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2003

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Articles 151 - 180 of 244

Full-Text Articles in Health Law and Policy

Going To Pot, Carl E. Schneider Jan 2003

Going To Pot, Carl E. Schneider

Articles

In several earlier columns, I suggested that judges are usually poorly placed to make good biomedical policy, not least because the law so rarely offers them direct and cogent guidance. Recently, the U.S. Court of Appeals for the Ninth Circuit proffered a new example of this old problem. In 1996, California's voters approved Proposition 215. Its "Compassionate Use Act of 1996" provided -that a patient "who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician" committed no crime.

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Why We Need The Independent Sector: The Behavior, Law, And Ethics Of Not-For-Profit Hospitals, Jill R. Horwitz Jan 2003

Why We Need The Independent Sector: The Behavior, Law, And Ethics Of Not-For-Profit Hospitals, Jill R. Horwitz

Articles

Among the major forms of corporate ownership, the not-for-profit ownership form is distinct in its behavior, legal constraints, and moral obligations. A new empirical analysis of the American hospital industry, using eleven years of data for all urban general hospitals in the country, shows that corporate form accounts for large differences in the provision of specific medical services. Not-for-profit hospitals systematically provide both private and public goods that are in the public interest, and that other forms fail to provide. Two hypotheses are proposed to account for the findings, one legal and one moral. While no causal claims are made, …

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Patient Advocacy And Termination From Managed Care Organizations: Do State Laws Protecting Health Care Professional Advocacy Make Any Difference?, Linda C. Fentiman Jan 2003

Patient Advocacy And Termination From Managed Care Organizations: Do State Laws Protecting Health Care Professional Advocacy Make Any Difference?, Linda C. Fentiman

Elisabeth Haub School of Law Faculty Publications

This article will explore the history, implementation, and impact of state advocacy protection statutes. The article is in four major parts. The first Part provides an introduction to the concept of advocacy, both as it was understood at common law, and as it is presently interpreted by HCPs and MCOs. The article will also examine the phenomenon of HCPs' “deselection,” that is, the termination or non-renewal of their contracts with MCOs. In this context, the article will highlight the distinction between anecdote and data and emphasize the paucity of hard evidence to support either side's version of the truth about …

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The Next Wave: Federal Regulatory, Intellectual Property, And Tort Liability Considerations For Medical Device Software, 2 J. Marshall Rev. Intell. Prop. L. 259 (2003), Paul A. Mathew Jan 2003

The Next Wave: Federal Regulatory, Intellectual Property, And Tort Liability Considerations For Medical Device Software, 2 J. Marshall Rev. Intell. Prop. L. 259 (2003), Paul A. Mathew

UIC Review of Intellectual Property Law

Counsel for the medical software technologist faces an unusually complex, ongoing, high-stakes challenge. Counsel operates in a special field of commercial, legal and regulatory forces: (1) intellectual property laws which govern the expression and protection of commercial rights derived from advances in medical science and technology; (2) existing and proposed contracts/warranty laws that govern technological commercial relationships; (3) negligence, professional liability, and product liability laws that govern the marketing of medical technologies; and, (4) a new body of regulation derived from the power of the federal government to indirectly provide for the safety, effectiveness, privacy, and security of medical technologies …

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Access To Health Care: What A Difference Shades Of Color Make, Gwendolyn R. Majette Jan 2003

Access To Health Care: What A Difference Shades Of Color Make, Gwendolyn R. Majette

Law Faculty Articles and Essays

No abstract provided.

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Looking Backward: The Twentieth Century Revolutions In Psychiatry, Law And Public Mental Health, Sheldon Gelman Jan 2003

Looking Backward: The Twentieth Century Revolutions In Psychiatry, Law And Public Mental Health, Sheldon Gelman

Law Faculty Articles and Essays

Do histories of psychiatry make a difference--or have legal implications--in the present? Does our current situation help explain what historians say about psychiatry's past? Focusing on the past half century--the era of medications-- this paper explores the reciprocal relationship between the present and the past in psychiatry. Part II sketches the medical developments that constitute the subjects of any history of psychiatry. This Part also examines related developments in law. Part III introduces some problems of psychiatric historiography and examines some historians' attempts to deal with them. Part IV analyzes the account of psychiatry's past contained in Edward Shorter's well-regarded …

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Federal Whistleblower Protection: A Means To Enforcing Maximum-Hour Legislation For Medical Residents, Robert Neil Wilkey Jan 2003

Federal Whistleblower Protection: A Means To Enforcing Maximum-Hour Legislation For Medical Residents, Robert Neil Wilkey

William Mitchell Law Review

The extension of whistleblower protection to medical residents is by no means a panacea to current abusive working conditions. Roles exist for the federal government, the states, and institutional organizations such as the ACGME. Whistleblower protection provides one subtle yet effective regulatory tool that could undoubtedly result in enforcement of labor standards and ultimately better working conditions for medical residents.

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A Policy Overview, Stephen Utz Jan 2003

A Policy Overview, Stephen Utz

Faculty Articles and Papers

No abstract provided.

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Novel Issues, Futile Issues, And Appelate Advocacy: The Troubling Lessons Of Bousley V. United States., Henry J. Bemporad, Sarah P. Kelly Jan 2003

Novel Issues, Futile Issues, And Appelate Advocacy: The Troubling Lessons Of Bousley V. United States., Henry J. Bemporad, Sarah P. Kelly

St. Mary's Law Journal

Bousley v. United States may require appellate attorneys to raise meritless claims in order to preserve them for habeas review in the event of a change in the law. Bousley is a habeas corpus case involving the “procedural default” doctrine. The doctrine states that a prisoner may only raise issues that have been adequately preserved, and if not preserved, they have defaulted on their claims. Bousley looked with critical hindsight at the decisions made by appellate counsel and punished the defendant for their lawyer’s failure to preserve an issue rejected by eleven courts of appeals—including the court before which the …

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Quarantine Redux: Bioterrorism, Aids And The Curtailment Of Individual Liberty In The Name Of Public Health, Wendy E. Parmet Jan 2003

Quarantine Redux: Bioterrorism, Aids And The Curtailment Of Individual Liberty In The Name Of Public Health, Wendy E. Parmet

Health Matrix: The Journal of Law-Medicine

No abstract provided.

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Comment: Dna As Property: Implications On The Constitutionality Of Dna Dragnets, Jonathan Will Jan 2003

Comment: Dna As Property: Implications On The Constitutionality Of Dna Dragnets, Jonathan Will

Journal Articles

This comment will argue that when the state seeks to deprive a person of his or her DNA, greater constitutional protections than are currently afforded dragnets must be provided. Part I will discuss the unique properties of DNA, the information contained therein and why it should be constitutionally protected. Part II will briefly trace the history of DNA dragnets, including the practical and procedural uses in worldwide criminal investigations. Part III will explore current law and commentary regarding Fourth Amendment privacy interests in one’s DNA. Part IV will argue that DNA constitutes personal property, and finally, Part V will show …

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Midwifery: Strategies On The Road To Universal Legalization, Laura Hermer Jan 2003

Midwifery: Strategies On The Road To Universal Legalization, Laura Hermer

Faculty Scholarship

Multiple studies have shown that direct-entry midwifery is just as safe, if not safer than, medical care in low-risk childbirth. Most births using direct-entry midwives require fewer interventions than those attended by physicians, yet yield excellent results. The results of these studies indicate that we should return to midwifery for normal births, rather than continuing to rely primarily on medicine. This option, however, has been significantly curtailed by many state legislatures and courts, despite decades of attempts to make incursions on the traditional paradigm of hospital births attended by obstetricians. As a result, where midwifery is more readily available, it …

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Expanding Health Flexible Spending Accounts To Reimburse Over-The-Counter Drugs: A Positive Move, Susan E. Cancelosi Jan 2003

Expanding Health Flexible Spending Accounts To Reimburse Over-The-Counter Drugs: A Positive Move, Susan E. Cancelosi

Law Faculty Research Publications

No abstract provided.

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Increasing The Supply Of Organs In Transplantation Through Paired Organ Exchanges, Michael T. Morley Jan 2003

Increasing The Supply Of Organs In Transplantation Through Paired Organ Exchanges, Michael T. Morley

Scholarly Publications

No abstract provided.

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Protecting Human Research Subjects: A Jurisdictional Analysis, Jennifer Llewellyn, Jocelyn Downie, Robert Holmes Jan 2003

Protecting Human Research Subjects: A Jurisdictional Analysis, Jennifer Llewellyn, Jocelyn Downie, Robert Holmes

Articles, Book Chapters, & Popular Press

The most recent speech from the throne contained a pledge from the federal government to "work with provinces to implement a national system for the governance of research involving humans, including national research ethics and standards." This commitment signals a desire on the part of the federal government to address concerns about the inadequacies of the current governance of health research involving humans (RIH). To this end, Health Canada's Ethics Division is currently exploring the ways in which such a national governance system for RIH might be implemented. It is important for the federal government, as it moves toward making …

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Protecting Human Research Subjects: A Jurisdictional Analysis, Jennifer Llewellyn, Jocelyn Downie, Robert Holmes Jan 2003

Protecting Human Research Subjects: A Jurisdictional Analysis, Jennifer Llewellyn, Jocelyn Downie, Robert Holmes

Articles, Book Chapters, & Popular Press

The most recent speech from the throne contained a pledge from the federal government to "work with provinces to implement a national system for the governance of research involving humans, including national research ethics and standards." This commitment signals a desire on the part of the federal government to address concerns about the inadequacies of the current governance of health research involving humans (RIH). To this end, Health Canada's Ethics Division is currently exploring the ways in which such a national governance system for RIH might be implemented. It is important for the federal government, as it moves toward making …

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Privatization As Delegation, Gillian E. Metzger Jan 2003

Privatization As Delegation, Gillian E. Metzger

Faculty Scholarship

Recent expansions in privatization of government programs mean that the constitutional paradigm of a sharp separation between public and private is increasingly at odds with the blurred public-private character of modern governance. While substantial scholarship exists addressing the administrative and policy impact of expanded privatization, heretofore little effort has been made to address this disconnect between constitutional law and new administrative reality. This Article seeks to remedy that deficiency. It argues that current state action doctrine is fundamentally inadequate to address the constitutional challenge presented by privatization. Current doctrine is insufficiently keyed to the ways that privatization involves delegation of …

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The Trajectory Of "Normal" After 9/11: Trauma, Recovery And Post-Traumatic Societal Adaptation, Joel B. Eisen Jan 2003

The Trajectory Of "Normal" After 9/11: Trauma, Recovery And Post-Traumatic Societal Adaptation, Joel B. Eisen

Law Faculty Publications

I shall evaluate some of the wide-ranging psychological effects of 9/11 to further flesh out the concept that 9/11 is a "national trauma," in pursuit of a more sophisticated understanding intended to supplant the traditional concept of "trauma" so often associated with events of this caliber. Before 9/11, most people thought posttraumatic stress was something Vietnam veterans (or perhaps rape victims) suffered. As I describe in Part I, this is squarely at odds with recent research that shows such trauma is common. I will discuss current literature reflecting on post-traumatic stress and the associated disorder (post-traumatic stress disorder, or "PTSD"), …

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Legal Movements In Intellectual Property: Trips, Unilateral Action, Bilateral Agreements, And Hiv/Aids, Margo A. Bagley Jan 2003

Legal Movements In Intellectual Property: Trips, Unilateral Action, Bilateral Agreements, And Hiv/Aids, Margo A. Bagley

Faculty Articles

This Article begins with an overview of the relationship between the Agreement on Trade-Related Aspects of Intellectual Property Rights (the "TRIPS Agreement") and the HIV/AIDS pandemic which created the need for the Doha Declaration. It then discusses two trade-related movements, unilateral action and TRIPS-plus bilateral agreements, that call into question the long-term effectiveness of the TRIPS Agreement process, generally, and the benefits of the Doha Declaration, in particular, in addressing multiple facets of the access to essential medicines problem. This Article concludes that a consideration of these issues should be included in the development of any further TRIPS-related solutions to …

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Volume 13 Issue 2 (2003), Case Western Reserve Health Matrix: Journal Of Law-Medicine Jan 2003

Volume 13 Issue 2 (2003), Case Western Reserve Health Matrix: Journal Of Law-Medicine

Health Matrix: The Journal of Law-Medicine

No abstract provided.

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Telemedicine Reimbursement: Raising The Iron Triangle To A New Plateau, Kirsten Rabe Smolensky Jan 2003

Telemedicine Reimbursement: Raising The Iron Triangle To A New Plateau, Kirsten Rabe Smolensky

Health Matrix: The Journal of Law-Medicine

No abstract provided.

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Cruel But Not Unusual Punishment: The Failure To Provide Adequate Medical Treatment To Female Prisoners In The United States, Kendra Weatherhead Jan 2003

Cruel But Not Unusual Punishment: The Failure To Provide Adequate Medical Treatment To Female Prisoners In The United States, Kendra Weatherhead

Health Matrix: The Journal of Law-Medicine

No abstract provided.

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It Is Not So Simply Because An Expert Says It Is So: The Reliability Of Gang Expert Testimony Regarding Membership In Criminal Street Gangs: Pushing The Limits Of Texas Rule Of Evidence 702., Placido G. Gomez Jan 2003

It Is Not So Simply Because An Expert Says It Is So: The Reliability Of Gang Expert Testimony Regarding Membership In Criminal Street Gangs: Pushing The Limits Of Texas Rule Of Evidence 702., Placido G. Gomez

St. Mary's Law Journal

The mechanisms developed by the criminal justice system addressing the criminal activities of street gangs, for the most part, have proved ineffective. The evolution of gangs, their complex structure, and multipurpose focus keep them one step ahead of law enforcement. The most recent weapon created to fight the war on gangs, the civil injunction, suffers from numerous inadequacies. One concern is that civil injunctions raise numerous constitutional concerns. Another is that these injunctions fall short of constitutional demands. Furthermore, the practical implementation of the injunction forces an analysis of the reliability of the gang expert’s testimony. This Article proposes courts …

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Genetic Health And Eugenics Precedents: A Voice Of Caution, Larry Palmer Jan 2003

Genetic Health And Eugenics Precedents: A Voice Of Caution, Larry Palmer

Cornell Law Faculty Publications

No abstract provided.

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The Effect Of 8 U. S. C. 1324(D) In Transporting Prosecutions: Does The Confrontation Clause Still Apply To Alien Defendants., Donna F. Coltharp Jan 2003

The Effect Of 8 U. S. C. 1324(D) In Transporting Prosecutions: Does The Confrontation Clause Still Apply To Alien Defendants., Donna F. Coltharp

St. Mary's Law Journal

Cases prosecuted under 8 U.S.C. §1324 present special challenges for the Government and for defendants. Under §1324, it is a crime to transport or smuggle aliens into the United States. Prosecuting transporters or smugglers may present a challenge if a witness is unavailable. Even though transporting or smuggling always has witnesses—the alien(s) who hired the smuggler or transporter—not all witnesses have prolonged detentions, and some are returned to their native country. The transporter or smuggler may then assert their Sixth Amendment right. The Sixth Amendment’s Confrontation Clause requires that in all criminal prosecutions, the accused shall enjoy the right to …

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Terrorism, Grand Juries, And The Federal Material Witness Statute., Roberto Iraola Jan 2003

Terrorism, Grand Juries, And The Federal Material Witness Statute., Roberto Iraola

St. Mary's Law Journal

Abstract Forthcoming.

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When Parents And Educators Clash: Are Special Education Students Entitled To A Cadillac Education., Judith Deberry Jan 2003

When Parents And Educators Clash: Are Special Education Students Entitled To A Cadillac Education., Judith Deberry

St. Mary's Law Journal

Due to the ambiguous language of the Individuals with Disabilities Education Act (IDEA), there is uncertainty concerning IDEA’s requirements. IDEA mandates that all school districts receiving federal education monies provide for the education of disabled students. According to IDEA, each state must provide disabled children with “free appropriate public education” (FAPE) that emphasizes special education and related services designed to meet the student’s unique needs and prepare him or her for employment and independent living. Parents have argued that IDEA requires school districts to compensate them for commercial programs and private school costs. Courts have held that an individual education …

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The Toxic Mold Terrifying Texas: Mold's Hold On The Insurance Industry., Sylvia Pena-Alfaro Jan 2003

The Toxic Mold Terrifying Texas: Mold's Hold On The Insurance Industry., Sylvia Pena-Alfaro

St. Mary's Law Journal

It is imperative that more scientific research concerning the effects of mold be conducted to better understand the consequences of long-term exposure to mold. Because of home and building modifications to conserve energy, mold has been able to thrive. Reports of illnesses allegedly caused by mold exposure have increased. No scientific evidence, however, exists that conclusively links the illnesses to the effects of mold. Only a limited number of scientific studies exist showing just how harmful toxic mold can be, but there is disagreement as to whether the harmful effects of toxic mold can compromise the immune system to such …

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In Re V.L.K. V. Troxel: Is The Best Interest Standard In A Motion To Modify The Sole Managing Conservator Subject To A Due Process Or Course Challenge., David F. Johnson Jan 2003

In Re V.L.K. V. Troxel: Is The Best Interest Standard In A Motion To Modify The Sole Managing Conservator Subject To A Due Process Or Course Challenge., David F. Johnson

St. Mary's Law Journal

Texas Family Code section 156.101 is unconstitutional. In In re V.L.K, the Texas Supreme Court held that the Texas Legislature removed the injurious retention element from section 156.101 and no longer required a finding that the natural parent be injurious to the welfare of the child. The Texas Supreme Court’s ruling is contradictory to the United States Supreme Court’s ruling in Troxel v. Granville. In Troxel, the Supreme Court struck down a state statute that effectively permitted any third party to file a motion to challenge custody. Under Texas law, any affected party, not limited to parties named in the …

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Telemedicine In Texas: Solving The Problems Of Licensure, Privacy, And Reimbursement., Gilbert Eric Deleon Jan 2003

Telemedicine In Texas: Solving The Problems Of Licensure, Privacy, And Reimbursement., Gilbert Eric Deleon

St. Mary's Law Journal

Abstract Forthcoming.

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