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 …

Let's Talk About Sex (Education): A Novel Interpretation Of The Meyer-Pierce Standard Governing Parental Control In Public Schools, Jacqueline Webb

Jacqueline Webb

This Comment addresses the importance of parental control with regard to sex education in public schools and provides a workable middle of the road standard which balances the Constitutionally-granted rights of parents to control the upbringing of their children with the State’s interest in the education of its youngest citizens.

This Comment argues that the Meyer-Pierce standard has been incorrectly interpreted as creating two polar opposite views with regard to parental control in public schools, and a middle of the road standard is a more suitable application which protects both the parents’ Constitutionally-granted rights and the States’ interest. Part II …

Climate Change, Human Health, And The Post-Cautionary Principle, Lisa Heinzerling

O'Neill Institute Papers

In this Article, I suggest two different but related ways of reframing the public discourse on climate change. First, I propose that we move further in the direction of characterizing climate change as a public health threat and not only as an environmental threat. Second, I argue that we should stop thinking of responses to climate change in terms of the precautionary principle, which counsels action even in the absence of scientific consensus about a threat. We should speak instead in terms of a ?post-cautionary? principle for a post-cautionary world, in which some very bad effects of climate change are …

The Difficult Case Of Direct-To-Consumer Drug Advertising, David C. Vladeck

O'Neill Institute Papers

This article will appear in a symposium to pay tribute to Professor Steven H. Shiffrin, one of the leading First Amendment theorists of our time. The author was asked to focus on Professor Shiffrin’s contribution to the development of the commercial speech doctrine. To reflect on the wisdom of Professor Shiffrin’s refusal to rely on general First Amendment theories, the article focuses on the difficult First Amendment problem of regulating direct-to-consumer (DTC) advertising of prescription drugs. In his famous dissent in Virginia Pharmacy Board, then-Justice Rehnquist forecast that, as a consequence of the Court’s ruling, drug companies would soon advertise …

A Critical Examination Of The Fda’S Efforts To Preempt Failure-To-Warn Claims, David A. Kessler, David C. Vladeck

O'Neill Institute Papers

This article explores the legality and wisdom of the FDA’s effort to persuade courts to find most failure-to-warn claims preempted. The article first analyzes the FDA’s justifications for reversing its long-held views to the contrary and explains why the FDA’s position cannot be reconciled with its governing statute. The article then examines why the FDA’s position, if ultimately adopted by the courts, would undermine the incentives drug manufacturers have to change labeling to respond to newly-discovered risks. The background possibility of failure-to-warn litigation provides important incentives for drug companies to ensure that drug labels reflect accurate and up-to-date safety information. …

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 …

Diabetes Treatments And Moral Hazard, Jonathan Klick, Thomas Stratmann

All Faculty Scholarship

In the face of rising rates of diabetes, many states have passed laws requiring health insurance plans to cover medical treatments for the disease. Although supporters of the mandates expect them to improve the health of diabetics, the mandates have the potential to generate a moral hazard to the extent that medical treatments might displace individual behavioral improvements. Another possibility is that the mandates do little to improve insurance coverage for most individuals, as previous research on benefit mandates has suggested that mandates often duplicate what plans already cover. To examine the effects of these mandates, we employ a triple-differences …

"Simplify You, Classify You": Stigma, Stereotypes And Civil Rights In Disability Classification Systems, Michael L. Perlin

Michael L Perlin

Abstract:

In this paper I consider the question of the extent to which sanism and pretextuality - the factors that contaminate all of mental disability law - do or do not equally contaminate the special education process, and the decision to label certain children as learning disabled. The thesis of this paper is that the process of labeling of children with intellectual disabilities implicates at least five conflicts and clusters of policy issues:

1. The need to insure that all children receive adequate education

2. The need to insure that the cure is not worse than the illness (that is, …

What Do Nonprofits Maximize? Hospital Service Provision And Market Ownership Mix, Jill R. Horwitz, Austin Nichols

Law & Economics Working Papers Archive: 2003-2009

Conflicting theories of the nonprofit firm have existed for several decades yet empirical research has not resolved these debates, partly because the theories are not easily testable but also because empirical research generally considers organizations in isolation rather than in markets. Here we examine three types of hospitals – nonprofit, for-profit, and government – and their spillover effects. We look at the effect of for-profit ownership share within markets in two ways, on the provision of medical services and on operating margins at the three types of hospitals. We find that nonprofit hospitals’ medical service provision systematically varies by market …

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 …

Integrating The Complexity Of Mental Disability Into The Criminal Law Course, Linda C. Fentiman

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

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 …

Sample Prescription Drugs And The "Learned Intermediary": Liability Without Preemption, Susan Poser

Susan Poser

Cold Comfort Pharmacy: Pharmacist Tort Liability For Conscientious Refusals To Dispense Emergency Contraception, Kristen Marttila Gast

ExpressO

The past several years have seen an increasing number of pharmacists refuse to dispense emergency contraception, an effective, post-coital form of contraception, on the grounds that the drug violates their personal beliefs. This Article addresses the impact of those pharmacist refusals under existing principles of tort law. The Article draws on existing pharmacy case law, state-specific refusal clauses, and ethics statements promulgated by professional pharmacy associations to investigate whether pharmacists have a legal duty to dispense emergency contraception, notwithstanding religious or ethical objections. Concluding that in most states, such a legal duty does exist, the Article develops a “wrongful conception” …

Accessing Reproductive Technologies: Invisible Barriers, Indelible Harms, Judith F. Daar

ExpressO

The use and success of assisted reproductive technologies (ART) over the past decade has contributed perceptibly to family formation nationwide. Today, 3 of every 100 children born owe their existence to some form of assisted conception. Despite, or perhaps because of, its technical successes, a growing body of evidence suggests that barriers to ART are being constructed to prevent procreation among select populations. The article’s theme is one of harm, specifically the harm that befalls patients, physicians, offspring and society when fertility treatments are denied on the basis of personal characteristics, including race, marital status and sexual orientation. While ART …

Brave New Babies, Lori B. Andrews

All Faculty Scholarship

No abstract provided.

Neuroimaging And The "Complexity" Of Capital Punishment, Orlando Carter Snead

O. Carter Snead

The growing use of brain imaging technology to explore the causes of morally, socially, and legally relevant behavior is the subject of much discussion and controversy in both scholarly and popular circles. From the efforts of cognitive neuroscientists in the courtroom and in the public square, the contours of a project to transform capital sentencing both in principle and practice have emerged. In the short term, such scientists seek to intervene in the process of capital sentencing by serving as mitigation experts for defendants, where they invoke neuroimaging research on the roots of criminal violence to support their arguments. Over …