Health Law and Policy Commons^™

Balco, The Steroids Scandal, And What The Already Fragile Secrecy Of Federal Grand Juries Means To The Debate Over A Potential Federal Media Shield Law, Peter Meyer

Indiana Law Journal

No abstract provided.

The Use Of Litigation Screenings In Mass Torts: A Formula For Fraud?, Lester Brickman

Articles

The article critically examines the pervasive abuse of litigation screenings in mass tort cases, revealing a system driven by financial exploitation where medical evaluations are manipulated to generate lawsuits. These screenings, often designed to produce false positives, undermine the integrity of the legal system by creating a flood of specious claims. The analysis highlights how lawyers, doctors, and screening companies exploit legal loopholes and financial incentives, leading to billions of dollars in settlements and eroding public trust in the civil justice system.

Dances With Elephants: Administrative Resolution Of Medical Injury Claims By Medicare Beneficiaries, Eleanor D. Kinney, William M. Sage

Faculty Scholarship

In our judgment, Hoffmann and Rowthorn's research clearly demonstrates that the QIO-based complaint review process does not provide genuine relief to beneficiaries. People who complain typically want an explanation of their bad experience, compensation for harm they may have suffered, and assurance that future experiences will be better for themselves and for others. Medicare beneficiaries, however, receive minimal information about the resolution of their complaints and no substantive relief whatsoever.

As Hoffmann and Rowthorn point out, several reform proposals are now before Congress, including moving the beneficiary complaint function from QIOs to new "Medicare Provider Review Organizations." It is not …

Research With Decisionally Incapacitated Human Subjects: An Argument For A Systemic Approach To Risk-Benefit Assessment, Carl H. Coleman

Indiana Law Journal

The amount of medical research with persons who lack decision-making capacity is rapidly increasing, but in most states it takes place without clear legal authority. In addition to creating significant liability risks for researchers and persons who provide consent on behalf of incapacitated subjects, the lack of explicit legal standards means that few, if any, safeguards exist to protect incapacitated persons' rights and welfare. Previous efforts to close the gap between clinical reality and legal requirements have failed in part because they have not provided a coherent or persuasive ethical justification for permitting this research. This Article seeks to fill …

"I Will Not Divulge": How To Resolve The "Mass Of Legal Confusion" Surrounding The Physician-Patient Relationship In West Virginia, Mary Claire Johnson

West Virginia Law Review

No abstract provided.

There Ain't No Such Thing As A Free Lunch: A Look At State Gift Disclosure Laws And The Effect On Pharmaceutical Company Marketing, 41 J. Marshall L. Rev. 563 (2008), Scott Velasquez

UIC Law Review

No abstract provided.

Not For The Faint Of Heart: Does A Hospital Owe A Duty To Warn A Squeamish Visitor?, 41 J. Marshall L. Rev. 473 (2008), Marc D. Ginsberg, Tricia E. Mcvicker

UIC Law Review

No abstract provided.

Neuroimaging Research Into Disorders Of Consciousness: Moral Imperative Or Ethical And Legal Failure?, Stacey A. Tovino

Scholarly Works

This article explores the ethical and legal implications of enrolling individuals with disorders of consciousness (DOC) in neuroimaging research studies. Many scientists have strongly emphasized the need for additional neuroimaging research into DOC, characterizing the conduct of such studies as morally imperative. On the other hand, institutional review boards charged with approving research protocols, scientific journals deciding whether to publish study results, and federal agencies that disburse grant money have limited the conduct, publication, and funding of consciousness investigations based on ethical and legal concerns. Following a detailed examination of the risks and benefits of neuroimaging research involving individuals with …

When Disability Isn't "Just Right": The Entrenchment Of The Medical Model Of Disability And The Goldilocks Dilemma, Bradley A. Areheart

Indiana Law Journal

No abstract provided.

Prenatal Management Of Anencephaly, Rebecca Cook, Joanna Erdman, Martin Hevia, Bernard Dickens

Articles, Book Chapters, & Popular Press

About a third of anencephalic fetuses are born alive, but they are not conscious or viable, and soon die. This neural tube defect can be limited by dietary consumption of foliates, and detected prenatally by ultrasound and other means. Many laws permit abortion, on this indication or on the effects of pregnancy and prospects of delivery on a woman's physical or mental health. However, abortion is limited under some legal systems, particularly in South America. To avoid criminal liability, physicians will not terminate pregnancies, by induced birth or abortion, without prior judicial approval. Argentinian courts have developed means to resolve …

Who's Minding The Shop? The Role Of Canadian Research Ethics Boards In The Creation And Uses Of Registries And Biobanks, Elaine Gibson, Kevin Brazil, Michael Coughlin, Claudia Emerson, François Fournier, Lisa Schwartz, Karen Szala-Meneok, Karen Weisbaum, Donald Willison

Articles, Book Chapters, & Popular Press

Background: The amount of research utilizing health information has increased dramatically over the last ten years. Many institutions have extensive biobank holdings collected over a number of years for clinical and teaching purposes, but are uncertain as to the proper circumstances in which to permit research uses of these samples. Research Ethics Boards (REBs) in Canada and elsewhere in the world are grappling with these issues, but lack clear guidance regarding their role in the creation of and access to registries and biobanks.

Methods: Chairs of 34 REBS and/or REB Administrators affiliated with Faculties of Medicine in Canadian universities were …

Prenatal Management Of Anencephaly, Rebecca J. Cook, Joanna Erdman, Martin Hevia, Bernard M. Dickens

Articles, Book Chapters, & Popular Press

About a third of anencephalic fetuses are born alive, but they are not conscious or viable, and soon die. This neural tube defect can be limited by dietary consumption of foliates, and detected prenatally by ultrasound and other means. Many laws permit abortion, on this indication or on the effects of pregnancy and prospects of delivery on a woman's physical or mental health. However, abortion is limited under some legal systems, particularly in South America. To avoid criminal liability, physicians will not terminate pregnancies, by induced birth or abortion, without prior judicial approval. Argentinian courts have developed means to resolve …

Barriers To Access To Abortion Through A Legal Lens, Jocelyn Downie, Carla Nassar

Articles, Book Chapters, & Popular Press

In addressing whether the procedure for obtaining abortions was operating equitably across Canada, the 1977 Badgley Report concluded that for many women, access to abortion was “practically illusory.” Sadly, although abortion on request became legally permissible for Canadian women in 1988, access to a safe and legal abortion remains practically illusory for many women today. A woman seeking an abortion in Canada must overcome numerous barriers. She must find a way to secure for herself some of the limited resources that our health care system provides for abortion. She must also expend her own, often scarce, personal resources: her time, …

Judicial Reasoning About Pregnancy And Choice, Jocelyn Downie, Chris Kaposy

Articles, Book Chapters, & Popular Press

Women in Canada are at risk of abortion becoming increasingly difficult to access. In its landmark 1988 ruling, R. v. Morgentaler, the Supreme Court of Canada struck down the prohibition of abortion in section 251 of the Criminal Code on the grounds that it violated a section of the Charter of Rights and Freedoms which guarantees, among other things, "security of the person". However, all of the justices who ruled that section 25 unconstitutional nonetheless claimed that protecting the fetus is a valid objective of federal legislation, leaving open the possibility that a different and carefully crafted law against abortion …

The Therapeutic Misconception: A Threat To Valid Parental Consent For Paediatric Neuroimaging Research, Michael Hadskis, Nuala Kenny, Jocelyn Downie, Matthias Schmidt, Ryan D'Arcy

Articles, Book Chapters, & Popular Press

Neuroimaging research has brought major advances to child health and well-being. However, because of the vulnerabilities associated with neurological and developmental conditions, the parental need for hope, and the expectation of parents that new medical advances can benefit their child, pediatric neuroimaging research presents significant challenges to the general problem of consent in the context of research involving children. A particular challenge in this domain is created by the presence of therapeutic misconception on the part of parents and other key research stakeholders. This article reviews the concept of therapeutic misconception and its role in pediatric neuroimaging research. It argues …

"Dirty Pretty Things" And The Law: Curing The Organ Shortage & Health Care Crises In America, Jennifer M. Smith

Journal Publications

There is an organ shortage crisis in the world, especially for kidneys and livers, resulting in approximately 6,000 deaths annually in the United States alone. There is also a health care crisis in the United States, with roughly sixteen percent of the population uninsured, resulting in approximately 18,000 deaths annually. In 1984, the National Organ Transplant Act ("NOTA') banned the acquisition of human organs in exchange for valuable consideration, primarily to prevent the exploitation of poor people--those who are most likely to sell their organs. Transplant professionals are increasingly pushing to legalize the outright sale of human organs from living …

In The Laboratory Of The States: The Progress Of Glucksberg'S Invitation To States To Address End-Of-Life Choice, Kathryn L. Tucker

Michigan Law Review

It has now been ten years since the Supreme Court handed down Glucksberg and Quill, rulings on laws that forbid "assisted suicide." In that time, normative and legal developments in the fields of law, medicine, and psychology have changed the landscape of the discourse on the choice of a mentally competent, terminally ill individual to choose to self-administer medications to bring about a peaceful death. Although the Court rejected petitioners' claims that state laws denying them the ability to end their terminal illnesses through self-administered medication violated the Constitution, it left states with the opportunity to experiment with legislation …

Physician-Assisted Suicide In Oregon: A Medical Perspective, Herbert Hendin, Kathleen Foley

Michigan Law Review

This Article examines the Oregon Death with Dignity Act from a medical perspective. Drawing on case studies and information provided by doctors, families, and other care givers, it finds that seemingly reasonable safeguards for the care and protection of terminally ill patients written into the Oregon law are being circumvented. The problem lies primarily with the Oregon Public Health Division ("OPHD"), which is charged with monitoring the law. OPHD does not collect the information it would need to effectively monitor the law and in its actions and publications acts as the defender of the law rather than as the protector …

Health Courts?, Philip G. Peters Jr.

Faculty Publications

This article undertakes the first detailed critique of the proposal from Common Good and the Harvard School of Public Health to replace medical malpractice jury trials with adjudication before specialized health courts. Professor Peters concludes that the modest benefits likely to be produced by the current health court proposal are matched by the risks of bias and overreaching that these courts would also present. Missing from the plan is the doctrinal change mostly likely to improve patient safety - hospital enterprise liability. Without enterprise liability, the health court proposal is unlikely to achieve its patient safety goals and, as a …

Rejection Of The Need For Informed Consent In Prostate Tissue Sample Research, William Hanes

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Health Equity, Hpv And The Cervical Cancer Vaccine, Joanna Erdman

Articles, Book Chapters, & Popular Press

This article explores the relationship between technological innovation and health inequity. It examines in particular the relationship between the vaccine against human papillomavirus (HPV) infection, the cause of cervical cancer, and inequity in cervical cancer incidence and mortality. In Canada, screening programs have drastically reduced the incidence of cervical cancer, but their benefits have been unequally distributed. Prevention efforts have disproportionately failed women of disadvantaged social groups. Technological innovation alone will not remedy this inequity. The HPV vaccine merely expands the available means for reducing or increasing health inequity depending on its implementation. For this reason, the article looks beyond …

Patients Without Borders: The Emerging Global Market For Patients And The Evolution Of Modern Health Care, Nathan Cortez

Faculty Journal Articles and Book Chapters

This article addresses the unique legal, policy, and ethical questions that arise when patients travel to foreign jurisdictions for medical care. A growing number of patients are leaving the United States, and employers, insurers, and even government payors are beginning to explore whether they can reduce spending by utilizing hospitals and physicians in developing countries. Because this is a dramatic leap, it has generated countless media stories, and has drawn attention from the WHO, WTO, World Bank, and U.S. Senate - many of which believe so-called medical tourism may transform health care here and abroad.

Despite this attention, the market …

Incidental Findings: A Common Law Approach, Stacey A. Tovino

Scholarly Works

Federal regulations governing human subjects research do not address key questions raised by incidental neuroimaging findings, including the scope of a researcher’s disclosure with respect to the possibility of incidental findings and the question whether a researcher has an affirmative legal duty to seek, detect, and report incidental findings. The scope of researcher duties may, however, be mapped with reference to common law doctrine, including fiduciary, tort, contract, and bailment theories of liability.

The Impact Of Neuroscience On Health Law, Stacey A. Tovino

Scholarly Works

Advances in neuroscience have implications for criminal law as well as civil and regulatory law, including health, disability, and benefit law. The role of the behavioral and brain sciences in health insurance claims, the mental health parity debate, and disability proceedings is examined.

Neuroimaging Research Into Disorders Of Consciousness: Moral Imperative Or Ethical And Legal Failure, Stacey A. Tovino

Faculty Articles

In this article I explore the ethical and legal implications of enrolling individuals with disorders of consciousness (DOC) in neuroimaging research studies. Many scientists have strongly emphasized the need for additional neuroimaging research into DOC, characterizing the conduct of such studies as morally imperative. On the other hand, institutional review boards (IRBs) charged with approving research protocols, scientific journals deciding whether to publish study results, and federal agencies that disburse grant money have limited the conduct, publication, and funding of consciousness investigations based on ethical and legal concerns. Following a detailed examination of the risks and benefits of neuroimaging research …

The Law School Clinic As A Partner In A Medical-Legal Partnership, Jane R. Wettach

Faculty Scholarship

No abstract provided.

Health Care Law, Sean P. Byrne, Paul Walkinshaw

University of Richmond Law Review

Arguably, no other field of law in Virginia matches the complexity, magnitude, and universality of health care. It therefore comes as little surprise that Virginia's legislative and judicial branches of government devoted substantial attention to health care law issues in 2006 and 2007. Between April 2006 and April 2007 the time period covered by this article the Supreme Court of Virginia decided a large number of cases directly affecting health care law in the Commonwealth. The 2007 legislative session also addressed a host of health care issues and those with the most impact are summarized herein. These judicial and legislative …

Integrating The Complexity Of Mental Disability Into The Criminal Law Course, Linda C. Fentiman

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Straddling The Line Of Medical Malpractice: Why There Should Be A Private Cause Of Action Against Physicians Via Emtala, Lawrence Bluestone

Cardozo Law Review

No abstract provided.

Pangloss, Patrick O. Gudridge

University of Miami Law Review

No abstract provided.