Health Law and Policy Commons^™

Tobacco Regulation Review, V. 5, No. 1, June 2006

Tobacco Regulation Review

No abstract provided.

Pharmacy Conscience Clause Statutes: Constitutional Religious "Accommodations" Or Unconstitutional "Substaintial Burdens" On Women?, Melissa Duvall

American University Law Review

No abstract provided.

What, If Any, Are The Ethical Obligations Of The U.S. Patent Office? A Closer Look At The Biological Sampling Of Indigenous Groups, Marina L. Whelan

Duke Law & Technology Review

The patenting of biological resources collected from indigenous groups has become a controversial trend. Two U.S. patents in particular, one claiming a cell-line from a 26-year old Guayami woman and one claiming a leukemia virus from a Hagahai man in Papua New Guinea, demonstrate just how volatile this issue has become. This iBrief examines how, in light of such "ethically questionable" patents, the U.S. Patent Office has failed to implement any procedures to identify or curb patent applications involving indigenous peoples.

Zoning And Eminent Domain Under The New Minimum Scrutiny, John H. Ryskamp

ExpressO

Recently the Supreme Court has made it clearer that minimum scrutiny is a factual analysis. Whether in any government action there is a rational relation to a legitimate interest is a matter of determining whether there is a policy maintaining important facts. This has come about in the Court’s emerging emphasis on developing fact-based criteria for determining government purpose. Thus, those who want to affect zoning and eminent domain outcomes should look to what the Court sees as important facts, and whether government action is maintaining those facts with its proposed land use or eminent domain action.

Stealing What's Free: Exploring Compensation To Body Parts Sources For Their Contribution To Profitable Biomedical Research, Jo-Anne Yau

ExpressO

It is undisputed in the biotechnology industry that human body parts play a vital role in research. The body parts donors, referred to as "Sources" in this article, are subjected to physical and financial exploitation. Forbidding the explosion of profits from trickling down to the Source presents an irrational inequity. Despite established law, it is evident from case analysis, prevailing social practices, and constitutional interpretation that Source compensation is a plausible solution.

This article proposes a model of compensation for Sources, whereby Sources are compensated based on a proportionate share of the research profits set aside for the Source as …

High-Deductible Health Plans: New Twists On Old Challenges From Tort And Contract, E. Haavi Morreim Ph.D.

Vanderbilt Law Review

In just a few decades American health care financing has, in a sense, come full circle. After being largely patient-financed in the early twentieth century, generous insurance coverage in mid-century largely permitted providers to do as they wished and charge what they pleased-an Artesian Well of Money that left patients and physicians well-insulated from the costs of care. That system's inevitable explosion of costs spurred urgent efforts to contain health care expenditures, as payors sought to control or at least influence medical decisions. In many ways this "managed care" was clinically vexatious and economically disappointing. Its medically intrusive tactics have …

Something Must Be Done: An Argument For The Partial Deregulation Of Research On Bipolar Disorder And The Implementation Of Rolling Informed Consent, Janalee S. Kraschnewski

University of Michigan Journal of Law Reform

Bipolar disorder (BD) cripples the lives of countless individuals across the globe. The healthcare community has had difficulty securing effective, long-term treatment for this disease. This Note argues that enlarging the pool of possible research subjects through partial deregulation of BD research would facilitate the development of better treatment. This Note further proposes the implementation of a system of rolling informed consent to ensure that actual and full consent is obtained from BD research subjects.

Patient Safety, Medical Error And Tort Law: An International Comparison, Joan M. Gilmour

Commissioned Reports, Studies and Public Policy Documents

No abstract provided.

Caveat Venditor: Products Liability And Genetically Modified Foods, Kristopher A. Isham

Journal of Food Law & Policy

Genetically modified organisms (GMOs) have become a lightning rod for conflict between farmers, corporations, shareholders, government agencies, and other concerned groups. Supporters tout GMOs as a solution to the problems of diminishing returns from traditional crop plants and the rising demand for greater quantities of food. Opponents criticize GMOs for potential toxic and allergic reactions in humans, loss of biodiversity, and pesticide and antibiotic resistance in other plants and insects. As the understanding of potential applications of biotechnology broadens, the risks and benefits of such products are being scrutinized more closely.

Fattening Food: Should Purveyors Of Fast Food Be Required To Warn? A Call For A New Tort, Charles E. Cantu

Journal of Food Law & Policy

Being overweight continues to be an important issue for many Americans. The latest diet fad is likely to include at least one title on the current bestseller list, and newspapers carry daily articles on the most recent study regarding risks related to obesity. Heeding these concerns, the federal government has added its own impetus by requiring the packaged food industry to list, not only nutritional information, but also calories. Individuals alleging injury and seeking recourse have made an attempt to place fault upon purveyors of fast food. To date, American jurisprudence has not helped. The courts have suggested that, from …

Bridging The Relational-Regulatory Gap: A Pragmatic Information Policy For Patient Safety And Medical Malpractice, William M. Sage, Joshua Graff Zivin, Nathaniel B. Chase

Faculty Scholarship

The Article distinguishes and explores three categories of information use: Helping patients understand and participate in their care; Improving patient safety, including analyzing medical errors and identifying unsafe health care providers and practices; and Assessing the performance of the medical liability system in its many dimensions including deterrence, compensation, justice, administrative efficiency, and stability.

For each category, the Article comments on existing laws or programs for information reporting or disclosure, points out major tensions or ambiguities, and suggests pragmatic improvements.

Plaintiffs' Lawyers, Specialization, And Medical Malpractice, Stephen Daniels, Joanne Martin

Vanderbilt Law Review

Our interest is in medical malpractice as an area of specialized practice for plaintiffs' lawyers, and we want to explore this area because plaintiffs' lawyers are key actors in the medical malpractice system. An understanding of their role is necessary in identifying what problems may exist in this system and in evaluating both proposed and enacted solutions. Indeed, some reforms appear to be specifically aimed at plaintiffs' lawyers who handle medical malpractice cases-especially the repeat players whose experience and expertise may give them, and hence their clients, a strategic advantage.

Like most of the political rhetoric surrounding medical malpractice, the …

Crossing The Immunological Barrier, Farrah Qazi

ExpressO

No abstract provided.

Should It Be Illict To Solicit? A Legal Analysis Of Policy Options To Regulate Solicitation Of Organs For Transplant, Alexandra K. Glazier, Scott Sasjack

ExpressO

Recently, there have been several well-publicized cases in which a patient in need of a transplant has solicited an organ through the use of commercial advertising and organized media campaigns. When deceased organs are directed to an individual as a result of solicitation rather than allocated through the national system, equity and medical utility are sacrificed. For this reason, regulation of deceased organ solicitation may be desirable. However, because solicitation of organs is likely to be considered constitutionally protected charitable speech, there are significant legal issues to consider. This article analyzes the legality of four possible policy options to resolve …

La Story: Improving Care Management For The Chronically Ill And Chronically Underserved, Eileen Salinsky, Jessamyn Taylor

National Health Policy Forum

This Los Angeles-based site visit examined safety net and private sector efforts to improve care coordination for underserved and vulnerable populations, including the homeless, the uninsured, the undocumented, and individuals with chronic conditions like diabetes, asthma, and severe mental illness. The visit highlighted challenges and innovations in the use of disease management programs, information systems, performance incentives, and managed care as tools for improving care coordination.

Standard Errors: How Budget Rules Distort Lawmaking, Timothy M. Westmoreland

ExpressO

The article argues that the Congress’s budget process has invisibly influenced its legislative activities and structurally skewed its policy choices. The budgetary structure and tools as they affect lawmaking are largely unanalyzed. Until they are widely appreciated, they may often be random, inefficient, unrepresentative, and even deceptive. Review, critique, and change are overdue in any case. Inasmuch as the Congress is now, after a period of budget anarchy, debating how to refocus on the budget, this is a particularly good time for such activities.

The article also argues that additional structures are needed to “counter-balance” both the skewing that results …

Tackling The "Evils" Of Interlocking Directorates In Healthcare Nonprofits, Nicole Huberfeld

ExpressO

No abstract provided.

The Weldon Amendment: The Ongoing Restrictions On A Woman's Right To Choose, John Patton Fortuno

ExpressO

Under the Weldon Amendment, a “physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility” may refuse abortions, counseling, or referrals, even in cases of rape, incest, or medical emergency.

Law & Health Care Newsletter, V. 13, No. 2, Spring 2006

Law & Health Care Newsletter

No abstract provided.

Risk Management In The Wake Of Hurricane Katrina: Hospital Liability Associated With The Use Of Volunteer Health Professionals During Emergencies, James G. Hodge Jr., Stephanie H. Cálves, Lance A. Gable, Elizabeth Meltzer, Sara Kraner

Law Faculty Research Publications

No abstract provided.

Payments To Medicaid Doctors: Interpreting The “Equal Access” Provision, Abigail R. Moncrieff

Law Faculty Articles and Essays

This Comment analyzes the circuit split that has arisen as courts have confronted challenges to Medicaid payments. Part I provides background on the Medicaid program and the circuit split, and it identifies and explicates two competing rules for measuring adequacy of Medicaid payments: the Fifth and Seventh circuits' "access metric" and the Ninth Circuit's "cost metric." Parts II and III identify problems with these two rules, and criticizes them as inconsistent with the statute's text, purpose, and intent. Part IV proposes a new rule, an "MCO metric," and explains why that rule is the best interpretation of Medicaid's reimbursement provision.

My God, My Choice: The Mature Minor Doctrine And Adolescent Refusal Of Life-Saving Or Sustaining Medical Treatment Based Upon Religious Beliefs, Jonathan Will

Journal Articles

No abstract provided.

How I Learned To Stop Worrying And Love The Gats: An Examination Of The Impact Of The General Agreement On Trade In Services On The Canadian Health-Care System, Brian N. Zeiler-Kligman

Dalhousie Law Journal

There is perhaps no more cherished Canadian institution than our universal health-care system, Medicare. Despite Canadians' fondness for Medicare, there are often allegations that various external elements threaten Medicare's viability. One of these oft-cited elements is the General Agreement on Trade in Services (GATS), which some have claimed will force the privatization of all public services. The truth in such claims is tested by examining the effect the GATS is likely to have on the Canadian health-care system. The examination includes an interpretation of GATS Article 1.3 through a textual analysis. GATS' impact on this system is explored on three …

"The Last Line Of Defence For Citizens": Litigating Private Health Insurance In Chaoulli V. Quebec, Christopher P. Manfredi, Antonia Maioni

Osgoode Hall Law Journal

Litigating health care policy under the Canadian Charter of Rights and Freedoms has become an increasingly common phenomenon. The judicialization of health policy in this form raises important questions about the general phenomenon of legal mobilization. This article examines these questions in the context of Chaoulli v. Quebec (2005), in which the Supreme Court invalidated Quebec's prohibition against private insurance for medical services provided through the public health care system. Among the questions this article explores are: How do such cases get into the judicial system? Under what conditions are such claims likely to be successful? What is the impact …

Chaoulli's Legacy For The Future Of Canadian Health Care Policy, Colleen M. Flood

Osgoode Hall Law Journal

In Chaoulli, the majority of the Supreme Court of Canada struck down a Quebec law that prohibited the purchase of private health insurance for essential hospital and physician services. The majority found it to be in breach of the Quebec Charter of Human Rights and Freedoms. The Court was split 3-3 on whether it was also in breach of the Canadian Charter of Rights and Freedoms. The decision was initially considered of limited importance by many given that technically it applied only to Quebec. In the six months since the decision was released, however, it has become clear that the …

Fallout From Chaoulli: Is It Time To Find Cover?, Joan M. Gilmour

Osgoode Hall Law Journal

This article examines the implications of the decision in Chaoulli v. Quebec (A.G.) for Canadian health policy. The author assesses whether governments are likely to strengthen medicare, given past performance and the exit option Chaoulli presents. The article analyzes the consequences of increasing private care and private insurance, concluding this will diminish the publicly funded system. It contrasts Chaoulli -with courts' dismissals of claims for Charter protection of minimal social and economic security, despite the profound effects of the latter on health status. It concludes by noting Chaoulli is one more example of the increasing prevalence of discourse normalizing privatization …

"The Last Line Of Defence For [Which?] Citizens": Accountability, Equality, And The Right To Health In Chaoulli, Martha Jackman

Osgoode Hall Law Journal

This article explores the legal and health policy significance of the Supreme Court of Canada's decision in Chaoulli c. Ouebec (Procureur general). Through an in-depth examination of the judgments in the case, the author suggests that the majority's approach to the evidentiary, section 7, and remedial issues raised negates the potential of Charter review as a mechanism for promoting accountability and substantive equality in the health care context. The article goes on to consider the longer-term implications of the decision, including the likely impact of Chaoulli on the health rights of people living in poverty and on the evolution of …

Canada's Supreme Court And Its National Health Insurance Program: Evaluating The Landmark Chaoulli Decision From A Comparative Perspective, Theodore R. Marmor

Osgoode Hall Law Journal

This article proceeds in three modes. The first briefly characterizes my reactions to the Chaoulli decision in June 2005 as a policy analyst and one of the experts in the Quebec trial testifying on behalf of Canada's Attorney General. The second part discusses some of the commentaries of others in connection with this decision. The third-and the main section-deals with the Court majority's use of international evidence in arriving at its decision and argues that the approach taken violated almost every scholarly standard for competent, cross-national policy analysis.

After Autonomy, Carl E. Schneider

Articles

Bioethicists today are like Bolsheviks on the death of Lenin. They have, rather to their surprise, won the day. Their principle of autonomy is dogma. Their era of charismatic leadership is over. Their work of Weberian rationalization, of institutionalizing principle and party, has begun. The liturgy is reverently recited, but the vitality of Lenin's "What Is To Be Done?" has yielded to the vacuity of Stalin's "The Foundations of Leninism." Effort once lavished on expounding ideology is now devoted to establishing associations, organizing degree programs, installing bioethicist commissars in every hospital, and staffing IRB soviets. Not-so-secret police prowl the libraries …

The Web Of Relations: Thinking About Physicians And Patients, Ellen Wright Clayton

Vanderbilt Law School Faculty Publications

Like the other contributors to this symposium, I owe a profound debt to Jay Katz for his intellectual rigor, his gentle but firm Socratic pedagogy, and his unparalleled generosity of time and friendship. I first met Jay during my last year of law school when, at the urging of friends, I enrolled in his seminar on informed consent. By that time, he had collected most of the materials on which he based his important book. Not surprisingly, a single semester could not contain all of that material, so many of us continued on into the second semester. During that time …