Law Commons^™

Commercial Surrogacy: Is Regulation Necessary To Manage The Industry?, Cara M. Luckey

Cara M Luckey

This paper discusses legal and ethical issues involved with commercial surrogacy both within the United States and Internationally. Inconsistencies in laws create an increased potential for the exploitation of the parties involved in a surrogacy agreement. The validity of contracts varies between states and certain countries that allow surrogacy do not adequately protect the surrogate mothers. As this field of Assisted Reproductive Technology becomes more prevalent, the need for effective regulation of commercial surrogacy is essential.

Cowell V. Good Samaritan: How And Why The Washington Legislature Should Amend Rcw 7.71 To Protect Physicians From Abuses Of Medical Peer Review Currently Being Shielded Under The Health Care Quality Improvement Act., Nicholas R. Kadar

Nicholas R. Kadar

In 1987, the Washington legislature enacted RCW 7.71, and adopted the Health Care Quality Improvement Act of 1986 (HCQIA), 42 U.S.C. §§ 11101-11152, to protect medical peer review. RCW 7.71 also created a private cause of action for physicians “occasionally hurt by peer review decisions”, because the Legislature concluded that peer review decisions “based on matters unrelated to quality and utilization review need[ed] redress”. RCW 7.71 sought to balance the benefits of peer review to the public against the harms caused by peer review decisions not related to a physician’s competence or professional conduct.

In Cowell v. Good Samaritan, the …

Why Wait Until The Crime Happens? Providing For The Involuntary Commitment Of Dangerous Individuals Without Requiring A Showing Of Mental Illness, Adam Lamparello

Adam Lamparello

No abstract provided.

Electronic Health Records In The Global Market: Enforcing Security Overseas, Luis J. Acevedo

Luis J Acevedo

ABSTRACT

As the U.S. implements its chimerical plan to contain health care costs and improve the provision of services, aided by the much desired implementation of Electronic Health Records (EHRs) technology, the possibility of an increase in the outsourcing of health care services surfaces. The ordinary citizen should be worried. The protected health information (PHI) contained in their EHRs could be at greater risk when stored, accessed or transmitted overseas. Our current federal regulatory framework does not provide adequate protection because our enforcement mechanisms to ensure the security of data do not extend beyond the U.S. borders. The remedies available …

Accountable Care Organizations: The Clash Of Liability Standards With Cost Cutting Goals”, Christopher R. Smith

Christopher R Smith

This article seeks to examine the conflict between non-cost conscious medical malpractice liability standards and health care cost cutting measures within the context of Accountable Care Organizations (“ACOs”) under the new health care reform law. The article begins by providing an overview of the high level of health care spending within the United States health care system in order to provide a context for better understanding policymakers’ push for cost cutting measures, including ACOs. The article then examines the tension between cost containment efforts and provider medical liability standards through an examination of the “stuck in the middle” mentality that …

The Best Place To Pratice Medicine, Jeffrey C. Grass Esq.

Jeffrey C Grass Esq.

No abstract provided.

Disputes Related To Healthcare Across National Boundaries: The Potential For Arbitration, Deth Sao

Deth Sao

Trade in international health services has the potential to play a leading role in the global economy, but its rapid growth is impeded by legal barriers. Advances in technology and cross-border movement of people and health services create legal ambiguities and uncertainties for businesses and consumers involved in transnational medical malpractice disputes. Existing legal protections and remedies afforded by traditional judicial frameworks are unable to resolve the following challenges: (1) assertion of personal jurisdiction; (2) choice of forum and law considerations; (3) appropriate theories of liability for injuries and damages arising from innovations in medical care and delivery of health …

The Wisdom Of Solomon: Why We Can't Split The Pre-Embryo, Bridget M. Fuselier

Bridget M Fuselier

Due to the fact that there are at least 500,000 cryo-preserved pre-embryos and a very small amount of common law or statutes to provide guidance, legislators need to act and take steps to guide the people impacted by these problems.

This article promotes modifications to property concepts that protects the special dignity of the pre-embryo while also recognizing the autonomy of the individual gamete providers. The article proposes a form of ownership that would prevent the pre-embryos from passing through wills and by intestate succession. It would also eliminate the possibility of ending up with a multitude of owners for …

Exceptions: The Criminal Law's Illogical Approach To Hiv-Related Aggravated Assaults, Ari E. Waldman

Ari E Waldman

This article identifies logical and due process errors in cases involving HIV-related aggravated assaults, which usually involve an HIV-positive individual having unprotected sex without disclosing his or her HIV status. While this behavior should not be encouraged, this paper suggests that punishing this conduct through a charge of aggravated assault – which requires a showing that the defendant’s actions were a means likely to cause grievous bodily harm or death – is fraught with fallacies in reasoning and runs afoul of due process. Specifically, some courts use the rule of thumb that HIV can possibly be transmitted through bodily fluids …

Brave New Eugenics: Regulating Assisted Reproductive Technologies In The Name Of Better Babies, Kerry Macintosh

Kerry L Macintosh

Infertile men and women have been using assisted reproductive technologies (“ART”) to conceive children since the first “test-tube baby” was born in 1978. During the past decade, however, the federal government has begun to clamp down on ART, asserting safety concerns as grounds for banning novel technologies such as cloning, nuclear transfer, and ooplasm transfer. Some scholars and policymakers now want to extend governmental regulation to include conventional ART such as in vitro fertilization (“IVF”) and intracytoplasmic sperm injection (“ICSI”). They claim children conceived through ART face an increased risk of birth defects and other health problems. This Article examines …

A Description Of An Individual's Shared Responsibility Requirement In The Patient Protection And Affordable Care Act Of 2010, James S. Cole

James S Cole

The individual responsibility requirement of the Patient Protection and Affordable Care Act of 2010 has become the focus of litigation and public policy debates. Surprising aspects of the statute emerge when its rather dense verbiage is analyzed. The “individual conscience exception” applies primarily, if not exclusively, to self-employed Amish individuals who renounce Social Security coverage in its entirety. Conscientious objections to other aspects of the statute are not acknowledged. A taxpayer is assessed a penalty for his own failure to obtain minimum necessary health coverage beginning in 2014 and also for dependents’ penalties. The dependents are also liable for their …

Off The Roads & Out Of The Courts: Enter A Technology Fix For Drunk Driving, Nora J. Pasman-Green

Nora J. Pasman-Green

More than 1.4 million people are arrested annually for drunk driving, a crime that results in over 10,000 fatalities, more than 225,000 non-fatal injuries, and economic costs exceeding $50 billion. Drunk driving has become a major public health problem. This article traces development of the technology – the alcohol ignition interlock – which prevents drunk drivers from operating their vehicles. Ongoing research is underway to equip new automobiles with alcohol detection devices as standard equipment. The article explores the possibility of eliminating drunk driving once all vehicles are manufactured with pre-market interlocks installed. The article examines the impact of current …

This Is A Big @&%#*^! [Political Question] Deal!”, Ryan H. James

Ryan H. James

No abstract provided.

Understanding The Medical Record In Shoulder Dystocia Cases. Why These Cases Sometimes Should Have A No-Fault Recovery, Paul A. Race

Paul A Race

Shoulder dystocia is one of the most common causes of litigation in Obstetrics and Gynecology. The most common serious complication from shoulder dystocia is brachial plexus injury although death of the baby can also occur. Brachial plexus injuries lead to paralysis of the arm of the neonate. While most of the injuries eventually resolve, a small percentage will remain permanent. This article explores the areas of litigation involved with brachial plexus injuries. It discusses what the attorney should look for in the medical record. It reviews the standard of care both pre-labor and post-labor. It also looks at the controversial …

Medical Liability And Health Care Reform, Leonard J. Nelson Iii, Michael A. Morrisey, David J. Becker

Leonard J. Nelson III

We examine the impact of the Patient Protection and Affordable Care Act (PPACA) on medical liability and the controversy over whether medical liability reforms could make a useful contribution to health care reform. By providing guaranteed access and renewal at community rates, the PPACA could reduce the problem of under-compensation resulting from damages caps. It could also, however, exacerbate the problem of under-claiming in the malpractice system thereby reducing incentives to invest in loss prevention activities. Shifting losses from liability insurers to health insurers could further undermine the already weak deterrent effect of the medical liability system. Republicans in Congress …

Biobanking Newborn Bloodspots For Genetic Research Without Consent, Sandra J. Carnahan

sandra j carnahan

BIOBANKING NEWBORN BLOODSPOTS FOR GENETIC RESEARCH WITHOUT CONSENT

Professor Sandra J. Carnahan

Abstract

State public health programs mandate newborn screening shortly after birth for various genetic disorders that may have serious health consequences if not identified and treated very early in life. Given the individual and public health benefit, most of states conduct newborn screening programs without parental consent. Recently, two high-profile lawsuits have brought to the public's attention that some states are creating research biobanks, storing their newborn bloodspots, and disseminating them to outside entities for genetic research purposes that are unrelated to the original purpose for which the …

Addressing The Special Problems Of Mentally Ill Prisoners: A Small Piece Of The Solution To Our Nation's Prison Crisis, Michael Vitiello

Michael Vitiello

After years of neglect, policymakers must confront a crisis in our prisons created by the increasing number of mentally ill prisoners. Mentally ill prisoners are both vulnerable and troublesome. Apart from their special needs, they are an increasing segment of the prison population. Their numbers have risen roughly in proportion with the release of the mentally ill from mental hospitals and the closing of those institutions. As states look for ways to reduce prison costs, meaningful reform may be in the air. That may allow a reexamination of policies that have led to the increase in mentally ill-prisoners. But if …

The Parentless Child's Right To A Permanent Family, Joseph S. Jackson, Lauren G. Fasig

Joseph S. Jackson

Abstract More than 420,000 children in the United States are in foster care, and more than 110,000 of them are waiting to be adopted. State adoption statutes typically seek to achieve adoption for these children as promptly as possible, but some limit the pool of potential adoptive parents in one way or another. In this Article, we argue that such restrictions violate the State’s constitutional duties to parentless children in its care. Specifically, we contend that children in State custody have a substantive liberty interest in a secure and stable family relationship, because such a relationship is essential in order …

Is The Attorney-Client Privilege A Privilege Of The Rich? Federal Hmis Database Reporting And Homeless Client Confidentiality, Jennifer Hammitt

Jennifer Hammitt

The Homeless Management Information System (HMIS) is a new database reporting system mandated by the Department of Housing and Urban Development to track the usage of HUD services by homeless people. The HMIS requires collecting identifiable personal information about the individuals who use the services and entering that information into a database that enables information sharing and referral services. This comment arose out of an investigation into the HMIS database and confidentiality issues that I did while working at Legal Services of Greater Miami, Inc., as part of the Homeless Legal Assistance Project in the summer of 2009. As this …

Intensive Care For Health Care Service Plans: Addressing The Growing Problem Of Post-Claims Underwriting And Rescissions By Plan Providers, Kenneth R. Shurtz

Kenneth Shurtz, J.D.

In recent years, thousands of patients have been left without health care coverage – their plans rescinded or canceled after health care providers investigated the patients’ prior medical histories. These rescission investigations are often conducted after the patient has become ill or injured, receives treatment and files a claim. This practice, commonly known as post-claims underwriting, leaves vulnerable patients without coverage at a time when coverage is needed most. Although states have increasingly enacted statutes that specifically prohibit post-claims underwriting, state enforcement agencies have varied widely in their interpretation and enforcement of such statutes. Through a case study of a …

Non- Profit Charitable Tax Exempt Hospitals- Wolves In Sheep's Clothing:To Increase Fairness And Enhance Compition All Hospitals Should Be For Profit And Taxable, George A. Nation Iii

George A Nation III

Most hospitals in the United States are not-for-profit tax exempt institutions. Legally these hospitals are deemed to be charities and are exempt from federal, state and local taxes, raise money through tax exempt bond offerings and receive charitable contributions that are tax deductible to the donors. Today it is estimated that 47 million Americans lack access to healthcare.5A Moreover, even when the new Patient Protection and Affordable Care Act5B is fully operational, which is estimated to be around 2019, there will still be millions of Americans without health insurance and thus without reliable access to healthcare.5C Notwithstanding the millions of …

Post-Firestone Skirmishes: "Obama Care", Discretionary Clauses And Judicial Review Of Erisa Plan Administrator Decisions, Maria Hylton

Maria Hylton

Ever since the Supreme Court's Firestone decision, ERISA plan administrators have been almost completely insulated from meaningful review in benefit denial cases. The new PPACA (sometimes referred to colloquially as "Obama Care" guarantees independent, external review in benefit denial cases to participants who want to pursue a claim prior to bringing an action in federal court. This paper evaluates the ongoing efforts of states to expand the availability of meaningful external review up until passage of the PPACA and examines the new statute's provisions for ensuring independent evaluation of claims. This article concludes that in spite of the Supreme Court's …

Reconsidering Federalism And The Farm: Toward Including Local, State, And Regional Voices In America’S Food Syste, Margaret Sova Mccabe

Margaret Sova McCabe

The American food system has pressing problems that affect us all. Our food system's structure contributes to public health problems including obesity, food safety, and environmental degradation. This relationship between the food system and pubic health necessitates understanding the federal government's role in the food system. Federalism contributes to alienating people from food production and consumption. This essay argues that to address public health problems successfully, we must question the federal government's pervasive role in the food system and institute greater state and local roles. The essay reviews the rise of federalism in agriculture. It then examines three recent developments …

Rhetorical Federalism: The Role Of State Resistance In Health Care Decisionmaking, Elizabeth Leonard

Elizabeth A. Weeks

This Article makes the affirmative case for the widespread trend of state resistance to the recently enacted, comprehensive federal health reform law, the Patient Protection and Affordable Care Act of 2010, or ACA. A significant number of states have engaged in various forms of objection to the new federal laws, including filing lawsuits against the federal government and enacting state laws providing that ACA will not apply to residents of the state. This Article identifies reasons why those actions should not be disregarded simply as Tea Party antics or election-year gamesmanship but instead should be considered valuable to the health …

Taxation As Regulation: Carbon Tax, Health Care Tax, Bank Tax And Other Regulatory Taxes, Reuven S. Avi-Yonah

Law & Economics Working Papers

This paper addresses three questions: 1. Is regulation a legitimate goal for taxation? 2. Which tax is best suited for regulation? 3. Would it be better to allocate just one goal per tax among the major taxes (individual and corporate income tax and VAT)? It then analyzes the proposed bank tax and the enacted health care tax as regulatory taxes, and concludes that the first is desirable (as is a carbon tax) but the second is not.

Private Regulation, Ronen Avraham

ronen avraham

In this paper I propose implementing a “private regulation regime” for healthcare which would realign health care providers’ incentives so as to significantly reduce the healthcare system’s three major cost drivers: medical errors, defensive medicine and offensive medicine. The private regulation regime would consist of private firms which would develop clinical practice guidelines and sell them to client health care providers. In exchange for purchasing, and following, the guidelines, providers would be immune from medical malpractice lawsuits. The private regulators, though, would face liability for producing suboptimal guidelines. Providers would be less likely to make medical errors because they would …

Healthcare In Cuba, Carmen M. Cusack

Carmen M Cusack

Poor Americans who lack health-insurance or have little opportunity to access specialized or non-emergency medical treatment in the U.S. should be permitted by the U.S. State Department to spend money in Cuba in order to receive inexpensive medical treatment, and should be allowed to stay (and spend) in Cuba as long as necessary in order to receive inexpensive medical treatment. If Americans were permitted by an exception in the Helms-Burton Act to spend money in Cuba and visit for medical purposes, then Cuba would likely treat these Americans for a very low cost. This can be argued because 1) Cuba …

Self-Conscious Dicta: The Origins Of Roe V. Wade's Trimester Framework, Randy Beck

Randy Beck

One of the controversies arising from Roe v. Wade (1973) has concerned whether the conclusions undergirding the opinion's “trimester framework” should be considered part of the holding of the case, or instead classified as dicta. Different Supreme Court opinions have spoken to this question in different ways. This article reviews materials from the files of Justices who participated in Roe, seeking insight as to what the Court thought about the issue at the time.

The article concludes that Justices in the Roe majority understood the opinion’s trimester framework to consist largely of dicta, unnecessary to a ruling on the constitutionality …

The Next Stage Of Health Care Reform: Controlling Costs By Paying Health Plans Based On Health Outcomes, Dale B. Thompson

Dale Thompson

The predominant form of paying for health care in the United States (Fee-for-Service) creates inefficient incentives and leads to rising costs. A number of changes were incorporated into the health care reform legislative package of 2010, but these changes will not stop rising costs. Instead, this article proposes that the reimbursement structure for the Medicare Advantage program be revised so that medical plans receive their payments based on delivery of health outcomes, not delivery of health services. This approach utilizes centralized enforcement at the level of the plan, to provide incentives for the plan to encourage its providers to improve …

Will Employers Undermine Health Care Reform By Dumping Sick Employees?, Daniel Benjamin Schwarcz, Amy Monahan

Daniel Benjamin Schwarcz

This Article argues that federal health care reform may induce employers to redesign their health plans to encourage high-risk employees to opt out of employer-provided coverage and instead acquire coverage on the individual market. Although largely overlooked in public policy debates, this prospect of employer dumping of high-risk employees raises serious concerns about the sustainability of health care reform. In particular, it threatens the viability of individual insurance markets and insurance exchanges by raising the prospect of adverse selection caused by the entrance of a disproportionately high-risk segment of the population. This risk, in turn, threatens to indirectly increase the …