Law Commons^™

Not Dea'd Yet: Gonzalez V. Oregon, Charles Baron

Charles H. Baron

On January 17, the Oregon Death with Dignity Act beat back yet another attempt on its life. In Gonzales v. Oregon, the U.S. Supreme Court (by a six-to-three vote) affirmed decisions of two lower federal courts and made permanent a 2001 injunction against federal prosecution of physicians who prescribe narcotics under the terms of the act. Media coverage of the decision both exaggerated and underplayed the decision’s significance.

La Théorie De L’Intention Originelle, La Sincérité Dans La Rédaction Des Opinions Des Juges Et Les Références À Des Sources Juridiques Étrangères Dans Le Processus D’Interprétation De La Constitution Aux États-Unis, Charles Baron

Charles H. Baron

No abstract provided.

Terrorisme Et Function De Juger, Charles Baron

Charles H. Baron

No abstract provided.

New Differences Between Negligence And Strict Liability And Their Implications On Medical Malpractice Reform, Noam Sher

ExpressO

The present article seeks to explore previously undiscussed differences between the negligence and strict liability rules and thereby examine the required medical liability reform, if such reform is indeed required. Our main thesis is that negligence as a basis for liability entails a unique mechanism, which is essentially different than the strict liability mechanism, and is more efficient for several reasons, related to the legal function of resolving partial information problems which cause partial failure in the healthcare market. Among other things, the negligence mechanism (1) motivates the parties to a potential damages claim to invest in information gathering; (2) …

Patent Political Economy - Indian Lessons On Pharmaceutical Patent, Julien L. Chaisse, Samira Guennif

ExpressO

The Intellectual Property Rights (IPR) regime adopted by any country is essentially a tool that strives to ensure both the growth of the domestic pharmaceutical industry and people’s access to medicines. But, contrary to the very easily advanced theory, there is no paradox between the two. From this perspective, the Indian experience has shown that it is precisely the relaxation of its national IPR regime that promoted the growth of its domestic industry, thereby ensuring a better patient access to medicines. However, the globalisation process does not overlook any sector, which means that medicines too are submitted to the new …

A Report From The Forum Session "Complexity, Coordination And Compromise: States And The Medicare Drug Benefit" (August 4, 2006), Lee Partridge

National Health Policy Forum

This National Health Policy Forum meeting report reviews a technical session that took place on August 4, 2006. The invitation-only meeting was designed to discuss implementation issues related to the new Medicare drug benefit, with special consideration of state activities, problems, and concerns. This meeting followed similar ones sponsored by the Forum in 2004 and 2005 in which the state perspective was the primary focus of conversation. Participants, including current and former state Medicaid directors, other state officials and experts, federal officials, Medicare drug plan representatives, and beneficiary advocates, described their experiences during the implementation process and addressed continuing challenges. …

Stealing What's Free: Exploring Compensation To Body Parts Sources For Their Contribution To Profitable Biomedical Research, Jo-Anne Yau

The University of New Hampshire Law Review

[Excerpt] “At first blush, donating body parts in the name of science appears to be a beautiful solution to the problem of scarce body parts for research advancements. But a closer investigation reveals an ugly fact: the philanthropic donors—referred to as “Sources” in this article—are subjected to physical and financial exploitation.

Sources play a crucial and indispensable role in biotechnology. Without human body parts, most medical discoveries would not have been possible. Handsome profits can be derived from successful discoveries. But currently in the United States, when a Source provides body parts for research purposes, the researcher, research foundation, and …

The Information Quality Act: The Little Statute That Could (Or Couldn't?) Applying The Safe Drinking Water Act Amendments Of 1996 To The Federal Communications Commission, Kellen Ressmeyer

Federal Communications Law Journal

In December 2000, Congress passed the Information Quality Act - a two sentence rider to a 712-page Appropriations Bill. The Information Quality Act, which seeks to ensure the quality of government-disseminated information, places the White House Office of Management and Budget in a supervisory role. The Office of Management and Budget subsequently finalized a set of mandatory Guidelines applicable to all federal agencies. Among other things, the Guidelines require adherence to the scientific standard articulated in the 1996 Amendments to the Safe Drinking Water Act where such agencies engage in risk analysis to human health, safety, and the environment. As …

Federal Court Self-Preservation And Terri Schiavo, Jack M. Beermann

Buffalo Law Review

No abstract provided.

After The Catastrophe: Disaster Relief For Hospitals, Elizabeth Weeks Leonard

Scholarly Works

Disaster planning for health care providers following the September 11, 2001, terrorist attacks and, more recently, Hurricane Katrina, focuses on preparing hospitals and other emergency services to respond to victims' medical needs. But little attention has been paid to the challenges that providers would face resuming normal operations after responding to the catastrophe. A large-scale catastrophe could create unprecedented demand for health care and emergency services. Hospitals already struggle to fulfill the high demand for and high costs of emergency care. Following a major disaster, hospitals would face additional financial challenges. Strained capacity and financial reserves, may force hospitals to …

Hepatitis C In Prisons: Evolving Toward Decency Through Adequate Medical Care And Public Health Reform, Andrew Brunsden

Articles & Chapters

Hepatitis C (HCV) in prisons is a public health crisis tied to current drug policy's emphasis on the mass incarceration of drug users. Prison policy acts as a barrier to HCV care by limiting medical care for the infected, especially drug users, and by inhibiting public health measures addressing the epidemic. This Comment argues that courts mistakenly limit prisoners' Eighth Amendment right to basic medical care when they defer to prisons that apply HCV policies as categorical rules of treatment. Where current standards of care mandate individualized patient evaluation for treatment, prison policies that eschew this principle exhibit deliberate indifference …

Howe V. Mgh And Hudson V. Texas Children's Hospital: Two Approaches To Resolving Family-Physician Disputes In End-Of-Life Care, Michael Moreland

Michael P. Moreland

No abstract provided.

Personal Health Records: The People's Choice?, Lisa Sprague

National Health Policy Forum

Information technology (IT), especially in the form of an electronic health record (EHR), is touted by many as a key component of meaningful improvement in health care delivery and outcomes. A personal health record (PHR) may be an element of an EHR or a stand-alone record. Proponents of PHRs see them as tools that will improve consumers’ ability to manage their care and will also enlist consumers as advocates for widespread health IT adoption. This issue brief explores what a PHR is, the extent of demand for it, issues that need to be resolved before such records can be expected …

Value-Based Coverage Policy In The United States And The United Kingdom: Different Paths To A Common Goal, Wilhelmine Miller

National Health Policy Forum

This background paper traces the development within American health care of two interrelated trends and activities: an evidence-based approach to medical practice and the critical evaluation of new technologies with respect to their costs and effectiveness. Over the past 35 years each of these developments has increasingly shaped the coverage decisions of public and private health insurers, and their importance for coverage policy is certain to grow. The paper also contrasts the different approaches to such “evidence-” or “value-based” coverage policy in the mixed public and private U.S. health care enterprise with the approach taken in Great Britain’s single-payer National …

Medicare And Mental Health: The Fundamentals, Christopher Loftis, Eileen Salinsky

National Health Policy Forum

This background paper provides a review of mental health coverage in the Medicare program. It examines the prevalence of mental disorders among Medicare beneficiaries, treatment available through Medicare, and the cost of such treatment. A brief summary of relevant policy issues is provided, including Medicare’s outpatient mental health limitation and the potential effect of the prescription drug benefit on the provision of mental health services.

Epsdt: Medicaid's Critical But Controversial Benefits Program For Children, Christie Provost Peters

National Health Policy Forum

The Early and Periodic Screening, Diagnosis and Treatment (EPSDT) program under Medicaid provides the most comprehensive set of health benefits for children and adolescents in the public or private sector. A cornerstone of early childhood preventive and treatment services in the nation’s health care “safety net,” the EPSDT program serves nearly 30 million low-income children, including children with disabilities and special needs. Over the years, states have expressed frustration with the administrative burdens of EPSDT requirements. Rising Medicaid costs have put all Medicaid benefits, including the EPSDT program, in the budgetary crosshairs. This issue brief reviews the fundamental characteristics of …

Updating Medicare's Physician Fees: The Sustainable Growth Rate Methodology, Laura A. Dummit

National Health Policy Forum

Medicare’s method to annually update the fees it pays physicians has been under fire for some time—specifically, since the method determined that physician fees should be reduced rather than increased. The update method, called the sustainable growth rate (SGR), was implemented to control the growth in Medicare physician spending. Yet Congress, in response to physician concerns about beneficiary access to care, has acted to avert physician fee cuts since 2003. Although this signals dissatisfaction with the SGR methodology, there is yet to be a widely accepted physician fee update proposal that balances federal budgetary realities with the need to ensure …

The Nuts And Bolts Of Pdps, Mary Ellen Stahlman

National Health Policy Forum

This issue brief provides an overview of Medicare prescription drug plans (PDPs), with a focus on fundamentals such as enrollment, premiums, formularies, cost sharing, prices, payment, cost management, and appeals and grievance processes. It also highlights major changes to the PDP landscape between 2006 and 2007.

Updating The Wic Food Packages: It's About Time, Jessamyn Taylor

National Health Policy Forum

This issue brief reviews key revisions to the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) program proposed by the USDA, which are based substantially on recommendations by the Institute of Medicine. Should the changes become regulation, they will be the most significant revision of the WIC food packages in over 25 years. This brief describes the changes, the impetus for their consideration, and possible implementation issues from the perspectives of vendors, state and local WIC agencies, and participants.

Why Technology Provides Compelling Reasons To Apply A Daubert Analysis To The Legal Standard Of Care In Medical Malpractice Cases, Nichole Hines

Duke Law & Technology Review

Traditionally, courts have applied a "customary practice" standard in determining the legal standard of care in medical malpractice cases. Recently, a few courts have abandoned this dated standard and instead applied a Daubert analysis to the standard of care, which focuses on medical evidence that is scientifically based . In light of these recent holdings, this iBrief argues that with the increasing amounts of technologies improving evidence-based medicine, the customary practice standard is no longer a useful or appropriate test for determining the standard of care in medical malpractice cases. By applying a Daubert analysis to an expert’s testimony on …

Not Just A Minimum Income Policy For Physicians: The Need For Good Faith And Fair Dealing In Physician Deselection Disputes, Stephen D. Coppolo

William & Mary Law Review

No abstract provided.

Maryland’S "Wal-Mart" Act: Policy And Preemption, Edward A. Zelinsky

Articles

Maryland's Wal-Mart Act raises two fundamental questions: Is the Act legal? Does the Act represent sound policy?

With respect to the legality of the Maryland statute, I conclude that the Employee Retirement Income Security Act of 1974 (ERISA) preempts the Maryland law. As a matter of policy, the Maryland statute is ill-conceived. The Maryland Act raises prices on Wal-Mart's predominantly low-income customers and, for the long run, will reduce Wal-Mart's employment.

In the final analysis, Maryland's Wal-Mart Act is a poorly-designed exercise in political symbolism, rather than a carefully-crafted response to the pressing problem of health care in America.

Health Care Law, Michael C. Guanzon

University of Richmond Law Review

No abstract provided.

The Glucksberg Renaissance: Substantive Due Process Since Lawrence V. Texas, Brian Hawkins

Michigan Law Review

On their faces, Washington v. Glucksberg and Lawrence v. Texas seem to have little in common. In Glucksberg, the Supreme Court upheld a law prohibiting assisted suicide and rejected a claim that the Constitution protects a "right to die"; in Lawrence, the Court struck down a law prohibiting homosexual sodomy and embraced a claim that the Constitution protects homosexual persons' choices to engage in intimate relationships. Thus, in both subject matter and result, Lawrence and Glucksberg appear far apart. The Lawrence Court, however, faced a peculiar challenge in reaching its decision, and its response to that challenge brings …

Ley Federal Del Procedimiento Contencioso Administrativo., Bruno L. Costantini García

Bruno L. Costantini García

Ponencia sobre la Ley Federal del Procedimiento Contencioso Administrativo, impartida por Bruno L. Costantini García.

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Medical Self-Defense, Prohibited Experimental Therapies, And Payment For Organs, Eugene Volokh

ExpressO

Three sisters lie in adjoining hospital rooms. A fourth lives a block away. All are in deadly peril.

Alice is seven months pregnant, and the pregnancy threatens her life. Her fetus has long been viable, so she no longer has the Roe/Casey right to abortion on demand. But because her life is in jeopardy, she has a constitutional right to save her life by hiring a doctor to perform a post-viability abortion, though it means the death of a viable fetus. She would even have such a right if the pregnancy were only posing a serious threat to her health, …

Keynote Speaker, Detention Reform And Girls: Challenge And Solutions, Francine Sherman

Francine T. Sherman

No abstract provided.

Medicare Physician Payments And Spending, Laura A. Dummit

National Health Policy Forum

The Medicare program’s physician payment method is intended to control spending while ensuring beneficiary access to physician services, but there are signs that it may not be working. The physician’s role in the health care delivery system as the primary source of information and treatment options, together with growing demand for services and the imperfect state of knowledge about appropriate service use, challenge Medicare’s ability to achieve these two goals. This issue brief describes the history of physician spending and the contribution of escalating service use and intensity of services to the rise in Medicare outlays, setting the stage for …

Who Decides Whether A Patient Lives Or Dies?, Diane E. Hoffmann, Jack Schwartz

Faculty Scholarship

No abstract provided.