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Articles 31 - 60 of 109
Full-Text Articles in Health Law and Policy
In Search Of The Golden Years: How Compulsory Licensing Can Lower The Price Of Prescription Drugs For Millions Of Senior Citizens In The United States, Debjani Roy
Cleveland State Law Review
This article will show that compulsory licensing is the best remedy for the escalating cost of prescription drugs in the United States. Section II will provide a historical overview of American pharmaceutical patent law and will introduce the concept of compulsory licensing as a method to decrease the high cost of prescription drugs for senior citizens in the United States. Section III will look at the newly enacted Medicare Prescription Drug and Modernization Act, and state and local government plans to import cheaper brand-name prescription drugs from Canada. Section IV will look at the United States' international support for compulsory …
Dna Patenting And Access To Healthcare: Achieving The Balance Among Competing Interests, Melissa E. Horn
Dna Patenting And Access To Healthcare: Achieving The Balance Among Competing Interests, Melissa E. Horn
Cleveland State Law Review
Increasing evidence suggests that the biotechnology industry's interest in generating revenue and the public's desire to obtain the best healthcare may be at odds. The patenting of genetic information is at the core of this debate. Most, if not all, of the products of the biotech industry's research are patentable. Historically, patents have been justified on the grounds that they are needed to create an incentive for researchers and companies to invest time and money in projects that have uncertain outcomes. In the biotechnology arena, patents do not simply encourage innovation and allow innovators to recoup their costs. Patents can …
Gene Therapy: Legal And Ethical Issues For Pregnant Women , Angela Liang
Gene Therapy: Legal And Ethical Issues For Pregnant Women , Angela Liang
Cleveland State Law Review
The decision to undergo gene therapy in utero for the sake of a fetus should legally rest with the pregnant woman rather than the judiciary or the legislature. Part I of this article provides an overview of the current scope of gene therapy. Part II discusses previous court decisions that either granted or denied petitions for involuntary prenatal intervention. Part III analyzes three reasons why the courts should not impose gene therapy on pregnant women as the technology becomes available. First, a policy that mandates gene therapy would place an undue burden on pregnant women and violate the Equal Protection …
Determining The Immunity Measuring Stick: The Impact Of The Health Care Quality Improvement Act And Antitrust Laws On Immunity Aspects Of Granting Privileges To Physician Assistants, Joseph Mark Saponaro
Determining The Immunity Measuring Stick: The Impact Of The Health Care Quality Improvement Act And Antitrust Laws On Immunity Aspects Of Granting Privileges To Physician Assistants, Joseph Mark Saponaro
Cleveland State Law Review
This note examines the antitrust developments that affect the health care industry; the Health Care Quality Improvement Act of 1986; the treatment of peer review process immunity for physicians as it now exists; how non-physician providers are dealt with in the peer review process; and where physician assistants fit into the whole scheme. Part I of this note lays a foundation of antitrust principles, briefly explaining the applicable portions of the Sherman Act. Part I continues by setting forth the approaches, rule of reason versus per se rule, that courts utilize when dealing with antitrust situations. After explaining these governing …
Respect For The Bioethical Dilemmas - The Case Of Physician-Assisted Suicide, Sixty-Fifth Cleveland-Marshall Fund Lecture, John A. Robertson
Respect For The Bioethical Dilemmas - The Case Of Physician-Assisted Suicide, Sixty-Fifth Cleveland-Marshall Fund Lecture, John A. Robertson
Cleveland State Law Review
In this lecture I begin an exploration of the role that respect for human life plays in contemporary bioethics. Although many bioethical dilemmas could be chosen to illustrate this role, I will focus on the case of physician-assisted suicide. This lecture emphasizes the role that respect for human life plays in arbitrating bioethical disputes that involve physician-assisted suicide. I hope to develop some generalizations about how respect for life and autonomy, beneficence and other values interact and thus constitute or define what respect for life means for us. Part I discusses assisted suicide and the ban against actively killing. Part …
Anderson V. St. Francis-St. George Hospital: Wrongful Living From An American And Jewish Legal Perspective , Daniel Pollack, Chaim Steinmetz, Vicki Lens
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 …
Drive-Through Deliveries: Indiscriminate Postpartum Early Discharge Practices Presently Necessitate Legislation Mandating Minimum Inpatient Hospital Stays, Tracy Wilson Smirnoff
Drive-Through Deliveries: Indiscriminate Postpartum Early Discharge Practices Presently Necessitate Legislation Mandating Minimum Inpatient Hospital Stays, Tracy Wilson Smirnoff
Cleveland State Law Review
"Drive-through deliveries," women delivering their babies and leaving the hospital only a few hours, rather than days, later are increasingly becoming the standard of care in the United States. This Note argues that legislation mandating minimum inpatient postpartum hospital stays is presently the best possible solution to the overreaching control MCOs have over doctors, the standard of care, and the length of hospital stays based on their willingness to cover treatment. Part H of this Note reviews the development of postpartum care during the twentieth century. This section also discusses the reasoning for the concerns regarding the early discharge of …
What Is Experimental Medical Treatment: A Legislative Definition Is Needed, Melody L. Harness
What Is Experimental Medical Treatment: A Legislative Definition Is Needed, Melody L. Harness
Cleveland State Law Review
This note focuses on the highly publicized coverage disputes involving HDCr/ABMT for the treatment of breast cancer to illustrate the problems inherent in courts judging medical technology and legislatures politicizing medical technology. The problems exist, however, with respect to every developing medical technology for which there is no consensus on its safety and effectiveness. Part II of this note depicts the typical scenario involving a patient with metastatic breast cancer. Part III outlines the drug approval process and off-label drug use. Part IV describes HDCT/ABMT treatment and discusses the lack of consensus regarding its efficacy for the treatment of breast …
A Doctor's Duty To Disclose Life Expectancy Information To Terminally Ill Patients, Denise Ann Dickerson
A Doctor's Duty To Disclose Life Expectancy Information To Terminally Ill Patients, Denise Ann Dickerson
Cleveland State Law Review
It is the purpose of this Note to review and evaluate the benefits to making full disclosure to a terminally ill patient. It is this author's position that a patient's well-being and dignity dictate that the physician be forthright with all information regarding a patient's diagnosis and the range of treatments available, including both active and passive treatments.
The Medicaid Cost Crisis: Are There Solutions To The Financial Problems Facing Middle-Class Americans Who Require Long-Term Health Care, Kenneth Hubbard
The Medicaid Cost Crisis: Are There Solutions To The Financial Problems Facing Middle-Class Americans Who Require Long-Term Health Care, Kenneth Hubbard
Cleveland State Law Review
Medicaid was originally designed as a welfare program to provide healthcare to the poor. Despite the initial intentions of Congress, Medicaid has instead become "a multi-billion-dollar insurance policy" for elderly middle-class Americans who require long-term health care. The Medicaid crisis has been described as "a battle between elderly people's desire for long-term care coverage and their concomitant reluctance to pay for it themselves." This battle is waged between the older and younger generations, commencing when the younger generation observes that their inheritance is growing smaller or disappearing altogether due to the immense cost of their parents' long-term health care.
The Nursing Profession In The 1990'S: Negligence And Malpractice Liability, Frank J. Cavico, Nancy M. Cavico
The Nursing Profession In The 1990'S: Negligence And Malpractice Liability, Frank J. Cavico, Nancy M. Cavico
Cleveland State Law Review
Since expanded responsibility portends increased liability, a thorough understanding of the law must be achieved for nurses' rights to be adequately protected and for nurses to be held properly accountable for their legal obligations. This work examines the legal rights, responsibilities, and particularly the potential legal liability of the nurse, in the contexts of modem nursing practice and current statutes and case law. The work focuses on one major aspect of the nurse's legal liability -the tort, or civil wrong, of negligence.
The Effect Of State Medical Malpractice Caps On Damages Awarded Under The Emergency Medical Treatment And Active Labor Act (42 U.S.C. 1395dd), Amy J. Mckitrick
The Effect Of State Medical Malpractice Caps On Damages Awarded Under The Emergency Medical Treatment And Active Labor Act (42 U.S.C. 1395dd), Amy J. Mckitrick
Cleveland State Law Review
Although EMTALA was passed in 1986, there have been relatively few cases reported which aid in establishing the scope and boundaries of the Act. The legislature itself has attempted to clarify EMTALA's provisions, and has amended the Act nearly every year since its enactment, the most recentamendments in 1990 and the most extensive amendments taking place in 1989. These amendments, however, have not changed the Act significantly from its original purpose and objectives7 and thus, much of the case law remains pertinent to a current analysis of the application of state medical malpracticecaps to claims under EMTALA.
The Effect Of State Medical Malpractice Caps On Damages Awarded Under The Emergency Medical Treatment And Active Labor Act (42 U.S.C. 1395dd), Amy J. Mckitrick
The Effect Of State Medical Malpractice Caps On Damages Awarded Under The Emergency Medical Treatment And Active Labor Act (42 U.S.C. 1395dd), Amy J. Mckitrick
Cleveland State Law Review
Although EMTALA was passed in 1986, there have been relatively few cases reported which aid in establishing the scope and boundaries of the Act. The legislature itself has attempted to clarify EMTALA's provisions, and has amended the Act nearly every year since its enactment, the most recentamendments in 1990 and the most extensive amendments taking place in 1989. These amendments, however, have not changed the Act significantly from its original purpose and objectives7 and thus, much of the case law remains pertinent to a current analysis of the application of state medical malpracticecaps to claims under EMTALA.
Medical Futility: Has Ending Life Support Become The Next Pro-Choice/Right To Life Debate, Daniel Robert Mordarski
Medical Futility: Has Ending Life Support Become The Next Pro-Choice/Right To Life Debate, Daniel Robert Mordarski
Cleveland State Law Review
This note will provide an analysis of the issue of medical futility and propose "solutions" to the issue. Part II considers the definition of "medical futility" and different ways to view the concept. In Part III, the position is forwarded that medical futility is a question of values which the medical profession is not necessarily more qualified than a layperson to answer. In Part IV, medical futility will be examined in the context of existing law. This section also addresses the potential tort liability of a health care provider who unilaterally takes certain actions based on the concept of medical …
Justice, Mental Health, And Therapeutic Jurisprudence, David B. Wexler
Justice, Mental Health, And Therapeutic Jurisprudence, David B. Wexler
Cleveland State Law Review
Mental health law advocates and even scholars have typically been hostile toward, afraid of, or at best indifferent to, the mental health disciplines (mainly psychiatry and psychology) and their practitioners. Learning to be skeptical of supposed scientific expertise is an important lesson, and the law should never simply defer to psychiatry and the related disciplines. But to the extent that the legal system now ignores developments in the mental health disciplines, the lesson of healthy skepticism has been overlearned. It is my thesis, then, that those of us interested in 'justice" in mental health law ought not to adopt the …
The Justice Mission And Mental Health Law, Steven R. Smith
The Justice Mission And Mental Health Law, Steven R. Smith
Cleveland State Law Review
Mental health law's concern with justice, so much a part of the discussion of civil commitment, the insanity defense and other traditional mental health subjects, has been a neglected subject in one important area. Malpractice claims against mental health professionals commonly are slow, expensive and embarrassing for the professional and the injured. Processing these claims creates great stress on plaintiffs and defendants alike. The legal system has been insensitive to the harm it inflicts on mental health patients who pursue malpractice claims. Too often even patients' lawyers have also ignored the potential for harm. Because the current system conflicts with …
At What Cost Will The Court Impose A Duty To Preserve The Life A Child, David S. Lockemeyer
At What Cost Will The Court Impose A Duty To Preserve The Life A Child, David S. Lockemeyer
Cleveland State Law Review
The purpose of this Note is to explore the issues surrounding parental consent for a surgical invasion of one child to save the life of a sibling. This Note focuses on the courts role in permitting organ transplantation. In addition, it will discuss the new developments in medical science regarding living donors and the concept of transplantation of regenerative organs and the possible impact on the court. Next, this Note analyzes the elements of duty to rescue, best interest and substituted judgment and the court's use of the various tests to justify invasion of a child's body. This Note examines …
Active Voluntary Euthanasia: The Ultimate Act Of Care For The Dying, Deborah A. Wainey
Active Voluntary Euthanasia: The Ultimate Act Of Care For The Dying, Deborah A. Wainey
Cleveland State Law Review
This Note explores whether modern society can embrace the concept of euthanasia as "death without suffering" to the full extent of the term. Section II explores the distortion of the concept of euthanasia from an historical perspective. Section III provides insight into the practice of euthanasia in the Netherlands, the only country in the world which allows people to request and receive aid-in-dying, i.e., active euthanasia. Section IV reviews the American judicial and legislative response to the active euthanasia issue, and analyzes the Death With Dignity Act, a model law which would permit a terminally ill adult to request and …
Containing The Aids Virus . . . Testing . . . Reporting . . . Confidentiality . . . Quarantine . . . Constitutional Considerations, Luann A. Polito
Containing The Aids Virus . . . Testing . . . Reporting . . . Confidentiality . . . Quarantine . . . Constitutional Considerations, Luann A. Polito
Cleveland State Law Review
In addition to illness, disability, and death, AIDS has evoked fear in the hearts and minds of most Americans: fear of the AIDS virus and fear of the unknown. This fear has caused many Americans to act irrationally towards AIDS and its victims. This article will analyze the different legislative acts intended to curtail the spread of the disease and whether these enactments will aid or merely hinder the containment of the AIDS virus. It will illustrate potential conflicts this legislation poses to the AIDS victims' constitutional rights of privacy and liberty. At its conclusion, it will illustrate that with …
Surrogate Motherhood And Tort Liability: Will The New Reproductive Technologies Give Birth To A New Breed Of Prenatal Tort, Nancy Hansbrough
Surrogate Motherhood And Tort Liability: Will The New Reproductive Technologies Give Birth To A New Breed Of Prenatal Tort, Nancy Hansbrough
Cleveland State Law Review
It seems inevitable that new causes of action will evolve as more childless couples resort to the use of the new reproductive methodologies. The prenatal tort claims abounding in precedent today lay a firm foundation for the recognition of a new form of tort liability. This Note will first examine briefly the history of prenatal torts, and present the status of recovery today. The Note will then examine the history and current status of the doctrine of parent-child immunity in the United States. Concentrating on these two concepts, the nature of a tort claim by an injured child for prenatal …
Judges As Medical Decision Makers: Is The Cure Worse Than The Disease, Alan A. Stone
Judges As Medical Decision Makers: Is The Cure Worse Than The Disease, Alan A. Stone
Cleveland State Law Review
I shall examine and criticize three of the many judicial decisions in the area of law and medicine. These cases are Doe v. Bolton, Superintendent of Belchertown State School v. Saikewicz, and Rogers v. Commissioner of the Department of Mental Health. Those of you who like to think of the law as reason and justice tempered by mercy will be offended by what I have to say; but I shall be evenhanded. Those of you who think of medicine as science and art tempered by compassion will also be offended. My justification for the critical and polemical thesis I shall …
Mental Hospital Drugging - Atomistic And Structural Remedies, Sheldon Gelman
Mental Hospital Drugging - Atomistic And Structural Remedies, Sheldon Gelman
Cleveland State Law Review
Despite their importance, the discussion of remedies for state hospital drugging has been largely ad hoc and uninformed. This study attempts to fill that gap. It explores four such remedies, attempting to identify the vision of the drug problem that underlies each one; to evaluate that vision and its plausibility; and to determine what the actual effects of imposing the remedy would be. Part I distinguishes between two approaches to remedy-"structural" and "atomistic"-and, as a basis for testing the two, describes a state hospital's handling of the most serious drug side effect. Part II explores a family of atomistic remedies. …
O'Connor V. Donaldson: The Death Of The Quid Pro Quo Argument For A Right To Treatment, Thomas P. Bliss
O'Connor V. Donaldson: The Death Of The Quid Pro Quo Argument For A Right To Treatment, Thomas P. Bliss
Cleveland State Law Review
On June 26, 1975, the Supreme Court was confronted with the controversial issue of whether there is a constitutionally guaranteed right to treatment for nondangerous persons who have been involuntarily and civilly committed to mental institutions. The Court avoided this long advocated issue and created the potential for future litigation by holding that a state cannot constitutionally confine a nondangerous individual solely for custodial care if such person can live safely in the outside world, without a finding of more than mere mental illness. This comment will discuss the decision in terms of the most volatile and frequently urged constitutional …
Malicious Prosecution Suits As Counterbalance To Medical Malpractice Suits, Allen P. Adler
Malicious Prosecution Suits As Counterbalance To Medical Malpractice Suits, Allen P. Adler
Cleveland State Law Review
A few years ago medical malpractice suits were something of a rarity in the United States. They now appear to be a major national problem. The magnitude of this ever increasing problem can be illustrated by the fact that a Senate subcommittee, chaired by Sen. Abraham Ribicoff, has investigated the increase in malpractice litigation and that President Nixon has ordered the establishment of a Commission on Medical Malpractice, under the Department of Health, Education and Welfare, to research the problem and report a possible solution by March 1, 1972.
Hospital Liability: Implications Of Recent Physician's Assistant Statutes, Daniel W. Coyne
Hospital Liability: Implications Of Recent Physician's Assistant Statutes, Daniel W. Coyne
Cleveland State Law Review
New methods must be devised to increase the efficient use of the available supply of physicians. "Among the innovations being tried with physicians is the development of new disciplines involving assistants to physicians." Increasing utilization of returning medics from the armed forces is being undertaken to help relieve the civilian manpower shortage. The legal implications of these developments range from problems of licensure to considerations of vicarious liability for an assistant's negligence (malpractice) or for the negligence of the assistant's supervising physician. It is with a species of this latter problem that this paper will be concerned. But one ought …
Rehabilitation Of Drug-Dependent Persons, Paul A. Lichtman
Rehabilitation Of Drug-Dependent Persons, Paul A. Lichtman
Cleveland State Law Review
In today's fast-paced society, we are the witnesses of a very unusual phenomenon. People are consuming drugs at a rate never before realized. Stimulant drugs are being taken to keep the individual going during the day. Depressant drugs are being ingested to help the individual bury his anxieties. Drugs have been developed for practically every form of illness, whether organic or psychological. The majority of people who do use the various kinds of legend drugs do so legally, under a physician's supervision. There is am growing minority, however, who abuse drugs to the extent that these individuals become what is …
Aged Or Disabled Physicians, Peter P. Zawaly Jr.
Aged Or Disabled Physicians, Peter P. Zawaly Jr.
Cleveland State Law Review
This article will not concern itself, per se, with the recently much written about subject of medical professional liability. "The concept of professional liability should never be equated with the concept of incompetence", for the former is a malperformance at a given time, whereas the latter is the lack of ability to perform at all. Those illnesses, whereby a physician is rendered incompetent, that will be treated in the following text with particular attention, are senility, drug addiction, and alcoholism. Once establishing the scope of the problem, a brief examination of the disciplinary measures available within the profession and their …
Contributory Negligence In Medical Malpractice, Diane Shelby
Contributory Negligence In Medical Malpractice, Diane Shelby
Cleveland State Law Review
The best and most complete defense to a charge of malpractice is the allegation and proof of the absence of negligence. It is also the most often used defense. Of the less popular defenses, contributory negligence on the part of the patient is probably the least attractive and the most difficult to maintain, even though it has been held to be a complete bar to recovery in several cases difficult to categorize.
Malpractice Actions Without Expert Medical Testimony, William P. Gibbons
Malpractice Actions Without Expert Medical Testimony, William P. Gibbons
Cleveland State Law Review
Fear of malpractice actions against them is causing physicians to "run scared." Some physicians now say that they feel that the threat of legal action has materially altered the practice of medicine. Defensively, some medical doctors say that they are ordering additional X-rays and lab tests, just to have them on record. Others say they are just plain afraid to try new techniques and diagnostic treatments because of the specter of a malpractice action. Innovative techniques carry additional risks, and some doctors admit that in some risky situations they merely do what will keep them out of trouble rather than …
Chiropractors As Expert Medical Witnesses, Ronald J. Zele
Chiropractors As Expert Medical Witnesses, Ronald J. Zele
Cleveland State Law Review
This paper examines the rules of evidence concerning the admissibility of testimony of chiropractors as expert medical witnesses.