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Medical Jurisprudence

2014

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Articles 1 - 30 of 41

Full-Text Articles in Law

Medical Staff Boot Camp, Rick D. Barton Dec 2014

Medical Staff Boot Camp, Rick D. Barton

Center for Health Law Policy and Bioethics

No abstract provided.


Non-Price Competition In “Substitute" Drugs: The Ftc's Blind Spot, Gregory Dolin Oct 2014

Non-Price Competition In “Substitute" Drugs: The Ftc's Blind Spot, Gregory Dolin

All Faculty Scholarship

As the recent case of United States v. Lundbeck illustrates, the Federal Trade Commission’s lack of knowledge in medical and pharmacological sciences affects its evaluation of transactions between medical and pharmaceutical companies that involve transfers of rights to manufacture or sell drugs, causing the agency to object to such transactions without solid basis for doing so. This article argues that in order to properly define a pharmaceutical market, one must not just consider the condition that competing drugs are meant to treat, but also take into account whether there are “off-label” drugs that are used to treat a relevant condition, …


Summary Of Zohar V. Zbiegien, 130 Nev. Adv. Op. 74, Scott Lundy Sep 2014

Summary Of Zohar V. Zbiegien, 130 Nev. Adv. Op. 74, Scott Lundy

Nevada Supreme Court Summaries

The Court determined that an expert affidavit attached to a medical malpractice complaint, which otherwise properly supports the allegations of medical malpractice contained in the complaint but does not identify all the defendants by name and refers to them only as staff of the medical facility, may still comply with the requirements of NRS 41A.071 ]“if it is clear that the defendants and the court received sufficient notice of the nature and basis of the medical malpractice claims.” In order to make this determination, courts should read a medical malpractice complaint and the plaintiff’s expert affidavit together.


Doctor, Doctor, Mr. M.D.: Dr./Patient Privilege In Mt, Cynthia Ford Sep 2014

Doctor, Doctor, Mr. M.D.: Dr./Patient Privilege In Mt, Cynthia Ford

Faculty Journal Articles & Other Writings

No abstract provided.


Summary Of Leavitt V. Siems, 130 Adv. Nev. Op. 54, Michael Paretti Jul 2014

Summary Of Leavitt V. Siems, 130 Adv. Nev. Op. 54, Michael Paretti

Nevada Supreme Court Summaries

The Court concluded that: (1) expert alternative causation testimony is permissible; (2) ex parte communication, even when improper, only warrants a new trial when prejudice is established; and, (3) an employee’s default may not be used against an employer codefendant contesting liability.


Public Health Regulation: Convergence, Divergence, And Regulatory Tension: An Asian Perspective, Locknie Hsu Jul 2014

Public Health Regulation: Convergence, Divergence, And Regulatory Tension: An Asian Perspective, Locknie Hsu

Research Collection Yong Pung How School Of Law

Regulatory issues relating to public health, including regulation of access to medicines and tobacco control have increasingly been the source of tension in recent trade and investment negotiations, treaties and disputes. The ongoing Trans-Pacific Partnership negotiations, which include a number of developing Asian states, are an example that brings some of these issues to the fore and show a divergence of negotiating views.

The intersection between public health regulation and trade and investment treaties has given some Asian states significant pause for thought; it has further led the international system to a critical need to confront the overlap of legal …


Throwing Dirt On Doctor Frankenstein’S Grave: Access To Experimental Treatments At The End Of Life, Michael J. Malinowski Apr 2014

Throwing Dirt On Doctor Frankenstein’S Grave: Access To Experimental Treatments At The End Of Life, Michael J. Malinowski

Journal Articles

All U.S. federal research funding triggers regulations to protect human subjects known as the Common Rule, a collaborative government effort that spans seventeen federal agencies. The Department of Health and Human Services has been in the process of re-evaluating the Common Rule comprehensively after decades of application and in response to the jolting advancement of biopharmaceutical science. The Common Rule designates specific groups as “vulnerable populations”—pregnant women, fetuses, children, prisoners, and those with serious mental comprehension challenges—and imposes heightened protections of them. This article addresses a question at the cornerstone of regulations to protect human subjects as biopharmaceutical research and …


Report As To Proposed Pilot Project On The Electronic Monitoring Of Forensic Mental Health Patients, Elaine Gibson, Leah Hutt, Sheila Wildeman, Constance Macintosh Jan 2014

Report As To Proposed Pilot Project On The Electronic Monitoring Of Forensic Mental Health Patients, Elaine Gibson, Leah Hutt, Sheila Wildeman, Constance Macintosh

Reports & Public Policy Documents

This report was undertaken in response to a request from the Nova Scotia government for assistance in identifying and analyzing legal issues related to the potential establishment of a pilot project. The project would involve the use of electronic monitoring (EM) of forensic mental health patients (patients) detained at the East Coast Forensic Hospital (ECFH) who are exercising indirectly supervised and unescorted community access (community access). The purpose of our analysis is not to determine if an EM policy or its application violates any laws. Rather, the purpose is to consider whether there are factors that may support legal challenges …


Concussions And Sports: Introduction, David Orentlicher Jan 2014

Concussions And Sports: Introduction, David Orentlicher

Scholarly Works

No abstract provided.


The Changing Legal Climate For Physician Aid In Dying, David Orentlicher Jan 2014

The Changing Legal Climate For Physician Aid In Dying, David Orentlicher

Scholarly Works

No abstract provided.


Limiting Liberty To Prevent Obesity: Justifiability Of Strong Hard Paternalism In Public Health Regulation, Thaddeus Mason Pope Jan 2014

Limiting Liberty To Prevent Obesity: Justifiability Of Strong Hard Paternalism In Public Health Regulation, Thaddeus Mason Pope

Faculty Scholarship

Because of the largely self-regarding nature of obesity, many current and proposed public health regulatory measures are paternalistic. That is, these measures interfere with a person’s liberty with the primary goal of improving that person’s own welfare.

Paternalistic public health measures may be effective in reducing obesity. They may even be the only sufficiently effective type of regulation. But many commentators argue that paternalistic public health measures are not politically viable enough to get enacted. After all, paternalism is repugnant in our individualistic culture. It is "wrong" for the government to limit our liberty for our own good.

In this …


The Future Of Medicaid Supplemental Payments: Can They Promote Patient-Centered Care?, Laura Hermer, Merle Lenihan Jan 2014

The Future Of Medicaid Supplemental Payments: Can They Promote Patient-Centered Care?, Laura Hermer, Merle Lenihan

Faculty Scholarship

Supplemental Medicaid payments such as DSH and UPL are the exception to the financing of specific services to specific patients. Medicaid DSH funds currently finance over 30 percent of hospital care to the uninsured. As a result of the Affordable Care Act (ACA), DSH funds will be substantially reduced. At the same time, their importance will be heightened, especially in states that refuse to take up the ACA’s Medicaid expansion. DSH payments to hospitals have been plagued by a lack of accountability and transparency and an inability to assess whether patients benefit from such payments. Flexibility in the DSH program …


Medical Staff Bylaws: Meeting New Medicare Conditions Of Participation And Joint Commission Requirements, Rick D. Barton Jan 2014

Medical Staff Bylaws: Meeting New Medicare Conditions Of Participation And Joint Commission Requirements, Rick D. Barton

Center for Health Law Policy and Bioethics

No abstract provided.


Medical Staff Boot Camp, Rick D. Barton Jan 2014

Medical Staff Boot Camp, Rick D. Barton

Center for Health Law Policy and Bioethics

No abstract provided.


The Dilemma Of The Aging Physician: Legal And Practical Challenges, Rick D. Barton Jan 2014

The Dilemma Of The Aging Physician: Legal And Practical Challenges, Rick D. Barton

Center for Health Law Policy and Bioethics

No abstract provided.


Medical Staff Bylaws: Meeting New Medicare Conditions Of Participation And Joint Commission Requirements, Rick D. Barton, Alma L. Saravia, Scott C. Gardner Jan 2014

Medical Staff Bylaws: Meeting New Medicare Conditions Of Participation And Joint Commission Requirements, Rick D. Barton, Alma L. Saravia, Scott C. Gardner

Center for Health Law Policy and Bioethics

No abstract provided.


Introduction: Mental Health, Psychology, And The Law, Mary Kay Kisthardt Jan 2014

Introduction: Mental Health, Psychology, And The Law, Mary Kay Kisthardt

Faculty Works

The authors coordinated and edited a symposium law review issue on Mental Health, Psychology and the Law. The Introduction summarizes submissions that included a memoir from an author whose family members were consumers of mental health services, legal scholars and practitioners who use mental health evidence to defend clients facing the death penalty, and the duty of attorneys to tend to their own mental health care needs while dealing with these emotionally heavy issues.


Informed Consent And The Differential Diagnosis: How The Law Overestimates Patient Autonomy And Compromises Health Care, 60 Wayne L. Rev. 349 (2014), Marc Ginsberg Jan 2014

Informed Consent And The Differential Diagnosis: How The Law Overestimates Patient Autonomy And Compromises Health Care, 60 Wayne L. Rev. 349 (2014), Marc Ginsberg

UIC Law Open Access Faculty Scholarship

The purpose of this paper is not simply to re-examine the doctrine of informed consent. The purpose, however, is to identify how the doctrine has evolved, its scope expanded, and how it has created serious consequences for physicians and patients. Specifically, this paper focuses on the differential diagnosis - the process by which a physician arrives at a diagnosis - and how some jurisdictions have manipulated informed consent to encompass this process. This paper will urge that the application of informed consent to the differential diagnosis is an unnecessary expansion of the doctrine and, potentially, compromises health care.


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 …


Aligning Incentives In Accountable Care Organizations: The Role Of Medical Malpractice Reform, Laura Hermer Jan 2014

Aligning Incentives In Accountable Care Organizations: The Role Of Medical Malpractice Reform, Laura Hermer

Faculty Scholarship

The Patient Protection and Affordable Care Act (ACA) encourages physicians, hospitals, and other health care providers to deliver better coordinated, high-quality care through the institution of the Medicare Shared Savings Program. Many physicians and other providers moved quickly after the ACA was enacted to enter into arrangements that would allow them to take advantage of the MSSP and similar programs sponsored by private insurers that likely would — and did — arrive on the MSSP’s heels.

Yet despite the initial enthusiasm, it is by no means clear that ACOs will succeed, whether individually or in the greater goal of changing …


The Growing Power Of Healthcare Ethics Committees Heightens Due Process Concerns, Thaddeus Mason Pope Jan 2014

The Growing Power Of Healthcare Ethics Committees Heightens Due Process Concerns, Thaddeus Mason Pope

Faculty Scholarship

Complex ethical situations, such as end-of-life medical treatment disputes, occur on a regular basis in healthcare settings. Healthcare ethics committees (HECs) have been a leading dispute resolution forum for many of these conflicts. But while the function of HECs has evolved from mediation to adjudication, the form of HECs has not evolved to adapt to this expanded and more consequential function.

HECs are typically multidisciplinary groups comprised of representatives from different departments of the healthcare facility: medicine, nursing, law, pastoral care, and social work, for example. HECs were established to support and advise patients, families, and caregivers as they work …


Rationalizing Home And Community-Based Services Under Medicaid, Laura Hermer Jan 2014

Rationalizing Home And Community-Based Services Under Medicaid, Laura Hermer

Faculty Scholarship

This article examines efforts states are making to expand access to community-based services for elderly and disabled Medicaid beneficiaries and suggests several options that might improve such access nationally. Like much of Medicaid, Medicaid long term services and supports (LTSS) have developed through a complex process of accretion. Policymakers appear only rarely to have considered an overarching view of such services and the needs of those who require them. Rationalizing Medicaid LTSS will accordingly require not only additions but also substantial pruning, and may even warrant a reconsideration of who should have ultimate authority to develop and direct such services. …


Uncovering The Silent Victims Of The American Medical Liability System, Joanna Shepherd Jan 2014

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

Faculty Articles

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 …


Patent Eligibility Post-Myriad: Reinvigorated Judicial Wildcard Of Uncertain Effect, Christopher M. Holman Jan 2014

Patent Eligibility Post-Myriad: Reinvigorated Judicial Wildcard Of Uncertain Effect, Christopher M. Holman

Faculty Works

In the 1970s and early 1980s the US Supreme Court issued several landmark decisions establishing the contours of patent eligibility, a judicially created doctrine that serves as a gatekeeper to prevent the patenting of subject matter deemed so fundamental as to be better left unpatented. Over the course of the next 25 years the Court of Appeals of the Federal Circuit oversaw a progressive expansion in the scope subject matter deemed patent eligible, highlighted by the adoption in the 1990’s of a “useful, concrete and tangible” test for patent eligibility that for all practical purposes seemed to subsume the patent …


Toward A Jurisprudence Of Drug Regulation, Matthew Herder Jan 2014

Toward A Jurisprudence Of Drug Regulation, Matthew Herder

Articles, Book Chapters, & Popular Press

Efforts to foster transparency in biopharmaceutical regulation are well underway: drug manufacturers are, for example, legally required to register clinical trials and share research results in the United States and Europe. Recently, the policy conversation has shifted toward the disclosure of clinical trial data, not just trial designs and basic results. Here, I argue that clinical trial registration and disclosure of clinical trial data are necessary but insufficient. There is also a need to ensure that regulatory decisions that flow from clinical trials — whether positive (i.e. product approvals) or negative (i.e. abandoned products, product refusals, and withdrawals) — are …


In Defence Of Consent And Capacity Boards For End-Of-Life Care, Jocelyn Downie, Michael Hadskis Jan 2014

In Defence Of Consent And Capacity Boards For End-Of-Life Care, Jocelyn Downie, Michael Hadskis

Articles, Book Chapters, & Popular Press

In Cuthbertson v. Rasouli, the Supreme Court of Canada (SCC) found that, in Ontario, it is the Consent and Capacity Board (CCB) and not the courts per se who will resolve conflicts between substitute decision-makers (SDMs) and health practitioners regarding the withdrawal of lifesustaining treatment from incapable patients. This finding was based on the SCC’s interpretation of the Ontario Health Care Consent Act (HCCA). Hawryluck et al. express concern about the SCC’s determination that the CCB is charged with resolving such conflicts since, in their view, this body is ill-equipped to fulfill this role. Instead, they take the position that …


Accommodation, Establishment, And Freedom Of Religion, Richard W. Garnett Jan 2014

Accommodation, Establishment, And Freedom Of Religion, Richard W. Garnett

Journal Articles

This short essay engages the argument that it would violate the First Amendment’s Establishment Clause to exempt an ordinary, nonreligious, profit-seeking business – such as Hobby Lobby – from the Affordable Care Act’s contraceptive-coverage rules. In response to this argument, it is emphasized that the First Amendment not only permits but invites generous, religion-specific accommodations and exemptions and that the Court’s Smith decision does not teach otherwise. In addition, this essay proposes that laws and policies that promote and protect religious freedom should be seen as having a “secular purpose” and that because religious freedom, like clean air, is an …


Can I Be Sued For That? Liability Risk And The Disclosure Of Clinically Significant Genetic Research Findings, Ellen Wright Clayton, Amy L. Mcguire, Et Al. Jan 2014

Can I Be Sued For That? Liability Risk And The Disclosure Of Clinically Significant Genetic Research Findings, Ellen Wright Clayton, Amy L. Mcguire, Et Al.

Vanderbilt Law School Faculty Publications

Genomic researchers increasingly are faced with difficult decisions about whether, under what circumstances, and how to return research results and significant incidental findings to study participants. Many have argued that there is an ethical—maybe even a legal—obligation to disclose significant findings under some circumstances. At the international level, over the last decade there has begun to emerge a clear legal obligation to return significant findings discovered during the course of research. However, there is no explicit legal duty to disclose in the United States. This creates legal uncertainty that may lead to unmanaged variation in practice and poor quality care. …