Law Commons^™

Are You My Mother? Determining "Parentage" In Gestational Surrogacy Cases, Ashton Botts

Ashton Botts

ABSTRACT This casenote examines the 2012 Maine Supreme Court gestational surrogacy case Nolan v. Labree. This case was uncontested and the Court reached a logical and satisfying conclusion that the intended parents should be named the legal parents of the child in question. In more complex situations, though, the decisions are not so simple. This note examines the legal background of gestational surrogacy cases and state courts’ call to legislatures for guidance in deciding this legal question that becomes more prevalent every day. Courts are sending a clear message that they will not be the ones to decide issues of …

Are You My Mother? Determining "Parentage" In Gestational Surrogacy Cases, Ashton Botts

Ashton Botts

ABSTRACT This casenote examines the 2012 Maine Supreme Court gestational surrogacy case Nolan v. Labree. This case was uncontested and the Court reached a logical and satisfying conclusion that the intended parents should be named the legal parents of the child in question. In more complex situations, though, the decisions are not so simple. This note examines the legal background of gestational surrogacy cases and state courts’ call to legislatures for guidance in deciding this legal question that becomes more prevalent every day. Courts are sending a clear message that they will not be the ones to decide issues of …

Determining The Fair And Reasonable Value Of Medical Services: The Affordable Care Act, Government Insurers, Private Insurers And Uninsured Patients, George A. Nation Iii

George A Nation III

Hospitals' chargemaster prices are grossly inflated; no one should be required to pay them. Thia article offers a formula to determine the fair and reasonable value of medical services.

Affordable Care Act Changes In The Medicare Program: More Of The Same But Better, Eleaonr D. Kinney

Eleaonr D. Kinney

The Patient Protection and Affordable Care Act (“ACA”), as amended by the Health Care and Education Reconciliation Act of 2010, has made many changes in the Medicare program as part of comprehensive health reform for the US health care sector. This article reviews the changes that ACA is making and will make in the Medicare program in the years to come. Described in detail are the changes to improve the quality and efficiency of Medicare services as well as to improve program integrity and transparency. The article evaluates the past and current efforts of the Medicare program to reduce Medicare …

Affordable Care Act Changes In The Medicare Program: More Of The Same But Better, Eleaonr D. Kinney

Eleaonr D. Kinney

The Patient Protection and Affordable Care Act (“ACA”), as amended by the Health Care and Education Reconciliation Act of 2010, has made many changes in the Medicare program as part of comprehensive health reform for the US health care sector. This article reviews the changes that ACA is making and will make in the Medicare program in the years to come. Described in detail are the changes to improve the quality and efficiency of Medicare services as well as to improve program integrity and transparency. The article evaluates the past and current efforts of the Medicare program to reduce Medicare …

The Campaign For Universal Denial: Contraception Coverage And State Pharmacist Refusal Clauses, Samantha Reid Gross

Samantha Gross

Although the Affordable Care Act has made many positive steps toward providing contraceptive products and services for women, the United States Congress must pass legislation addressing state pharmacist refusal laws. Refusal, or conscience, clauses undermine the vital goal of national health reform to provide preventive measures free of charge. Unless the pharmacist refusal loophole is addressed by providing additional protections for patients, underserved women will continue to lack access to necessary, and life saving, medications, which the Federal government has guaranteed to all women, free of charge. The United States Congress should address this problem by passing legislation providing patients …

Affordable Care Act Changes In The Medicare Program: More Of The Same But Better, Eleaonr D. Kinney

Eleaonr D. Kinney

The Patient Protection and Affordable Care Act (“ACA”), as amended by the Health Care and Education Reconciliation Act of 2010, has made many changes in the Medicare program as part of comprehensive health reform for the US health care sector. This article reviews the changes that ACA is making and will make in the Medicare program in the years to come. Described in detail are the changes to improve the quality and efficiency of Medicare services as well as to improve program integrity and transparency. The article evaluates the past and current efforts of the Medicare program to reduce Medicare …

The Best Of Both Worlds: Applying Federal Commerce And State Police Powers To Reduce Prescription Drug Abuse, Stacey L. Sklaver

Stacey L. Sklaver

This article addresses the prescription drug abuse epidemic in the United States. In particular, it highlights that prescribers, as the gatekeepers of controlled substances, often lack the necessary education and training to properly prescribe such medications and to spot signs of abuse. This deficiency leads to patient overdoses and death, and resultant prescriber exposure to both civil and criminal liability.

Some states require controlled substance prescribers to obtain education on safe prescribing and abuse prevention methods, but many do not, yielding the need for a federal solution. The solution must address patient health, safety, and welfare under the purview of …

Toward A Mature Doctrine Of Informed Consent: Lessons From A Comparative Law Analysis, John G. Culhane, King-Jean Wu, Oluyomi Faparusi, Eric J. Juray

John G. Culhane

This article undertakes a comparative, critical evaluation of the law of informed consent as it has developed in several nations (the U.S., Taiwan, Britain, and Canada) over the past several decades. It argues for extending the doctrine to cover all cases in which physicians and their patients discuss appropriate care (including prescription drugs), and presents a modified subjective approach to causation, based on the Canadian approach, as the model most consistent with the fundamental tenets of the doctrine.

Announcing Remedies For Medical Injury: A Proposal For Medical Liability Reform Based On The Patient Protection And Affordable Care Act, Steven Raper

Steven E Raper MD

Recently reaffirmed, the Patient Protection and Affordable Care Act holds the promise of sweeping change in many critical aspects of the United States’ system of delivering health care. Indeed, medical liability reform is embedded into the DNA of the Obama presidency. Further, a Sense of the Senate statement raised a number of concerns over the current medical malpractice regime. These concerns led to the enactment of a small but conceptually important provision of the Affordable Care Act. Congress intends, however, to allow the states to develop liability reform through the allocation of 50 million dollars for State Demonstration Projects.

From …

Conflict In The Courts: The Federal Nursing Home Reform Amendment And Section 1983 Causes Of Action, Susan J. Kennedy Ms.

Susan J Kennedy Ms.

Conflict in the Courts: The Federal Nursing Home Reform Amendment and Section 1983 Causes of Action Susan J. Kennedy The cases interpreting the Federal Nursing Home Reform Act of 1987 (FNRAH) exemplify judicial wrangling over the application of statutory language conferring federally protected rights and defining the consequences of violating those rights. In passing FNHRA, Congress endeavored to enact legislation requiring nursing homes to provide quality care by coupling participation in federal Medicare and Medicaid programs with adherence to certain standards. Courts interpreting FNHRA have arrived at conflicting interpretations of its provisions. While most U.S. courts have adopted limited interpretations …

Securing Advantages In Global Markets: The Example Of Stem Cell Technology, Amanda Warren-Jones Dr

Amanda Warren-Jones Dr

The potential of innovation to spur economic growth is central to determining how markets in new medical developments, such as stem cell technology, can be maximised within Europe and the USA. Promoting innovation is reliant upon nurturing technological development and at root this necessitates an effective regulatory environment. Existing academic discourse generally fragments the regulatory landscape to consider the effectiveness of discrete aspects of oversight measures and systems. This article argues that working towards a regulatory landscape which effectively shepherds technology to interim- and end-consumers in order to maximise market potential must begin from an understanding of the interrelationship of …

See No Evil, Hear No Evil, Speak No Evil; Stemming The Tide Of No Promo Homo Laws In American Schools, Madelyn Rodriguez

Madelyn Rodriguez

In several states, and many more local governments, teachers are being mandated to teach their students that homosexuality is inherently abhorrent and should be shunned. These so called “No Promo Homo” policies vary in scope; from those barring any positive discussion of homosexuality to those which insinuate the association of homosexuality with various social ills. As a result of these policies, teachers are being used as a conduit for misinformation and, more disturbingly, for discrimination and bias. Because teachers naturally have an immense impact on their students, the concepts and values advocated or discouraged by them will have an immeasurable …

Road Rules And Rights: The Irreconcilable Pursuits Of Adolescent Life, Liberty, . . . And Licensure, Vivian E. Hamilton

Vivian E. Hamilton

Direct And Enhanced Disclosure Of Researcher Financial Conflicts, Roy G. Spece Jr.

Roy G Spece Jr.

Abstract of DIRECT AND ENHANCED DISCLOSURE OF RESEARCHER FINANCIAL CONFLICTS OF INTEREST: THE ROLE OF TRUST In earlier writing I recommended direct disclosure of a major researcher financial conflict of interest, per capita funding—i.e., providing a fixed sum per subject recruited and enrolled in a study. This article adds a recommendation for enhanced direct disclosure. The enhancement in the disclosure is a summary of why per capita and excess payments are being discussed. The reason they are being discussed is because of their risk of introducing bias into researchers’ decisions regarding study design, implementation, and interpretation as well as concerning …

Evading Emergency: Strengthening Emergency Response Through Integrated Pluralistic Governance, Lance Gable

Lance Gable

This Article examines the significant governance challenges that arise during responses to public health emergencies and proposes a new multifaceted strategy—integrated pluralistic governance—to address these challenges. Emergency preparedness is an inherently complex problem that entails the integration of scientific and medical expertise, good logistical planning, and clear laws and policies. The governance function has particular import for public health emergencies because pandemics, hurricanes, and other disasters can have profoundly divisive social and political consequences. Moreover, recent disasters like Hurricane Katrina and the BP Deepwater Horizon Oil Spill revealed an emergency preparedness and response infrastructure in the United States that was …

Marginalized Monitoring: Adaptively Managing Urban Stormwater, Melissa K. Scanlan, Stephanie Tai

Melissa K. Scanlan

Adaptive management is a theory that encourages environmental managers to engage in a continual learning process and adapt their management choices based on learning about new scientific developments. One such area of scientific development relevant to water management is bacterial genetics, which now allow scientists to identify when human sewage is getting into places it should not be. Source-specific bacterial testing in a variety of cities across the United States indicates there is human sewage in urban stormwater pipes. These pipes are designed to carry runoff from city streets and lots, and they send untreated water directly into rivers, streams, …

Malpractice Liability And The Future Of Clinical Practice Guidelines For Independent Physicians, Ronen Avraham, Bill Sage

ronen avraham

In this paper we explore the question of how to create and implement clinical practice guidelines in the new health care environment, including the Patient Protection and Affordable Care Act of 2010 (“Obamacare”). In the course of our analysis, we provide the first case review in almost two decades of how courts regard and apply clinical practice guidelines, primarily in malpractice litigation, and discuss recent reports on CPGs by the Institute of Medicine issued in 2011 and by the Agency for Healthcare Research and Quality (AHRQ) issued n 2012. These reports both endorse a model of legal governance based on …

Vanishing Point: Alzheimer's Disease And Its Challenges To The Federal Rules Of Evidence, Ann Murphy

Ann Murphy

ABSTRACT Vanishing Point: Alzheimer’s Disease and Its Challenges to the Federal Rules of Evidence As of 2012, an estimated 5.4 million Americans suffer from Alzheimer’s disease (AD). By the year 2030, due to the overall aging of our population, the number of individuals with AD is expected to increase dramatically. Courts will consequently confront evidentiary issues involving parties, defendants, witnesses, and victims who are suffering from various stages of the disease. Testimony of course involves descriptions of events that happened in the past and thus frequently involves memory. This article explores three specific areas of evidence that will be affected …

Harmonizing The Affordable Care Act (Obama Care) With The Three Main National Systems For Healthcare Quality Improvement: The Tort, Licensure And Hospital Peer Review Systems, K Van Tassel

Katharine A. Van Tassel

According to an estimate by the Institute of Medicine made over a decade ago, treatment errors in hospitals alone caused 98,000 deaths yearly. This IOM report is proving to be very conservative. A recent Consumer Reports investigation came to the conclusion that “[m]ore than 2.25 million Americans will probably die from medical harm this decade…. That’s like wiping out the entire populations of North Dakota, Rhode Island, and Vermont. It’s a manmade disaster.”

One of the reasons for this astonishing mortality rate is the normative practice of custom-based medicine in the United States. A large and rapidly growing group of …

Constitutional Newspeak: Learning To Love The Affordable Care Act Decision, A. Christopher Bryant

Aaron Christopher Bryant

Constitutional Newspeak: Learning to Love the Affordable Care Act Decision In his classic dystopian novel, 1984, George Orwell imagines a world in which language is regularly contorted to mean its opposite – as in the waging of war by the Ministry of Peace and infliction of torture by the Ministry of Love. A core claim of Orwell’s was that such abuse of language – which in his novel he labeled “Newspeak” -- would ultimately channel thought. Whatever the merits of this claim as a theory of linguistics, constitutional developments too recent to be called history demonstrate that as a practical …

“Unmistakably Clear” Coercion: Finding A Balance Between Judicial Review Of The Spending Power And Optimal Federalism, Dale B. Thompson

Dale Thompson

This article proposes a new tier of scrutiny, “unmistakably clear,” for conducting judicial review of congressional authority under the Spending Clause. Under this standard, a condition would be unconstitutional only if it was “unmistakably clear” that it was coercive. In order to develop this proposal, this article traces the debate over the spending power from the Federalist Papers up through the decision in the Affordable Care Act Case, finding strong arguments for granting significant deference to Congress’s Spending Clause authority. Careful analysis of the opinions in the Affordable Care Act Case yields not only the name for the new standard …

A Shot In Arm: Can Chemical Castration Statutes Cure Sex Offenders Legally And Ethically?, Robert Watters

Robert Watters

At least seven states currently have sex offender castration statutes. This article examines the legal and ethical appropriateness of those statutes against the successful and unsuccessful European models.

Employers United: An Empirical Analysis Of Corporate Political Speech In The Wake Of The Affordable Care Act, Elizabeth Weeks Leonard, Susan Scholz, Raquel Meyer Alexander

Elizabeth A. Weeks

Is the Patient Protection and Affordable Care Act (ACA) bad for business? Did the countries' most prominent companies game the Securities and Exchange Commission (SEC) disclosure process to make negative political statements about ObamaCare? Immediately following the ACA's enactment on March 23, 2010, a number of companies drew scrutiny for issuing SEC filings writing off millions – and in AT&T's case, one billion dollars – against expected earnings for 2010 alone, based on a single, discrete tax-law change in the ACA. Congressional and Administration officials accused the firms of being “irresponsible” and using “big numbers to exaggerate the health reform's …

“Unmistakably Clear” Coercion: Finding A Balance Between Judicial Review Of The Spending Power And Optimal Federalism, Dale B. Thompson

Dale Thompson

This article proposes a new tier of scrutiny, “unmistakably clear,” for conducting judicial review of congressional authority under the Spending Clause. Under this standard, a condition would be unconstitutional only if it was “unmistakably clear” that it was coercive. In order to develop this proposal, this article traces the debate over the spending power from the Federalist Papers up through the decision in the Affordable Care Act Case, finding strong arguments for granting significant deference to Congress’s Spending Clause authority. Careful analysis of the opinions in the Affordable Care Act Case yields not only the name for the new standard …

“Unmistakably Clear” Coercion: Finding A Balance Between Judicial Review Of The Spending Power And Optimal Federalism, Dale B. Thompson

Dale Thompson

This article proposes a new tier of scrutiny, “unmistakably clear,” for conducting judicial review of congressional authority under the Spending Clause. Under this standard, a condition would be unconstitutional only if it was “unmistakably clear” that it was coercive. In order to develop this proposal, this article traces the debate over the spending power from the Federalist Papers up through the decision in the Affordable Care Act Case, finding strong arguments for granting significant deference to Congress’s Spending Clause authority. Careful analysis of the opinions in the Affordable Care Act Case yields not only the name for the new standard …

Saving Small Employer Health Insurance, Daniel Benjamin Schwarcz

Daniel Benjamin Schwarcz

Health care reform devotes substantial attention to resuscitating the small group health insurance markets that serve employers with fewer than fifty full time employees. Unfortunately, a number of interweaving provisions embedded within the Affordable Care Act create strong incentives that, starting in 2014, will tend to undermine this market and, in the process, increase the fiscal cost of reform. First, small employers with predominantly low-income employees will tend to opt out of the small group market. Second, small employers with mixed-income employees will have strong incentives to offer coverage that is neither technically “affordable” or of “minimum value” in order …

Clarifying State Action Immunity Under The Antitrust Laws: Ftc V. Phoebe Putney Health System, Inc., Angela Diveley

Angela Diveley

The tension between federalism and national competition policy has come to a head. The state action doctrine finds its basis in principles of federalism, permitting states to replace free competition with alternative regulatory regimes they believe better serve the public interest. Public restraints have a unique ability to undermine the regime of free competition that provides the basis of U.S.- and state-commerce policies. Nevertheless, preservation of federalism remains an important rationale for protecting such restraints. The doctrine has elusive contours, however, which have given rise to circuit splits and overbroad application that threatens to subvert the state action doctrine’s dual …

When The Tenth Justice Doesn’T Bark: The Unspoken Freedom Of Health Holding In Nfib V. Sebelius, Abigail Moncrieff

Abigail R. Moncrieff

There was an argument that Solicitor General Donald B. Verrilli could have made—but didn’t—in defending Obamacare’s individual mandate against constitutional attack. That argument would have highlighted the role of comprehensive health insurance in steering individuals’ health care savings and consumption decisions. Because consumer-directed health care, which reaches its apex when individuals self insure, suffers from several known market failures and because comprehensive health insurance policies play an unusually aggressive regulatory role in attempting to correct those failures, the individual mandate could be seen as an attempt to eliminate inefficiencies in the health care market that arise from individual decisions to …

Mistake-Proofing Medicine: Legal Considerations And Healthcare Quality Implications, Arlen W. Langvardt

Arlen W Langvardt

MISTAKE-PROOFING MEDICINE: LEGAL CONSIDERATIONS

AND HEALTHCARE QUALITY IMPLICATIONS

Authors: John R. Grout, John W. Hill, Arlen W. Langvardt (corresponding author).

Abstract

In 1999, the Institute of Medicine estimated that approximately 98,000 deaths resulted annually from medical errors. This shocking number does not appear to have lessened during the intervening years. Although mistake-proofing techniques similar to those that have proven useful in the product liability context hold great promise for reducing the number of medical errors, the adoption of such techniques in healthcare settings has not occurred to the extent it should have.

This article examines potentially useful mistake-proofing techniques, explores …