Law Commons^™

Trial And Error: Legislating Adr For Medical Malpractice Reform, Lydia Nussbaum

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The U.S. healthcare system has a problem: hundreds of thousands of people die each year, and over a million are injured, by medical mistakes that could have been avoided. Furthermore, over ninety percent of these patients and their families never learn of the errors or receive redress. This problem persists, despite myriad reforms to the medical malpractice system, because of lawmakers' dominant focus on reducing providers' liability insurance costs. Reform objectives are beginning to change, however, and the vehicle for implementing these changes is alternative dispute resolution ("ADR"). Historically, legislatures deployed ADR to curb malpractice litigation and restrict patients' access …

Clinical Criteria For Physician Aid In Dying, David Orentlicher

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More than 20 years ago, even before voters in Oregon had enacted the first aid in dying (AID) statute in the United States, Timothy Quill and colleagues proposed clinical criteria AID. Their proposal was carefully considered and temperate, but there were little data on the practice of AID at the time. (With AID, a physician writes a prescription for life-ending medication for a terminally ill, mentally capacitated adult.) With the passage of time, a substantial body of data on AID has developed from the states of Oregon and Washington. For more than 17 years, physicians in Oregon have been authorized …

Concussions And Sports: Introduction, David Orentlicher

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No abstract provided.

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

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No abstract provided.

Health Care Reform And Efforts To Encourage Healthy Behavior By Individuals, David Orentlicher

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No abstract provided.

Aging Populations And Physician Aid In Dying: The Evolution Of State Government Policy, David Orentlicher

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Professor David Orentlicher explores the evolution of physician assisted suicide from illegal taboo to the passage of Death with Dignity legislation and caselaw.

Employer-Based Health Care Insurance: Not So Exceptional After All, David Orentlicher

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No abstract provided.

The Future Of The Affordable Care Act: Protecting Economic Health More Than Physical Health?, David Orentlicher

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No abstract provided.

A Restatement Of Health Care Law, David Orentlicher

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No abstract provided.

The Fda’S Graphic Tobacco Warning And The First Amendment, David Orentlicher

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No abstract provided.

Concussion And Football: Failures To Respond By The Nfl And The Medical Profession, David Orentlicher

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No abstract provided.

Nfib V. Sebelius: Proportionality In The Exercise Of Congressional Power, David Orentlicher

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With its opinion on the constitutionality of the Affordable Care Act (ACA), the U.S. Supreme Court sparked much discussion regarding the implications of the case for other federal statutes. In particular, scholars have debated the significance of the Court's recognition of an anticoercion limit to the Spending Clause power.

When it recognized an anticoercion limit for the ACA's Medicaid expansion, the Court left considerable uncertainty as to the parameters of that limit. This essay sketches out one valuable and very plausible interpretation of the Court's new anticoercion principle. It also indicates how this new principle can address a long-standing problem …

Deactivating Implanted Cardiac Devices: Euthanasia Or The Withdrawal Of Treatment?, David Orentlicher

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No abstract provided.

Insights From A National Conference: "Conflicts Of Interest In The Practice Of Medicine", David Orentlicher

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No abstract provided.

Rights To Health Care In The United States: Inherently Unstable, David Orentlicher

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No abstract provided.

Toward Acceptance Of Uterus Transplants, David Orentlicher

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No abstract provided.

All Illnesses Are (Not) Created Equal: Reforming Federal Mental Health Insurance Law, Stacey A. Tovino

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This Article is the second, and most important, installment in a three-part series that presents a comprehensive challenge to lingering legal distinctions between physical and mental illness. The basic impetus for this historical, medical, and legal project is a belief that there exists no rational or consistent method of distinguishing physical and mental illness in the context of health insurance law. The first installment in this series narrowly inquired as to whether a particular set of disorders, the postpartum mood disorders, are or should be classified as physical or mental illnesses in a range of health law contexts.* This second …

Constitutional Challenges To The Health Care Mandate: Based In Politics, Not Law, David Orentlicher

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No abstract provided.

Controlling Health Care Costs Through Public, Transparent Processes: The Conflict Between The Morally Right And The Socially Feasible, David Orentlicher

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No abstract provided.

Can Congress Make You Buy Broccoli? And Why It Doesn’T Matter, David Orentlicher

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No abstract provided.

The Commerical Speech Doctrine In Health Regulation: The Clash Between The Public Interest In A Robust First Amendment And The Public Interest In Effective Protection From Harm, David Orentlicher

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No abstract provided.

Incidental Findings: A Common Law Approach, Stacey A. Tovino

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Federal regulations governing human subjects research do not address key questions raised by incidental neuroimaging findings, including the scope of a researcher’s disclosure with respect to the possibility of incidental findings and the question whether a researcher has an affirmative legal duty to seek, detect, and report incidental findings. The scope of researcher duties may, however, be mapped with reference to common law doctrine, including fiduciary, tort, contract, and bailment theories of liability.

Neuroimaging Research Into Disorders Of Consciousness: Moral Imperative Or Ethical And Legal Failure?, Stacey A. Tovino

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This article explores the ethical and legal implications of enrolling individuals with disorders of consciousness (DOC) in neuroimaging research studies. Many scientists have strongly emphasized the need for additional neuroimaging research into DOC, characterizing the conduct of such studies as morally imperative. On the other hand, institutional review boards charged with approving research protocols, scientific journals deciding whether to publish study results, and federal agencies that disburse grant money have limited the conduct, publication, and funding of consciousness investigations based on ethical and legal concerns. Following a detailed examination of the risks and benefits of neuroimaging research involving individuals with …

The Impact Of Neuroscience On Health Law, Stacey A. Tovino

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Advances in neuroscience have implications for criminal law as well as civil and regulatory law, including health, disability, and benefit law. The role of the behavioral and brain sciences in health insurance claims, the mental health parity debate, and disability proceedings is examined.

Functional Neuroimaging Information: A Case For Neuro Exceptionalism?, Stacey A. Tovino

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The field of neuroethics has been described as an amalgamation of two branches of inquiry: “the neuroscience of ethics” and “the ethics of neuroscience.” The neuroscience of ethics may be described as “a scientific approach to understanding ethical behavior.” The law and ethics of neuroscience is concerned with the legal and ethical principles that should guide brain research and the treatment of neurological disease, as well as the effects that advances in neuroscience have on our social, moral, and philosophical views. This Article is a contribution to the law and ethics of neuroscience.

No longer new or emerging, the burgeoning …

Imaging Body Structure And Mapping Brain Function: A Historical Approach, Stacey A. Tovino

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Now in its second decade, functional magnetic resonance imaging (fMRI) localizes changes in blood oxygenation that occur in the brain when an individual performs a mental task. Physicians and scientists use fMRI not only to map sensory, motor, and cognitive functions, but also to study the neural correlates of a range of sensitive and potentially stigmatizing conditions, behaviors, and characteristics. Poised to move outside the traditional clinical and research contexts, fMRI raises a number of ethical, legal, and social issues that are being explored within a burgeoning neuroethics literature. In this Article, I place these issues in their proper historical …

Book Review: "Law And The Brain", Stacey A. Tovino

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Edited by Semir Zeki and Oliver Goodenough, Law and the Brain is a wonderful collection of fourteen essays that examine a range of topics at the intersection of law and neurobiology. Although neurotransdiscipline texts, collections, and journal symposia abound, what makes Law and the Brain so special is its focus on the special challenges raised by the neuroscience-policy interface. These challenges flow from basic differences in the orientation of the brain and brain science, on the one hand, and the law on the other hand.

Functional Neuroimaging And The Law: Trends And Directions For Future Scholarship, Stacey A. Tovino

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Under the umbrella of the burgeoning neurotransdisciplines, scholars are using the principles and research methodologies of their primary and secondary fields to examine developments in neuroimaging, neuromodulation, and psychopharmacology. The path for advanced scholarship at the intersection of law and neuroscience may clear if work across the disciplines is collected and reviewed and outstanding and debated issues are identified and clarified. In this article, I organize, examine and refine a narrow class of burgeoning neurotransdiscipline scholarship; that is, scholarship at the interface of law and functional magnetic resonance imaging.

Psychiatric Restraint And Seclusion: Resisting Legislative Solution, Stacey A. Tovino

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The use of restraint and seclusion in the American psychiatric setting has a rich history—rich in medical, ethical, legal, and social controversy. For centuries, mental health care providers used movement restrictions and solitary confinement to manage psychiatric patients. Superintendents of eighteenth and early nineteenth century insane asylums and other institutions of confinement believed that strait-waistcoats, “tranquilizer chairs,” “maniac beds,” chains, shackles, and “quiet rooms” deescalated agitation and promoted self-control. Reforms beginning in the nineteenth century helped make some psychiatric institutions more humane, in part because staff members were trained to find ways to calm potentially violent patients without imposing holds …

Book Review: "Hardwired Behavior: What Neuroscience Reveals About Morality", Stacey A. Tovino

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The field of neuroethics has been described as an amalgamation of two branches of inquiry: the ethics of neuroscience and the neuroscience of ethics. The ethics of neuroscience, which has received considerable attention over the past three to four years, is concerned with the ethical principles that should guide brain research and the treatment of neurological disease, as well as the effects that advances in neuroscience have on our social, moral, and philosophical views. The neuroscience of ethics, which has received considerably less attention, may be described as a scientific approach to understanding ethical behavior. Psychiatrist and lawyer Laurence Tancredi …