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Full-Text Articles in Law

Subjectively Speaking, The Applicable Standard For Deficient Medical Treatment Of Pretrial Detainees Should Be One Of Objective Reasonableness, Benjamin R. Black Jan 2024

Subjectively Speaking, The Applicable Standard For Deficient Medical Treatment Of Pretrial Detainees Should Be One Of Objective Reasonableness, Benjamin R. Black

Touro Law Review

There is no uniformity amongst the circuits when it comes to pretrial detainees claims for inadequate medical care. The circuits are currently grappling with this problem, applying two separate tests to pretrial detainees’ 42 U.S.C. § 1983 claims depending on the jurisdiction in which the incident arose. The test that should be applied across all circuits is one of objective reasonableness. However, some circuits do not see it that way, applying the deliberate indifference standard, also known as the subjective standard test. The circuits applying the subjective standard are relying on case law that does not properly analyze the rights …


Death By Detox: Substance Withdrawal, A Possible Death Row For Individuals In Custody, Dorothea R. Carleton May 2023

Death By Detox: Substance Withdrawal, A Possible Death Row For Individuals In Custody, Dorothea R. Carleton

Journal of Law and Health

Suffering through substance withdrawal is a major problem for the majority of individuals in custody, yet there are no guidelines or standards to ensure their safety. Instead, individuals in custody are having their Constitutional rights violated and many die at the hands of the justice system. When their families seek accountability for the lack of adequate care provided by correctional facilities and employees, families are faced with a lack of consistency from one circuit to the next for knowing as to the correct standard to have a successful claim. Strain v. Regalado was a chance for the Supreme Court to …


Medical Violence, Obstetric Racism, And The Limits Of Informed Consent For Black Women, Colleen Campbell Jan 2021

Medical Violence, Obstetric Racism, And The Limits Of Informed Consent For Black Women, Colleen Campbell

Michigan Journal of Race and Law

This Essay critically examines how medicine actively engages in the reproductive subordination of Black women. In obstetrics, particularly, Black women must contend with both gender and race subordination. Early American gynecology treated Black women as expendable clinical material for its institutional needs. This medical violence was animated by biological racism and the legal and economic exigencies of the antebellum era. Medical racism continues to animate Black women’s navigation of and their dehumanization within obstetrics. Today, the racial disparities in cesarean sections illustrate that Black women are simultaneously overmedicalized and medically neglected—an extension of historical medical practices rooted in the logic …


The American Pathology Of Inequitable Access To Medical Care, Allison K. Hoffman, Mark A. Hall Sep 2019

The American Pathology Of Inequitable Access To Medical Care, Allison K. Hoffman, Mark A. Hall

All Faculty Scholarship

What most defines access to health care in the United States may be its stark inequity. Daily headlines in top newspapers paint the highs and lows. Articles entitled: “We Mapped the Uninsured. You’ll notice a Pattern: They tend to live in the South, and they tend to be poor” and op-eds with titles like “Do Poor People Have a Right to Health Care?” and “What it’s Like to Be Black and Pregnant when you Know How Dangerous That Can Be” run side-by-side with headlines touting “The Operating Room of the Future, and advances in gene therapy that promise cures …


For Him Who Shall Have Borne The Battle: How The Presumption Of Competence Undermines Veterans’ Disability Law, Chase Cobb Jul 2019

For Him Who Shall Have Borne The Battle: How The Presumption Of Competence Undermines Veterans’ Disability Law, Chase Cobb

Washington and Lee Journal of Civil Rights and Social Justice

When the Veterans Administration denies a veteran’s claim for disability benefits it often does so based on the opinion of an expert medical examiner—usually a doctor or a nurse. But under a recent federal rule, the VA carries no burden of laying a foundation for the expert medical examiner’s opinion—no burden of establishing the quality of the expert’s education or the depth of her experience; no burden of establishing the scope of the expert’s training or the soundness of her reasoning. Instead, the VA may simply presume the qualifications of its own expert examiner and throw the burden on the …


Medical Care In Urban Conflict, Kenneth Watkin Feb 2019

Medical Care In Urban Conflict, Kenneth Watkin

International Law Studies

The potential for urban violence is increasing as the world population continues to migrate towards cities. Recent examples of urban warfare with insurgent groups has occurred in Damascus, Mosul, Raqqa, Marawi, Ramadi, and Fallujah, although non-State actor conflict covers a wide range of violence from ordinary crime, to terrorism and transnational crime, to near conventional conflict. Further, transnational terrorist groups have sought to extend the conflict into countries seen as the “far enemy.” A key issue is determining if an armed conflict is in existence so that the protective focus of international humanitarian law regarding the provision of medical care …


Informing Consent: Medical Malpractice And The Criminalization Of Pregnancy, Laura Beth Cohen May 2018

Informing Consent: Medical Malpractice And The Criminalization Of Pregnancy, Laura Beth Cohen

Michigan Law Review

Since the early 1990s, jurisdictions around the country have been using civil child abuse laws to penalize women for using illicit drugs during their pregnancies. Using civil child abuse laws in this way infringes on pregnant women’s civil rights and deters them from seeking prenatal care. Child Protective Services agencies are key players in this system. Women often become entangled with the Child Protective Services system through their health care providers. Providers will drug test pregnant women without first alerting them to the potential negative consequences stemming from a positive drug test. Doing so is a breach of these providers’ …


The Due Process Conundrum: Using Mathews V. Eldridge As A Standard For Private Hospitals Under The Health Care Quality Improvement Act, Amy L. Moore Jan 2018

The Due Process Conundrum: Using Mathews V. Eldridge As A Standard For Private Hospitals Under The Health Care Quality Improvement Act, Amy L. Moore

Belmont Law Review

In response to growing litigation between doctors and hospitals and the recalcitrance of some hospitals to initiate proper peer review actions against incompetent or unprofessional doctors, Congress passed the Health Care Quality Immunity Act in 1986. HCQIA provided immunity for hospitals that engaged in peer review, presuming immunity from both federal and state law claims if the hospital had satisfied the statutory safeguards. One of these statutory requirements is “adequate notice and procedures” for the doctors at issue. It is abundantly clear in both the legislative history of HCQIA and the case law surrounding HCQIA immunity that section 11112(a)(3) was …


Independence Is The New Health, Laura D. Hermer Jan 2018

Independence Is The New Health, Laura D. Hermer

Faculty Scholarship

Medicaid plays key roles in supporting our nation’s health. Under the Affordable Care Act, Medicaid took an even more central position in public health endeavors by extending coverage in all interested states to millions of adults who typically fell through the health care cracks. Nevertheless, the Trump administration is now undoing these gains by actively encouraging states to curtail access to Medicaid in key respects while using the rhetoric of health.

This article examines Trump administration efforts in two contexts: (1) state § 1115 waiver applications seeking to better align their Medicaid programs with cash welfare and food stamp programs, …


Needles, Haystacks, And Next-Generation Genetic Sequencing, Teneille R. Brown Jan 2018

Needles, Haystacks, And Next-Generation Genetic Sequencing, Teneille R. Brown

Health Matrix: The Journal of Law-Medicine

Genetic testing is becoming more frequent and the results more complex. Not infrequently, genetic testing conducted for one purpose reveals information about other features of the genome that may be of clinical significance. These unintended findings have been referred to as "incidental" or "secondary" findings. In 2013, the American College of Medical Genetics ("ACMG") recommended that clinical laboratories inform people if their genetic analyses indicate that they have certain secondary mutations. These mutations were selected because they probably cause a serious disease, which is treatable, and may go undetected. The ACMG's recommendations galvanized critical responses by the genetics and ethics …


Screening Older Physicians For Cognitive Impairment: Justifiable Or Discriminatory?, Ilene N. Moore Jan 2018

Screening Older Physicians For Cognitive Impairment: Justifiable Or Discriminatory?, Ilene N. Moore

Health Matrix: The Journal of Law-Medicine

In the U.S., one out of eight practicing physicians is older than sixty-five, and many practice well into their seventies. Many commentators and healthcare organizations, concerned that aging physicians are at risk for cognitive impairment, have urged, or actually instituted, cognitive "screening" for older physicians as a means to ensure patient safety. An age-based screening program, however, should not proceed unless supported by clear evidence and not prohibited by law. This article argues that neither of these conditions applies. Singling out all older physicians for cognitive testing is empirically unjustified and legally prohibited. Furthermore, there are other means to reliably …


An Assessment Of Advance Directives In China: The "Coming Of Age" For Legal Regulation?, Yue An, Mimi Zou Jan 2018

An Assessment Of Advance Directives In China: The "Coming Of Age" For Legal Regulation?, Yue An, Mimi Zou

Marquette Benefits and Social Welfare Law Review

Advance directives (AD) are playing an increasingly important role in end-of-life medical care and treatment in ageing societies. A growing number of jurisdictions have introduced AD-related laws as a component of their medical and health care regulatory frameworks. This article presents an analytical account of why specific regulation on ADs has yet to develop in China, the most populous ageing society in the world. We argue that the regulatory vacuum to date can be partly explained by limited public demand, which can be further accounted by relatively low public awareness as well as the influence of traditional views on life-and-death …


Religiously-Motivated Medical Neglect: A Response To Professors Levin, Jacobs, And Arora, Doriane Lambelet Coleman Jan 2016

Religiously-Motivated Medical Neglect: A Response To Professors Levin, Jacobs, And Arora, Doriane Lambelet Coleman

Faculty Scholarship

This Response to Professors Levin, Jacobs, and Arora’s article To Accommodate or Not to Accommodate: (When) Should the State Regulate Religion to Protect the Rights of Children and Third Parties? focuses on their claim that the law governing religious exemptions to medical neglect is messy, unprincipled, and in need of reform, including because it violates the Establishment Clause. I disagree with this assessment and provide support for my position. Specifically, I summarize and assess the current state of this law and its foundation in the perennial tussle between parental rights and state authority to make decisions for and about the …


Advancing Human Rights In Patient Care: The Law In Seven Transitional Countries, Leo Beletsky, Tamar Ezer, Judith Overall, Iain Byrne, Jonathan Cohen Dec 2015

Advancing Human Rights In Patient Care: The Law In Seven Transitional Countries, Leo Beletsky, Tamar Ezer, Judith Overall, Iain Byrne, Jonathan Cohen

Jonathan R. Cohen

No abstract provided.


Advancing Human Rights In Patient Care: The Law In Seven Transitional Countries, Leo Beletsky, Tamar Ezer, Judith Overall, Iain Byrne, Jonathan Cohen Dec 2015

Advancing Human Rights In Patient Care: The Law In Seven Transitional Countries, Leo Beletsky, Tamar Ezer, Judith Overall, Iain Byrne, Jonathan Cohen

Jonathan R. Cohen

No abstract provided.


Health Law Reader: An Interdisciplinary Approach, John Robinson, Roberta Berry, Kevin Mcdonnell Apr 2015

Health Law Reader: An Interdisciplinary Approach, John Robinson, Roberta Berry, Kevin Mcdonnell

John H. Robinson

No abstract provided.


Can You Diagnose Me Now? A Proposal To Modify The Fda’S Regulation Of Smartphone Mobile Health Applications With A Pre-Market Notification And Application Database Program, Stephen Mcinerney Jan 2015

Can You Diagnose Me Now? A Proposal To Modify The Fda’S Regulation Of Smartphone Mobile Health Applications With A Pre-Market Notification And Application Database Program, Stephen Mcinerney

University of Michigan Journal of Law Reform

Advances in mobile technology continually create new possibilities for the future of medical care. Yet these changes have also created concerns about patient safety. Under the Food, Drug, and Cosmetic Act, the Food and Drug Administration (FDA) has the authority to regulate a broad spectrum of products beyond traditional medical devices like stethoscopes or pacemakers. The regulatory question is not if the FDA has the statutory authority to regulate health-related software, but rather how it will exercise its regulatory authority. In September 2013, the FDA published Final Guidance on Mobile Medical Applications; in it, the Agency limited its oversight to …


Our Patient System And Health Care Information Technology: Valuable Incentive Or Impediment To Innovation?, Gary Montle, Ryan Levy, Margaret Rowland Jan 2015

Our Patient System And Health Care Information Technology: Valuable Incentive Or Impediment To Innovation?, Gary Montle, Ryan Levy, Margaret Rowland

Belmont Law Review

Patentable inventions have often been transformative, but the pace of such innovation has changed exponentially in the last thirty years. The patent law still seeks to reward ingenuity and nowhere should this maxim be truer than in the area of health information technology. But the pace and scope of changes in that arena have made rewarding that ingenuity with a patent increasingly difficult. The courts have struggled to apply patent laws to technology that is new and novel to a fault. This Article seeks to address how it is possible to continue to reward ingenuity in a field where progress …


For Patients And Profits: Ethical Astuteness And The Business Of Dialysis, Joshua E. Perry Jan 2015

For Patients And Profits: Ethical Astuteness And The Business Of Dialysis, Joshua E. Perry

Belmont Law Review

The view of ethical astuteness introduced and outlined in this paper aims to add value for a firm in the healthcare business – with a particular application to a for-profit organization providing dialysis services – by addressing two chief concerns: A.) The competing priorities between the patient’s interest in the healthcare encounter and the investor’s interest in generating a return on profits; and B.) The vulnerabilities of a financially-conflicted, for-profit healthcare provider to an allegation of medical malpractice.


Defining A Health Care Liability Claim In The Post-Texas West Oaks Era., William Woolsey Jan 2015

Defining A Health Care Liability Claim In The Post-Texas West Oaks Era., William Woolsey

St. Mary's Law Journal

Following the Texas Supreme Court’s rulings in West Oaks Hospital v. Williams and Ross v. St. Luke’s Episcopal Hospital, it remains unclear whether a non-patient’s injury in a hospital constitutes a health care liability claim (HCLC). If the trial court rules the claim is an HCLC, the plaintiff must present expert testimony. Failure to present an expert report within 120 days after filing the suit results in automatic dismissal. The Texas Supreme Court addressed this issue in West Oaks. The Court held that a claimant, suing a hospital under a theory of premise liability, need not be a patient for …


A Qualitative Study Of The Perceived Health Care Needs Of Undocumented Latino Day Laborers Living In Las Vegas, Nevada, Siboney Zelaya Aug 2014

A Qualitative Study Of The Perceived Health Care Needs Of Undocumented Latino Day Laborers Living In Las Vegas, Nevada, Siboney Zelaya

UNLV Theses, Dissertations, Professional Papers, and Capstones

Undocumented (unauthorized, illegal) immigrants seek employment on the street corners near home improvement stores offering their services and selling their labor to the employers who arrive in their cars or trucks to pick them up for a few hours of hard work. The number of undocumented immigrants in the United States continues to increase. By percentage of overall population, Nevada has one of the largest shares of undocumented immigrants in the United States, and the bulk of that percentage is Latino.

The purpose of this phenomenological qualitative research study is to gain knowledge about undocumented Latino day laborers' perceived health …


Long-Term Financial Burden Of Breast Cancer: Experiences Of A Diverse Cohort Of Survivors Identified Through Population-Based Registries, Reshma Jagsi, John A.E. Pottow, Kent A. Griffith, Cathy Bradley, Ann S. Hamilton, John Graff Rutgers University, Steven J. Katz, Sarah T. Hawley Apr 2014

Long-Term Financial Burden Of Breast Cancer: Experiences Of A Diverse Cohort Of Survivors Identified Through Population-Based Registries, Reshma Jagsi, John A.E. Pottow, Kent A. Griffith, Cathy Bradley, Ann S. Hamilton, John Graff Rutgers University, Steven J. Katz, Sarah T. Hawley

Articles

Purpose: To evaluate the financial experiences of a racially and ethnically diverse cohort of long-term breast cancer survivors (17% African American, 40% Latina) identified through population-based registries. Methods: Longitudinal study of women diagnosed with nonmetastatic breast cancer in 2005 to 2007 and reported to the SEER registries of metropolitan Los Angeles and Detroit. We surveyed 3,133 women approximately 9 months after diagnosis and 4 years later. Multivariable models evaluated correlates of self-reported decline in financial status attributed to breast cancer and of experiencing at least one type of privation (economically motivated treatment nonadherence and broader hardships related to medical expenses). …


Throwing Dirt On Doctor Frankenstein’S Grave: Access To Experimental Treatments At The End Of Life, Michael J. Malinowski Apr 2014

Throwing Dirt On Doctor Frankenstein’S Grave: Access To Experimental Treatments At The End Of Life, Michael J. Malinowski

Journal Articles

All U.S. federal research funding triggers regulations to protect human subjects known as the Common Rule, a collaborative government effort that spans seventeen federal agencies. The Department of Health and Human Services has been in the process of re-evaluating the Common Rule comprehensively after decades of application and in response to the jolting advancement of biopharmaceutical science. The Common Rule designates specific groups as “vulnerable populations”—pregnant women, fetuses, children, prisoners, and those with serious mental comprehension challenges—and imposes heightened protections of them. This article addresses a question at the cornerstone of regulations to protect human subjects as biopharmaceutical research and …


Educational Institutions And The Prohibition On Disability Discrimination, Greg Walsh Jan 2014

Educational Institutions And The Prohibition On Disability Discrimination, Greg Walsh

Law Papers and Journal Articles

A claim of discrimination by a medical student with disabilities was considered by the Administrative and Equal Opportunity Division of the NSW Civil and Administrative Tribunal in BKY v The University of Newcastle [2014] NSWCATAD 39. The Tribunal held that the university's decision to reject the student's application for an extension on the maximum enrolment period permitted under university regulations so she could complete her medical degree constituted discrimination under the Anti-Discrimination Act 1977 (NSW). The case emphasises the importance of educational institutions taking into account the intellectual, emotional and social challenges persons with disabilities may have with their academic …


Doctors, Patients, And Pills--A System Popping Under Too Much Physician Discretion? A Law-Policy Prescription To Make Drug Approval More Meaningful In The Delivery Of Health Care, Michael J. Malinowski Oct 2013

Doctors, Patients, And Pills--A System Popping Under Too Much Physician Discretion? A Law-Policy Prescription To Make Drug Approval More Meaningful In The Delivery Of Health Care, Michael J. Malinowski

Michael J. Malinowski

This article challenges the scope of physician discretion to engage in off-label use of prescription drugs. The discretion to prescribe dimensions beyond the clinical research that puts new drugs on pharmacy shelves has been shaped by two historic influences: a legacy of physician paternalism, solidarity, autonomy, and self-determination that predates the contemporary commercialization of medicine by more than half a century, and regulatory necessity due to the limits of science and innate crudeness of pharmaceuticals prior to the genomics revolution (drug development and delivery based upon genetic expression). Although both factors have changed immensely, the standard for drug approval has …


Throwing Dirt On Doctor Frankenstein’S Grave: Access To Experimental Treatments At The End Of Life, Michael J. Malinowski Oct 2013

Throwing Dirt On Doctor Frankenstein’S Grave: Access To Experimental Treatments At The End Of Life, Michael J. Malinowski

Michael J. Malinowski

All U.S. federal research funding triggers regulations to protect human subjects known as the Common Rule, a collaborative government effort that spans seventeen federal agencies. The Department of Health and Human Services has been in the process of re-evaluating the Common Rule comprehensively after decades of application and in response to the jolting advancement of biopharmaceutical science. The Common Rule designates specific groups as “vulnerable populations”—pregnant women, fetuses, children, prisoners, and those with serious mental comprehension challenges—and imposes heightened protections of them. This article addresses a question at the cornerstone of regulations to protect human subjects as biopharmaceutical research and …


The Advance Directive Statute Revisited, Samuel W. Wardle Jul 2013

The Advance Directive Statute Revisited, Samuel W. Wardle

University of Miami Law Review

No abstract provided.


Mechanisms Of Control On The Circulation Of Foreign Capital, Products And People In Brazil, Quinn Smith, Olavo Franco Bernardes Apr 2013

Mechanisms Of Control On The Circulation Of Foreign Capital, Products And People In Brazil, Quinn Smith, Olavo Franco Bernardes

University of Miami Inter-American Law Review

No abstract provided.


Antitrust And California's New Preferred Provider Organization Legislation: A New Alternative In Health Care Cost Containment , Carol A. Woo Jan 2013

Antitrust And California's New Preferred Provider Organization Legislation: A New Alternative In Health Care Cost Containment , Carol A. Woo

Pepperdine Law Review

No abstract provided.


Plata V. Brown And Realignment: Jails, Prisons, Courts, And Politics, Margo Schlanger Jan 2013

Plata V. Brown And Realignment: Jails, Prisons, Courts, And Politics, Margo Schlanger

Articles

The year 2011 marked an important milestone in American institutional reform litigation. That year, a bare majority of the U.S. Supreme Court, in an opinion in Brown v. Plata by Justice Anthony Kennedy, affirmed a district court order requiring California to remedy its longstanding constitutional deficits in prison medical and mental health care by reducing prison crowding. Not since 1978 had the Court ratified a lower court's crowding-related order in a jail or prison case, and the order before the Court in 2011 was fairly aggressive; theoretically, it could have (although this was never a real prospect) induced the release …