Health Law and Policy Commons^™

Beneficial And Unusual Punishment: An Argument In Support Of Prisoner Participation In Clinical Trials, Sharona Hoffman

Faculty Publications

Currently, approximately 1.8 million people are incarcerated in the United States at any given time. A disproportionately large percentage of the prisoner population has serious illnesses, such as AIDS and tuberculosis. Prisoners most often, however, are barred from participation in clinical trials, even when conventional therapy has failed, and experimental treatment might provide them with their only hope of survival.

Much of the reluctance to include prisoners in biomedical research is based on history. In the past, prisoners have been severely abused and even tortured in medical studies conducted in the Nazi death camps, Japanese prisoner camps, and correctional facilities …

The Quiet Demise Of Deference To Custom: Malpractice Law At The Millenium, Philip G. Peters Jr.

Faculty Publications

According to conventional wisdom, tort law allows physicians to set their own standard of care. While defendants in ordinary tort actions are expected to exercise reasonable care under the circumstances, physicians traditionally have needed only to conform to the customs of their peers. However, judicial deference to physician customs is eroding. Gradually, quietly and relentlessly, state courts are withdrawing this legal privilege. Already, a dozen states have expressly rejected deference to medical customs and another nine, although not directly addressing the role of custom, have rephrased their standard of care in terms of the reasonable physician, rather than compliance with …

More Sorry Than Safe: Assessing The Precautionary Principle And The Proposed International Biosafety Protocol, Jonathan H. Adler

Faculty Publications

Part I of this paper provides a brief overview of the development of biotechnology, its regulation and its use, with a particular emphasis on agricultural biotechnology. Part II outlines the United Nations Convention on Biological Diversity, which provides an international legal framework for a biosafety protocol and summarizes the results of recent protocol negotiations, such as those conducted in Cartagena, Colombia in February 1999, which continued in Montreal in January 2000. Part III explains why the proposed protocol embodies a variant of the precautionary principle and why such policies may do more harm than good. This paper concludes with some …

Informed Consent For Neonatal Circumcision: An Ethical And Legal Conundrum, J. Steven Svoboda, Robert S. Van Howe, James G. Dwyer

Faculty Publications

No abstract provided.

Harming Future Persons: Obligations To The Children Of Reproductive Technology, Philip G. Peters Jr.

Faculty Publications

Two paradigms dominate contemporary ethical and legal debate about the risks posed to children who owe their lives to reproductive technology. One asks whether the children have lives so tragic that life itself is harmful. The other approach asks whether children so conceived are likely to enjoy a minimally decent existence. Although the two approaches have quite different analytic foundations, they share one crucial trait. Each concludes that children who owe their lives to reproductive technology are harmed only when that technology causes genuinely catastrophic injuries.Because these conventional paradigms define harmful conduct exclusively by reference to the magnitude of the …

A Proposal For Federal Legislation To Address Health Insurance Coverage For Experimental And Investigational Treatments, Sharona Hoffman

Faculty Publications

Health insurance coverage for experimental treatments has generated significant debate and frequent litigation in recent years. In many cases, denials of coverage for investigational therapies constitute economically and ethically sound policy. This article argues, however, that health insurance providers should be required to cover experimental treatments in limited circumstances, namely, when they are administered in phase III clinical trials to patients with terminal illnesses who are likely to die within two years. This coverage mandate would help the sickest patients, who have no other treatment options, and would benefit medical researchers, who often face a dearth of patients willing to …

Genetic Testing, Genetic Medicine, And Managed Care, Mark A. Rothstein, Sharona Hoffman

Faculty Publications

As modern human genetics moves from the research setting to the clinical setting, it will encounter the managed care system. Issues of cost, access, and quality of care will affect the availability and nature of genetic testing, genetic counseling, and genetic therapies. This articles explores such issues as professional education, coverage of genetic services, privacy and confidentiality, and liability. It concludes with a series of recommendations for the practice of genetic medicine in the age of managed care.

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

Faculty Publications

No abstract provided.

Shaping Regional Economies To Sustain Quality Work: The Cooperative Health Care Network, Peter R. Pitegoff

Faculty Publications

This chapter chronicles a creative response to social retrenchment, a saga of strategic deployment of accessible resources and a reshaping of regional economic forces for the benefit of targeted labor markets. While charting its own course, CHCB is part of a mutually supportive network of health care employers and trainers, including successful home care companies in Philadelphia and the South Bronx. Together, these three corporations form the core of the Cooperative Health Care Network and employ over 500 home health aides. About 80 percent of the employees were formerly dependent on public assistance. The network [network] experience and their applicability …

The Evolution Of Health Care Decision Making: The Political Paradigm And Beyond, Elizabeth Price Foley, Elizabeth C. Price

Faculty Publications

The ascendancy of the political paradigm as the primary mode of health care decision-making is a natural evolutionary reaction to the unrestrained market paradigm. Although a certain of political intrusion into the health care marketplace is both necessary and useful, it has the potential to unravel the efficiencies achieved by managed care. Overzealous intervention in the health care market in the name of "reform" may cause the health care decision-making pendulum to swing back to the provider paradigm, with its tendency to escalate health care costs and diminish access. One possible way to achieve decision-making equilibrium and and end the …

Crossing The Line: The Political And Moral Battle Over Late-Term Abortion, Rigel C. Oliveri

Faculty Publications

This paper focuses on the political and moral debate surrounding two pieces of federal legislation which sought to criminalize a particular late term abortion technique scientifically known as "intact dilation and extraction," and popularly known as "partial birth abortion." The Congressional "Partial Birth Abortion" Bans of 1996 and 1997 inflamed the already emotionally charged contest over abortion rights. The intense lobbying and advocacy efforts put pro-choice activists in the uncomfortable position of having to defend one of the most extreme positions on the abortion-rights spectrum. The advocacy was further complicated by the fact that very few women obtain late term …

Institutional Analysis And Physicians' Rights After Vacco V. Quill, Larry I. Palmer

Faculty Publications

No abstract provided.

Beginning The Endgame: The Search For An Injury Compensation System Alternative To Tort Liability For Tobacco-Related Harms, Paul A. Lebel

Faculty Publications

No abstract provided.

Introduction: The Law-Medicine Center 50th Anniversary Symposium: The Field Of Health Law: It’S Past And Future, Maxwell J. Mehlman

Faculty Publications

Introduction to The Law-Medicine Center 50th Anniversary Symposium: The Field of Health Law: Its Past and Future, Cleveland, Ohio 2004.

The Law Of Above Averages: Leveling The New Genetic Enhancement Playing Field, Maxwell J. Mehlman

Faculty Publications

In this article, I will explore some of the legal implications of this emerging technology-the technology of genetic enhancement. Specifically, I will discuss how the law might respond to two related consequences: an increase in social inequality, and the

Introduction - Kyl Amendment Symposium, Maxwell J. Mehlman

Faculty Publications

Introduction to the Symposium: Medicare Private Contracting (The KYL Amendment), Cleveland, Ohio, 2000.

Introduction, Symposium National Health Care Reform: The Legal Issues, Maxwell J. Mehlman

Faculty Publications

Introducation to the Symposium: National Health Care Reform: The Legal Issues, Cleveland, Ohio, 1995.

The Human Genome Project And The Courts: Gene Therapy And Beyond, Maxwell J. Mehlman

Faculty Publications

No abstract provided.

Symposium: Workshop On Inherited Breast Cancer In Jewish Women: Ethical, Legal, And Social Implications, Maxwell J. Mehlman

Faculty Publications

Introducation to Symposium: Workshop on the BRCA1 Breast Cancer Gene in the Jewish Population, Cleveland, Ohio, 1997.

Rationing Expensive Lifesaving Medical Resources, Maxwell J. Mehlman

Faculty Publications

In this Article, Professor Mehlman examines the possible systems for rationing expensive lifesaving medical technologies. First, he concludes that the costs of any rationing system probably exceed its benefits. Consequently, he rejects the rationing of expensive but available lifesaving medical technologies. Second, he argues that the increased availability of the technologies and the recent expansion of patient rights to sue will result in a substantial number of judicial challenges to rationing. Finally, he suggests detailed criteria to aid the courts in deciding whether a resource has been improperly rationed.

Presumed Consent To Organ Donation: A Reevaluation, Maxwell J. Mehlman

Faculty Publications

his paper examines the presumed consent approach from a practical, legal and ethical perspective. It concludes that presumed consent for harvesting cadaveric organs a may be a viable policy alternative, but that research in a number of specific areas is needed before the policy can be endorsed.

How Will We Regulate Genetic Enhancement, Maxwell J. Mehlman

Faculty Publications

Genetic enhancement technologies present difficult and novel regulatory issues, including the problem of measuring and comparing risks and benefits and dealing with the impact of these technologies on social values. This Article describes and evaluates the potential approaches that may be taken to regulate these technologies. The author concludes that a variety of approaches will be necessary, involving self-regulation, government restrictions on access and use, licensing, and a national lottery.

Health Care Cost Containment And Medical Technology: A Critique Of Waste Theory, Maxwell J. Mehlman

Faculty Publications

The high cost of health care has led to proposals to reduce wasteful medical technology under Medicare and other payment systems. Professor Mehlman warns that achieving this objective, while laudable in theory, is problematic because of the difficulties of defining, detecting and eliminating technology waste. A particular danger is that, in an effort to reduce waste, patients will be denied not only technologies that are wasteful from the patient's own perspective but technologies that yield net patient benefit. This risk is exacerbated by the Medicare prospective payment system, which rewards hospitals financially in inverse proportion to the amount of care …

The Cosmetic/Drug Dilemma: Fda Regulation Of Alpha-Hydroxy Acids, Laura A. Heymann

Faculty Publications

No abstract provided.

In Pursuit Of Health, Richard C. Reuben

Faculty Publications

Managed-care advocates praise its cost controls on treatments for beginning to tame the health care beast, which devoured nearly 14 percent of the nation's gross domestic product in 1994, according to the U.S. Department of Health and. Human Services. Such belt-tightening is necessary to allocate health care dollars rationally, advocates contend, pointing to direct patient costs as proof that a healthy balance has been achieved. But critics contend that managed care is more about making money than saving it. Even though costs have gone down, they argue, premiums have remained high and corporate profits have soared. More significantly, they charge …

The Authority Of A Guardian To Commit An Adult Ward, David M. English

Faculty Publications

Placement in a mental health facility may be made through either a voluntary or involuntary commitment. Involuntary commitment usually requires a number of protective safeguards, including a court hearing, the appointment of counsel, and the meeting of a statutory criterion such as danger to self or others. Voluntary commitment is much more informal, with a written application and clinical assessment being all that is normally required. Most voluntary commitments are made upon application.of a patient who has the ability to give informed consent. But in a substantial number of states an individual also may be committed by his or her …

First, Do No Harm: Why Doctors Are Not Omnipotent Under The Americans With Disabilities Act, Sharona Hoffman

Faculty Publications

This article argues that employers are not shielded from liability under the ADA if they rely upon the advice of a doctor in making an adverse employment decision.

Survey Results: Use Of Durable Powers, David M. English

Faculty Publications

The use of durable powers of attorney (DPA) has developed rapidly over the last decade. This growth reflects the public's desire for a simple and effective method of planning for possible incapacity. Although there are other planning tools, individuals frequently prefer the DPA. It is more comprehensive and provides greater certainty of result than does a joint bank account. A DPA is much easier to create than a revocable trust. By using a DPA, one can avoid an intrusive and possibly cumbersome guardianship or conservatorship proceeding.

Medical Advocates: A Call For A New Profession, Maxwell J. Mehlman

Faculty Publications

No abstract provided.

The Children We Abandon: Religious Exemptions To Child Welfare And Education Law As Denials Of Equal Protection To Children Of Religious Objectors, James G. Dwyer

Faculty Publications

The story of children who die because their parents, in observance of their own religious principles, withhold conventional medical treatment from them is a familiar one. In this Article, James G. Dwyer shows that the phenomenon of parents denying secular benefits to their children for religious reasons goes far beyond these few highly publicized cases, extending into the realm of education as well as medical care. Moreover, Dr. Dwyer shows that the federal and state governments endorse this practice by statutorily exempting 'religious objector' parents from otherwise generally applicable compulsory child care and education laws. He argues that courts addressing …