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Journal of Law and Health

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Articles 211 - 240 of 299

Full-Text Articles in Health Law and Policy

Calling Dr. Love: The Physician-Patient Sexual Relationship As Grounds For Medical Malpractice - Society Pays While The Doctor And Patient Play, Scott M. Puglise Jan 2000

Calling Dr. Love: The Physician-Patient Sexual Relationship As Grounds For Medical Malpractice - Society Pays While The Doctor And Patient Play, Scott M. Puglise

Journal of Law and Health

This note examines "consensual" sexual relationships between non-mental health physicians and patients. More specifically, it examines whether such relationships ever amount to medical malpractice. Generally, a non-mental health physician would be liable under the rubric of medical malpractice only if the sexual relationship was commenced under the guise of "medical treatment." Recent cases, however, have expanded liability in certain circumstances when the physician-patient relationship has involved "counseling matters." "Counseling matters" describes talking to patients about their feelings, or discussing personal problems not necessarily related to their proposed treatment. Medical treatment supplemented by "counseling" purportedly requires greater scrutiny due to the …

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Consent To Sperm Retrieval And Insemination After Death Or Persistent Vegatative State, Carson Strong Jan 2000

Consent To Sperm Retrieval And Insemination After Death Or Persistent Vegatative State, Carson Strong

Journal of Law and Health

Although a number of additional legal questions can be raised, including issues of paternity and inheritance, this paper focuses on the legal issues pertaining to consent, as well as the ethical questions raised above, which need to be discussed in order to address adequately the legal consent issues. The paper is organized as follows: first, the current law of consent to sperm retrieval and insemination after death or PVS is discussed in order to identify gaps in the law - areas that the law does not address or concerning which it is unclear; second, ethical issues are discussed that are …

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Defining Willful Remuneration: How Bryan V. United States Affects The Scienter Requirement Of The Medicare/Medicaid Anti-Kickback Statute, Robb Degraw Jan 2000

Defining Willful Remuneration: How Bryan V. United States Affects The Scienter Requirement Of The Medicare/Medicaid Anti-Kickback Statute, Robb Degraw

Journal of Law and Health

At the forefront of the debate over the anti-kickback statute, and the topic of this Note, is the mens rea, or mental state, that is required for a violation of the law. According to the statute, an individual must "knowingly and willfully" solicit or receive, or offer to pay, remuneration in order to induce business reimbursed under any federal health care program. The interpretation of these terms by the federal courts has varied wildly, as have the underlying Supreme Court cases cited as precedent for such interpretations. However, in June of 1998, the Supreme Court defined the meaning of "willfully" …

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The Tobacco Industry And The First Amendment - An Analysis Of The 1998 Master Settlement Agreement, Lori Ann Luka Jan 2000

The Tobacco Industry And The First Amendment - An Analysis Of The 1998 Master Settlement Agreement, Lori Ann Luka

Journal of Law and Health

This Note discusses and assesses the Government's likelihood of passing constitutional scrutiny with the Master Settlement Agreement's restrictions in light of the First Amendment case law. A majority of the restrictions will likely pass constitutional scrutiny because they meet the demanding requirements of Central Hudson and its progeny. The author believes that a few of the restrictions need to be more narrowly tailored in order to pass constitutional scrutiny. Suggestions on how to narrowly tailor the restrictions to comport with Central Hudson are proffered by the author. Section II provides an overview of the history of First Amendment commercial speech …

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Punishment Of Health Care Fraud , Yvette M. Mastin Jan 2000

Punishment Of Health Care Fraud , Yvette M. Mastin

Journal of Law and Health

Although the definition of "health care fraud" is only one of the numerous issues of concern to health law practitioners and health care providers, the language that defines the conduct in question is the foundation of all other concerns related to "health care fraud." This Article will demonstrate the need for a narrowly construed definition of "health care fraud." The Article begins by providing a scenario to explain how a situation involving potential "health care fraud" can arise in the delivery of health care services. The Article then addresses how "health care fraud" is defined through a discussion of the …

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Consumer-Directed Prescription Drug Advertising: Effects On Public Health , William E. Holtz Jan 1999

Consumer-Directed Prescription Drug Advertising: Effects On Public Health , William E. Holtz

Journal of Law and Health

This Paper will evaluate the effectiveness of the current FDA regulatory scheme regarding consumer-directed prescription drug advertising. Part II discusses the relevant history of consumer-directed prescription drug advertising of prescription drugs which is a relatively new practice in the United States. Possible explanations are reviewed for why the change in focus from physicians to consumers as the targets of such advertising has occurred. Part III explains the major classifications of consumer-directed advertising that the FDA has categorized and examines the differences existing among them. Part IV focuses on the current FDA regulatory scheme and begins to expose some of the …

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Gender Discrimination Within The Reproductive Health Care System: Viagra V. Birth Control, Lisa A. Hayden Jan 1999

Gender Discrimination Within The Reproductive Health Care System: Viagra V. Birth Control, Lisa A. Hayden

Journal of Law and Health

This Article begins with an examination of the prescription drug, Viagra and the medical condition it is intended to aid. Additionally, this Article evaluates the five most common, and FDA approved forms of contraceptives: contraceptive pills, intrauterine devices (IUD's), Depo-Provera shots, Norplant inserts and diaphragms. A basic understanding of the above prescriptions is necessary to determine if health care inequity exists between men and women in the area of prescriptive coverage, or if there is such a difference between the medical conditions involved that insurance companies are justified in excluding contraceptive coverage while including Viagra coverage. Part III of this …

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Searching For The Holy Grail: The Human Genome Project And Its Implications , Allison Morse Jan 1999

Searching For The Holy Grail: The Human Genome Project And Its Implications , Allison Morse

Journal of Law and Health

This Paper will explore the ethical considerations of the reductionist paradigm that the Human Genome Project represents, and analyze how this paradigm affects our political institutions, our family relationships, and even our identity. Part Two will provide the scientific background for a discussion of the Human Genome Project. It will begin by defining two competing theoretical constructs scientists use when exploring biological phenomenon: reductionism and organism. This Part will then offer a rudimentary explanation of how genes function. Yet even this rudimentary explanation illustrates the complexity involved in the functioning of genes, leaving the reductionist notions of genes as the …

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Beyond Washington V. Glucksberg: Oregon's Death With Dignity Act Analyzed From Medical And Constitutional Perspectives , Steven B. Datlof Jan 1999

Beyond Washington V. Glucksberg: Oregon's Death With Dignity Act Analyzed From Medical And Constitutional Perspectives , Steven B. Datlof

Journal of Law and Health

This Article examines several aspects of the medical and legal debate on physician-assisted suicide. Part I describes the Oregon Death with Dignity Act, the only existing American law legalizing physician assisted suicide. Understanding the provisions of the DWDA provides a concrete, practical framework for discussing the medical and constitutional issues central to the PAS debate. Part II considers the wisdom of the DWDA in light of current medical knowledge and practice. The law allows a patient, with only a few months to live, a human end to intolerable suffering under controlled conditions. It is carefully crafted to ensure that patient …

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Directors' Duty Of Care To Monitor Information Systems In Hmos: Some Lessons From The Oxford Health Plan, Mary E. O'Byrne Jan 1999

Directors' Duty Of Care To Monitor Information Systems In Hmos: Some Lessons From The Oxford Health Plan, Mary E. O'Byrne

Journal of Law and Health

Given this scale of investment, the centrality of information systems to the success of an HMO, the obligation of regulatory compliance, plus the attention now focused on the year 2000 "millenium bug" problem, information systems are clearly a major area of concern and oversight by corporate directors. This paper analyzes the role of information systems in HMOs and the nature of the HMO directors' duty of care in monitoring the integrity of the information systems to determine when directors may be held personally liable for losses suffered by the corporation when the systems collapse. Section I addresses in general the …

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Cobra Continuation Coverage And The Plain Reading Of The Statute: Geissal V. Moore Medical Corporation , Judith C. Brostron Jan 1999

Cobra Continuation Coverage And The Plain Reading Of The Statute: Geissal V. Moore Medical Corporation , Judith C. Brostron

Journal of Law and Health

This Paper will discuss the relevant statutes, case law and the Supreme Court's opinion in Geissal v. Moore Medical Corp. It concludes that the Supreme Court correctly reversed the Eighth Circuit's opinion in Geissal by applying the plain meaning of the statute and rejecting the "significant gap" theory. James Geissal was entitled to COBRA continuation coverage even though his wife had preexisting group health insurance coverage. The Fifth, Eleventh and Eigth Circuits' significant gap theory is not supported by the plain meaning of the statute or Congress' intent. The employee should have the choice to elect COBRA or decide whether …

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Erisa Preemption: Will The Elimination Of The Erisa Preemption Clause Help Or Harm America's Ability To Deal With Its Pending Health Care Crisis, Damon Henderson Taylor Jan 1999

Erisa Preemption: Will The Elimination Of The Erisa Preemption Clause Help Or Harm America's Ability To Deal With Its Pending Health Care Crisis, Damon Henderson Taylor

Journal of Law and Health

This article explores the arguments surrounding the fate of the preemption clause and argues that Congress must work to preserve self-insured employers' accountability to its employees while concurrently retaining the services of self-insured employers in the health care business. Part II analyzes the federal government's relationship with the health care industry, concentrating selectively on four episodes of federal regulation which helped create the health care crisis that we encounter today - the Hill-Burton Act, the Congressional amendments to the Health Professions Educational Assistance Act, the advent of Medicare, and ERISA. Armed with this understanding, Congress's evaluation of health care issues, …

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A Proposal To Recognize A Legal Obligation On Physicians To Provide Adequate Medication To Alleviate Pain, Tonya Eippert Jan 1998

A Proposal To Recognize A Legal Obligation On Physicians To Provide Adequate Medication To Alleviate Pain, Tonya Eippert

Journal of Law and Health

This note seeks to show how the current practice among medical practitioners in the United States, by treating pain retroactively after it begins, is inadequate. Administering narcotics to patients on an "as needed" basis unnecessarily prolongs pain and suffering. A more effective approach, which is advocated by the Agency for Health Care Policy & Research (AHCPR), is to treat pain preventatively rather than retroactively. The myth that pain medication is addictive, and that physicians should therefore prescribe as little pain medication as possible, is just that, a myth. Patients are suffering pain in today's hospitals and at home unnecessarily. Given …

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The Role Of New Federalism And Public Health Law, James G. Hodge Jr. Jan 1998

The Role Of New Federalism And Public Health Law, James G. Hodge Jr.

Journal of Law and Health

To understand the impact of new federalism on the field of public health law, I explore the development of the interrelated concepts of federalism, state police powers, and public health over time. This article concentrates on the theoretical and legal meanings of these concepts in American jurisprudence. Part II further defines the concept of federalism and its relation to the field of public health law. Part III thoroughly examines the traditional nature of the states' police powers as sources of state authority for public health laws and the corresponding localization of public health goals. The rise of the federal role …

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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 Jan 1998

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.

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International Response To Dolly: Will Scientific Freedom Get Sheared , Melissa K. Cantrell Jan 1998

International Response To Dolly: Will Scientific Freedom Get Sheared , Melissa K. Cantrell

Journal of Law and Health

This Comment will discuss the current threat to scientific freedom posed by absolute bans on human cloning. Parts II and III discuss the response of the United States and the international community to Dolly. Part IV discusses the legal position of scientific freedom in the U.S. and abroad. Finally, Part V will posit that a total ban on human cloning infringes on the freedom of scientific inquiry, and endangers the public by encouraging the establishment of black market cloning clinics.

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Race For Perfection: Children's Rights And Enhancement Drugs, Therese Powers Jan 1998

Race For Perfection: Children's Rights And Enhancement Drugs, Therese Powers

Journal of Law and Health

This Note will address the question of what are a child's rights when the child's views differ from his or her parents regarding the child's use or refusal of enhancement drugs such as Ritalin and Human Growth Hormone. This Note will begin with a description of Ritalin and Human Growth Hormone along with the uses and abuses of each drug. It will then discuss the evolution of children's rights dealing with situations such as civil commitment, abortion, and medical treatment over religious objection. Furthermore, it will draw comparisons from the case law in these situations to a child's right to …

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Resolving Conflicting Laws And Policy In Integrated Delivery Systems Development, Anthony D. Shaffer, Peter A. Pavarini Jan 1997

Resolving Conflicting Laws And Policy In Integrated Delivery Systems Development, Anthony D. Shaffer, Peter A. Pavarini

Journal of Law and Health

Health care legal advisors are often called on to rationalize and synthesize these conflicting laws and policies while assisting clients to meet current market demands in developing competitive integrated delivery systems ("IDS"). This article explores the myriad of laws and regulations that affect integrated delivery systems development and proposes a practical approach for reconciling conflicting laws and policies. Some legal practitioners may recognize the proposed method as the process they already follow. For others, the suggestions in this article will hopefully challenge them to see conflicts of law and policy as opportunities to engage in creative thinking.

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Accomodating Vulnerabilities To Environmental Tobacco Smoke: A Prism For Understanding The Ada, Wendy E. Parmet, Mark A. Gottlieb, Richard A. Daynard Jan 1997

Accomodating Vulnerabilities To Environmental Tobacco Smoke: A Prism For Understanding The Ada, Wendy E. Parmet, Mark A. Gottlieb, Richard A. Daynard

Journal of Law and Health

This Article explores the use of the ADA to challenge smoking policies and the fears and questions that such a use raises. We argue that a careful appreciation of the ADA's application to ETS-related claims should temper the worries of both those who see such claims as trivializing the ADA and those who worry that such claims may impose enormous burdens on American businesses. Rather, we suggest that the ADA in this instance, as in others, provides a limited but critical vehicle for ensuring that individuals with disabilities may fully participate in public life. We suggest further that the issues …

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Prenatal Genetic Screening: The Enigma Of Selective Abortion, David Stoller Jan 1997

Prenatal Genetic Screening: The Enigma Of Selective Abortion, David Stoller

Journal of Law and Health

This paper examines the issues of pre-natal genetic testing and its ethical and legal concerns. Part II details the scientific techniques involved in pre-natal genetic testing. Part III discusses the Human Genome Project and its influence on the choices available to prospective parents. Part IV analyzes the moral and ethical issues raised by pre-natal genetic screening. Part V presents the legal issues raised by pre-natal genetic screening. Finally, Part VI concludes and offers a prospective on the future of these technologies.

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Malpractice And Other Legal Issues Preventing The Development Of Telemedicine , Christopher Caryl Jan 1997

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 …

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Tuberculosis Quarantine: A Review Of Legal Issues In Ohio And Other States, Paula Mindes Jan 1996

Tuberculosis Quarantine: A Review Of Legal Issues In Ohio And Other States, Paula Mindes

Journal of Law and Health

The increase in tuberculosis cases in the United States in recent years has led to a major reconsideration of long-dormant public health strategies. Isolation of contagious persons, whether at home or in treatment facilities is one of the measures receiving renewed attention. Public health and legal authorities must reassess these measures from the point of view of their necessity, utility and constitutionality. The law currently in force in Ohio originated before expanded protection of civil liberties. If Ohio public health officials find it necessary to use existing quarantine procedures with tuberculosis patients they will be on shaky constitutional ground. As …

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Intercountry Adoption: A Need For Mandatory Medical Screening, Darya P. Jeffreys Jan 1996

Intercountry Adoption: A Need For Mandatory Medical Screening, Darya P. Jeffreys

Journal of Law and Health

Despite the numerous benefits of intercountry adoption, most families do not consider the possible health ramifications. Since adoptive parents are unsuspecting of ailments associated with foreign countries, a complete pediatric examination is a must after receiving the foreign adoptee. Such a pediatric examination will be effective when it is uniform and thorough, but without such an examination both parents and physicians remain in the dark about the child's health. Congress ought to amend the Immigration and Nationality Act (INA) to require a standard pediatric examination for all foreign adoptees, regardless of the country of origin, as a condition to approval …

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Mandating Coverage For Maternity Length Of Stays: Certain Problems With The Good Idea, Kate E. Ryan Jan 1996

Mandating Coverage For Maternity Length Of Stays: Certain Problems With The Good Idea, Kate E. Ryan

Journal of Law and Health

This paper will outline the issues influenced by the Newborns' Act and the Maternity Law, including federalism. Likewise, the paper examines certain shortcomings of the maternity legislation. Section II focuses on Ohio's Maternity Law and whether it will prove effective as exemplified by Cleveland's maternity health care standards. Section III addresses the Newborns' Act and how it will influence federalism. Additionally, section III compares the Newborns' Act to the Maternity Law Section IV explores how the concurrent regulations may affect maternity health care.

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Government Created Medical Practice Guidelines: The Opening Of Pandora's Box, William R. Trail, Brad A. Allen Jan 1996

Government Created Medical Practice Guidelines: The Opening Of Pandora's Box, William R. Trail, Brad A. Allen

Journal of Law and Health

This article will discuss the background and creation of medical practice guidelines in part II. Next, we will define and discuss in Part III the two primary types of medical practice guidelines: privately created guidelines and government created guidelines. In Part IV, we will compare and contract the current medical practice guidelines programs in operation. Finally, we will recommend in section V that a medical practice guidelines program offering an affirmative defense to complying physicians should be implemented on the state level.

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Is Law The Prescription That Can Cure Medicine?, Samuel Gorovitz Jan 1996

Is Law The Prescription That Can Cure Medicine?, Samuel Gorovitz

Journal of Law and Health

Now medical care has been transformed. We recognize that the human organism is a complex interaction of many different systems-respiratory, circulatory, neurological, digestive, and so on. Some of them can fail and create both problems and opportunities we did not formerly have. One of the opportunities we now have is that we can keep people alive who in an earlier era would not have survived. And one of the problems we now have is also that we can keep people alive who in an earlier era would not have survived. Some of them are kept alive with such diminished capacity …

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Medtronic V. Lohr: State Lawsuits May Proceed Against Medical Device Manufacturers, Robert A. Gerberry Jan 1996

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 …

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Hiv-Specific Crime Legislation: Targetting An Epidemic For Criminal Prosecution, Erin M. O'Toole Jan 1995

Hiv-Specific Crime Legislation: Targetting An Epidemic For Criminal Prosecution, Erin M. O'Toole

Journal of Law and Health

A growing number of state legislatures have drafted HIV specific crime statutes which criminalize the intentional transmission of the HIV virus to another. This discussion will focus on the impact of HIV-specific crime statutes on the following issues: confidentiality, the right to privacy, the decision to submit to HIV testing, and how the statutes may or may not succeed in containing the spread of HIV.

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Doctors, Nurses And Superseding Cause: The Demise Of The Last In Time Defense, Charles Lattanzi Jan 1995

Doctors, Nurses And Superseding Cause: The Demise Of The Last In Time Defense, Charles Lattanzi

Journal of Law and Health

The question which naturally arises is whether the determination of superseding cause in this context is a question for the jury. Ohio case law has long held, as a matter of law, that the aggravation of an injury by the subsequent malpractice of a physician never breaks the chain of causation. Assuming that the original tortfeaser was negligent and that his actions caused the original injury, the only question left for the jury is whether the plaintiff herself exercised reasonable care in seeking treatment by a qualified physician. This rule was affirmed and given its common appellation, "the subsequent tortfeasor …

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Attorneys On Bioethics Committees: Unwelcome Menace Or Valuable Asset, Randall B. Bateman Jan 1995

Attorneys On Bioethics Committees: Unwelcome Menace Or Valuable Asset, Randall B. Bateman

Journal of Law and Health

The purpose of this paper is to examine the role(s), if any, of the attorney as a member of bioethics committees, especially hospital ethics committees. In the process of determining whether an attorney should serve on these committees, the arguments will contrast the potential role of an attorney with the different types of attorneys who may be chosen to serve as members of a hospital ethics committee. The ultimate conclusion of this paper is that attorneys do have a role on ethics committees, but that the role depends on the type of attorney, the individual committee and the way the …

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