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Journal of Law and Health

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Articles 241 - 270 of 299

Full-Text Articles in Health Law and Policy

Restricting Medical Licenses Based On Illness Is Wrong - Reporting Makes It Worse, Phyllis Coleman, Ronald A. Shellow Jan 1995

Restricting Medical Licenses Based On Illness Is Wrong - Reporting Makes It Worse, Phyllis Coleman, Ronald A. Shellow

Journal of Law and Health

Part I of this article briefly explores the licensing and disciplinary processes. Because each state board has broad discretion in reaching its decisions, an illness might be ignored in one state, trigger only periodic monitoring in another, and be grounds for sanction in a third. As the duty of every state board is the same - to protect patients from incompetent doctors - this disparate treatment is absurd. The implicit notion that the impact of a physician's illness on his ability to practice changes depending on a state line is not credible. Although statutes and cases may use different language …

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Clark V. Southview Hospital: Ohio Follows The Nationwide Trend Of Using Agency By Estoppel To Impose Strict Liability On Hospitals , Colleen Moran Jan 1995

Clark V. Southview Hospital: Ohio Follows The Nationwide Trend Of Using Agency By Estoppel To Impose Strict Liability On Hospitals , Colleen Moran

Journal of Law and Health

In Clark, the Ohio Supreme Court set forth a test a plaintiff must meet in order to hold a hospital vicariously liable under the doctrine of agency by estoppel. The court based its test on numerous such decisions from jurisdictions across the country. However, the legal soundness of Clark and the decisions on which it relied is questionable, as many of these jurisdictions misapplied the legal doctrines underlying agency by estoppel theory. This article analyzes the legal doctrines on which agency by estoppel is based, how this theory of vicarious liability has evolved in Ohio, and how state courts across …

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The Health Care Proxy And The Narrative Of Death, Steven I. Friedland Jan 1995

The Health Care Proxy And The Narrative Of Death, Steven I. Friedland

Journal of Law and Health

This article is divided into three sections. After this introduction, section II features a brief history of the narrative of death, explores the role of heroism in the death narrative, described the "miracles" of modern medicine, and analyzes some of the resulting adverse transformations wrought by the advances. The transformations include the unrealistic expectations of longevity and obsession with youthfulness, the removal of death from the personal realm, and the change in the nature of death. Section III examines the legal apparatus erected to meet the issues created by the medical advances, including the redefinition of death, and Constitutional, common …

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Tax Exemption To Health Maintenance Organizations: What's The Issue And Who Should Decide It, Arthur M. Reginelli Jan 1994

Tax Exemption To Health Maintenance Organizations: What's The Issue And Who Should Decide It, Arthur M. Reginelli

Journal of Law and Health

In light of the expected role HMOs will play in this country's health care reform, the continued debate over the Service's position regarding tax exemption for HMOs, the recent judicial confirmation of the Service's position regarding tax exemption for HMOs, the recent judicial confirmation of the Service's position, and proposals to codify the requirements a tax-exempt HMO must meet, a closer look at HMOs and the questions involving their tax exemption is warranted. Specifically, this note will examine the criteria that hospitals must meet to attain tax-exempt status and will consider the appropriateness of these criteria with respect to HMOs. …

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The Use Of Genetic Information For Nonmedical Purposes, Mark A. Rothstein Jan 1994

The Use Of Genetic Information For Nonmedical Purposes, Mark A. Rothstein

Journal of Law and Health

When one thinks about the use of genetic information by third parties for nonmedical purposes, one of the first things that comes to mind is the question of how the third party can gain access to the information. There are three main ways. First, and most importantly, the third party may obtain records developed in the clinical setting. In other words, if someone wants a job or insurance, that person may be required to sign a release authorizing the third party to access those records. Second, the genetic records might be obtained through a genetic data bank. Third, the third …

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A Proposal For A Federal Aids Immunization Policy, Catherine M. Polizzi Jan 1994

A Proposal For A Federal Aids Immunization Policy, Catherine M. Polizzi

Journal of Law and Health

This paper will examine the creation of a federal AIDS compensation scheme for victims of injuries caused by vaccines which are distributed as a part of a national immunization program. As a preliminary inquiry, I will examine the impact of perceived liability on potential manufacturers to determine whether the risk of liability for manufacturers decreases the possibility that a successful AIDS vaccine will be introduced into the market. I will then discuss whether, given the present laws and economic incentives surrounding the vaccine industry, a federal compensation scheme for an AIDS vaccine is necessary. After analyzing the unique problems of …

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A New Predicament For Physicians: The Concept Of Medical Futility, The Physician's Obligation To Render Inappropriate Treatment, And The Interplay Of The Medical Standard Of Care, Eric M. Levine Jan 1994

A New Predicament For Physicians: The Concept Of Medical Futility, The Physician's Obligation To Render Inappropriate Treatment, And The Interplay Of The Medical Standard Of Care, Eric M. Levine

Journal of Law and Health

Part II of this article discusses the concept of futility and reviews various proposed approaches to defining "futility". This article then shows how personal value judgments play an integral part in determining futility under virtually all of these approaches. Part II concludes that a decision that treatment is futile should not be based on the individual values of only the patient or physician under the shared decisionmaking model of the physician-patient relationship. Part III tackles the issue whether a physician must offer or continue treatment deemed "medically and ethically inappropriate." Part III first reviews common law doctrines governing the physician-patient …

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The Law And Assisted Reproduction In The United Kingdom And United States, Robert L. Stenger Jan 1994

The Law And Assisted Reproduction In The United Kingdom And United States, Robert L. Stenger

Journal of Law and Health

The development, publicity and availability of new and assisted methods of human reproduction raise profound ethical, legal and medical concerns. As for any new medical technology, there is a need for research and experimentation. At the same time, because human life is involved, there are calls for ethical and legal evaluations and regulations. These new technologies have been developed and applied in different countries, each with different cultures and legal traditions. It is instructive to compare how different countries respond legally to such new technologies. A comparison between the United States and United Kingdom is particularly enlightening because both share …

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Drug-Induced Alteration Of Psychotic Behavior: Who Benefits?, Gerald J. Schaefer Jan 1994

Drug-Induced Alteration Of Psychotic Behavior: Who Benefits?, Gerald J. Schaefer

Journal of Law and Health

Given the debilitating nature of psychosis, those affected are often unable to give informed consent about taking the medication. A crucial question is whether civil or criminal authorities can force the individual to take antipsychotic medication and under what circumstances this should be permitted. This review will focus on the current legal status of involuntary treatment with antipsychotics in various patient populations. The constitutional issues involved will be considered in light of both the patient's and the civil or criminal institution's rights and duties. A review of the literature suggests there is a critical need for a balanced position on …

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Accessing Genomic Information Or Safeguarding Genetic Privacy, George P. Smith Ii Jan 1994

Accessing Genomic Information Or Safeguarding Genetic Privacy, George P. Smith Ii

Journal of Law and Health

The real-although often exaggerated-threats to genetic privacy, and the resulting forms of geneticdiscrimination, posed as a consequence of research in this field, can be contained by careful development and application of legal norms through legislative schemes at the state and federal levels of government. In partnership, law and science should seek to develop a contemporary agenda for social change that also seeks to fulfill socio-political goals.When viewed as but a tool for enhancing the health of the nation's citizens, and of engineering humanity's genetic weaknesses out of the line of inheritance, biological determinism is an absolute necessity for trans-national survival …

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The Qui Tam Provision Of The Federal False Claims Act: The Statute In Current Form, Its History And Its Unique Position To Influence The Health Care Industry, Carolyn J. Pashke Jan 1994

The Qui Tam Provision Of The Federal False Claims Act: The Statute In Current Form, Its History And Its Unique Position To Influence The Health Care Industry, Carolyn J. Pashke

Journal of Law and Health

Unlike the defense industry (which has relatively little contact with the general public), the health care industry, as a service industry, is largely reliant on the general public. A lawsuit involving fraud in health care threatens to harm the public's opinion of the health care industry. For this reason, the qui tam provisions of the FCA (False Claims Act) are in a unique position to generate action and changes and have a substantial impact on the health care industry. This note will discuss the history of the qui tam element of the FCA; a breakdown of the statute;areas in the …

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Paternalism, Civil Commitment And Illness Politics: Assessing The Current Debate And Outlining A Future Direction, Bruce A. Arrigo Jan 1993

Paternalism, Civil Commitment And Illness Politics: Assessing The Current Debate And Outlining A Future Direction, Bruce A. Arrigo

Journal of Law and Health

The purpose of this article is to examine critically the role that both law and psychiatry have played in casting mentally ill persons as deviants, citizen / outsiders caught in a crossfire of illness politics. This examination will focus on those values protected and privileged by the medical and legal professions as reflected in confinement law and policy primarily during the last quarter of the twentieth century. The social, economic and political power these disciplines exercise in the lives of psychiatric citizens raises significant questions concerning the future of involuntary civil commitment both from a clinical and justice policy perspective. …

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The Need For A Process Theory: Formulating Health Policy Through Adjudication, Margaret G. Farrell Jan 1993

The Need For A Process Theory: Formulating Health Policy Through Adjudication, Margaret G. Farrell

Journal of Law and Health

This essay sets out a preliminary, theoretical framework within which to analyze remedial options and begin the search for the values they promote. It is based on the premise that the process used to enforce substantive rights to health care should promote values that are consistent with, and even supportive of, the values that health care reform itself would promote. The framework proceeds upon an analysis of the kinds of claims at issue, the alternative decision making models available to settle them, and the forums in which those models might be used. In conclusion, I urge scholars, policy makers and …

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Senate Bill 1, Ohio's Advance Directives Law: Where Have We Been...Where Are We Going?, Jean M. Hillman Jan 1993

Senate Bill 1, Ohio's Advance Directives Law: Where Have We Been...Where Are We Going?, Jean M. Hillman

Journal of Law and Health

This article will discuss in part II, the pertinent case history in Ohio and in other jurisdictions which built the foundation for advance directive legislation in Ohio. Part III will review the legislative history which led to the passage of Senate Bill 1; and Part IV will discuss how Senate Bill 1 interacts with the Federal Patient Self-Determination Act which went into effect on December 1, 1991. Part V will analyze how the implementation of Senate Bill 1 has affected doctors, nurses and health care facilities. Finally, Part VI will cover how information about advance directives is being disseminated to …

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To Stay At Home: Analysis Of Rights And Recommendations On Procedures For Persons Receiving Mental Health Services In The Community , Janet L. Lowder, Franklin J. Hickman Jan 1993

To Stay At Home: Analysis Of Rights And Recommendations On Procedures For Persons Receiving Mental Health Services In The Community , Janet L. Lowder, Franklin J. Hickman

Journal of Law and Health

Before the pendulum swings back to the use of institutions as the primary treatment modality for persons with severe mental illness, there should be a re-examination of the alternatives available to community care providers to ensure compliance with treatment outside of the hospital. This article will focus on the alternatives available in the Ohio mental health system, which is fundamentally oriented towards community-based treatment, and the effects of this orientation.

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The Medicare And Medicaid Anti-Kickback Statute: Safe Harbors Eradicate Ambiguity, Durin B. Rogers Jan 1993

The Medicare And Medicaid Anti-Kickback Statute: Safe Harbors Eradicate Ambiguity, Durin B. Rogers

Journal of Law and Health

This Note will briefly explore the history of the Medicare and Medicaid programs including the introduction of the PPS. Next, the Note will detail the legislative history surrounding the adoption of the MMAKS and the judicial interpretation applied to its elements. The Note will follow with an analysis of the purpose, goals, and disagreements relating to the MMPPPA's "Safe Harbor" regulations, resolving their alleged ambiguity against the medical profession. Finally, the Note will advocate support of the recently proposed Health Care Cost Containment and Reform Act of 1992 with emphasis on increasing the budget and size of the staff within …

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Confidentiality And Privilege Of Peer Review Information: More Imagined Than Real, Susan O. Scheutzow, Sylvia Lynn Gillis Jan 1993

Confidentiality And Privilege Of Peer Review Information: More Imagined Than Real, Susan O. Scheutzow, Sylvia Lynn Gillis

Journal of Law and Health

This article will discuss the status of the privileges and confidentiality protection today at both the state and federal level. It will also address the concerns present among those individuals and organizations participating in peer review regarding the law of privileges and confidentiality and offer suggestions for health care providers to take full advantage of the statutory protections.

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Has The Time Come For Doctor Death: Should Physician-Assisted Suicide Be Legalized?, Wendy N. Weigand Jan 1993

Has The Time Come For Doctor Death: Should Physician-Assisted Suicide Be Legalized?, Wendy N. Weigand

Journal of Law and Health

A "true" doctor-assisted suicide can be distinguished from euthanasia in that the patient is actually bringing his or her own life to an end. The doctor in some way facilitates the action, either by providing the means for the suicide, such as in the New England Journal of Medicine article, or by giving the patient some kind of instruction as to the best way of carrying out the act. The difference lies in the fact that it is the patient killing him or herself with the help or advice of a physician, not the physician acting directly to shorten the …

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Rethinking The Health Care Delivery Crisis: The Need For A Therapeutic Jurisprudence, Bruce J. Winick Jan 1992

Rethinking The Health Care Delivery Crisis: The Need For A Therapeutic Jurisprudence, Bruce J. Winick

Journal of Law and Health

In designing a sensible system of national health insurance we need to avoid a repetition of the built-in inflationary pressures that followed the adoption of Medicaid and Medicare. Medicaid and Medicare eligibility encouraged many to increase their use of health care services, in part because they no longer needed to bear the costs (or full costs) or services. This increased demand, exceeding the supply of health care services, predictably produced price hikes. Other factors undoubtedly have contributed to the escalation of health care costs, including the tendency of some doctors to order unnecessary diagnostic tests, over-reliance on high technology, and …

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Book Review, Steven R. Smith, Stephen J. Werber Jan 1992

Book Review, Steven R. Smith, Stephen J. Werber

Journal of Law and Health

An Overview of Healthcare Reform: A View of the Forest - An Introduction to Taft Strategic Atlas: U.S. Health Care Reform by Frederick R. Taft

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Aids And Hiv: The Legal Dimension: A Selective Bibliography, Bonnie L. Koneski-White Jan 1992

Aids And Hiv: The Legal Dimension: A Selective Bibliography, Bonnie L. Koneski-White

Journal of Law and Health

For the most part articles over two pages in length from journals were included. Editorials and articles from national and legal newspapers generally are not included. Although some articles are listed from foreign periodicals, most of the entries focus on the United States. Listings in one category can cover some aspects of other categories. An attempt was made to include the article in the category which best covered the subject matter of the majority of the article. An asterisk (*) indicates that the article is contained in one of the symposia or special issues listed in the "Symposia and Special …

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The Effect Of Lilly V. Medtronics On The Scope Of 35 Usc 271(E)(1): The Patent Infringement Exemption - Broad Or Narrow, Ajay S. Pathak Jan 1992

The Effect Of Lilly V. Medtronics On The Scope Of 35 Usc 271(E)(1): The Patent Infringement Exemption - Broad Or Narrow, Ajay S. Pathak

Journal of Law and Health

This article undertakes to examine, critically, the case history, legislative history, and the construction of sections 101, 201, and 202 of the Patent Term Restoration Act of 1984 in an effort to analyze the Supreme Court's recent decision in Lilly v. Medtronics and to discern how the scope of section 271(e)(1) is likely to be treated in future cases in light of that recent Supreme Court decision.

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Hey Doc, Can You Keep A Secret - An Ohio Physician's Right To Warn Third Parties That They May Be At Risk Of Contracting Hiv, Mark Wiseman Jan 1992

Hey Doc, Can You Keep A Secret - An Ohio Physician's Right To Warn Third Parties That They May Be At Risk Of Contracting Hiv, Mark Wiseman

Journal of Law and Health

This note will seek to determine if granting a physician the right to warn third parties at risk is the appropriate solution to the above scenario and others like it. Part I will supply a background on the virus that causes AIDS. Part II will review possible legal justification for this breach of the confidential doctor/patient relationship. Part III discusses why there is a need to maintain strict confidentiality of AIDS-related information. Finally, Part IV will discuss alternatives to granting physicians the right to warn.

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Mandatory Hiv Testing Issues In State Newborn Screening Programs, John M. Naber, David R. Johnson Jan 1992

Mandatory Hiv Testing Issues In State Newborn Screening Programs, John M. Naber, David R. Johnson

Journal of Law and Health

The newborn screening model is fairly straightforward. Typically, before the infant is discharged from the hospital (around 24 to 36 hours of age), heel stick blood is placed on special filter paper, dried, and mailed to the state health department for testing. Medical and laboratory research has led to the discovery that other diseases could also be screened in newborns using these dried blood specimens. Currently, all states and the District of Columbia test all newborns for at least PKU and congenital hypothyroidism. There are generally five criteria to satisfy before a disease is considered appropriate for newborn screening: 1. …

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Excerpts From Taft Strategic Atlas: U.S. Health Care Reform, Frederick I. Taft Jan 1992

Excerpts From Taft Strategic Atlas: U.S. Health Care Reform, Frederick I. Taft

Journal of Law and Health

No abstract provided.

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The Discovery Of Medical Records Maintained By Health Care Facilities: Inconsistent Law In Need Of Legislative Correction, Susan O. Scheutzow, Anthea R. Daniels Jan 1991

The Discovery Of Medical Records Maintained By Health Care Facilities: Inconsistent Law In Need Of Legislative Correction, Susan O. Scheutzow, Anthea R. Daniels

Journal of Law and Health

This article will review current law in Ohio regarding the protection of medical records maintained by Ohio health care facilities. The Ohio law of privileged communications between health care professionals and patients also will be traced to show how only communications between patients and their physicians, dentists, psychologists, and social workers are currently protected. Since similar public policy reasons may apply to the protection of communications between a wider range of health care professionals and their patients as those communications with physicians, dentists, psychologists, and social workers, this article will discuss why the public policy reasons supporting the initial adoption …

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Nursing Home Contracts: Is It Time For Bad Faith To Come Out Of Retirement?, Charles A. Lattanzi Jan 1991

Nursing Home Contracts: Is It Time For Bad Faith To Come Out Of Retirement?, Charles A. Lattanzi

Journal of Law and Health

For certain types of contracts, the remedy for the breach of the implied duty of good faith and fair dealing has been found to lie in tort. Until the Supreme Court's ruling in Pilot Life Ins. Co. v. Dedeaux, courts were rapidly extending the application of the tort of bad faith breach of contract into areas beyond the traditionally accepted realm of insurance contracts. Most significant for the purposes of this note was the expansion into the area of health care services, specifically health maintenance organizations. Perhaps because of the chilling effect Pilot Life has had upon this form of …

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I Shot The Sheriff, But Only My Analyst Knows: Shrinking The Psychotherapist-Patient Privilege, Brian Domb Jan 1991

I Shot The Sheriff, But Only My Analyst Knows: Shrinking The Psychotherapist-Patient Privilege, Brian Domb

Journal of Law and Health

This Note will discuss the psychotherapist-patient privileges as it relates to past crimes and will use the Menendez facts to analyze different problems associated with the privilege. First, privileges law in general will be described with an emphasis on the public policy rationales supporting the specific privileges; ample space will then be devoted exclusively to the psychotherapist -patient privilege, especially the unique problems associated with having any exceptions which allow testimony of psychotherapeutic communications. The Note will then discuss the recognized exceptions to the psychotherapist privilege to see if a case can be made for an exception relating to past …

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The Bill Chill: Safe Harbors In The Medicare And Medicaid Fraud And Abuse Statutes, Pamela L. Gorski Jan 1991

The Bill Chill: Safe Harbors In The Medicare And Medicaid Fraud And Abuse Statutes, Pamela L. Gorski

Journal of Law and Health

This Note will determine whether the safe harbor regulations, intended to advise hospitals of permissible conduct, have instead created a chilling effect on the competitive market place. Have governmental regulations, in the form of safe harbors, failed to produce clear answers and guidance to hospitals? It would appear that instead of clarifying the issues, these new proposed safe harbor regulations have, in fact, prevented hospitals from offering patients and the federal government cost savings in the form of discounts and rebates.

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Rights Within The Therapeutic Relationship, Patricia King Jan 1991

Rights Within The Therapeutic Relationship, Patricia King

Journal of Law and Health

My thesis is that the failure of these rights to be implemented in any meaningful way for persons with mental illness is the result of a narrow image of rights which emphasizes the individual, valuing autonomy independent of care, and sacrifices relationship and the connection to the community. By conceiving of rights in such a way, we strengthen the individual but do not address the reality of the context or relationship within which persons with mental illness will actualize these rights. This failure to recognize and account for the disequilibrium within therapeutic relationships and the necessity of caring within such …

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