Health Law and Policy Commons^™

The Social Implications Of The Use Of Stored Tissue Samples: Context, Control, And Community, Karen H. Rothenberg

Faculty Scholarship

No abstract provided.

Social Implications Of Genetic Testing, Karen H. Rothenberg

Faculty Scholarship

This paper examines the social implications of predictive genetic testing and its impact on the insurance industry. Although the Human Genome Project has the potential to improve the health of our nation, it also may serve as a means of highlighting genetic differences among individuals and ethnic groups. Thus, if we are to reach the full promise of the Project, society must address the public's fears of genetic discrimination in insurance and employment context. Following an analysis of state and federal legislation on genetic privacy and discrimination, the paper concludes with a challenge to the insurance industry to work with …

Testing For Genetic Traits: The Need For A New Legal Doctrine Of Informed Consent , Elizabeth B. Cooper

Faculty Scholarship

Innovative medical technology has made it possible to test whether you are at increased risk for certain types of cancer. The mere processing of a vial of blood can reveal whether you have a genetic predisposition to develop breast, ovarian, or prostate cancer, or other life-threatening conditions. The Human Genome Project, an international endeavor seeking to map our genetic structures, has facilitated this increasing ability to test for genetic flaws. It is expected that as the human genetic map is filled in, and as flaws in our fundamental building blocks are identified, there will be a concomitant drive to test …

Medical Ethics And Human Rights: Legacies Of Nuremberg, George J. Annas, Michael A. Grodin

Faculty Scholarship

Many of our most important human rights documents are the product of the world's horror during the carnage of World War II. The broadest and most powerful declaration of human rights, the Universal Declaration of Human Rights, was adopted by the membership of the new United Nations in 1948. But there are also much more specific statements of the world's aspirations for all of its inhabitants. August 1997 marked the 50th anniversary of the conclusion of the trial of Nazi physicians at Nuremberg, a trial which has been variously designated as the "Doctors' Trial" and the "Medical Case."² In …

The Last Resort: The Use Of Physical Restraints In Medical Emergencies, George J. Annas

Faculty Scholarship

Public awareness of the use of restraints in medicine has been greatly heightened by a five-part investigative series on physical restraints in psychiatric hospitals by the Hartford Courant and reaction to it by Connecticut's U.S. senators, Joseph Lieberman and Christopher Dodd. In October 1998 the Courant 's 50-state survey identified 142 patients who had died while in restraints or seclusion in the past decade, and the total number is probably much higher. The newspaper advocated the need for national standards for the use of restraints, impartial oversight, and accountability “for behavior that is cruel and even criminal.” The use of …

Waste And Longing: The Legal Status Of Placental Blood Banking, George J. Annas

Faculty Scholarship

Waste is not always what it seems. In his Cold War novel Underworld, for example, Don DeLillo explores the multifaceted qualities of waste. “Waste,” he notes, “is the secret history, the underhistory, the way archaeologists dig out the history of early cultures, every sort of bone and broken tool, literally from under the ground.”1 And waste can also be transformed into money:

They are trading garbage in the commodity pits in Chicago. They are making synthetic feces in Dallas. You can sell your testicles to a firm in Russia that will give you four thousand dollars and then remove …

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Thalidomide And The Titanic: Reconstructing The Technology Tragedies Of The Twentieth Century, George J. Annas

Faculty Scholarship

The Titanic has become a metaphor for the disastrous consequences of an unqualified belief in the safety and invincibility of new technology. Similarly, the thalidomide tragedy stands for all of the "monsters" that can be inadvertently or negligently created by modern medicine. Thalidomide, once banned, has returned to the center of controversy with the Food and Drug Administration's (FDA's) announcement that thalidomide will be placed on the market for the treatment of erythema nodosum leprosum, a severe dermatological complication of Hansen's disease. Although this indication is very restricted, thalidomide will be available for off-label uses once it is on the …

Burden Of Proof: Judging Science And Protecting Public Health In (And Out Of) The Courtroom, George J. Annas

Faculty Scholarship

The breast implant cases alleging systemic disease would in all likelihood have been lost had recipients been properly warned of potential dangers by the manufacturer or their surgeons.

Reviving The Public/Private Distinction In Feminist Theorizing Symposium On Unfinished Feminist Business, Tracy E. Higgins

Faculty Scholarship

The public/private distinction has been a target of thoroughgoing feminist critique for quite some time now. Indeed, attacking the public/private line has been one of the primary concerns (if not the primary concern) of feminist legal theorizing for over two decades. If Carole Pateman is correct, one would think that this particular problem might be assigned to the category of "finished business" by this time. In this Essay, I do argue that the critique is, in certain ways, finished business in that it is no longer particularly useful in its most common forms. More importantly, however, I suggest several ways …

Preface: Electronic Medical Information: Privacy, Liability And Quality Issues, Frances H. Miller

Faculty Scholarship

This symposium issue explores the timely topic of health care information and information technology, and their impact on health care delivery. The potential for mischief in this area has been the subject of many a dire prediction, but documented instances of negligence or abuse are thus far relatively rare. As information technology becomes more and more sophisticated and pervasive, however, legal problems are increasingly possible-if not probable-and these articles examine a wide range of issues related to the phenomenon.

Pain Management And Palliative Care In The Era Of Managed Care: Issues For Health Insurers, Diane E. Hoffmann

Faculty Scholarship

No abstract provided.

Proxy Consent To Participation Of The Decisionally Impaired In Medical Research - Maryland's Policy Initiative, Diane E. Hoffmann

Faculty Scholarship

No abstract provided.

Tobacco Litigation's Third Wave: Has Justice Gone Up In Smoke?, David A. Hyman

Faculty Scholarship

No abstract provided.

A National Bill Of Patients' Rights, George J. Annas

Faculty Scholarship

In one of the most enthusiastically received proposals in his January State of the Union address, President Bill Clinton called on Congress to enact a national bill of rights in health care. The President said, “You have the right to know all your medical options, not just the cheapest. You have the right to choose the doctor you want for the care you need. You have the right to emergency room care, wherever and whenever you need it. You have the right to keep your medical records confidential.”

Toward A Framework Of Mutualism: The Jewish Community In Genetics Research, Karen H. Rothenberg, Amy B. Rutkin

Faculty Scholarship

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, …

Can Patents Deter Innovation? The Anticommons In Biomedical Research, Michael Heller, Rebecca S. Eisenberg

Faculty Scholarship

The "tragedy of the commons" metaphor helps explain why people overuse shared resources. However, the recent proliferation of intellectual property rights in biomedical research suggests a different tragedy, an "anticommons" in which people underuse scarce resources because too many owners can block each other. Privatization of biomedical research must be more carefully deployed to sustain both upstream research and downstream product development. Otherwise, more intellectual property rights may lead paradoxically to fewer useful products for improving human health.

The Shadowlands: Secrets, Lies, And Assisted Reproduction, George J. Annas

Faculty Scholarship

Americans love babies and technology, and most Americans applaud the ability of the new assisted-reproduction techniques to help infertile couples have children. But these techniques have also given birth to a wide variety of new legal issues, including questions about the identity of the mother and father of the child, the enforcement of preconception contracts, the elements of informed consent, and the disposition of frozen embryos. After almost 20 years of experience and the growth of infertility clinics into a multibillion-dollar industry, it is time to consider establishing national standards and a federal regulatory scheme. Two recent court cases, one …

Racial Disparities In The Delivery Of Health Care, Barbara A. Noah

Faculty Scholarship

This Article focuses on the role of conscious and unconscious racial bias in the delivery of care; it does not begin to address the larger issue of inadequate access to care at the outset. Improving access to health care for minorities will undoubtedly have a positive effect on these groups' overall health status; however, to the extent that racial bias in the delivery of care exists apart from problems of inadequate access, the disparity in health status between whites and African Americans will no doubt continue.

Part II of this Article describes racial disparities in a variety of health care …

Protecting Patients From Discrimination: The Americans With Disabilities Act And Hiv Infection, George J. Annas

Faculty Scholarship

The Americans with Disabilities Act (ADA) was passed in 1990 to expand the reach of the Rehabilitation Act of 1973 and make discrimination on the basis of disability unlawful. The wheelchair symbol has become a universal sign of disability, but there are, of course, many types of disability that have been the basis of discrimination over the years, including blindness, deafness, epilepsy, cancer, heart disease, and mental retardation. AIDS is a disability under the ADA, and most commentators have assumed that infection with the human immunodeficiency virus (HIV) also qualifies as a disability under this act. It was not, however, …

Partial-Birth Abortion, Congress, And The Constitution, George J. Annas

Faculty Scholarship

The political debate over abortion during the past 25 years has shifted among various dichotomous views of the world: life versus choice, fetus versus woman, fetus versus baby, constitutional right versus states' rights, government versus physician, physician and patient versus state legislature. Hundreds of statutes and almost two dozen Supreme Court decisions on abortion later, the core aspects of Roe v. Wade, 1 the most controversial health-related decision by the Court ever, remain substantially the same as they were in 1973. Attempts to overturn Roe in both the courtroom and the legislature have failed. Pregnant women still have a constitutional …

Protecting Soldiers From Friendly Fire: The Consent Requirement For Using Investigational Drugs And Vaccines In Combat, George J. Annas

Faculty Scholarship

In 1990, following Iraq's invasion of Kuwait, the Department of Defense (DOD) sought a waiver of the informed consent requirements of existing human experimentation regulations from the Food and Drug Administration (FDA). With this waiver, DOD could authorize military use of investigational drugs and vaccines on soldiers involved in the Gulf War without their informed consent. The basis of the waiver request was military expediency. In DOD's words: "In all peace time applications, we believe strongly in informed consent and ethical foundations... but military combat is different." DOD's rationale was that informed consent under combat conditions was "not feasible" because …

Human Rights And Maternal-Fetal Hiv Transmission Prevention Trials In Africa, George J. Annas, Michael A. Grodin

Faculty Scholarship

The human rights issues raised by the conduct of maternal-fetal human immunodeficiency virus transmission trials in Africa are not unique to either acquired immunodeficiency syndrome or Africa, but public discussion of these trials presents an opportunity for the United States and other wealthy nations to take the rights and welfare of impoverished populations seriously. The central issue at stake when developed countries perform research on subjects in developing countries is exploitation. The only way to prevent exploitation of a research population is to insist not only that informed consent be obtained but also that, should an intervention be proven beneficial, …

Judicial Opinions Involving Health Insurance Coverage: Trompe L'Oeil Or Window On The World?, William M. Sage

Faculty Scholarship

This essay offers a few thoughts about using judicial decisions as the dataset for research into health insurance coverage. Part I offers a general overview of insurance coverage law. Part II considers why students of health insurance coverage gravitate toward studying published opinions. Part III then discusses what is wrong with the approach, and suggests alternatives. Finally, Part IV turns to what may be right with the approach, concluding that judicial opinions in coverage litigation may reveal the functionality (or dysfunctionality) of the coverage process in managed care. Although the basic critique which the essay presents applies to areas other …

Physician Assisted Suicide And The Supreme Court: Putting The Constitutional Claim To Rest, Wendy K. Mariner

Faculty Scholarship

Like the debate about many controversial questions of ethics and medical care in America, public debate about physician assisted suicide became focused on questions of constitutional law. On June 26, 1997, the United States Supreme Court unanimously rejected any constitutional right of terminally ill patients to physician assisted suicide. An analysis of the Court's reasoning reveals that its decisions resolved only a narrow constitutional question that affects relatively few people--mentally competent, terminally ill patients who wish to hasten their imminent deaths by having a physician prescribe medication that they intend to use to commit suicide. Although suicide is not a …

Cancer Genetic Susceptibility Testing: Ethical And Policy Implications For Future Research And Clinical Practice, Benjamin S. Wilfond, Karen H. Rothenberg, Elizabeth J. Thomson, Caryn Lerman

Faculty Scholarship

No abstract provided.

Bioethics Policy: Looking Beyond The Power Of Sovereign Governments (Foreword), Robert L. Schwartz

Faculty Scholarship

Lawyers are trained to think in terms of power exercised by a sovereign-an institution authorized to enforce a procedurally appropriate decision with coercive force.' Generally, lawyers have a broad notion of what constitutes a sovereign. In the United States, for example, this notion includes the federal government, state governments, most tribal units, traditional territorial governments and their agencies-e.g., school boards, local public park districts, water run-off management districts, and flea abatement boards-and a host of other institutions. As a result, it is difficult for lawyers to recognize that policy also may emanate from other institutions that possess only persuasive authority, …

The Laws Of Genetics, Michael S. Baram

Faculty Scholarship

It used to be that high technology meant nuclear physics and missile systems, and presented the threat of physical destruction. Today, "high tech" means biotechnology and electronic communication systems, and the focus has shifted to concerns about more subtle problems like loss of privacy, inability to control personal information, and the discriminations and other adversities that often follow.

Genetic Information And The Workplace: Legislative Approaches And Policy Challenges, Karen H. Rothenberg, Barbara Fuller, Mark Rothstein, Troy Duster, Mary Jo Ellis Kahn, Rita Cunningham, Beth Fine, Kathy Hudson, Mary-Claire King, Patricia Murphy, Gary Swergold, Francis Collins

Faculty Scholarship

No abstract provided.

Emergency Care And Managed Care - A Dangerous Combination, Diane E. Hoffmann

Faculty Scholarship

No abstract provided.