Health Law and Policy Commons^™

Genetic Testing And Employment Litigation, Harry Zanville

Journal of Law and Health

I have only a couple of comments to make that relate to litigation hurdles and how to achieve this balance, and the first thing I want to talk about, following the wonderful presentation is, in fact, we probably don't in some ways even need a new cause of action.

Application Of Administrative Law To Health Care Reform: The Real Politik Of Crossing The Quality Chasm , Thomas R. Mclean

Journal of Law and Health

Real Politik, a term in vogue at the height of the Cold War, contemplates that in practice, governmental bodies attempt to expand their spheres of influence and control by the application of economic leverage. The federal government is clearly interested in expanding its influence into health care because of its cost. Americans spend over one trillion dollars - forty-four percent of which is paid for by the federal government - on health care each year. To control the cost of health care, governmental reformers proposed the Health Securities Act of 1993 as a frontal assault on the American health care …

Routine Patient Care In Clinical Trials: Whose Cost Is It Anyway?, Dina Berlyn

Journal of Law and Health

This article examines the issue of coverage for routine medical expenses for clinical trial patients by third party payers from both a medical and political policy perspective. It is critical for patients, investigators, and sponsors to know who is responsible for paying these costs. This issue affects the willingness of patients to enter clinical trials and has the potential to affect which diseases will be the subjects of clinical trials. This presentation first summarizes the basics of clinical trials and then explores the definition of routine care in clinical trials. Medicare reimbursement, an issue that has been the subject of …

Bridging The Analytical Gap: The Gammill Alternative To Overcoming Robinson & (And) Havner Challenges To Expert Testimony., Kimberly S. Keller

St. Mary's Law Journal

Abstract Forthcoming.

Hiv/Aids And Human Rights In Russia: Compliance And The Rule Of Law, William F. Flanagan

Osgoode Hall Law Journal

This article examines Russia’s legal response to its ongoing HIV/AIDS epidemic. Russia’s international human rights obligations are reviewed and the article then critically assesses the extent to which Russia’s current HIV/AIDS law and practice are consistent with those obligations. The paper demonstrates that most aspects of Russia’s HIV/AIDS laws are consistent with Russia’s international obligations. However, the paper also documents key parts of HIV/AIDS practice in Russia that are seriously inconsistent with both Russian HIV/AIDS law and Russia’s international human rights obligations. This inconsistency between HIV-related de jure norms and de facto practice raises the question of compliance with the …

Secret Code: The Need For Enhanced Privacy Protections In The United States And Canada To Prevent Employment Discrimination Based On Genetic And Health Information, Patrik S. Florencio, Erik D. Ramanathan

Osgoode Hall Law Journal

The collection of genetic and health information by employers for reasons that are unrelated to the health and safety of workers is an undue infringement of the right to privacy, and consequently should be firmly prohibited by statute. Comprehensive genetic and health information privacy requires the protection of at least three critical elements of the right to privacy--namely choice, secrecy, and confidentiality. While choice and secrecy protect the individual's right to privacy at the collection stage, confidentiality safeguards this right at the point of disclosure. Laws that focus on the inappropriate use of genetic and health information without addressing the …

Making Clinical Trials Safer For Human Subjects, Michael S. Baram

Faculty Scholarship

Clinical trials, in which new biotech and other medical products are tested on human subjects, provide much of the data used by the FDA to determine whether the products are suitable for routine use in health care. Thus, the trials are of obvious importance to medical progress and improvement of public health, and to those who have career and financial interests at stake. But clinical trials are also important to the human subjects involved because the products being tested on them may remedy their illnesses, but may also pose risks since the products have usually not been previously tested on …

Health Care, Technology And Federalism, Kevin Outterson

Faculty Scholarship

The regulation of health care has traditionally been the province of the states, most often grounded in the police power. In Colonial times, this division of responsibility was a rational response to the technological level of the eighteenth century, although even in the youth of the Republic some health and safety regulation required national and international action. With the growth of distancecompression technology, the increase in mobility of goods and services, and a significant federal financial role in health care, the grip of the police power on the regulation of health care has been weakened. Discussion of the police power …

Slouching Toward Managed Care Liability: Reflections On Doctrinal Boundaries, Paradigm Shifts, And Incremental Reform, Wendy K. Mariner

Faculty Scholarship

Following the seemingly endless debate over managed care liability, I cannot suppress thoughts of Yeats’s poem, “The Second Coming.” It is not the wellknown phrase, “Things fall apart; the centre cannot hold,” that comes to mind; although that could describe the feeling of a health-care system unraveling. The poem’s depiction of lost innocence — “The best lack all conviction, while the worst/Are full of passionate intensity” — does not allude to the legislature, the industry, the public, or the medical or legal profession. What resonates is the poem’s evocation of humanity’s cyclical history of expectation and disappointment, with ideas as …

The Limits Of Law At The Limits Of Life: Lessons From Cannibalism, Euthanasia, Abortion, And The Court-Ordered Killing Of One Conjoined Twin To Save The Other, George J. Annas

Faculty Scholarship

The subject is law at the beginning and end of life. Most of my work is in the area of general health law: law and medicine, public health law, and health and human rights. But this is my favorite subject area, and I expect you to ask me the hardest questions you can. I am not saying I can answer them, but if I cannot that is my fault, not yours. I am going to make a pretty broad argument today about law and medicine; specifically about how new medical technology and medical practice standards have eclipsed religion (and sometimes …

“Partial-Birth Abortion” And The Supreme Court, George J. Annas

Faculty Scholarship

Aortion has long been, and remains, the most politicized medical procedure in the United States. It has been the subject of more state and federal legislation than all other medical procedures combined. The U.S. Supreme Court, which almost never hears cases about medical procedures, has regularly heard cases over the past 25 years concerning the constitutionality of various state laws designed to limit abortion. Thus, it was only a matter of time before the Court would hear a case on the constitutionality of laws restricting so-called partial-birth abortion. When the Court heard a challenge to Nebraska's law, statutes relating to …

The Spanish Predominant Language Ordinance: Is Spanish On The Way In And English On The Way Out., Adriana Resendez

St. Mary's Law Journal

El Cenizo's Spanish language ordinance is likely to survive a constitutional challenge. The City Council of El Cenizo’s Spanish language ordinance, however, has generated a significant amount of controversy in the United States. The ordinance stipulates that all city council meetings will be made in the city’s predominant language—Spanish. Critics argue that the ordinance has made Spanish the official language. Critics also argue that the ordinance is discriminatory toward English speakers. English only advocacy groups, such as English First and U.S. English, argue that the ordinance will create a trend across the United States of immigrants refusing to embrace an …

Heci V. Neel: Application Of The Discovery Rule To Damages Arising Out Of Oil And Gas Leases., L. Melanie Martin

St. Mary's Law Journal

Texas landowners face a heavy burden in bringing claims for damages arising out of inherently undiscoverable damages to mineral estates because the statute of limitations starts at the time of injury rather than the time of discovery. Previously, courts adopted the discovery rule as an exception to the statute of limitations, effectively stalling the starting point of the statute of limitations. A two-pronged threshold inquiry is held before the application of the discovery rule. First, the court must determine if the injury is inherently undiscoverable or not detected despite the use of due diligence. Secondly, there must be objectively verifiable …

Whither The Texas Tort Claims Act: What Remains After Official Immunity., J. Bonner Dorsey

St. Mary's Law Journal

Abstract Forthcoming.

Troxel And The Limits Of Community, Margaret F. Brinig

Journal Articles

The Troxel grandparent-visitation case that frames this symposium, the Washington statute included in Troxel, the mercifully completed odyssey of Cuban-born Elian Gonzalez, and the "right to die" case of Hugh Finn all illustrate both the fervor with which the broader community justifies its involvement with families and the extremes to which this involvement can spread. Using constitutional language, advocates point out the rights of extended family members to continue or strengthen ties to children, whether adult or minor. On the other side, parents and spouses claim their own rights not to have outsiders second-guess or interfere with their decisions.

Though …

Will A Lawsuit A Day Keep The Cyberdocs Away? Modern Theories Of Medical Malpractice As Applied To Cybermedicine, Ruth Ellen Smalley

Richmond Journal of Law & Technology

Rivaled only by lawyers, those who earn their livelihood by practicing medicine are viewed by many as America's Public Enemy No. 1. This perception is due to the rising cost of medicine, the over-scheduling of patients, and the poor bedside manner that many people associate with a trip to the doctor's office. However, the advent of the Internet and its proliferation into schools, offices, and homes has placed medical opinions only a mouse click away. Websites, such as cyberdocs.com, allow patients to type in a description of their ailments and receive diagnoses and treatment advice from an on-line medical professional …

A Constitutional Confluence: American ‘State Action’ Law And The Application Of South Africa’S Socioeconomic Rights Guarantees To Private Actors, Stephen Ellmann

Articles & Chapters

As constitutional protection of human rights expands around the world, the question of whether constitutional rights should protect people not only against state action but also against the conduct of private actors is once again timely. Few nations have so broadly, or so ambiguously, endorsed the application of constitutional guarantees to constrain private conduct (known outside the United States as "horizontality") as South Africa. The constitution approved in 1996 applies fully and without qualification to all "organs of state," and this term is defined in section 239 in potentially very broad terms, notably embracing "any other functionary or institution ... …

"Geographical Morality" Revisited: International Relations, International Law, And The Controversy Over Placebo-Controlled Hiv Clinical Trials In Developing Countries, David P. Fidler

Articles by Maurer Faculty

No abstract provided.

The Application Of Universal Human Rights Law To People With Mental Disabilities, Debra Benko, Brittany Benowitz

Human Rights Brief

No abstract provided.

The Power Imbalance Between Man And Women And Its Effects On The Rampant Spread Of Hiv/Aids Among Women, Julie L. Andreeff

Human Rights Brief

No abstract provided.

Caretakers And Collaborators, Maxwell Gregg Bloche

Georgetown Law Faculty Publications and Other Works

A chilling subplot in the twentieth-century saga of state-sponsored mass murder, torture, and other atrocities was the widespread incidence of medical complicity. Nazi doctors’ human “experiments” and assistance in genocidal killing are the most oft-cited exemplar, but wartime Japanese physicians’ human vivisection and other grotesque practices rivaled the Nazi medical horrors. Measured by these standards, Soviet psychiatrists’ role in repressing dissent, Latin American and Turkish military doctors’ complicity in torture, and even the South African medical profession’s systematic involvement in apartheid may seem, to some, almost prosaic. Yet these and other reported cases of medical complicity in human rights abuse …

Handling Cases Of Willful Exposure Through Hiv Partner Counseling And Referral Services, Lawrence O. Gostin, James G. Hodge Jr.

Georgetown Law Faculty Publications and Other Works

Cases of willful exposure reveal the existing and future risks to the public health (especially women) which may be presented by individuals who willfully expose others to HIV through unsafe sexual or needle-sharing behaviors. In response to a documented case of willful exposure, a PCRS counselor or other public health official may, in his or her professional judgment, decide to act to avert a legitimate public health threat to known or unknown persons in the community. Yet handling such cases raises difficult issues in law, ethics, and public health practice. Public health authorities may be unable or ill-equipped to successfully …

Race And Discretion In American Medicine, Maxwell Gregg Bloche

Georgetown Law Faculty Publications and Other Works

The author’s focus in this article is on racial disparities in medical care provision--that is, on differences in the services that clinically similar patients receive when they present to the health care system. Racial disparities in health status, which is not greatly influenced (on a population-wide basis) by medical care, are beyond his scope here. Disparities in medical care access-potential patients' ability, financial and otherwise, to gain entry to the health care system in the first place, are also outside his focus. The author begins this article by putting the problem of racial disparities in medical care provision within the …

Health Care Fraud And Abuse: A Tale Of Behavior Induced By Payment Structure, Arti K. Rai

Faculty Scholarship

The campaign to curtail "fraud and abuse" in the Medicare and Medicaid programs represents an attempt by regulators to evade more fundamental and difficult questions regarding cost and quality control. In the Medicare arena, tackling these larger questions will require dismantling the program's fee-for-service structure and imposing on providers financial incentives to evaluate carefully health care costs and benefits. Commentary on, David A. Hyman, Health Care Fraud and Abuse: Market Change, Social Norms and the Trust "Reposed in Workmen," 30 Journal of Legal Studies 531 (2001)

Foreword, Edward D. Spurgeon, Charles P. Sabatino, Nancy M. Coleman, Stephen R. Mcconnell, Rebecca C. Morgan

Georgia Law Review

The Joint Conference on Legal/Ethical Issues in the Progression of Dementia grew out of the pressing need to address the very real legal and ethical dilemmas that arise in situations like the one of Marie McDonough Larson and her family. Five groups joined forces to sponsor the Conference: the Borchard Foundation Center on Law and Aging; the Alzheimer's Association; the American Bar Association's Commission on Legal Problems of the Elderly; the National Academy of Elder Law Attorneys; and the University of Georgia School of Law. Held at the Center for Continuing Education at the University of Georgia, the Conference spanned …

Dementia And Alzheimer's Disease: An Overview, Peter V. Rabins

Georgia Law Review

Dementia is a syndromic diagnosis defined by three criteria: cognitive decline, multiple impairments, normal level of consciousness. It is an acquired disorder characterized by multiple impairments of cognition (distinct elements of intellectual processing such as memory, abstraction, judgment, and language) occurring in an individual who is fully alert and attentive. It is now known that at least seventy-five distinct diseases can present as this syndrome and that most of these diseases have specific syndromic patterns that allow clinicians to distinguish among them.

Ethics, Ethnicity, And Dementia: A "Culture-Fair" Approach To Bioethical Advocacy In Dementing Illness, Ramon Valle

Georgia Law Review

The aims of this discussion are to twofold. The first is to apply what Post et al. term a cultural lens to bioethical decisionmaking processes in dementing illness.' The second is to assist the ethical advocate to develop a cultural analysis strategy for application of ethical decisionmaking processes within ethnically diverse populations. An assumption made here is that, as human inventions, ethical systems are an extension of culture, taking their imprint from the ethnocultural systems from which they emerge.' It is true that ethical systems and their principles can be widely shared across cultures. Modern bioethics, as promulgated within the …

Creating And Supporting The Proxy-Decider: The Lawyer-Proxy Relationship, Nancy N. Dubler

Georgia Law Review

Advance directives have been identified as the "quick fix" of bioethics. The logic goes something like this: If we could only get patients to tell us, in advance of disability, the specifics of the health care they would want to receive in the future, we could put our ethical and legal qualms aside and march ahead with care that we know is patient appropriate and legally protected. If we could only get the patient to commit, we could proceed with moral certainty and risk assurance. If we could only be given explicit instructions, we could act accordingly and be comfortable …

Decisionmaking At The End Of Life: Patients With Alzheimer's Or Other Dementias, Leslie P. Francis

Georgia Law Review

Patients with dementia present difficult issues for health-care decisionmaking. This article addresses the moral and legal issues posed by end of life decisionmaking for such patients. In general, the ethical goals of care are to assure that patients' choices are respected and that patients' best interests are protected. These goals may not always recommend the same decisions about care, however, and there is controversy about how they should be balanced when they conflict. In addition, the law may not always further these goals, nor be as helpful as it could be in resolving conflicts between them. In the bioethics literature, …

Freedom Fading: On Dementia, Best Interests, And Public Safety, Bruce Jennings

Georgia Law Review

Having Alzheimer's Disease does not make a person evil, but it does sometimes cause behavior that poses a danger to the person with dementia or to others. On what grounds can we justify overriding and restricting the liberty of a person with dementia? How far should such restrictions go? Who should authorize them and who should carry them out, and under what theory? Given that all behavior carries some degree of risk, what level of risk is acceptable? What should society tolerate as a part of the back- ground conditions within which most people conduct their lives? To what level …