Law Commons^™

In Pursuit Of A Modern Standard: The Constitutional Proportions Of Collateral Harm From Pursuits And Police High-Speed Driving, Julian Gilbert

Cleveland State Law Review

Police chases and high-speed driving are common practices that pose a substantial amount of harm and are often unjustified. The benefits of such chases are questionable, and rapid police action at all costs is often unnecessary. When bystanders are injured as a result of police high-speed driving, there are few avenues to have their rights vindicated, and federal court cases require plaintiffs to meet an almost impossible burden. However, under the United States Supreme Court case of County of Sacramento v. Lewis, a plaintiff can put forth evidence that their substantive due process right to life under the Fourteenth …

Solving The Opioid Epidemic In Ohio, Lacy Leduc

Journal of Law and Health

On May 31, 2017, Ohio Attorney General Mike DeWine took a step in fighting Ohio's opioid epidemic, bringing the first of many lawsuits against five top pharmaceutical companies. However, under Federal and State law, there is an exception called the Learned Intermediary Doctrine, which can absolve drug manufacturers of liability from any misconduct that might be found and transfer that liability to a treating physician. This exception is the way many drug manufacturers were able to avoid being held responsible in the past. This Note proposes that with the current pending lawsuit in the State of Ohio, an exception to …

Watch Or Report? Livestream Or Help? Good Samaritan Laws Revisited: The Need To Create A Duty To Report, Patricia Grande Montana

Cleveland State Law Review

In July 2017, a group of five Florida teenagers taunted a drowning disabled man while filming his death on a cell phone. In the video, the teenagers laughed and shouted harsh statements like "ain’t nobody finna to help you, you dumb bitch." At the moment the man’s head sank under the water for the very last time, one of the teenagers remarked: "Oh, he just died" before laughter ensued. None of the teenagers helped the man, nor did any of them report the drowning or his death to the authorities.

Because the Good Samaritan law in Florida, like in most …

Save Thousands Of Lives Every Year: Resuscitate The Peer Review Privilege, Alan G. Williams

Journal of Law and Health

Doctors make mistakes—preventable medical mistakes—that kill or seriously injure patients. The best way to reduce these preventable errors is through a medical peer review process typically referred to as a "morbidity and mortality conference." However, over the past twenty years, federal and state courts, state legislatures, and state voters have effectively gutted the morbidity and mortality conference (M&M) as a remedial and preventative tool, resulting in tens of thousands of unnecessary deaths every year. Doctors need our help restoring the effectiveness of M&Ms. Congress has created the means to do so; now, all the courts need do is use it. …

Brief For The National Association Of Social Workers And The Ohio Chapter Of The National Association Of Social Workers As Amici Curie In Support Of Petitioners, No. 13-933, United States Supreme Court (Mar. 6, 2014), Doron M. Kalir, Carolyn I. Polowy

Law Faculty Briefs and Court Documents

NASW's first argument is simple. To protect children from abuse - a major congressional and state legislative goal - this Court should apply qualified immunity to protect social workers from personal liability where a reasonable decision has been made to remove a child without a warrant.

NASW's second argument is equally cogent. DeShaney was decided 25 years ago. Since then, this Court's "continued silence" on the issue, Kovacic, 724 F.3d at 708 (Sutton, J., dissenting), has failed "to provide guidance to those charged with the difficult task of protecting child welfare within the confines of the Fourth Amendment." Camreta v. …

The Blindsided Insider: Insider Trading Liability For Supervising A Rogue Trader , Adam Felsenthal

Cleveland State Law Review

In the past few years, federal prosecutors and the Securities and Exchange Commission (SEC) have engaged in the widest-ranging and most successful probe of insider trading ever, focusing in particular on investment professionals. However, the government has failed to charge anyone on the basis of supervisory liability, essentially an accusation of failing to notice and stop illicit trading done under one’s supervision. This Article discusses all of the potential ways in which prosecutors could bring such a charge, ranging from SEC administrative liability to civil and criminal charges. Through the lens of a theoretical situation in which an “innocent bystander” …

What's All The Headache: Reform Needed To Cope With The Effects Of Concussions In Football, Erika A. Diehl

Journal of Law and Health

In order to effectively manage this public health concern, it is imperative to gain an understanding of the issues surrounding head injuries in sporting events. This Note will discuss the increasing frequency and dangers of concussions in amateur and professional football. It will suggest that athletes, schools, coaches, and doctors must become more educated on the causes and dangers of concussions in order to ensure the safety of participants. In order to do so, this Note introduces a medical overview of concussions, while briefly outlining the diagnosis, long-term effects, and management of concussions. Part III discusses the legal theories athletes …

Standard Of Care For Students With Disabilities: The Intersection Of Liability Under The Idea And Tort Theories, Ralph D. Mawdsley

Law Faculty Articles and Essays

This article explores issues of legal liability for school personnel where students with disabilities are injured in school settings or cause injuries to employees and other students in schools. While questions related to legal liability are varied, they tend to fall within two broad areas: standard of care relating to injuries to or by students; and, standard of care for employees working with students with or training others to work with students with disabilities. In both areas, the legal issue revolves around the concept of heightened standard of care, especially where framed by the language of students' IEPs (Individualized Education …

Physician Peer Review Immunity: Time To Euthanize A Fatally Flawed Policy, Charles R. Koepke M.D.

Journal of Law and Health

Dr. X is a young, charismatic, board-certified surgeon at the local hospital. While popular among her patients and non-surgical colleagues, to the established surgical "Old Guard," she appears somewhat of a threat. Her training in new advanced techniques, coupled with splendid bedside manner, has caused her practice to become quite busy. However, disruption in some well-established referral patterns has occurred, and business has been siphoned away from her older colleagues. . . . This hypothetical - but not uncommonly recurring - fact pattern demonstrates the destruction of a promising medical career, elimination of competition, promotion of status quo cronyism, and …

Stunning Trends In Shocking Crimes: A Comprehensive Analysis Of Taser Weapons, Shaun H. Kedir

Journal of Law and Health

In 2001, Westminster, Colorado police officers were dispatched to the home of a suicidal thirteen year-old girl who had barricaded herself in a bathroom. The young girl was mutilating her wrist with two butcher knives. When police officers forced their way into the bathroom, the emotionally disturbed girl charged at them with the two butcher knives while screaming, "Kill me! Kill me!." One of the officers deployed a Taser M26, a hand held conductive energy weapon, which fires two barbed darts up to a distance of thirty-five feet that then deliver an electric shock of 50,000 volts. The officer's Taser …

Unidentified Orbital Debris: The Case For A Market-Share Liability Regime, Mark J. Sundahl

Law Faculty Articles and Essays

As the volume of debris in the planet's orbit continues to grow, the risks and costs associated with orbital collisions are taking their toll on the space industry. The United Nations Convention on International Liability for Damage Caused by Space Objects seeks to address this modern day tragedy of the commons, yet it applies only to large, identifiable pieces of orbital debris. As most debris consists of small fragments, the source of which cannot be identified, the U.N. Convention is limited in its effect.

This Note addresses the problem of assigning liability for harm caused by unidentified orbital debris. It …

Pitfalls In Diagnosis Of Occupational Lung Disease For Purposes Of Compensation - One Physician's Perspective , Lawrence Martin

Journal of Law and Health

Ideally, the fact that diagnosis of OLD involves the legal profession should not affect a physician's objectivity or clinical approach. Physicians have an obligation to help assure that deserving patients receive compensation, and that claimants without a compensable occupational illness are not unjustly rewarded. However, the attorney's need to prove a diagnosis "with medical certainty," and the defendant's needs to refute that diagnosis with equal certainty, often skew what would otherwise be a straightforward diagnostic process. Resulting pitfalls in diagnosis can, in the end, trap the physician advocate and the side he is trying to help.

Malpractice And Other Legal Issues Preventing The Development Of Telemedicine , Christopher Caryl

Journal of Law and Health

Even though most Americans have not heard of telemedicine, the federal government is already actively involved in "developing a national telemedicine strategy." This note attempts to accomplish the following: demonstrate the urgent need of rural communities to gain access to adequate health care; clarify how telemedicine can provide enhanced health care to rural communities; and analyze the legal obstacles that have prevented, thus far, the most beneficial utilization of telemedicine. In particular, this note will examine how malpractice claims arising from telemedicine consultations might be resolved. An important issue to recognize at the outset, and one that consistently reappears throughout …

Government Created Medical Practice Guidelines: The Opening Of Pandora's Box, William R. Trail, Brad A. Allen

Journal of Law and Health

This article will discuss the background and creation of medical practice guidelines in part II. Next, we will define and discuss in Part III the two primary types of medical practice guidelines: privately created guidelines and government created guidelines. In Part IV, we will compare and contract the current medical practice guidelines programs in operation. Finally, we will recommend in section V that a medical practice guidelines program offering an affirmative defense to complying physicians should be implemented on the state level.

Time For Legislative Action: Landlord Liability In Ohio For Lead Poisoning Of A Tenant, Brett P. Barragate

Cleveland State Law Review

This Note addresses landlord liability in Ohio for lead poisoning of a tenant. In Part II, the effects of lead exposure on children and the number of children at risk in Ohio are briefly examined to clearly define the problem. Part III describes the lack of federal involvement in the area of lead poisoning in private residential housing. Parts IV and V examine the current state of lead litigation in Ohio and the response of Ohio courts. Finally, Part VI recommends that the Ohio legislature increase its role in the lead poisoning problem and provides remedies to victims of lead …

Fetal Abuse: Culpable Behavior By Pregnant Women Or Parental Immunity, George P. Smith Ii

Journal of Law and Health

The purpose of this essay is to demonstrate the pressing need of the law to take decisive action in imposing tort liability for willful and malicious conduct by drug addicted women during their pregnancy. Liability should be imposed notwithstanding the warnings from civil libertarians that the enforcement of such a policy would most assuredly give rise to "prenatal police patrols".

Resolving The Medical Malpractice Crisis: Alternatives To Litigation, Allen K. Hutkin

Journal of Law and Health

This article will review the societal and individual costs of the present medical malpractice system, analyze current efforts to reform the system, and propose several alternatives for consideration. These alternatives include expanding the use of alternative dispute resolution, reformulating the doctor/patient relationship, expanding the scope of conventional hospital risk management and modifying the manner in which medical malpractice insurance is presently provided.

Liability For Post-Transfusion Aids: An Analysis And Proposal, Lawrence K. English

Journal of Law and Health

The nature of the acquired immune deficiency syndrome (AIDS) epidemic and the methods used to protect the blood supply from contamination by the AIDS virus indicate that an increasing number of actions seeking recovery for post-transfusion infection may reach the courts in the next decade. The theories under which plaintiffs usually seek relief for transfusion-related infection - e.g., negligence or strict liability - lead to complex factual, procedural, and public policy problems which do not readily lend themselves to consistent, just adjudication.

Assessment Of Carcinogenic Risk And The Delaney Clause: The Search For A Better Standard, Mark A. Cleaves

Journal of Law and Health

This article will focus upon the legislative history and subsequent case law dealing with the Delaney Clause and it will include the rationale and limitations of the provision. In order to regulate carcinogens one must have a clear understanding of the cancer processes. Therefore a brief discussion of the biological parameters involved is warranted. The purpose of this discussion is to find a more rational alternative to the Delaney Clause. The use of quantitative risk assessment as an approach to regulate carcinogens found in food is also discussed. By combining the purposes of the original (and current statutory provisions with …

How Lawyers Deal With The Recent Changes In The Area Of Environmental Law, Dorothea M. Polster

Cleveland State Law Review

Recent changes in the area of environmental law regarding the cleanup of hazardous waste sites, particularly in the federal arena, are forcing lawyers to revise their strategy when advising commercial real estate developers. Lawyers have traditionally focused upon the economic aspects of a commercial real estate transaction such as the enforceability of leases, mortgage encumbrances, restrictions, title issues, and site inspection of the premises. In addition to focusing upon these traditional aspects, new and important emphasis must be placed on the analysis and determination of the condition of the physical property itself. Recent federal legislation such as the Comprehensive Environmental …

Peer Review Committee Minutes And Memoranda: Non-Discoverable At All Costs, Howard S. Rabb

Journal of Law and Health

The purpose of this article is to illustrate the inherent problems of blanket peer review confidentiality and to suggest a more equitable approach. Part I traces the deveopment of reviewing hospital quality and explains the operation and justifications of peer review committees. In Part II, the arguments supporting confidentiality are compared with the public policy favoring proper disposition of corporate negligence cases in order to determine and recommend the correct level of confidentiality. In Part III, the peer review discovery statute in section 2305.251 of the Ohio Revised COde is critically evaluated for its practical value to the advancement of …

Liability Of Carrier For Loss Or Damage To International Shipments, Thomas R. Skulina

Cleveland State Law Review

Though shipments by truck or rail are usually interstate or intrastate, many such shipments traverse the Mexican and Canadian borders or involve delivery from or to an ocean vessel for international transshipment. The federal laws which set out the liability of a carrier for interstate shipments are known as the Carmack Amendment and the Cummins Acts. This article will deal with the regulation of the so-called "International Shipment." A myriad of problems arises in the determination of what law is applicable to a shipment that either originated in or is destined for a foreign nation. Though the Federal statute itself …

Drafting And Use Of Opinion Letters Of Counsel, Linn J. Raney

Cleveland State Law Review

This article outlines the kinds of opinions which counsel may render to a non-client via letter, the functions of such opinions in a transaction, and the preparation of opinion letters in view of the possibility of counsel's liability thereon to a non-client party. Material for the article was obtained in part from interviews with a number of individuals familiar with transactions commonly involving opinion letters and more particularly transactions wherein opinion letters are transmitted to non-clients for their reliance.