Health Law and Policy Commons^™

Consent To Psychiatric Treatment: From Insight (Into Illness) To Incite (A Riot), Sheila Wildeman

Articles, Book Chapters, & Popular Press

The aim of this chapter is to go back to the basics on consent to treatment, starting with the right to refuse and building from there. Part II addresses the leading judicial statements on the value of medical self-determination, and in light of these statements, considers what is at stake in psychiatric treatment choice. Part III explores the three core elements of valid consent to treatment -- namely that consent be voluntary, informed and capable -- with attention to variation in the law amongst provinces and territories, and some lines of analysis and critique specifically applicable to mental health care …

Carter, Medical Aid In Dying, And Mature Minors, Constance Macintosh

Articles, Book Chapters, & Popular Press

The Supreme Court of Canada’s decision in Carter v Canada (AG) decriminalized medical aid in dying in certain defined circumstances. One of those circumstances is that the person seeking assistance be an “adult.” This article argues that the regulatory response to this decision must approach the idea of “adult” in terms of the actual medical-decisional capacity of any given individual, and not rely upon age as a substitute for capacity. This article surveys jurisdictions where minors are included in physician-assisted dying regimes, and identifies what little empirical evidence exists regarding requests from minors. The heart of the article considers the …

Of Kings To Come: The Future Of Health Care Reform Still Remains In Federal Court, Jonathan H. Adler

Faculty Publications

While King [v. Burwell] may be the last lawsuit potentially threatening a core feature of the ACA [Affordable Care Act] (at least for the time being) - and there will be few constitutional challenges of the sort seen in NFIB v. Sebelius - it was anything-but-the-end of ACA litigation. To the contrary, ACA lawsuits are certain to continue for years on end as the statute, the way it was enacted, and the way it is being implemented, create a perfect storm for continued litigation.

Continuing legal conflict creates uncertainty under the ACA. While health care reform remains in place, the …

From Development As Disaster To Disaster As Development: Lessons From The Marseille Plague Of 1720, Saptarishi Bandopadhyay

Articles & Book Chapters

No abstract provided.

We Have The Tools To End Hiv: Benefits, Barriers, And Solutions To Expanded Utilization Of Pre-Exposure Prophylaxis (Prep) In The Us Deep South, Jason Ervin, Allison Weller Tikare, Carolyn Mcallaster

Faculty Scholarship

No abstract provided.

On The Expansion Of “Health” And “Welfare” Under Medicaid, Laura Hermer

Faculty Scholarship

Medicaid was intended from its inception to provide financial access to health care for certain categories of impoverished Americans. While rooted in historical welfare programs, it was meant to afford the "deserving" poor access to the same sort of health care that other, wealthier Americans received. Yet despite this seemingly innocuous and laudable purpose, it has become a front in the political and social battles waged over the last several decades on the issues of welfare and the safety net. The latest battleground pits competing visions of Medicaid. One vision seeks to transform Medicaid from a health care program into …

International Cooperation To Improve Access To And Sustain Effectiveness Of Antimicrobials, Christine Årdal, Kevin Outterson, Steven Hoffman, Abdul Ghafur, Mike Sharland, Nisha Ranganathan, Richard Smith, Anna Zorzet, Jennifer Cohn, Didier Pittet, Nils Daulaire, Chantal Morel, Zain Rizvi, Manica Balasegaram, Osman Dar, David Heymann, Alison Holmes, Luke Moore, Ramanan Laxminarayan, Marc Mendelson, John-Arne Røttingen

Faculty Scholarship

Securing access to effective antimicrobials is one of the greatest challenges today. Until now, efforts to address this issue have been isolated and uncoordinated, with little focus on sustainable and international solutions. Global collective action is necessary to improve access to life-saving antimicrobials, conserving them, and ensuring continued innovation. Access, conservation, and innovation are beneficial when achieved independently, but much more effective and sustainable if implemented in concert within and across countries. WHO alone will not be able to drive these actions. It will require a multisector response (including the health, agriculture, and veterinary sectors), global coordination, and financing mechanisms …

Legal Limits And The Implementation Of The Affordable Care Act, Nicholas Bagley

Articles

Accusations of illegality have dogged the Obama Administration's efforts to implement the Affordable Care Act (ACA), the most ambitious piece of social legislation since the advent of Medicare and Medicaid. Some of the accusations have merit; indeed, it would be surprising if they did not. Even as the ACA's rollout has exposed unanticipated difficulties in the statutory design, congressional antipathy to health reform has precluded looking to the legislature to iron out those difficulties. To secure his principal achievement, President Obama has repeatedly tested the limits of executive authority in implementing the ACA. Six years after its enactment and two …

The Future Of The Cadillac Tax, Kathryn L. Moore

Law Faculty Scholarly Articles

The Affordable Care Act includes a 40 percent excise tax on high-cost employer-sponsored health care coverage. Often referred to as the “Cadillac tax,” this excise tax is one of the most controversial elements of the Affordable Care Act.

Currently scheduled to go into effect in 2020, the Cadillac tax poses serious challenges and uncertainty for employers. On the one hand, recent estimates suggest that the Cadillac tax may hit as many as 20 percent of employers with health care plans in 2020. On the other hand, there is a serious question as to whether the tax will be repealed before …

The Politics Of Mental Health: A Comparative Study Of Policy Adoption And Implementation In Germany And Japan, Luis Diego Campos

Honors Undergraduate Theses

In the aftermath of World War II, the Liberal Democratic Party of Japan followed Germany’s blueprint in fashioning a universal health coverage system. Comparisons to Germany’s welfare state during this same time period reveal markedly different social and mental health policy practices, as Germany’s Christian Democratic Union and Social Democratic Party cooperated toward progressive policies while the Liberal Democratic Party largely neglected social welfare expansion. The effect of these practices is reflected in budgetary provisions, institutionalization practices, and mental health epidemiology. This research finds that a favorable economic climate allowed the Liberal Democratic Party to politically isolate the Social Democratic …

A Profile Of Bio-Pharma Consolidation Activity, Jordan Paradise

Faculty Publications & Other Works

No abstract provided.

Contracts: A Question Of Consideration: Medical Staff Bylaws As An Enforceable Contract—Medical Staff Of Avera Marshall Regional Medical Center V. Avera Marshall, Alexander Hsu

Mitchell Hamline Law Review

No abstract provided.

'And Ain't I A Woman?': Feminism, Immigrant Caregivers, And New Frontiers For Equality, Shirley Lin

Elisabeth Haub School of Law Faculty Publications

This Article argues that feminist and other critical legal theories can address the profound inequalities that immigrant workers face. Part I draws from a body of feminist, political, and social science theories regarding social reproduction to assess the situation of immigrant domestic workers and their recent efforts to claim inclusion in workplace laws and protections. It locates the increasingly carceral dynamics that are expressed in the law and in state infrastructure and continuously undermine immigrant women's economic and social stability, as explained in further detail in Parts L.A and I.B.2, infra. Unbeknownst to many, the present period is the most …

Avoiding Overtreatment At The End Of Life: Physician-Patient Communication And Truly Informed Consent, Barbara A. Noah, Neal R. Feigenson

Faculty Scholarship

This Article considers how best to ensure that patients have the tools to make informed choices about their care as they near death. Informed decision making can help reduce excessive end-of-life care and unnecessary suffering, and result in care that aligns with patients’ well-considered values and preferences. The many factors that contribute to dying patients receiving too much therapy and life-prolonging care include: the culture of denial of death, physicians’ professional culture and attitudes toward treatment, physicians’ fear of liability, physicians’ avoidance of discussions about prognosis, and the impact of payment incentives that encourage overutilization of medical technologies.

Under the …

Bridge Over Troubled Waters: Resolving The Ri Grande (Rio Bravo) Water Dispute., Ruben R. Barrera, Dan A. Naranjo

St. Mary's Law Journal

Abstract Forthcoming.

The Dilemma Of Interpreting Rules Of Civil Procedure: A Proposal For Elastic Formalism., L. Wayne Scott

St. Mary's Law Journal

When lawyers are well prepared, know the law, present the law, and have it ignored by judges who interpret the law in their own way, it can be frustrating. When courts publish opinions embodying this attitude, students, too, become frustrated or conclude that the law is whatever judges decide it should be. This Article does not focus on unethical judges who decide cases with wrong motives but, rather, it focuses on ethical judges who are faced with “hard” cases and have the dilemma of deciding the case, either by the rule or by the judge’s concept of fairness. In both …

Suppressing The Truth: States' Purposeful Violation Of The Right Of No Cruel Or Unreal Punishment In Lethal Injection Executions., Nadine G. Rodriguez

St. Mary's Law Journal

Abstract Forthcoming.

A Law And Economics Analysis Of The Duty Of Utmost Good Faith (Uberrimae Fidei) In Marine Insurance Law For Protection And Indemnity Clubs., Elizabeth Germano

St. Mary's Law Journal

Writing for the Supreme Court in The Lottawanna in 1875, Justice Joseph P. Bradley envisioned federal and state regulation of maritime affairs as “a system of law coextensive with, and operating uniformly in, the whole country.” He thought state involvement in maritime law defeated the consistency and uniformity the Constitution sought to achieve for interstate and international commerce. Over 100 years later, Justice Antonin Scalia, describing the current relationship between state and federal regulation in the admiralty arena, stated: “It would be idle to pretend that the line separating permissible from impermissible state regulation is readily discernible in our admiralty …

The Admissibility Of Aerial Photographs - Evidentiary Foundations., Kristopher R. Hufstetler

St. Mary's Law Journal

Services such as Google Maps and MapQuest significantly impact how consumers use the Internet. For as much as they contribute to Internet use, issues arise concerning the use of satellite images and aerial photographs in the context of litigation. Historical concerns about satellite and aerial imagery typically involved expectations of privacy and the application of the Fourth Amendment. Courts and citizens alike express concern with when and where privacy ends with respect to aerial views. Concerns as to the admissibility of aerial photographs have also been prominent. Specifically, interest in admissibility of these photographs focuses on sufficiency, relevance, and accuracy. …

From Rights To Dignity: Drawing Lessons From Aid In Dying And Reproductive Rights, Yvonne Lindgren

Utah Law Review

The transformation of AID from a constitutional rights frame to a healthcare frame highlights the importance of developing a healthcare model related to dignity that isundergirded by social support, legal rights and healthcare access. However, the history of the abortion right cautions against narrowly identifying healthcare within the confines of the individual doctor-patient relationship because it risks subordinating the decisional autonomy of patients to the decision-making of their doctors. Taken together, these movements gesture toward situating rights within a healthcare framing that considers how social, political and economic systems and relationships come to bear upon decision-making. I conclude that while …

Issues And Challenges: The Development Of Fair And Equitable Health Policy, Rachele Hendricks-Sturrup

Internet Journal of Allied Health Sciences and Practice

Public health policy/law is a discipline that seeks to identify opportunities and implement mechanisms to achieve justice in the public health sector. Several public health policies and programs have been implemented by virtue of the Affordable Care Act (ACA), and these policies and programs seek to decrease America’s “paradox of excess and deprivation” and address socioeconomic barriers that exist in the U.S. healthcare system. Private healthcare market interests have accused the ACA of intruding heavily into the professional autonomy of the medical profession, eroding healthcare market competition, and driving up national healthcare spending. Counter-arguments defending the ACA state that the …

Volume 26 (2016), Case Western Reserve University Health Matrix: Journal Of Law-Medicine

Health Matrix: The Journal of Law-Medicine

No abstract provided.

The Pregnancy Penalty, Michele Goodwin

Health Matrix: The Journal of Law-Medicine

Punishing pregnant women increasingly serves as a litmus test in political discourse, inviting more than a metaphor about state sanctioned violence targeted at women. In 2016, candidates for the United States presidency threatened to defund Planned Parenthood if elected and a leading candidate promised he would "punish" pregnant women who seek abortions. Other presidential candidates urged that even victims of rape and incest should be forced to carry their pregnancies to term, imposing yet another penalty or strike against sexually violated women and girls. Local legislatures and governors show equal contempt for and desire to penalize women in the United …

Hobby Lobby, Birth Control, And Our Ongoing Cultural Wars: Pleasure And Desire In The Crossfires, Robin West

Health Matrix: The Journal of Law-Medicine

The article examines the political, legal and constitutional challenges related to Birth control laws in the U.S. It discusses Supreme Court jurisprudence, such as Burwell v. Hobby Lobby Stores Inc. and birth control drug law and treatments.

Genetic Essentialism In Family Law, Jennifer S. Hendricks

Health Matrix: The Journal of Law-Medicine

This is an essay exploring the costs of relying on genetic essentialism in family law in the United States. It discusses mandatory genetic testing of every child at birth; a need of an alternative way of thinking about biological parenthood; and the New York court case Fasano v. Perry-Rodger.

Tantamount To Fraud?: Exploring Non-Disclosure Of Genetic Information In Life Insurance Applications As Grounds For Policy Rescission, Anya E.R. Prince

Health Matrix: The Journal of Law-Medicine

Many genetic counselors recommend that individuals secure desired insurance policies, such as life insurance, prior to undergoing predictive genetic testing. It has been argued, however, that this practice is "tantamount to fraud" and that failure to disclose genetic test results, or conspiring to secure a policy before testing, opens an individual up to legal recourse. This debate traps affected individuals in a Catch-22. If they apply for life insurance and disclose a genetic test result, they may be denied. If they apply without disclosing the information, they may have committed fraud. The consequences of life insurance fraud are significant.

First Do No Harm: Protecting Patients Through Immunizing Health Care Workers, Rene F. Najera, Dorit R. Reiss

Health Matrix: The Journal of Law-Medicine

The article discusses the how immunizing health care worker can help protecting vulnerable patients and mandatory vaccination of health care workers in New Jersey (Valent v. Board of Review, Department of Labor).

Human Trafficking: How A Joint Task Force Between Health Care Providers And Law Enforcement Can Assist With Identifying Victims And Prosecuting Traffickers, Megan Helton

Health Matrix: The Journal of Law-Medicine

The article discusses how a joint task force between health care providers and law enforcement can assist with identifying victims and prosecuting traffickers in the U.S. Topics discussed include legislation criminalizing human trafficking; laws protecting victims of human trafficking; and ways to combat human trafficking in the United States.

Litigating Intraoperative Neuromonitoring (Iom), Michael Brook, Kary Irle

University of Baltimore Law Review

Statistics regarding surgical medical malpractice are staggering. The annual cost of the medical malpractice liability system has been estimated to be $55.6 billion-2.4% of the total healthcare system.' The median award for plaintiffs in actions involving spinal cords is $2.9 million, and the median value for settlements is $1.45 million. A neurosurgeon will spend approximately eleven years of his or her career with outstanding malpractice claims.

Intraoperative neuromonitoring (IOM), also known as surgical neurophysiology, is hardly a novel medical technology. In fact, it has been used in the operating room for over half a century. IOM provides real-time monitoring of …

Gambling Disorder, Vulnerability, And The Law: Mapping The Field, Stacey A. Tovino

Faculty Articles

This Article seeks to descriptively map the sub-field of gambling disorder and the law and ask whether individuals with gambling disorder are vulnerable under the law. Like other scholarship that descriptively maps ethical, legal, and social implications of lesser known conditions and developments, this Article seeks to describe the treatment of individuals with gambling disorder in a variety of illustrative, but not exhaustive, legal contexts, to identify the limited scholarship assessing the application of the law to individuals with gambling disorder, and to invite members of the health law academy to bring their significant expertise to bear on these issues …