Law Commons^™

Hackers Made Me Lose My Job!: Health Data Privacy And Its Potentially Devastating Effect On The Lgbtq Population, Alex Lemberg

Golden Gate University Law Review

This Comment shows that because of an increasing rate and severity of data breaches, insufficient legal recourse for affected individuals, and lack of incentives for healthcare companies to strengthen their data security systems, leaked healthcare data will cause the substantive due process right of privacy of LGBTQ individuals to be disenfranchised. Because sexual orientation and gender identity are unprotected by heightened scrutiny under federal due process and equal protection jurisprudence, additional protections must be created for LGBTQ people. These protections should include a new legal right in tort under the Health Information Portability and Accountability Act of 1996 (HIPAA), increase …

State And Federal Powers Clash Over Medical Marijuana In United States V. Mcintosh, Cara E. Alsterberg

Golden Gate University Law Review

The unanimous opinion in United States v. McIntosh held that a spending rider approved by Congress in 2014 and 2015 prohibits the United States Department of Justice (the Department) from prosecuting marijuana suppliers who fully comply with state laws allowing the use of marijuana for medicinal purposes. The Department argued that the rider only prohibits litigation against the states themselves, rather than prosecution of individuals who provide marijuana for medicinal purposes, because the language of the rider indicates that the Department may not use appropriated money to prevent states from implementing their medical marijuana laws.

The three-judge panel of the …

“Fat Taxes” Fighting Globesity Ignore Food Demand Inelasticities, John Andrew Brunner-Brown

Annual Survey of International & Comparative Law

The obesity pandemic is not unique to the United States, where obesity has been a major health concern for decades. Whereas in the 1980s only about one in six adult Americans were obese, recent surveys reveal that approximately one in three adult Americans are obese today. Worldwide there is a similar upward trend in obesity, as the global obesity rate has doubled since 1980. Because of this trend, the World Health Organization has described the pandemic as “globesity.”

There are extreme costs associated with individual obesity. For many, obesity diminishes quality of life in general because it creates a threat …

Equality Standards For Health Insurance Coverage: Will The Mental Health Parity And Addiction Equity Act End The Discrimination?, Ellen Weber

Golden Gate University Law Review

Congress enacted the Mental Health Parity and Addiction Equity Act in 2008 to end discriminatory health insurance coverage for persons with mental health and substance use disorders in large employer health plans. Adopting a comprehensive regulatory approach akin to that of other civil rights laws, the Parity Act requires “equity” in all plan features, including cost-sharing, durational limits and, most critically, the plan management practices that are used to deny many families medically necessary behavioral health care. Beginning in 2014, all health plans regulated by the Affordable Care Act must also comply with parity standards, effectively ending the second-class insurance …

Lost Souls: Constitutional Implications For The Deficiencies In Treatment For Persons With Mental Illness In Custody, Katherine L. Smith

Golden Gate University Law Review

This Comment explores systemic deficiencies of access to mental health care in prison systems and the Eighth Amendment implications of those deficiencies. Because the Eighth Amendment prohibits, among other things, infliction of cruel and unusual punishments, when denial of adequate mental health care results in undue suffering, the conditions of confinement may violate the Constitution. Therefore, there must be mechanisms in place to ensure necessary treatment is provided while protecting individual rights.

Part I of this Comment addresses the duty a state owes to those it incarcerates (e.g., to provide food, clothing, recreation, education, medical care) and what standards exist …

Keeping Bad Science Out Of The Courtroom: Why Post-Daubert Courts Are Correct In Excluding Opinions Based On Animal Studies From Birth-Defects Cases, Dije Ndreu

Golden Gate University Law Review

This Comment argues that courts should keep animal studies out of the courtroom in birth-defects toxic-torts cases. This will not only result in proper exclusion of unreliable evidence, but will also lead to valuable resources being directed to more worthy alternative tests, ultimately reducing human and animal suffering as birth defects are eradicated. Part I sets forth the evidentiary standards used to determine the admissibility of evidence and then presents background information on birth defects and how they are studied. It also discusses the problems inherent with animal tests and the contrasting value of human data. Part II explores the …

Ewing V. Goldstein And The Therapist's Duty To Warn In California, Gwynneth F. Smith

Golden Gate University Law Review

Part I of this Note reviews California law concerning the treatment of potentially dangerous patients, including both the duty to warn and the civil commitment process.s Part II examines the impact of the Ewing decision on the therapist's duty to warn. Part III proposes the Lanterman-Petris-Short Act ("LPS Act") as a suitable framework for dealing with potentially dangerous patients that, if used correctly, obviates the need to expand the triggering criteria for the duty to warn and circumvents the negative ramifications of the Ewing decision. The Note concludes that this framework provides a superior compromise, better protecting both patient confidentiality …

How The Rise Of Federal Bureaucratic Powers Challenges The Role Of Courts In Adjudicating Claims Of Injury Inflicted By Prescription Drugs, Denise K. Top

Golden Gate University Law Review

This Comment uses the recent Paxil litigation as an example of how the rise of federal bureaucratic powers, specifically those exercised by the FDA to administer the Food Drug and Cosmetic Act (hereinafter "FDCA"), increasingly challenge the role of courts in adjudicating tort claims of injury inflicted by prescription drugs. Part I explains the current labeling requirements for prescription drugs. Part II describes product liability law regarding claims involving prescription drugs. Part III analyzes the drug manufacturers' and FDA's defenses to state tort claims, specifically preemption and primary jurisdiction. Part IV discusses the current law as it applies to the …

Murder And The Mmpi-2: The Necessity Of Knowledgeable Legal Professionals, Tracy O'Connor Pennuto

Golden Gate University Law Review

Part I of this Comment discusses the basic structure and purpose of the MMPI-2, the development and evolution of the MMPI into the MMPI-2, and reliability and validity issues. Part II provides a basic understanding of the correct administration, scoring, and interpretation of the MMPI-2 and describes standards for expert testimony. Part III presents a historical overview of the use of the MMPI-2 in court. The different types of cases in which the MMPI-2 is used are discussed along with the many applications of its use. Part IV describes the legal standards of admissibility of scientific evidence in court and …

Going Beyond Parents And Institutional Review Boards In Protecting Children Involved In Nontherapeutic Research, Efi Rubinstein

Golden Gate University Law Review

Part I of this Comment traces the development of ethical and legal guidelines for current informed consent procedures. Part II outlines the extent of parental authority in volunteering children for research, including legal exceptions to parental permission and possible limitations imposed on parental rights by the courts. Part III challenges the assumption that parents can and will always act in their child's best interest. Part IV argues that institutional review boards cannot be relied upon to protect children when parents fail to do so. Finally, Part V proposes possible improvements to the problematic evaluation process of parents and institutions when …

Not-So-Equal Protection: Securing Individuals Of Limited English Proficiency With Meaningful Access To Medical Services, Barbara Plantiko

Golden Gate University Law Review

This Comment focuses on how language discrimination manifests itself in various health care settings and how it deprives individuals with limited or no English proficiency of access to a variety of essential medical services. Part I of this article provides a brief overview of how courts and the legislature have dealt with language discrimination. Part II addresses the current conflict of the law regarding the difficulties in assessing and proscribing such discrimination in the medical context. Part III explores why the current case law and legislative efforts in this area are inadequate. Part IV proposes a solution as to how …

Renewed Compassion For The Dying In Compassion In Dying V. State Of Washington, Cara Elkin

Golden Gate University Law Review

In Compassion In Dying v. State of Washington, three patients, five physicians, and a non-profit organization called Compassion in Dying challenged the constitutionality of a Washington State statute which bans all assisted suicide, including physician-assisted death requested by terminally ill, mentally competent adults. The district court held the statute unconstitutional for violating the patient-plaintiffs' Fourteenth Amendment liberty interests and equal protection rights." A three-judge panel of the Ninth Circuit held that no constitutional right to die exists under either the Due Process or Equal Protection clauses of the Fourteenth Amendment of the United States Constitution. The Ninth Circuit granted review …

American Academy Of Pediatrics V. Lungren: California's Parental Consent To Abortion Statute And The Right To Privacy, Michael Grimm

Golden Gate University Law Review

This comment will discuss the background right to privacy jurisprudence, examine the grounds under which the court of appeal decided the case, and review appellants' and respondents' arguments. Based upon the opposing parties' arguments and controlling precedent, the author will explain why the California Supreme Court should affirm the court of appeal's decision.

X Marks The Spot While Casey Strikes Out: Two Controversial Abortion Decisions, Sabina Zenkich

Golden Gate University Law Review

This article studies and defines abortion law in Ireland after X and in the United States after Casey. It addresses how these decisions affect Irish and American women's rights, respectively, to secure an abortion. It also scrutinizes the justices' opinions and criticizes the reasoning for their holdings. This article argues that both Courts changed their nations' straightforward abortion laws to reach decisions that the courts felt would be more palatable to their respective political constituencies and satisfy their own subjective beliefs. On the one hand, the Irish court declined to abide by the traditionally conservative position denying abortion rights as …

Reforms In Medical Device Regulation: An Examination Of The Silicone Gel Breast Implant Debacle, Rebecca Vveisman

Golden Gate University Law Review

This article will consider the regulatory policies of the FDA in protecting the health of the nation's women, particularly its handling of silicone gel breast implants and its policing of the leading implant manufacturer, Dow Corning Corporation. While this article recognizes the various difficult problems which the FDA must address in protecting consumers from unsafe food, drugs, and medical devices, it also recognizes the need for reform. This article will describe what resulted from the tragedies of diethylstilbestrol (DES) and the Dalkon Shield. With these failures in mind, this article will examine present FDA policies, describe social forces outside of …

The Forgotten And Neglected: Pregnant Women And Women Of Childbearing Age In The Context Of The Aids Epidemic, Carol Beth Barnett

Golden Gate University Law Review

This article will explore why pregnant women with HIV disease have become the focus of some of the most deeply-rooted value judgments about women and HIV, and how certain governmental policies, including state statutes, and local medical practices by hospitals, doctors and health clinics, raise reproductive freedom issues for pregnant women and women of childbearing age in the context of AIDS and HIV infection. Part I discusses the overall demographic picture of women with HIV disease, particularly as it relates to the interconnection between substance abuse and the transmission of HIV disease to women, and its affect on the numbers …

Love V. Superior Court: Mandatory Aids Testing And Prostitution, Karin Zink

Golden Gate University Law Review

The AIDS epidemic has brought one of our most fundamental constitutional rights into sharp focus in California. The relationship between the Fourth Amendment right to be free from unreasonable searches and seizures and the government's ability to mandate AIDS testing was the topic of a recent California case, Love v. Superior Court. In a unanimous decision the California Court of Appeal upheld section 1202.6 of the California Penal Code [hereinafter § 1202.6] mandating AIDS testing of persons convicted of soliciting an act of prostitution. The court held that the California law does not violate the Fourth Amendment's prohibition against unreasonable …

In Vitro Fertilization Through Egg Donation: A Prospective View Of Legal Issues, James M. Treppa

Golden Gate University Law Review

As reproductive techniques continue to advance, many legal and ethical questions surrounding the use of some of these techniques remain unanswered. One such technique is IVF through the use of egg/oocyte donation. The lack of legal or statutory parameters regarding the use of IVF egg donation is a direct consequence of judicial and legislative failure to promulgate guidelines regarding noncoital reproduction. As many judges continue to point to legislators for guidance, proposed bills stagnate at the hearing stage.

Hiv Disease: Criminal And Civil Liability For Assisted Suicide, Ann Grace Mccoy

Golden Gate University Law Review

This article first traces the evolution of attitudes and subsequent laws regarding suicide and assisted suicide. Secondly, the criminal and civil liability of assisted suicide is assessed on the basis of California case law. Lastly, this paper will discuss the applicability of the defenses of the right of privacy and the right of autonomy to acts of suicide and assisted suicide. This discussion will focus on the right of a person with HIV disease to enlist the assistance of the medical profession to make his or her death as quick and as painless as possible, a practice which under the …

Searching For Proper Judicial Recognition Of Hospital Ethics Committees In Decisions To Forego Medical Treatment, Carol A. Murphy

Golden Gate University Law Review

The issue of withdrawing or withholding life-sustaining medical treatment arises with increasing regularity in the United States, prompted by a growing elderly population and constant technological advances. A Hospital Ethics Committee (HEC) may be utilized to assist in making treatment decisions for incompetent patients, but there is inconsistency in the deference given to HECs by courts. Neither federal nor state statutes have addressed the proper role of HECs in health care decisionmaking, and common law on the subject is conflicting. This comment will explore the levels of judicial scrutiny applied to HEC decisions regarding life-sustaining medical treatment and explore the …

The American "Right" To Health Care - An Idea Whose Time Has Come?, Nancy E. Cropley

Golden Gate University Law Review

No abstract provided.

Nursing And The Future Of Health Care: The Independent Practice Imperative, Nancy A. Hoffman

Golden Gate University Law Review

In recent years an ever increasing problem has emerged within the health care delivery system in the United States: there is a shortage of registered nurses to meet patient care needs. This shortage raises serious public policy concerns about how society will be assured of quality health care and who will provide that care in the future. An awareness of the problems that have led to the nursing shortage and exploration of alternatives to the present health care delivery system are required in order to remedy the problem. The efforts of the nursing profession to overcome the effects of the …

Civil Remedies For Therapist-Patient Sexual Exploitation, Laurie A. Morin

Golden Gate University Law Review

This article explores the clinical and legal issues raised in civil actions brought by patients against their therapists for sexual exploitation. Section II provides an overview of the various substantive theories of liability and defenses, as well as special procedural difficulties and problems of proof in sexual abuse cases. It suggests that the "consent" defense is an inappropriate analytical framework in a malpractice action based upon therapist sexual exploitation. The real dispute should center around the parameters of a therapist's duty to his patient outside of the formal therapeutic setting. Section III examines the statute of limitations problem, and suggests …

The Regulation Of Electroconvulsive Therapy In California: The Impact Of Recent Constitutional Interpretations, David Whitcomb

Golden Gate University Law Review

This article will begin with a brief description of ECT. Those less interested in the medical aspects may ignore this section. Such information could be important to an attorney, however, especially in an ECT malpractice action or other direct dealings with an ECT patient. The existing California regulatory scheme of ECT will be detailed, followed by constitutional arguments regarding the review committee, risk disclosure, and substitute consent provisions of these laws. It is the purpose of this discussion not only to provide the reader with an introduction to the California ECT laws, but to argue that such laws are a …

Elizabeth Bouvia V. Riverside Hospital: Suicide, Euthanasia, Murder: The Line Blurs, Belinda Stradley

Golden Gate University Law Review

In November 1983, the California Superior Court was presented with a question of first impression. In a case which attracted considerable media attention, Elizabeth Bouvia v. Riverside Hospital, the court was asked to decide whether it should authorize the state to assist a physically disabled person to commit suicide. This question arose after Elizabeth Bouvia, who is physically disabled, arranged for voluntary psychiatric admission to Riverside Hospital. She subsequently disclosed her intent to stop eating, and thereby die by starvation. She requested that hospital staff provide her with pain medication and hygienic care until she died. She stated that she …

Antipsychotic Drugs: Regulating Their Use In The Private Practice Of Medicine, Andrew Goode

Golden Gate University Law Review

This Comment will address the problems of antipsychotic drug usage in two areas in which the private practice of psychiatry is involved: nursing homes and board and care homes. Although each of these areas present an entirely different set of problems, and concern different age groups, they both serve functions which had traditionally been that of the state hospitals before deinstitutionalization - treating the chronic mentally ill. Before considering the use of antipsychotic medication in nursing homes and board and care homes, the risk of side effects as a result of these drugs will be examined. It will be shown …

The Barber Decision: A Questionable Approach To Termination Of Life-Support Systems For The Patient In A Persistent Vegetative State, Sheila Brutoco

Golden Gate University Law Review

This Note will review the major cases dealing with termination of life-support systems for patients in a persistent vegetative state. Although the discussion will focus primarily on these patients, many of the issues discussed are applicable to other patients in similar situations, i.e., those who have terminal cancer. The Note will specifically relate case law from the other states to the facts and holdings of Barber, the most recent California case in this area. Finally, in light of the various legal approaches taken by California and other states regarding termination of life-support systems for these patients, this Note will propose …

Preventing The Spread Of Aids By Restricting Sexual Conduct In Gay Bathhouses: A Constitutional Analysis, Stephen L. Collier

Golden Gate University Law Review

This analysis of the state's authority to limit sexual behavior in gay bathhouses will begin by examining the precedents involving the use of quarantine and nuisance statutes to control the spread of communicable diseases. A discussion of common law limitations on the use of those statutes will follow. The constitutional analysis begins with the right to privacy embodied in the United States and California Constitutions, and its relationship to gay sexual intimacy generally. The application of rational basis and strict scrutiny standards will be analyzed and arguments presented in favor of applying strict scrutiny. The state's compelling interest in stopping …

Psychotherapists' Duty To Warn: Ten Years After Tarasoff, Leslie B. Small

Golden Gate University Law Review

This Comment discusses the Tarasoff decisions and subsequent cases defining the scope of the psychotherapists' duty to protect persons other than their patients. It examines the rationale behind A.B. 2900, and assesses the bill's effect upon the Tarasoff-related objections it addresses. In spite of the Governor's veto of A.B. 2900, there is a need for statutory guidelines to clearly and equitably define the scope of the psychotherapists' duty to protect. This Comment proposes a model statute that attempts to strike a favorable balance among the complex, overlapping interests of psychotherapists, patients, and the public.

Legal Resolution Of Denial Of Access To Medical Technology, Lee S. Wilkinson M.D.

Golden Gate University Law Review

The legal issues involved in technology application are inextricably interwoven with the medical issues. This Comment will first discuss the general principles of the scientific method and then contrast their application to pharmacologic therapy with their application to technologic treatments. Bone marrow transplantation will then be analyzed in depth, illustrating the medical issues that third-party payers consider in coverage decisions. Continuing with the model of bone marrow transplantation, this Comment will conclude with an analysis of legal solutions to the denial of access to medical technology.