Law Commons^™

Medical Malpractice Reform In Three Southern States, Leonard J. Nelson, Michael A. Morrisey, Meredith L. Kilgore

Leonard J. Nelson III

Louisiana, Alabama, and Mississippi have adopted medical malpractice reform legislation in response to the three crises in medical liability insurance. In 1975, Louisiana adopted damages caps, created a patient compensation fund, and mandated the submission of claims to screening panels. In 1987, Alabama adopted damages caps and modified the collateral source rule, but these reforms were declared unconstitutional in the 1990s. In 2002, Mississippi adopted a damages cap. In this article we review the effect of these reforms on the malpractice environment in each state. We find that based on the total value of paid claims and paid claims per …

The Human Factor: Globalizing Ethical Standards In Drug Trials Through Market Exclusion, Fazal R. Khan

Fazal Khan

This paper proposes a framework of international soft law and domestic drug regulations to a priori remove incentives for unethical clinical drug research in developing nations. The globalization of drug testing is very problematic from a bioethics perspective. While stringent regulations in the U.S. or E.U. may pose an adequate check on unethical research practices, many multinational corporations are engaging in regulatory arbitrage by outsourcing ethically questionable research to countries with less restrictive regulations. Given the tremendous financial reward a blockbuster therapy might generate, there is a strong incentive to move more research and development to countries with even looser …

A Philosophy Of Privitization: Rationing Health Care Through The Medicare Modernization Act Of 2003, Eleanor B. Sorresso

Eleanor B Sorresso

Over the past two decades, managed care coverage programs have grown to dominate the private health insurance market. With the Balanced Budget Act of 1997 and the Medicare Modernization Act of 2003, managed care programs are now expanding to envelop our nation’s Medicare program as well. Proponents have based this expansion primarily on the premise that market economics provides a more efficient paradigm under which to regulate available health care resources. However, this premise of market efficiency proves problematic in the health care arena because it disregards issues of societal responsibility and the risk of socioeconomic stratification in the allocation …

Advancing Civil Rights, The Next Generation: The Genetic Information Nondiscrimination Act Of 2007 And Beyond, Morse Tan

Morse Tan Esq.

On the leading edge of civil rights law and bioethics/healthcare law, this Article analyzes the Genetic Information Nondiscrimination Act (GINA) of 2007, which would extend important protection against discrimination in health insurance and employment. GINA would also bolster genetic research by freeing research subjects from the threat of genetic discrimination. This Article demonstrates how GINA would further protect this society against the rising dangers of genetic discrimination beyond already existing federal and state law.

The Risky Business Of Lifestyle Genetic Testing: Protecting Against Harmful Disclosure Of Genetic Information, Gabrielle Z. Kohlmeier

Gabrielle Z Kohlmeier

The technological and scientific advances of nutrigenetic testing imply that the future is here, but unfortunately the legal protections are not. Nutrigenetics—the newly developing science correlating diet and genotypes—promises an easier way to escape the consequences of unhealthy lifestyles. And a large contingent of Americans, including cost-conscious employers and health insurers, are seeking such high-tech solutions. Web-based nutrigenetic testing, purportedly offering custom-tailored plans without a trip to the doctor’s office, thus captures a wide audience. The enthusiasm for nutrigenetics may obfuscate the unusual problems surrounding protection of genetic information, particularly in a market context. Upon providing genetic material, an individual …

Overriding Mental Health Treatment Refusals: How Much Process Is "Due"?, Samuel Jan Brakel

Samuel Jan Brakel

No abstract provided.

Green Medicine: Using Lessons From Tort Law And Environmental Law To Hold Pharmaceutical Manufacturers And Authorized Distributors Liable For Injuries Caused By Counterfeit Drugs, Stephanie Feldman Aleong

Stephanie Feldman Aleong

Counterfeit and adulterated prescription drugs have caused serious harm to consumers when these tainted products have easily permeated the legitimate marketplace over the last decades. Criminals and other actors introduce fake, adulterated, expired and foreign drugs into the drug distribution network which puts unsafe medicine into the hands of innocent consumers.

Due to the FDA’s identification of the dramatic rise in counterfeit drug investigations, in June of 2006, the FDA finally lifted the nearly twenty-year-old stay on requiring pedigree documentation, an actual history of the distribution transactions of a medicine before reaching a dispensing pharmacy, only to find that a …

The Concept Of Hospital Ethics Committee And A Turkish Example: Ege University Hospital Ethics Committee, Cagatay Ustun, Inci Hot

CAGATAY USTUN Assc. Prof. Dr.

During the second half of the 20th century, the idea of establishing hospital ethics committees emerged as a result of technological developments in the medical field, of new approaches towards patients’ rights, and of facts which were unacceptable from medical, judicial and moral perspectives. Among the goals of hospital ethics committees which begun to be established after the 1970’s are consulting, educating hospital personnel, patients and patients’ relatives, as well as building a health policy for the health institution. It is important to note, however, that the decisions of such committees are only in the nature of recommendations. In Turkey, …

The Impact Of Regional Trade Areas On International Intellectual Property Rights, Brian Cimbolic

Brian Cimbolic

This article seeks to explore the impact of Customs Unions and Free Trade Areas (Regional Trade Areas, or “RTAs”) on both the developing world’s intellectual property concerns and on the international trade principle of most favored nation status. By examining various RTAs such as the North American Free Trade Agreement (“NAFTA”) and the upcoming Free Trade Agreement of the Americas (the “FTAA”), along with several smaller RTAs, this paper seeks to show that RTAs are undermining the principles of the International Trade Agreements they are a supposed to be a part of by refusing to apply MFN principles and by …

Search And Seizure On Steroids: United States V. Comprehensive Drug Testing And Its Consequences For Private Information Stored On Commercial Electronic Databases, Aaron S. Lowenstein

Aaron S Lowenstein

This article critiques the Ninth Circuit’s recent decision in United States v. Comprehensive Drug Testing. This case received some attention because it stems from the investigation into the use of steroids in Major League Baseball. It should have received much more attention, however, because of its troubling expansion of the government’s authority to access our private digital information without a warrant.

Executing a search warrant for information stored on a computer database poses special problems. Because targets of government investigations can easily conceal incriminating digital evidence, investigators often must search an entire computer hard drive in order to effectively execute …

Overriding Mental Health Treatment Refusals: How Much Process Is "Due"?, Samuel Jan Brakel

Samuel Jan Brakel

No abstract provided.

Access To Assisted Reproductive Technologies, Susan B. Apel

Susan B. Apel

Abstract: The use of assisted reproductive technologies (ART) has raised questions about patient access to these new means of reproduction. This article explores existing legal constraints on access, primarily within the United States, including federal and state legislation and professional regulation. The article also raises questions as to the appropriate role and form of law in resolving disputes over patient access. The author acknowledges the difficulties in the drafting and use of positive, substantive law, and concludes by suggesting that legal concepts embedded in legal procedure may be useful in the resolution of access disputes.

Medical Futility, Patient Autonomy, And Professional Integrity: Finding The Appropriate Balance, Amir Halevy

Amir Halevy M.D.

This article focuses on the “medical futility” section of the Texas Advance Directives Act. Briefly, the concept of medical futility is that under certain circumstances, physicians and health care institutions have no legal or moral duty to provide medically inappropriate or futile treatment even when demanded by patients or their families. Given the ongoing national debate about health care costs and access to care issues, this subject is integral to any potential resolution. The Texas futility mechanism initially received national attention as a model statute that created a process-based resolution mechanism to resolve these complex cases. More recently, however, the …

Motorcycle Helmet Laws: The Facts, What Can Be Done To Jump-Start Helmet Use, And Ways To Cap The Damages, Melissa Neiman

Melissa Neiman, M.D., J.D.

No abstract provided.

Protecting Professional Boxers: Federal Regulations With More Punch, Melissa Neiman

Melissa Neiman, M.D., J.D.

No abstract provided.

The Benghazi Six: International Medical Neutrality In Times Of War And Peace, Johanna Michaels Kreisel

Johanna Michaels Kreisel

This comment evaluates the legal protections and liabilities available to medical personnel in international conflict and non-conflict situations. This comment focuses on the plight of the six foreign medical workers who are currently on death row for allegedly causing the deliberate HIV infection in 426 Libyan children. This comment analyzes the legal recourse available to medical workers in international humanitarian and human rights law under the International Covenant on Political and Civil Rights and the Convention for the Protection of Migrant Workers and provide future recommendations to ensure that medical works have adequate protections and clear obligations under international law.

Like A Virgin? Virginity Testing As Hiv/Aids Prevention: Human Rights Universalism And Cultural Relativism Revisited, Erika R. George

Erika R. George

I explore the tensions between gender equality, personal autonomy and evolving cultural practices when a traditional practice that arguably violates universal international human rights and domestic constitutional norms also enjoys strong support—as is the case with virginity testing in South Africa. The practice of virginity testing has reemerged, advanced not only as a return to tradition but also as an HIV/AIDS prevention strategy. I examine the debates about virginity testing and its recent prohibition by the government in order to more fully consider the limitations of liberalism as the foundation for human rights when operating within a pluralistic cultural context …

Germs On A Plane!: Legal Protections Afforded To International Air Travelers And Governments In The Event Of A Suspected Or Actual Contagious Passenger And Proposals To Strengthen Them., Alexandra R. Harrington

Alexandra R. Harrington

Abstract: Germs on a Plane!: Legal Protections Afforded to International Air Travelers and Governments in the Event of a Suspected or Actual Contagious Passenger and Proposals to Strengthen Them. In August, 2006, American moviegoers watched as passengers on an airplane were terrified by poisonous snakes in the movie “Snakes on a Plane.” In May, 2007, news watchers across the globe were riveted by the true story of an Atlanta lawyer who flew from the United States to several destinations in Europe for his wedding and honeymoon although he was carrying a drug-resistant strain of tuberculosis. The latter event was met …

Terminal Ambiguity: Law, Ethics And Policy In The Assisted Dying Debate, Ruth C. Stern, J. Herbie Difonzo

J. Herbie DiFonzo

As we become proficient at prolonging life we also succeed in prolonging the dying process. Fear of pain and suffering at the end of life has led us on a search for ways to preempt the ordeal. This article examines the judicial, ethical and policy responses to the demand for legalized assisted suicide and euthanasia. Medically, end-of-life issues are extraordinarily complex, especially when compounded by factors such as undiagnosed or untreated depression and inadequate palliative care. Courts, in declining to recognize a ‘right to die’ have thrown us back on our own devices to fashion resolutions to this problem. The …