Law Commons^™

Tobacco Regulation Review, V. 2, No. 1, April 2003

Tobacco Regulation Review

No abstract provided.

Against A Federal Patients' Bill Of Rights, Edward A. Zelinsky

Articles

The failure of the 107th Congress to pass a "Patients' Bill of Rights" (PBR) is widely considered a major disappointment, to be remedied in the 108th Congress by the adoption of such legislation. Indeed, federal PBR proposals have achieved the proverbial motherhood-and-apple-pie status; it is virtually impossible to find anyone actively opposing a federal PBR. Many members of the 108th Congress likely feel pressure to pass PBR legislation before returning to the electorate in 2004.

I advance a contrary perspective: A federal PBR is an idea whose time is past or, to be precise, is an idea whose rationales are …

Bodily Integrity And Informed Choice In Times Of War And Terror, George J. Annas

Faculty Scholarship

Law is the dominant force behind American medical ethics, and has been for at least the past half-century. That ' lawyers and judges, rather than physicians, have set the agenda for medical ethics in the United States is a bit surprising to many in the field of medical ethics, but it should not be. Medicine has historically been based on paternalism. The Hippocratic physician was obligated to act in the best interests of the patient-as the physician judged those interests-and to "do no harm." American law, on the other hand, is based on liberty and justice, principles that, among other …

Is Community Care A Civil Right? The Unfolding Saga Of The Olmstead Decision, Randy Desonia

National Health Policy Forum

This paper lays the groundwork for understanding the implications of the historic U.S. Supreme Court decision in the case of Olmstead v. L.C., which has far-reaching consequences for the long-term care of people with disabilities. The paper reviews the critical components influencing the case: the Medicaid program’s role in funding community-based long-term care; the Americans with Disabilities Act, which serves as the statutory basis for the decision; and the Court’s legal reasoning. The paper also describes the federal and state responses to the ruling and concludes with a brief discussion of some legal issues that will be debated in the …

Who Will Pay For The Adverse Events Resulting From Smallpox Vaccination? Liability And Compensation Issues, Robin J. Strongin, Eileen Salinsky

National Health Policy Forum

This paper summarizes liability and compensation concerns surrounding the smallpox vaccination program announced by President Bush on December 13, 2002. The paper examines the nature of adverse health events that are likely to occur in connection with the smallpox vaccine, assesses the liability protections that have been established for organizations and individuals participating in the vaccination program, and discusses the compensation mechanisms being considered to address the damages incurred by volunteers who may suffer from adverse vaccine reactions. Specifically, the implications of the Federal Tort Claims Act, workers’ compensation programs, and the creation of a new no-fault compensation fund are …

Killing For The State: The Darkest Side Of American Nursing, Dave Holmes, Cary H. Federman

Department of Justice Studies Faculty Scholarship and Creative Works

The aim of this article is to bring to the attention of the international nursing community the discrepancy between a pervasive ‘caring’ nursing discourse and the most unethical nursing practice in the United States. In this article, we present a duality: the conflict in American prisons between nursing ethics and the killing machinery. The US penal system is a setting in which trained healthcare personnel practices the extermination of life. We look upon the sanitization of death work as an application of healthcare professionals’ skills and knowledge and their appropriation by the state to serve its ends. A review of …

Can't We All Get Along? The Case For A Workable Patent Model, Srividhya Ragavan

Faculty Scholarship

The global move towards a trade regime has been impeded by challenges of poverty and health crisis for the developing nations. Until now, the developed nations have touted the establishment of a trade regime as envisaged under TRIPS as the solution for the national challenges. This paper examines the effectiveness of TRIPS as a mechanism to move towards a trade regime. It argues that the patent policy in TRIPS cannot gear the world towards patent harmonization but can potentially adversely impact the developed nations and the post-world war trade structure. The impediments affecting the effectiveness of TRIPS as a harmonizing …

Achieving The Right Balance In Oversight Of Physician Opioid Prescribing For Pain: The Role Of State Medical Boards, Diane E. Hoffmann, Anita J. Tarzian

Faculty Scholarship

No abstract provided.

Ethical, Legal, And Social Issues In Genetic Testing For Complex Genetic Diseases (With E. Zuiker), Lori B. Andrews

All Faculty Scholarship

No abstract provided.

Reasonable Modification Or Fundamental Alteration? Recent Developments In Ada Caselaw And Implications For Behavioral Health Policy, Sara J. Rosenbaum, Joel B. Teitelbaum, D. Richard Mauery, Alexandra M. Stewart

Center for Integrated Behavioral Health Policy

No abstract provided.

Medi-Cal Funded Induced Abortions 2001, Department Of Health Services

California Agencies

This report provides summary data on the number of fee-for-service Medi-Cal funded abortions performed during 2001, the type of facility where a procedure was performed, and Medi-Cal expenditures for these procedures. Only abortion claims received and processed for date-of-service January through December 2001 are included in this report. The term fee-for-service (FFS) used throughout this report refers to these claims. The data are presented at both county and state levels. Estimates of abortions for enrollees in Health Care Plans (HCP) are included since encounter data are not yet available. A distribution by county is provided.

Converging On Nursing Home Quality, Lisa Sprague

National Health Policy Forum

This paper looks at nursing home quality initiatives, built around public reporting of quality data, that have been inaugurated by the Centers for Medicare and Medicaid Services and the California HealthCare Foundation. How the projects were developed is explored, along with preliminary indicators of their impact on consumers and providers and likely next steps in their evolution.

A Policy Overview, Stephen Utz

Faculty Articles and Papers

No abstract provided.

Midwifery: Strategies On The Road To Universal Legalization, Laura Hermer

Faculty Scholarship

Multiple studies have shown that direct-entry midwifery is just as safe, if not safer than, medical care in low-risk childbirth. Most births using direct-entry midwives require fewer interventions than those attended by physicians, yet yield excellent results. The results of these studies indicate that we should return to midwifery for normal births, rather than continuing to rely primarily on medicine. This option, however, has been significantly curtailed by many state legislatures and courts, despite decades of attempts to make incursions on the traditional paradigm of hospital births attended by obstetricians. As a result, where midwifery is more readily available, it …

Physician Restrictive Covenants: The Neglect Of The Incompetent Patients' Interests, S. Elizabeth Malloy

Faculty Articles and Other Publications

The article examines how courts in different jurisdictions have addressed restrictive employment covenants for physicians and proposes a new approach drawn from the third-party beneficiary analysis in contract law. Physicians hired into existing practices often must sign substantial non-compete agreements. In evaluating the enforceability of any restrictive covenant, courts consider, among other factors, the agreement's effect on the public. Surprisingly, the vast majority of jurisdictions treat the "public interest" analysis vis-a-vis physician restrictive covenants no differently than any other commercial restrictive covenant; this approach neglects the impact that such agreements can have on a physician's existing patients. Although at first …

Police Training And Specialized Approaches For Responding To People With Mental Illnesses, Judy Hails, Randy Borum

Mental Health Law & Policy Faculty Publications

Eighty-four medium and large law enforcement agencies reported the amount of training provided on mental-health-related issues and the use of specialized responses for calls involving people with mental illnesses. Departments varied widely in the amount of training provided on mental-health-related topics, with a median of 6.5 hours for basic recruits and 1 hour for in-service training. Approximately one third of the agencies (32%) had some specialized response for dealing with calls involving people with mental illnesses. Twenty-one percent had a special unit or bureau within the department to assist in responding to these calls; 8% had access to a mental …

A Healer Or An Executioner: The Proper Role Of A Psychiatrist In A Criminal Justice System, Gregory Dolin

All Faculty Scholarship

This article argues that despite the benefits of ridding the criminal justice system of some uncertainty and ignorance with respect to mental health issues, the very close involvement of psychiatrists in the criminal justice system as practiced in the United States is not only illogical and bad policy, but also unethical from the viewpoint of medical ethics. Part II of this article will lay the groundwork for the argument by discussing the history of the insanity defense, and of science's involvement with criminal justice; while Part III, will look into the association of science and the administration of justice in …

Increasing The Supply Of Organs In Transplantation Through Paired Organ Exchanges, Michael T. Morley

Scholarly Publications

No abstract provided.

Legal Movements In Intellectual Property: Trips, Unilateral Action, Bilateral Agreements, And Hiv/Aids, Margo A. Bagley

Faculty Articles

This Article begins with an overview of the relationship between the Agreement on Trade-Related Aspects of Intellectual Property Rights (the "TRIPS Agreement") and the HIV/AIDS pandemic which created the need for the Doha Declaration. It then discusses two trade-related movements, unilateral action and TRIPS-plus bilateral agreements, that call into question the long-term effectiveness of the TRIPS Agreement process, generally, and the benefits of the Doha Declaration, in particular, in addressing multiple facets of the access to essential medicines problem. This Article concludes that a consideration of these issues should be included in the development of any further TRIPS-related solutions to …

Expanding Health Flexible Spending Accounts To Reimburse Over-The-Counter Drugs: A Positive Move, Susan E. Cancelosi

Law Faculty Research Publications

No abstract provided.

Navigating Uncharted Waters: Intellectual Property Rights Surrounding Genomics Research & Development Information, Lawrence M. Sung

Faculty Scholarship

No abstract provided.

What Makes Genetic Discrimination Exceptional?, Deborah Hellman

Faculty Scholarship

No abstract provided.

Law & Health Care Newsletter, V. 11, No. 1, Fall 2003

Law & Health Care Newsletter

No abstract provided.

Law & Health Care Newsletter, V. 10, No. 2, Spring 2003

Law & Health Care Newsletter

No abstract provided.

The Trajectory Of "Normal" After 9/11: Trauma, Recovery And Post-Traumatic Societal Adaptation, Joel B. Eisen

Law Faculty Publications

I shall evaluate some of the wide-ranging psychological effects of 9/11 to further flesh out the concept that 9/11 is a "national trauma," in pursuit of a more sophisticated understanding intended to supplant the traditional concept of "trauma" so often associated with events of this caliber. Before 9/11, most people thought posttraumatic stress was something Vietnam veterans (or perhaps rape victims) suffered. As I describe in Part I, this is squarely at odds with recent research that shows such trauma is common. I will discuss current literature reflecting on post-traumatic stress and the associated disorder (post-traumatic stress disorder, or "PTSD"), …

Comparative And International Health Law, Timothy Stoltzfus Jost

Scholarly Articles

No abstract provided.

The Tenuous Nature Of The Medicaid Entitlement, Timothy Stoltzfus Jost

Scholarly Articles

Though Medicare was from the outset an entitlement under federal law, the status of Medicaid has always been less certain. Arguably, it was the Supreme Court, rather than Congress that first recognized that Medicaid recipients (and providers) could sue the states in federal court to enforce federal Medicaid requirements. A recent widely reported federal court decision, however, called radically into question the continuing existence of a federal Medicaid entitlement. Though this decision has now been reversed, and rejected by other courts, it illustrates the tenuous nature of the Medicaid entitlement, and the need to reconstitute Medicaid as an exclusively federal …

Genetic Health And Eugenics Precedents: A Voice Of Caution, Larry Palmer

Cornell Law Faculty Publications

No abstract provided.

Infected Judgment: Legal Responses To Physician Bias, Mary Crossley

Articles

Substantial evidence indicates that clinically irrelevant patient characteristics, including race and gender, may at times influence a physician's choice of treatment. Less clear, however, is whether a patient who is the victim of a biased medical decision has any effective legal recourse. Heedful of the difficulties of designing research to establish conclusively the role of physician bias, this article surveys published evidence suggesting the operation of physician bias in clinical decision making. The article then examines potential legal responses to biased medical judgments. A patient who is the subject of a biased decision may sue her doctor for violating his …

The Relationship Between Service Utilization And Medicaid Enrollees’ Trust In Health Care Providers, Huey Jen Chen

Mental Health Law & Policy Faculty Publications

Based on findings from 1990 National Co-morbidity Survey, it is estimated that nearly 20% of the U.S. population is affected by mental disorders during a given year. Approximately 5.4% of adults are considered to have a serious mental illness that interferes with their social function, and half of them suffer from severe and persistent mental illness (SMI). Mental illness imposes a high socioeconomic burden that is second only to cardiovascular disease (Kessler, Berglund, Zhao et al., 1996; Kessler, McGonagle, Zhao et al., 1994).

Among individuals with SMI, 40% do not seek any treatment from either general medical or specialty mental …