expenses.

Judicial Decision-Making In The Age Of Biotechnology, George P. Smith Ii

Scholarly Articles

The major premise, minor premise, and conclusion of this Article are one and the same - for, they conduce to an acceptance of the fact that the social constructs and legal tools necessary for the modern judiciary to meet head-on and deal with the contentious issues of bioethics and biotechnology are already in place. To resolve problems arising from these potential quagmires, perhaps the major concern is for the courts to remain forever vigilant to the interlinking relationships or synergistic forces found in law, science, ethics, and medicine. Without vigilance and enhanced awareness of the dynamic and fluid situation here, …

The Misperception That Bioethics And The Law Lag Behind Advances In Biotechnology, David Orentlicher

Scholarly Works

No abstract provided.

Erisa Preemption Of Medical Malpractice Claims: Can Managed Care Organizations Avoid Vicarious Liability?, J. Bradley Buckhalter

Seattle University Law Review

This Comment begins by briefly discussing the theory of respondeat superior and the vicarious liability of MCOs for the negligence of affiliated physicians.' Next, the section presents an overview of ERISA, focusing on ERISA's preemption of laws that impact employee benefit plans, particularly medical malpractice claims brought against MCOs seeking to hold them vicariously liable for an affiliated physician's negligence. Section III applies current ERISA preemption doctrine to a situation such as Peterson's, in which a plaintiff attempts to hold an MCO vicariously liable for an affiliated physician's negligence. Section IV concludes that, given the current state of ERISA preemption …

Genetic Test Results And The Duty To Disclose: Can Medical Researchers Control Liability?, Richard L. Furman, Jr.

Seattle University Law Review

This Comment examines research on the human genome and explores the existence of a duty to disclose genetic test results in clinical and research settings. Part II begins with a hypothetical describing how such a duty to disclose can arise. Part III (A-C) describes advances in the sequencing of the human genome, the development of reliable tests for genetic disorders, and issues regarding access and control of genetic test samples and results. Part III (D) looks at the tort law basis for a general duty of physicians to disclose medical information, the specific duty of clinical physicians to disclose the …

University Of Richmond Law Review

University of Richmond Law Review

No abstract provided.

The Future Of Bioethics Testimony: Guidelines For Determining Qualifications, Reliability, And Helpfulness, Bethany Spielman, George Agich

San Diego Law Review

This Article addresses key questions about expert bioethics testimony4 from within the framework of the basic rule concerning expert witnesses, Federal Rule of Evidence 702.' This Rule6 requires judges to affirmatively answer three basic questions before admitting expert testimony: (1) does this witness qualify as an expert by knowledge, skill, experience, training, or education; (2) does the testimony consist of scientific, technical or other specialized knowledge; and (3) will the testimony assist the trier of fact. Bioethics testimony presents distinctive problems in each area, on which commentators have not necessarily focused. Part II of this Article addresses the question of …

A Jurisprudence In Disarray: On Battery, Wrongful Living, And The Right To Bodily Integrity, Mark Strasser

San Diego Law Review

The right to bodily integrity is firmly entrenched in the right to privacy jurisprudence. An individual who has that right violated by being subjected to an unwanted touching can sue for damages. For example, an individual who receives medical treatment against her will can bring an action for battery, even if that treatment provides her a net benefit.' Yet, the determination of whether our current system provides either sufficient compensation for the victim of a nonconsensual physical invasion or a sufficient disincentive to possible tortfeasors to prevent such invasions is only possible after the potential damages for such invasions are …

California's Sexually Violent Predator Act: The Role Of Psychiatrists, Courts, And Medical Determinations In Confining Sex Offenders, Carolyn B. Ramsey

Publications

No abstract provided.

Advertising Policies Of Medical Journals: Conflicts Of Interest For Journal Editors And Professional Societies, David Orentlicher

Scholarly Works

No abstract provided.

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.

Funny Thing Happened On The Way To The Courtroom: Spoilation Of Evidence In Illinois, 32 J. Marshall L. Rev. 325 (1999), Kristin Adamski

UIC Law Review

No abstract provided.

State Laws Criminalizing Female Circumcision: A Violation Of The Equal Protection Clause Of The Fourteenth Amendment, 32 J. Marshall L. Rev. 353 (1999), Shea Lita Bond

UIC Law Review

No abstract provided.

Practicing Medicine Without A License: Legislative Attempts To Mandate Chemical Castration For Repeat Sex Offenders, 32 J. Marshall L. Rev. 381 (1999), Lisa Keesling

UIC Law Review

No abstract provided.

The Human Genome Project's Implications For Autonomy, Respect, And Professionalism In Medical Genetics, Roger B. Dworkin

Articles by Maurer Faculty

No abstract provided.

Mother Still Knows Best: Cancer-Related Gene Mutations, Familial Privacy, And A Physician's Duty To Warn, Alissa

Fordham Urban Law Journal

The vows of the Hippocratic Oath which include a vow to abstain from sharing a patient's personal information remains an important tenet of medical care today. Physician-patient confidentiality even abstains sharing information with patients' families. However, when medical information affects the health of the patient's relatives, many medical professionals assert that they have a duty to share the information, with or without the patient's consent, particularly in the context of children of patients with genetic diseases and disorders, where forewarning may significantly decrease the risks or increase prevention of the effects of the disease or disorder. Currently, while physicians respect …

Revisionism Misplaced: Why This Is Not The Time To Bury Autonomy, David J. Rothman

Michigan Law Review

For the past twenty years, bioethics has exerted a profound influence on American medicine. Although its full impact cannot be precisely measured, one need only speak to European physicians and clinical investigators to grasp the full extent of the change. Americans may debate the sufficiency of the information that physicians share with their patients, but hear a European doctor exclaim angrily that it is criminal to ask a woman to decide whether to have a radical mstectomy or lumpectomy, and you know that bioethics has made a significant difference in the United States. So too, Americans, far more intensely than …

Liberalism And Abortion, Robin West

Georgetown Law Faculty Publications and Other Works

First in a groundbreaking book, Breaking the Abortion Deadlock: From Choice to Consent, published in 1996, then in various public fora, from academic conference panels to Christian radio call-in shows, and now in a major law review article entitled My Body, My Consent: Securing the Constitutional Right to Abortion Funding, Eileen McDonagh has sought to redefine drastically our understanding of the still deeply contested right to an abortion, and hence, of the nature of the constitutional protections which in her view this embattled right deserves. Her argument is complicated and subtle, but its basic thrust can be readily …