Health Law and Policy Commons^™

Save Thousands Of Lives Every Year: Resuscitate The Peer Review Privilege, Alan G. Williams

Journal of Law and Health

Doctors make mistakes—preventable medical mistakes—that kill or seriously injure patients. The best way to reduce these preventable errors is through a medical peer review process typically referred to as a "morbidity and mortality conference." However, over the past twenty years, federal and state courts, state legislatures, and state voters have effectively gutted the morbidity and mortality conference (M&M) as a remedial and preventative tool, resulting in tens of thousands of unnecessary deaths every year. Doctors need our help restoring the effectiveness of M&Ms. Congress has created the means to do so; now, all the courts need do is use it. …

Healer, Witness, Or Double Agent? Reexamining The Ethics Of Forensic Psychiatry, Matthew U. Scherer

Journal of Law and Health

In recent years, psychiatrists have become ever more prevalent in American courtrooms. Consequently, the issue of when the usual rules of medical ethics should apply to forensic psychiatric encounters has taken on increased importance and is a continuing topic of discussion among both legal and medical scholars. A number of approaches to the problem of forensic psychiatric ethics have been proposed, but none adequately addresses the issues that arise when a forensic encounter develops therapeutic characteristics. This article looks to the rules governing the lawyer-client relationship as a model for a new approach to forensic psychiatric ethics. This new model …

The Aca’S New Governing Architecture And Innovative State Delivery System Reform Initiatives, Gwendolyn R. Majette

Law Faculty Presentations and Testimony

No abstract provided.

Should Medicare Be Allowed To Negotiate Drug Prices?, Michael H. Davis

Law Faculty Articles and Essays

No abstract provided.

"You Belong To Me": Unscrambling The Legal Ramifications Of Recognizing A Property Right In Frozen Human Eggs, Browne C. Lewis

Law Faculty Articles and Essays

This article is divided into four parts. Part I includes a discussion of just a few examples of when babies conceived as a result of surrogacy arrangements have been treated like personal property. Part II explains the process that makes human oocyte cryopreservation a viable option for young women and also explores the ways that human eggs may end up in the marketplace. Part III examines the options open to courts with regard to the extent of a woman's property interest in her frozen eggs. Part IV contains an analysis of some of the property law causes of action that …

Introduction: Issues Of Reproductive Rights: Life, Liberty & The Pursuit Of Policy, Lauren Orrico, Gordon Gantt Jr.

Journal of Law and Health

On March 7, 2014, the Journal of Law and Health of Cleveland-Marshall College of Law hosted a symposium entitled “Issues of Reproductive Rights: Life, Liberty, and the Pursuit of Policy” in response to recent developments in the regulation of women’s reproductive rights. The discussion about women’s reproductive rights has expanded far beyond the morality of abortion and right to privacy, established by the United States Supreme Court in Roe v. Wade, and has been complicated by new technology, statutory developments, and case law discussing the nature of a corporation. The symposium presenters addressed key legal developments in each stage of …

Rules Are Meant To Be Broken: The Organ Procurement And Transplantation Network Should Allow Pediatric Transplantation Of Adult Lungs, Ciera Parish

Journal of Law and Health

This note analyzes the "Under 12 Rule" and advocates for its abolishment by examining the consequences and discrimination faced by children under the age of twelve since its enactment in 2005 as well as the benefits stemming from the allowance of using adult lungs for pediatric transplantation. Part II discusses the history of organ transplantation law and the current organ transplantation laws as they stand. Part III provides statistical data demonstrating the disparity between pediatric lung transplant candidates and adult lung transplant candidates. Part IV discusses the reasons for the implementation of the "Under 12 Rule" and analyzes the emerging …

Practice What You Preach: Does The National School Lunch Program Meet Nutritional Recommendations Set By Other Usda Programs?, ‘Lizabeth Disiena

Journal of Law and Health

Part II of this Note provides a historical background of the National School Lunch Program,20 specifically analyzing the purpose, implementation, and current state of the program. Part III begins by explaining why consideration of calories plays an important role in achieving proper weight management. It then concludes with a comparison between the caloric intake requirements of the National School Lunch Program,21 and the nutritional recommendations by other USDA government health initiatives,22 and non-governmental programs.23 Finally, Part IV proposes that the National School Lunch Program24 provide nutrition options for students that appropriately consider age, gender, and activity level in determination of …

The Threat Lives On: How To Exclude Expectant Mothers From Prosecution For Mere Exposure Of Hiv To Their Fetuses And Infants, Shahabudeen K. Khan

Cleveland State Law Review

There is a renewed interest in HIV/AIDS issues given that better treatment is available. The Department of Justice (DOJ), Civil Rights Division, recently published best practice guidelines to reform HIV-specific criminal laws to conform to modern science. The DOJ’s latest guidelines urge states to “reform and modernize” the laws to reflect modern science. There is a lot of unfinished work regarding the ineffectiveness and stigma associated with HIV criminal transmission laws as a whole. These laws are “no good” and counterintuitive in the fight against this unfortunate disease. There have been calls to repeal these laws in their entirety. That …

King, Chevron, And The Age Of Textualism, Abigail R. Moncrieff

Law Faculty Articles and Essays

In the King v. Burwell oral arguments, Chief Justice John Roberts—usually one of the more active members of the Court—asked only one substantive question, addressed to the Solicitor General: "If you're right about Chevron [deference applying to this case], that would indicate that a subsequent administration could change [your] interpretation?" As it turns out, that question was crucial to Roberts's thinking and to the 6-3 opinion he authored, but almost all commentators either undervalued or misunderstood the question's import (myself included). The result of Roberts's actual thinking was an unfortunate outcome for Chevron—and potentially for the rule of law—despite …

Shifting Our Focus From Retribution To Social Justice: An Alternative Vision For The Treatment Of Pregnant Women Who Harm Their Fetuses, April L. Cherry

Journal of Law and Health

The ways in which society responds to pregnant women whose behavior purportedly harms their fetuses can be explored from a variety of legal vantage points. This article argues that the criminal law model currently used is ineffective. The assignment of criminal liability to pregnant women is often rooted in fetal personhood and maternal deviance discourse. Criminal law solutions fail because they fail to take into account the fact that maternal behavior is often the result of a myriad of the social and economic conditions over which pregnant women have little or no control. The criminal law model, therefore, simply punishes …

Legislating Morality Progressively - The Contraceptive Coverage Mandate, Religious Freedom, And Public Health Policy And Ethics, Michael J. Deboer

Journal of Law and Health

This Article studies the contraceptive coverage mandate from three different perspectives. First, it provides a historical treatment of the regulatory rules adopted by agencies in the Obama Administration – specifically, the Departments of the Treasury, Labor, and Health and Human Services, which this Article collectively refers to as “the Administration” or “the Departments” – that imposed the mandate, focusing specifically on the rulemaking processes used to develop and promulgate the rules. In performing this historical study, the Article traces the development of the mandate from its root in the ACA to full implementation in legislative (substantive) rules finalized by the …

Reproductive Justice, Public Policy, And Abortion On The Basis Of Fetal Impairment: Lessons From International Human Rights Law And The Potential Impact Of The Convention On The Rights Of Persons With Disabilities, Carole J. Petersen

Journal of Law and Health

This article argues that we should consider not only American constitutional law but also comparative law and emerging international human rights norms, in order to navigate the difficult issue of abortion on the basis of fetal impairment. The United States is a State Party to the International Covenant on Civil and Political Rights (ICCPR)13 and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). It is also a signatory (but not a full State Party) to several other relevant treaties, including the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the …

An Incomplete Pass: Inadequacies In Ohio's Youth Concussion Legislation And The Ongoing Risk For Players, Andrew J. Kane

Journal of Law and Health

Broadly, this paper questions whether Ohio’s recently enacted youth concussion legislation adequately addresses the public health issue of sport-related brain injury, and contends that it does not. To that end, it first addresses the significance of traumatic brain injuries, including concussions, explaining that the failure to protect youth athletes from these potentially fatal conditions has largely resulted from a lack of awareness of their influence on neurological functions, and of their potential to cause serious brain injury. Next, this paper examines several legislative responses enacted by other states, all of which were in place before Ohio’s, and compares the recently …

Striking The Soda Ban: The Judicial Paralysis On The Department Of Health, Alana Sivin

Journal of Law and Health

Media coverage surrounding the New York City Department of Health’s recent portion-cap on sugary beverages sold in food service establishments tends to focus on public opinions regarding the role of government. Within this dialogue, there are two camps. On one hand lies the opposition; these individuals criticize the Department of Health as a “nanny state” involving itself with individual consumption choices. On the other side lay the supporters who recognize the gravity of the obesity epidemic and applaud government efforts to ameliorate its effects.

The Not So "Sweet Surprise": Lawsuits Blaming Big Sugar For Obesity-Related Health Conditions Face An Uphill Battle, Catherine Srithong Wicker

Journal of Law and Health

Because obesity and its associated health problems have been largely attributed to poor self-control, laziness, and various other personal failings, society has been unwilling to assign blame to food manufacturers for their role in contributing to this problem. But, as consumers are becoming more aware of the significantly harmful effect that poor diets can have on a person’s heath, the scales may be tipping in favor of bringing “Big Food” to court. Food manufacturers, however, are not exactly vulnerable. Armed with precedent disputing the causal link between consumption of fast food and adverse health effects, judicially-created barriers to admitting epidemiologic …

There's No Place Like Home: How Ppaca Falls Short In Expanding Home Care Services To The Elderly, Nick Vento

Journal of Law and Health

On March 23, 2010, President Barack Obama signed into law the Patient Protection and Affordable Care Act (PPACA). In an effort to rebalance states’ spending on long-term services and supports (LTSS) towards home care, PPACA created four new options under Medicaid with which states could provide home care services to their citizens. While PPACA’s creation of these four optional Medicaid HCBS programs allows states more flexibility and the capability to provide enhanced home care services to its citizens, it falls short of completely addressing the existing institutional bias in Medicaid by failing to create a mandatory Medicaid state service plan …

The Federal Rules Of Civil Procedure, Electronic Health Records, And The Challenge Of Electronic Discovery, Terrance K Byrne

Journal of Law and Health

Byrne argues that disparities among different courts’ interpretations of the Federal Rules of Civil Procedure amendments have caused confusion for those in law and healthcare. Additional amendments to the FRCP are necessary to provide clarity, especially in the area of healthcare electronic discovery. Specifically, future amendments should include:

1. Enforcing the “Meet and Confer” process, especially as related to e-discovery and ESI;

2. Clear specification about when the duty to preserve information begins;

3. Delineating reasonable and consistent standards for production of information; and

4. Outlining the details for when sanctions for failing to retain ESI are appropriate

Review: Compassionate Care For The Living And The Dying, Browne C. Lewis

Law Faculty Articles and Essays

This is a review of "The End of End-of Life Law" (92 N.C.L. Rev. 1693 (2014), by Lois L. Shepard. In light of medical advances and increasing health care costs, conversations about end-of-life care will continue to occur. A significant portion of the discussion will focus on ways to handle surrogate decision-making. The practical suggestions Professor Shepherd includes in her article could be a valuable part of that dialogue.

Squashing The Superbugs: A Proposed Multifaceted Approach To Combatting Antibiotic-Resistant Bacteria , Lauren Orrico

Journal of Law and Health

Section II of this Note will provide background on the practices of the United States farming system, which fosters the creation of antibiotic-resistant bacteria. This section will also provide background on the detrimental effects that antibiotic resistance has on human health and will briefly describe the legal history of food and drug regulations. After establishing an informational foundation, Part III will elaborate on current laws and describe the legal authority of key players, before pointing out the shortcomings in current animal feed policy and recommending the development of further regulation in this area. Additionally, Part III will propose new legislation …

Liberty, Equality, And Parentage In The Era Of Posthumous Conception, Jessica Knouse

Journal of Law and Health

This essay uses Astrue v. Capato as a platform to examine how liberty and equality interact within parent-child relationships. It observes that as prospective parents have experienced an increase in liberty due to new reproductive technologies the children they create have not necessarily experienced a commensurate increase in equality. The law’s myopic focus on parent-child relationships rather than provider-dependent relationships renders posthumously conceived children unequal along multiple dimensions. They may have not only one provider, but also only one parent. This essay argues that shifting the law’s focus away from identifying parents and towards identifying providers would mitigate the status …

Posthumously Conceived Children: An International And Human Rights Perspective , Maya Sabatello

Journal of Law and Health

This essay considers posthumous conception from an international and child-centered approach. After a sketch in Part I of the phenomenon of posthumous conception and the complexities it evokes, Part II examines the types of issues arising in court cases concerning posthumous conception. Part III considers how courts in their rulings have addressed the welfare and best interests of posthumously conceived children and analyzes the scope and meaning of relevant decisions. Part IV looks into children’s rights or interests raised in those judicial decisions: parental acknowledgement, family structures, identity harm, and inheritance and social benefits. This part draws on the Convention …

Who Can Afford It?: The Patient Protection And Affordable Care Act's Failure To Regulate Excessive Cost-Sharing Of Prescription Biologic Drugs , Michael Callam

Journal of Law and Health

This Note will discuss how the PPACA’s abbreviated approval pathway for biological products creates an expedited procedure to bring less expensive biologic drugs to the market, but ultimately fails to make those biologic drugs affordable because of its lack of provisions limiting insurers’ use of excessive cost-sharing requirements. Part II provides an overview of prescription drugs, compares biologics with traditional prescription drugs, and provides a brief legislative history of prescription drug laws. Part III analyzes the impact of the abbreviated approval pathway on biologic drugs’ costs to prescribed patients. It also examines the PPACA’s effects on biologics inclusion into health …

Symposium: The Legal And Ethical Implications Of Posthumous Reproduction, Trent Stechschulte

Journal of Law and Health

On March 22, 2013, the Journal of Law and Health of Cleveland-Marshall College of Law hosted a symposium entitled the “Legal and Ethical Implications of Posthumous Reproduction” in response to the United States Supreme Court case Astrue v Capato. In Astrue, Karen Capato used Robert Capato’s sperm to successfully conceive twins by in vitro fertilization eighteen months after Robert Capato’s death. Karen then applied for Social Security Survivorship Benefits on behalf of the twins, but to her dismay the Social Security Administration denied her application, prompting litigation on the twins’ behalf. The Supreme Court held that the posthumously conceived children …

The Case For Flexible Intellectual Property Protections In The Trans-Pacific Partnership , Matthew E. Silverman

Journal of Law and Health

The United States and eleven other countries are currently in the end stages of negotiating the Trans-Pacific Partnership (TPP)—the largest free trade agreement (FTA) in U.S. history—which incorporates a range of trade topics, including the protection and enforcement of intellectual property rights (IPRs). Although the negotiations have been highly secretive, negotiating texts of the agreement leaked as recently as November 2013 have suggested that the United States is proposing IPR provisions, specifically relating to patent protection, that are stronger and less flexible than IPR provisions included within three of the four most recent U.S. FTAs. This paper addresses and analyzes …

Smoking Out A Compromise: Splitting The Difference Through A Public Policy Approach To Resolving The Graphic Cigarette Warning Label Circuit Split, Amelia B. Larsen

Cleveland State Law Review

The imposition of graphic warning labels is necessary; the tobacco market exploits the lower class by capitalizing on their under-education regarding the negative health consequences of smoking. This injustice can be corrected by providing the most direct and clear communication imaginable to consumers to ensure they are completely informed of the peril they are placing themselves in when they choose to smoke—the graphic warning labels provide this kind of communication. This Note discusses why the FDA’s warning labels meet First Amendment constitutional scrutiny and serve a substantial governmental interest regarding the country’s public health, socioeconomic equality, and economy. Part II …

Beyond Payment And Delivery Reform: The Individual Mandate’S Cost-Control Potential, Abigail R. Moncrieff, Manisha Padi

Law Faculty Articles and Essays

Obamacare's individual mandate, minimum coverage requirements, elimination of cost-sharing for preventive care, and minimum medical loss ratios work together to decrease patients' decision costs, steering patients to particular choices that Congress deemed most efficient. If those regulations succeed in improving the efficiency of patients' healthcare and insurance choices, then the resulting demand-side forces can help to decrease prices. This brief Essay does not attempt to evaluate the regulations' success; it merely highlights the cost-control implications of Obamcare's demand-side measures, noting that discussions of cost control should not focus exclusively on the statute's supply-side effects.

Presuming Consent To Posthumous Reproduction , Hilary Young

Journal of Law and Health

I begin by explaining what presuming consent to posthumous reproduction would mean, then justify a presumed consent policy in some circumstances by considering the relevant interests at stake. Specifically, I distinguish between a person’s interest, while alive, in not being made a genetic parent after his death, and a dead person’s interest in not being made a genetic parent. I then examine the nature of the surviving partner’s interest in reproducing with her deceased partner. Each of these interests varies depending on the type of posthumous reproduction at stake. For example, all things being equal, reproduction involving interferences with a …

Elder Self-Neglect And Adult Protective Services: Ohio Needs To Do More, William White

Journal of Law and Health

Ohio APS statutes are antiquated, do not reflect the increasingly complex needs of self-neglecting elderly, and need to be changed to decrease the likelihood of significant self-harm or even death, as represented in the story of Carlene. Section II of this paper provides background information on elder self-neglect and APS. Section III discusses why Ohio needs to mandate that APS jurisdiction includes nursing facilities and how the law could be effectively changed. Section IV discusses how APS interventions need to evolve to meet the diverse needs of the growing elderly population; a singular investigative response no longer fits for every …

The Highs Of Tomorrow: Why New Laws And Policies Are Needed To Meet The Unique Challenges Of Synthetic Drugs , Joseph A. Cohen

Journal of Law and Health

This article reviews the federal government’s attempts to control the influx of synthetic drugs, particularly synthetic cannabinoids and cathinones, into the U.S. recreational drug market since 2008. It offers three recommendations targeted at Congress, the DEA, and the Department of State on ways to prevent and control synthetic drug use in America: (1) Congress should grant the DEA a new “immediate scheduling” authority; (2) the DEA should improve information sharing with states; and (3) the Department of State and the DEA should prioritize the development of a global early warning system.