Health Law and Policy Commons^™

Direct-To-Consumer Advertising Of Prescription Drugs: After A Decade Of Speculation, Courts Consider Another Exception To The Learned Intermediary Rule, Mae Joanne Rosok

Seattle University Law Review

This Comment will explore whether Washington courts should recognize direct-to-consumer advertising as an exception to the learned intermediary rule. With the ultimate goal of advocating the best protection for the consumer, the discussion will suggest that Washington courts should not create an exception. A review of other exceptions to the learned intermediary rule does not support abandoning the doctrine when a drug company advertises its product directly to consumers. Nevertheless, advertising does affect consumer purchases and does influence consumer choices, and drug companies should accept the responsibility to present balanced information. This responsibility should encompass more than meeting the minimum …

Dr. "Zorro" Leaves His Mark, Amy Nyitrai

Buffalo Women's Law Journal

No abstract provided.

Daaka V. Carmel Hospital, Dorit Beinisch, Theodor Or, Tova Strasberg-Cohen, Aharon Barak, Shlomo Levin, Mishael Cheshin, Izhak Englard

Translated Opinions

Facts: Appellant was admitted to the hospital for an operation on her left leg, and she signed a consent form agreeing to the operation. Two days later, after being placed on the operating table and receiving sedatives in advance of undergoing anesthesia, she was asked to sign a consent form for a biopsy operation on her right shoulder. She did so, and the biopsy was performed and did not reveal malignancy. After being released from the hospital, her shoulder remained stiff. Appellant sued the hospital for negligence, claiming negligence in failing to receive her informed consent, in the decision to …

Playing Doctor: Corporate Medical Practice And Medical Malpractice, E. Haavi Morreim

University of Michigan Journal of Law Reform

Although health plans once existed mainly to ensure that patients could pay for care, in recent years managed care organizations (MCOs) have attempted to limit expenditures by exercising significant influence over the kinds and levels of care provided. Some commentators argue that such influence constitutes the practice of medicine, and should subject MCOs to the same medical malpractice torts traditionally brought against physicians. Others hold that MCOs engage only in contract interpretation, and do not literally practice medicine.

This Article begins by arguing that traditional common law doctrines governing corporate practice of medicine do not precisely apply to the current …

Accountable Managed Care: Should We Be Careful What We Wish For?, David A. Hyman

University of Michigan Journal of Law Reform

Managed care is exceedingly unpopular of late. Many people believe that the problem is managed care organizations (MCOs) are unaccountable. Indeed, for many people, the creation of tort-based accountability for MCOs is the touchstone for assessing legislative "reform." The case for tort-based accountability is actually quite complex, and the merits of tort-based accountability cannot be resolved with sound bites and bad anecdotes. Tort-based accountability has both costs and benefits, and little attention has been paid to the extent to which alternatives to tort-based accountability are found in existing institutional arrangements.

This Article systematically considers the extent to which alternatives to …

Establishing New Legal Doctrine In Managed Care: A Model Of Judicial Response To Industrial Change, Peter D. Jacobson, Scott D. Pomfret

University of Michigan Journal of Law Reform

Courts are struggling with how to develop legal doctrine in challenges to the new managed care environment. In this Article, we examine how courts have responded in the past to new industries or radical transformations of existing industries. We analyze two historical antecedents, the emergence of railroads in the nineteenth century and mass production in the twentieth century, to explore how courts might react to the current transformation of the health care industry.

In doing so, we offer a model of how courts confront issues of developing legal doctrine, especially regarding liability, associated with nascent or dramatically transformed industries. Our …

Bajakajian: New Hope For Escaping Excessive Fines Under The Civil False Claims Act, Melissa Ballengee Alexander

Faculty Articles

No abstract provided.

Reconciling The Exercise Of Judgment And The Objective Standards Of Care In Medical Malpractice, Joseph H. King Jr.

Oklahoma Law Review

No abstract provided.

Patient Safety, Risk Reduction, And The Law, Larry I. Palmer

Cornell Law Faculty Publications

"Patient safety" has come of age. With the publication of several empirical studies of medical injuries and the recent Institute of Medicine Report, To Err is Human: Building a Safe Health System, scholars from a variety of disciplines are advocating "systems thinking" as a way of preventing medical accidents. These scholars have been influenced by efforts to reduce accidents in other high risk industries such as aviation and scholarship in law proposing "no fault systems" for compensating medical accident victims. This article proposes that in order to incorporate "systems thinking" about medical error reduction, legal scholarship on the health care …

Planned Parenthood Of The Columbia/Willamette, Inc. V. American Coalition Of Life Activists (23 F. Supp. 2d 1182 (1998)), Debbie Karet

Buffalo Women's Law Journal

No abstract provided.

Analysis Of People Of The State Of New York, Buffalo Gyn Womenservices, Planned Parenthood Of Rochester/Syracuse Region, Et. Al. V. Operation Rescue National, Et. Al., Lucinda Finley

Buffalo Women's Law Journal

No abstract provided.

Cigarette Law, Daniel Givelber

Indiana Law Journal

No abstract provided.

How Reliable Is Medical Malpractice Law? A Review Of "Medical Malpractice And The American Jury: Confronting The Myths About Jury Incompetence, Deep Pockets, And Outrageous Damage Awards" By Neil Vidmar, Jeffrey O'Connell, Christopher Pohl

Journal of Law and Health

No abstract provided.

Hmo Liability For The Medical Negligence Of Member Physicians, Domenick C. Dicicco Jr.

Villanova Law Review (1956 - )

No abstract provided.

Is There A Future For Future Claimants After Amchem Products, Inc. V. Windsor?, Alex Raskolnikov

Faculty Scholarship

In September 1990, the Chief Justice of the U.S. Supreme Court appointed an Ad Hoc Committee on Asbestos Litigation in response to what was widely perceived as a "'failure of the federal court system to perform one of its vital roles in our society.'" Less than a year later, the Judicial Panel on Multidistrict Litigation transferred all untried asbestos cases to the eastern district of Pennsylvania for pretrial proceedings. In January 1993, these proceedings produced a global settlement class action of historic proportions, which the district court eventually approved in August 1994. In May 1996, in Georgine v. Amchem Products, …

Ockham's Scalpel: A Return To A Reasonableness Standard, Ellen Wertheimer

Villanova Law Review (1956 - )

No abstract provided.

Managed Care Organizations In North Carolina: Tort Liability Theories And Defenses, Jay Jyoti Chaudhuri

North Carolina Central Law Review

No abstract provided.

Malpractice And Other Legal Issues Preventing The Development Of Telemedicine , Christopher Caryl

Journal of Law and Health

Even though most Americans have not heard of telemedicine, the federal government is already actively involved in "developing a national telemedicine strategy." This note attempts to accomplish the following: demonstrate the urgent need of rural communities to gain access to adequate health care; clarify how telemedicine can provide enhanced health care to rural communities; and analyze the legal obstacles that have prevented, thus far, the most beneficial utilization of telemedicine. In particular, this note will examine how malpractice claims arising from telemedicine consultations might be resolved. An important issue to recognize at the outset, and one that consistently reappears throughout …

Anderson V. St. Francis-St. George Hospital: Wrongful Living From An American And Jewish Legal Perspective , Daniel Pollack, Chaim Steinmetz, Vicki Lens

Cleveland State Law Review

As advances in medical technology have kept people alive longer, the right to refuse life-sustaining treatment has taken on an even more crucial and urgent significance to dying patients and their families. While modern medicine may have learned to save lives, the lives it has saved are often severely diminished and filled with pain and suffering. Although the right to refuse life saving medical treatment is firmly embedded in our nation's laws, what to do when this right is ignored has not been firmly settled. The Anderson court answered this question by "splitting the difference." It affirmed Winter's right to …

The Managed Care Dilemma: Can Theories Of Tort Liability Adapt To The Realities Of Cost Containment?, Barbara A. Noah

Faculty Scholarship

Over the years, the United States health care system has undergone a transformation from a market comprised mainly of self employed physicians· in solo or small group practices to one in which far fewer physicians engage in this type of independent practice. More than three quarters of the physicians in this country now practice medicine within some form of managed care organization ("MCO") or see some managed care patients. The public increasingly perceives the care provided through MCOs as inferior to traditional feefor-service care. Responding to constituent pressures, legislatures in more than twenty states recently have considered bills regulating managed …

Paying For Suffering: The Problem Of Human Experimentation, Larry I. Palmer

Cornell Law Faculty Publications

No abstract provided.

Torts—Change In The Arkansas Law Of Informed Consent: What's Up, Doc? Aronson V. Harriman, 321 Ark. 359, 901 S.W.2d 832 (1995)., Elizabeth Sudbury Langston

University of Arkansas at Little Rock Law Review

No abstract provided.

After Farley V. Sartin: The Consequences Of Declaring A Nonviable Fetus A Person For The Purpose Of Wrongful Death, Stacie L. Lude

West Virginia Law Review

No abstract provided.

Farley V. Sartin: Viability Of A Fetus No Longer Required For Wrongful Death Liability, Robin C. Hewitt

West Virginia Law Review

No abstract provided.

Sleeping With The Enemy: Combatting The Sexual Spread Of Hiv-Aids Through A Heightened Legal Duty, 29 J. Marshall L. Rev. 957 (1996), Eric L. Schulman

UIC Law Review

No abstract provided.

When The Surgeon Has Hiv: What To Tell Patients About The Risk Of Exposure And The Risk Of Transmission, Phillip L. Mcintosh

Journal Articles

This Article explores the legal aspects of the dilemma facing an HIV-infected surgeon with respect to whether the doctrine of informed consent requires, or can require, disclosure of the surgeon's HIV-infection under some circumstances. This Article then examines the nature of the risks associated with HIV as they affect patients during surgery. Next, this Article evaluates whether the risks are sufficiently material to require disclosure (or at least to present a jury question), and, in any event, whether state law can require such disclosure under the Americans with Disabilities Act of 1990 (ADA). In particular this Article examines the doctrine …

Medtronic V. Lohr: State Lawsuits May Proceed Against Medical Device Manufacturers, Robert A. Gerberry

Journal of Law and Health

This comment discusses the Medical Device Amendments of the Federal Food, Drug, and Cosmetic Act and its effect on the marketing of medical products. Part II examines the statutory language of the MDA and its regulatory impact on medical devices. Part III explores the history of the preemption doctrine established by the Supreme Court Cipollone. Part IV delineates the facts and procedural history of Medtronic v. Lohr and analyzes the effect of this case on the federal preemption of state common law suits. Finally, Part V assesses the impact of this decision on the medical device industry and the expansiveness …

Torts: Anderson V. Eichner--Although Faculty Physicians, Resident Physicians, And Interns Face Private Tort Liability For Medical Malpractice, The State Is Immune, Christa L. Britton

Oklahoma Law Review

No abstract provided.

Health Care: Erisa Preemption And Hmo Liability--A Fresh Look At Erisa Preemption In The Context Of Subscriber Claims Against Hmos, Brooks Richardson

Oklahoma Law Review

No abstract provided.

Toward A Pragmatic Model Of Judicial Decisionmaking: Why Tort Law Provides A Better Framework Than Constitutional Law For Deciding The Issue Of Medical Futility, Brent D. Lloyd

Seattle University Law Review

Recognizing that courts will eventually have to confront the issue of medical futility, this Comment argues that there is no principled basis for omitting these difficult questions from a legal analysis of the issue and that courts should therefore decide the issue in a manner that honestly confronts them. Specifically, the argument advanced here is that courts confronted with cases of medical futility should decide the issue under principles of tort law, rather than under principles of constitutional law. The crux of this argument is that tort principles provide an open-ended analytical framework conducive to considering troublesome questions like those …