Health Law and Policy Commons^™

The Role Of Medicare In Medical Malpractice Reform, William M. Sage

Faculty Scholarship

The medical malpractice crisis we think we are in is not the medical malpractice crisis we actually are in. Today's malpractice crisis is not an epidemic of lawsuits, impressionable juries, or even excessive insurance premiums. The real medical malpractice crisis is that the law has formed little connection between the malpractice system and the health care system.

Till Death Do Us Part: Marriage, Hiv/Aids And The Law In Zimbabwe, Slyvia Chirawu

Cardozo Journal of Equal Rights & Social Justice

The article argues that marriage, cultural practices, and legal frameworks in Zimbabwe disproportionately expose women to HIV/AIDS, with marriage paradoxically increasing their vulnerability despite societal expectations of protection. It contends that legal reforms alone are insufficient to address this issue, emphasizing the need for transformative gender equity to challenge the deeply rooted power imbalances and cultural norms that perpetuate women's susceptibility to HIV infection.

Conflicts Of Interest In International Human Drug Research And The Insufficiency Of International Protections, Robert Gatter

All Faculty Scholarship

The problem of financial conflicts of interest in human subjects research is international in scope as drug manufacturers conduct trials in countries outside of the U.S., Japan, and the European Union, thereby side-stepping domestic regulation of conflicts of interest. Because such out-sourcing of human drug trials results in exporting risks associated with financial conflicts of interest, this essay examines the primary international sources for regulating those conflicts. These sources include the World Health Organization’s Guidelines for Good Clinical Practice for Trials on Pharmaceutical Products, the Guidelines for Good Clinical Practice adopted by the International Conference on Harmonisation of Technical Requirements …

E-Prescribing In A Changing Legal Environment, Jeff Todd

Richmond Journal of Law & Technology

Perhaps nothing permeates modern American society as much as prescription drugs. Evidence of this exists not just in television and magazine ads extolling the promises of Viagra and Nexium, but also in a few statistics. First, forty-six percent of Americans use at least one prescription drug daily. Further, in 2001, 3.1 billion prescriptions were issued in the United States at a cost of $132 billion. That amount is projected to increase to $414 billion by 2014.3 Such numbers explain the intensity of the recent political and legal debates surrounding prescription drugs, such as the importation of American pharmaceuticals from Canada …

Biotechnology Entrepreneurship And Ethics: Principles, Paradigms, And Products, Patricia C. Kuszler

Articles

Biotechnology, whether in the context of new drugs derived from DNA and genetic technology, genetically modified food, or biologics making use of living cells, raises ethical concerns at a variety of different levels. At the research level, there is concern that the very nature of research is being subverted, rather than enhanced, by entrepreneurship. This area of ethical concern has intensified in the United States as a result of the conflicts of interests resulting from the growing alliance between University academia and private industry in the research enterprise. As we travel down the research path into development of a drug …

Syringes In The Sea: Why Federal Regulation Of Medical Waste Is Long Overdue, Chryssa V. Deliganis, Steve P. Calandrillo

Articles

Medical waste is produced everywhere that people live and by almost everyone at some point in their lives. Its treatment and disposal implicates the environment, public health, the economy, human dignity, and aesthetics. With the many issues involved, the need for federal regulation of medical waste today is manifest.

This Article examines the problem of medical waste disposal and evaluates the current state-based approach to regulation. Although many states have implemented stringent medical waste programs with some success, the absence of direct federal regulation in this area is problematic. The need for national leadership is clear, especially with respect to …

Standard Of Care For Residents And Other Medical School Graduates In Training, Joseph H. King

American University Law Review

No abstract provided.

A Tale Of Two Countries: Parallel Visions For Informed Consent In The United States And The United Kingdom, Ben Sones

Vanderbilt Journal of Transnational Law

In recent years, the proper role of informed consent doctrine in an environment of healthcare cost containment has been a hotly contested legal and policy issue. The purpose of this Note is to probe the current informed consent debate in the United States and the United Kingdom and to draw out the respective roles informed consent ought to play in those two systems. In doing so, this Note draws on the history of the doctrine and several recent scholarly proposals, and offers a modest proposal synthesizing the best aspects of those proposals.

Toward Facilitating A Voice For Politically Marginalized Minorities And Enhancing Presidential Public Accountability And Transparency In Foreign Health Policymaking, Nina J. Crimm

Vanderbilt Journal of Transnational Law

Residents of underdeveloped countries who belong to ethnic, racial, sexual, and political minorities usually endure relatively ineffective political voices. More than any other world population segment, these marginalized people are vulnerable to, and suffer from, compromised health and life expectancies. Their immense human tolls have spawned severe global humanitarian, economic, social, political, and security dilemmas contrary to the strategic interests of the United States. Despite recognition of these devastating harms here and abroad, the president as de facto primary U.S. foreign policymaker continues to formulate foreign health policy in an insular policymaking environment. The insularity enables the president to design …

The Sympathetic Discriminator: Mental Illness, Hedonic Costs, And The Ada, Elizabeth F. Emens

Faculty Scholarship

Social discrimination against people with mental illness is widespread. Treating people differently on the basis of mental illness does not provoke the same moral outrage as that inspired by differential treatment on the basis of race, sex, or even physical disability. Indeed, many people would freely admit preferring someone who does not have a mental illness as a neighbor, dinner party guest, parent, partner, or person in the next seat on the subway. Moreover, more than ten years after the Americans with Disabilities Act (the "ADA" or "Act") expressly prohibited private employers from discriminating on the basis of mental, as …

The Patient, The Doctor, The Fetus, And The Court-Compelled Cesarean: Why Courts Should Address The Question Through A Bioethical Lens, Thomas Williams

Scholarly Articles in Law Reviews & Journals

Court-ordered Cesarean sections are a relatively recent phenomenon in the intersection of law and medicine. Existing jurisprudence utilizes a legal balancing test when addressing conflicts that arise between physicians and patients regarding obstetrical treatment and care. The authors contend that courts' analyses lack a fundamental element - a bioethical framework. Therefore, the authors believe that in order to better assess such conflicts, courts should incorporate a bioethical framework such as the Georgetown mantra to help complement their legal analyses.

Dependency By Law: Poverty, Identity, And Welfare Privatization, Frank W. Munger

Articles & Chapters

Privatization of welfare reflects the political pressure to limit public responsibility for protection of social citizenship. Recent welfare reforms incorporate three classic market-like privatization mechanisms--contracting out services forcing allocation of a limited pool of benefits, and deregulation. Deregulation entails strategic diversion and disqualification of large numbers of would-be applicants who are left without alternatives to the labor market. In this article I discuss an empirical study of the effects of deregulation of welfare on the self-perceptions of recipients. Interviews with recipients and with low-wage health care workers, former recipients, show that, criticisms of welfare notwithstanding, they have embraced welfare reforms …

The Process Paradigm: Rethinking Medical Malpractice, Roger B. Dworkin

Articles by Maurer Faculty

No abstract provided.

The New International Health Regulations: An Historic Development For International Law And Public Health, David P. Fidler, Lawrence O. Gostin

Articles by Maurer Faculty

No abstract provided.

Calibrating The Wealth And Health Of Nations: Trade, Health, And Foreign Policy After The Wto's First Decade, David P. Fidler

Articles by Maurer Faculty

One of the most important themes to emerge from the relationship between trade and health in the first ten year's of the WTO's existence is the challenge of achieving policy coherence. This task is a foreign policy challenge for WTO Members, which requires looking at the relationship between trade and health against the backdrop of the making and implementing of foreign policy. Policy coherence has generally become a major concern for foreign policymakers because post-Cold War trends, such as accelerating globalization, seriously challenge traditional foreign policy assumptions, practices, and institutions. Part of this new context for foreign policy involves the …

Health And Foreign Policy, David P. Fidler, Nick Drager

Articles by Maurer Faculty

No abstract provided.

Oklahoma Advance Directive Act: Denying Choice To Those Who Cannot Choose--A Proposal For Legislative And Practical Alternatives, Matthew B. Hickey

Oklahoma Law Review

No abstract provided.

The Modern Age Of Informed Consent, Barbara L. Atwell

Elisabeth Haub School of Law Faculty Publications

This essay explores the informed consent ramifications of the confluence of these two phenomena: developments in medical technology and emerging adulthood. In particular, it explores consent to medical treatments by emerging adults that are both elective and irreversible. In such cases, policy considerations dictate that additional safeguards be implemented to ensure that the consent given is truly informed. Part II of this essay provides an overview of the informed consent doctrine and outlines a variety of advancements in elective medical technology. Part III explores the concept of emerging adulthood. Part IV suggests that when emerging adults seek medical treatments that …

The New "Fetal Protection": The Wrong Answer To The Crisis Of Inadequate Health Care For Women And Children, Linda C. Fentiman

Elisabeth Haub School of Law Faculty Publications

This article will expand upon the feminist critique by focusing on children's health as well as the health and liberty interests of their mothers. In the first part of this article, I examine the legal and cultural underpinnings of “fetal protection” and explore its current manifestations. In the second part, I place “fetal protection” in a broader context, documenting the ways in which American law currently promotes fetal life, while simultaneously neglecting the lives and health of born children. The third part of the article offers concrete recommendations about how government, both state and federal, can actually achieve the goal …

Race, Money And Medicines, Maxwell Gregg Bloche

Georgetown Law Faculty Publications and Other Works

Taking notice of race is both risky and inevitable, in medicine no less than in other endeavors. The literature on race as a classifying tool in clinical research poses this core dilemma: On the one hand, race can be a useful stand-in for unstudied genetic and environmental factors that yield differences in disease expression and therapeutic response. On the other hand, racial distinctions have social mean­ ings that are often pejorative or worse, especially when these distinctions are cast as culturally or biologically fixed. Our country's troubled past in this regard and the persistence of race-related disadvantage should keep us …

Managed Process, Due Care: Structures Of Accountability In Health Care, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

Almost unnoticed, a new kind of adjudication system has appeared in American law. In forty-one states and the District of Columbia, special entities have been established to resolve contract and tort claims. State law created and mandates each system; these are not arbitrations agreed to by contract between the parties. Despite their public nature, however, these systems are not offered or operated by courts; the public function of adjudication is entirely outsourced to private actors. The decision-makers are neither elected nor appointed, nor are they public sector employees; they work in private companies. Most do not write opinions, and they …

What Does Social Justice Require For The Public’S Health? Public Health Ethics And Policy Imperatives, Lawrence O. Gostin, Madison Powers

Georgetown Law Faculty Publications and Other Works

Justice is so central to the mission of public health that it has been described as the field's core value. Our account of justice stresses the fair disbursement of common advantages and sharing of common burdens. It captures the twin moral impulses that animate public health: to advance human well-being by improving health and to do so particularly by focusing on the needs of the most disadvantaged. This commentary explores how social justice sheds light on major ongoing controversies in the field, and it provides examples of the kinds of policies that public health agencies guided by a robust conception …

Hippa And Patient Privacy: Tribal Policies As Added Means For Addressing Indian Health Disparities, Starla Kay Roels

American Indian Law Review

No abstract provided.

Contesting Anticompetitive Actions Taken In The Name Of The State: State Action Immunity And Health Care Markets, Clark C. Havighurst

Faculty Scholarship

The so-called state action doctrine is a judicially created formula for resolving conflicts between federal antitrust policy and state policies that seem to authorize conduct that antitrust law would prohibit. Against the background of recent commentaries by the federal antitrust agencies, this article reviews the doctrine and discusses it's application in the health care sector, focusing on the ability of states to immunize anticompetitive actions by state licensing and regulatory boards, hospital medical staffs, and public hospitals, as well as anticompetitive mergers and agreements. Although states are free, as sovereign governments, to restrict competition, the state action doctrine requires that …

The Rhetoric Of Disputes In The Courts, The Media, And The Legislature, Geoffrey C. Hazard, Jr

Georgia Law Review

Recent events like the Terri Schiavo case typify the familiar phenomenon of a matter of legal significance becoming the focus of attention on the part not only of the courts, but also of the public, the media, and the government. Legal contemplation tends to consider these and other legal disputes isolated from their community roots and insulated from their political implications. Most private disputes remain private, and do not attract the interest of the media or the political branches of government. The media's estimate of public curiosity, however, transforms a select number of disputes into high-profile cases, which leads to …

The Ethical Health Lawyer: When Doing The Right Thing Means Breaking The Law - What Is The Role Of The Health Lawyer?, Robert L. Schwartz

Faculty Scholarship

No abstract provided.

The Impact Of The War Over The Corporate Attorney-Client Privilege On The Business Of American Health Care, Sarah Helene Duggin

Scholarly Articles

The purpose of this article is to review the current dispute over the corporate attorney-client privilege and work product doctrine and to explore its impact on the provision of health care. The article's principal thesis is that a strong attorney-client privilege, along with robust work product protection, is critical to the business of health care, the quality of medical services, and the effective enforcement of federal and state health care laws. Part I begins with a brief account of the origins and scope of the conflict between federal law enforcement policies and the corporate attorney-client privilege and work product doctrine …