Health Law and Policy Commons^™

“It’S The [Tort System], Stupid:” Consumer Deductibles; How To More Equitably Distribute The Risks Of Medical Malpractice And Adequately Compensate Victims Without Statutory Damage Caps., Bradford Luke Ledbetter

ExpressO

No abstract provided.

Genetic Databases And Biobanks: Who Controls Our Genetic Privacy?, Yael Bregman-Eschet

ExpressO

In the past several years a growing number of private biotech companies have been collecting and storing our genetic information and bodily tissues and linking it to life-long medical histories. Many of these commercial companies have close relationships with the public sector: they rely on public institutions to get access to certain medical data and tissue samples, while the public sector relies on those companies for commercial exploitation of the research. Despite the unique nature of the information collected and the sensitivity of genetic databases, these private bio-libraries are largely unregulated in the United States. This article examines who has …

“A Modest Proposal”: Universal Cesarean Section To Reduce Professional Liability Costs, James A. Greenberg, Katherine E. Economy, Andrew W. Beckwith, Jeffrey L. Ecker

ExpressO

ABSTRACT OBJECTIVE: To model the effect of universal cesarean delivery on professional liability costs.

STUDY DESIGN: We examined all obstetric professional liability claims covered by a single insurer between January 1, 1990 and December 31, 2000. We reviewed each case to determine if an alternate route of delivery might reasonably have prevented the lawsuit. Costs were calculated by adding the cost of processing the claim, the legal defense, the settlement payments and/or the actuarially derived adjustments. Using a 20% cesarean rate as our baseline, we modeled the effect on liability costs of cesarean delivery in all patients.

RESULTS: There were …

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 …

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 …

Reinvigorating First Year Criminal Law: Integrating Mental Disability Issues Into The Criminal Law Course, Linda C. Fentiman

ExpressO

This article explores how mental disability issues can be incorporated into a traditional criminal law class, in order to enrich student understanding of both mental disability law and criminal law doctrine. The intersection of mental disability with the doctrinal aspects of criminal law can be broken into five major categories: 1) the justifications for punishment; 2) the definition of crime in general, e.g., the requirements of a voluntary act, mens rea, and causation; 3) the definition of particular crimes, such as murder, manslaughter, rape, and burglary; 4) defenses to crime, including mistake of law and of fact, as well as …

Public Health And The Law: Responding To Terrorism And Other Public Health Emergencies In New York, Mark R. Shulman

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

The Custody Battle Over Cryogenically Preserved Embryos After Divorce: Advocating For Infertile Women’S Rights, Cori S. Annapolen

ExpressO

This paper focuses on the struggles that infertile women face to achieve motherhood because their rights are underrepresented in the American court system. It specifically centers on how the process of in vitro fertilization (IVF) helps infertile women conceive children, but then details the problems that increasing technology now causes for these women after they freeze embryos and then divorce. Because the courts of only four states have determined who gets custody of these embryos after a divorce, and because the divorce rate and the number of couples utilizing IVF are increasing, future states will likely be forced to answer …

Deadly Discounts: How Reimportation Jeopardizes The Safety Of The U.S. Pharmaceutical Drug Supply Under The Federal Trade Commission Amendment, Nicole C. Bates

ExpressO

The amendment to a Federal Trade Commission (FTC) reauthorization bill, previously introduced as Senate Bill 334 (S.334) Pharmaceutical Market Access and Drug Safety Act of 2005 allows for the reimportation of prescription drugs into the United States from approximately 25 countries, including Canada via Internet pharmacies. There are no guarantees that the internet websites advertising as Canadian pharmacies are legitimate. The shipping of pharmaceutical drugs occurs through importation, which refers to drugs produced abroad then later shipped to the U.S., or re-importation, a term applied when drugs are produced in the U.S. and exported for sale to foreign countries and …

Blame Canada (And The Rest Of The World): The Twenty-Year War On Imported Prescription Drugs, Daniel L. Pollock

ExpressO

Rising budget deficits and sticker shock over the new Medicare drug benefit have put the issue of prescription drug costs back into the spotlight. The growth in the cost of prescription drugs continues to represent a staggering burden for taxpayer-funded health care programs, even while costs of non-drug health care services have slowed or even decreased. Among the many proposals for cutting prescription drug costs, drug importation is unique. Although bipartisan support for drug importation has existed in Congress for over five years, the federal government continues to maintain that a system of safe and effective drug importation is impossible. …

How It Works: Sobriety Sentencing, The Constitution And Alcoholics Anonymous. A Perspective From Aa's Founding Community, Max E. Dehn

ExpressO

This paper analyzes the public health as well as constitutional issues that arise when persons are required by courts to participate in 12-step recovery programs.

An Economic Assessment Of Damage Caps In Medical Malpracitce Litigation Imposed By State Laws And The Implications For Federal Policy And Law, Paul Wazzan

ExpressO

Many states have implemented laws which limit non-economic (e.g., pain and suffering) damages as a result of medical malpractice. These laws are seen by proponents as reducing medical malpractice insurance costs and preserving access to health care – especially for lower income individuals. Opponents believe that individuals are harmed through being prevented from seeking a full measure of redress for medical malpractice incidents, by reducing access to the court system, and that these laws simply enrich insurance companies and doctors.

Federal lawmakers are currently studying the potential effect of uniform medical malpractice damage limits at the national level. It is …

Project Bioshield, More Than Meets The Eye: A Critique Of The U.S.’S Proposed Silver Bullet For Responding To Bio-Terrorism, Jodi A. Phillipo

ExpressO

No abstract provided.

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

“Racially-Tailored” Medicine Unraveled, Sharona Hoffman

ExpressO

In June 2005, the FDA approved BiDil, a heart failure medication that is labeled for use only by African-Americans and thus, is the first treatment of its kind. The drug likely portends a future of growing interest in “race-based” medicine. This phenomenon is emerging at the same time that scientists, in light of the Human Genome Project, are reaching an understanding that “race” has no biological meaning, and consequently, “racially-tailored” medicine is both puzzling and troubling.

This Article explores the reasons for the new focus on “racial-profiling” in medicine. It analyzes the risks and dangers of this approach, including medical …

Principles Of Fairness For International Economic Treaties: Constructivism And Contractualism, John Linarelli

ExpressO

No legal system deserving of continued support can exist without an adequate theory of justice. This paper is about the elaboration of a theory of justice to underpin international economic law and international economic institutions. A world trade constitution cannot credibly exist without a clear notion of justice upon which to base a consensus. There is yet no consensus on the public reason underpinning the rules and the institutions. Economic efficiency concepts are widely used in the assessment of the welfare effects of world trade institutions and policies. Efficiency, however, is one of several standards that may be used, but …

Learning The Wrong Lessons From "An American Tragedy": A Critique Of The Berger-Twerski Informed Choice Proposal, David E. Bernstein

George Mason University School of Law Working Papers Series

This paper is a critique of Margaret Berger and Aaron Twerski, “Uncertainty and Informed Choice: Unmasking Daubert”, forthcoming the Michigan Law Review. Berger and Twerski propose that courts recognize a cause of action that would allow plaintiffs who claim injury from pharmaceutical products, but who do not have sufficient evidence to prove causation, to recover damages for deprivation of informed choice. Berger and Twerski claim inspiration from the litigation over allegations that the morning sickness drug Bendectin caused birth defects. Considering the criteria Berger and Twerski suggest for their proposed cause of action in the context of Bendectin, it appears …

Mental Disorders And The Law, Richard Redding

Working Paper Series

This chapter provides an introduction to the major classes of mental disorder and the ways in which they are salient to selected aspects of American criminal and civil law, focusing particularly on criminal law issues.

Tragedy & Remedy: Black Reparations For Racial Disparities In Health, Kevin Outterson

ExpressO

This Article makes unique and powerful contributions to Black reparations, health care law, biomedical and social science research into racial disparities in health, and critical race theory.

The starting point is the tragedy of Black health in America, with dramatically higher death rates and shorter life expectancies. Current research is ill-equipped to consider the deeper historical roots of Black health disparities; while the development of racially-specific therapies (such as the FDA’s approval in July 2005 of BiDil, a heart drug for Blacks) actually contributes to racial profiling in medicine. Biomedical research has a race problem.

The Black reparations movement suffers …

On Hastening Death Without Violating Legal Or Moral Prohibitions, Norman L. Cantor

Rutgers Law School (Newark) Faculty Papers

While the vast majority of fatally afflicted persons have a powerful wish to remain alive, some stricken persons may, for any of a host of reasons, desire to hasten death. Some persons are afflicted with chronic degenerative diseases that take a grievous toll. Chronic pain may be severe and intractable, anxiety about a future treatment regimen may be distressing, and helplessness may erode personal dignity and soil the image that the afflicted person wants to leave behind.

A dying patient’s interest in hastening death is often said to be in tension with a bedrock social principle that respect for sanctity …

Autonomy And End Of Life Decision Making: Reflections Of A Lawyer And A Daughter, Ray D. Madoff

ExpressO

This short essay reflects upon end of life decision making from both a legal perspective as well as from the perspective of a family member living the experience of facing end of life decisions of a loved one. Most importantly, the reflections focus on the vast gulf that exists between these two perspectives.

Pursuing Justice For The Mentally Disabled, Grant H. Morris

University of San Diego Public Law and Legal Theory Research Paper Series

This article considers whether lawyers act as zealous advocates when they represent mentally disordered, involuntarily committed patients who wish to assert their right to refuse treatment with psychotropic medication. After discussing a study that clearly demonstrates that lawyers do not do so, the article explores the reasons for this inappropriate behavior. Michael Perlin characterizes the problem as “sanism,” which he describes as an irrational prejudice against mentally disabled persons of the same quality and character as other irrational prejudices that cause and are reflected in prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry. The article critiques Perlin’s characterization …

A Right To No Meaningful Review: The Aftermath Of Shalala V. Illinois Council On Long Term Care, Inc., Ruqaiijah Ayanna Yearby

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A RIGHT TO NO MEANINGFUL REVIEW: THE AFTERMATH OF SHALALA v. ILLINOIS COUNCIL ON LONG TERM CARE, INC. Ruqaiijah A. Yearby

The Due Process Clause of the Fifth Amendment has been perverted in the federal administrative system. Federal agencies, such as the U.S. Department of Health and Human Services (HHS), regularly deprive individuals of liberty and property with little to no review. In its regulation of the health care industry through the Medicare program, HHS often turns a blind eye to procedural Due Process protections, such as providing individuals an opportunity to challenge the deprivation of property at a hearing, …

Soft Regulators, Tough Judges, Gerrit De Geest, Giuseppe Dari-Mattiacci

George Mason University School of Law Working Papers Series

Judges have a tendency to be more demanding than regulators. In the United States, a majority of the courts has adopted the rule that the unexcused violation of a statutory standard is negligence per se. However, the converse does not hold: compliance with regulation does not relieve the injurer of tort liability. In most European legal systems, the outcome is similar. We use a framework in which, on the one hand, the effects of tort law are undermined by insolvency and evidence problems and, on the other hand, regulation is expensive in terms of monitoring and information gathering. We show …

Organizational Misconduct: Beyond The Principal-Agent Model, Kimberly D. Krawiec

ExpressO

This article demonstrates that, at least since the adoption of the Organizational Sentencing Guidelines in 1991, the United States legal regime has been moving away from a system of strict vicarious liability toward a system of duty-based organizational liability. Under this system, organizational liability for agent misconduct is dependant on whether or not the organization has exercised due care to avoid the harm in question, rather than under traditional agency principles of respondeat superior. Courts and agencies typically evaluate the level of care exercised by the organization by inquiring whether the organization had in place internal compliance structures ostensibly designed …

Disappearing Defendants V. Judgment Proof Injurers: Upgrading The Theory Of Tort Law Failures, Giuseppe Dari-Mattiacci, Barbara Mangan

George Mason University School of Law Working Papers Series

Do injurers’ insolvency and victims’ reluctance to sue affect accident prevention in the same way? Are these circumstances less of a problem under the negligence rule than under strict liability? We argue, contrary to the literature, that the answer is, in most cases, negative and make three main points. First, the judgment proof problem and the disappearing defendant problem are shown to have different effects on injurers’ behavior and hence yield dissimilar levels of social welfare. Second, when these two problems occur simultaneously they may have offsetting effects. Third, the negligence rule is superior to strict liability only under some …

Studying Medical Error In Situ: Implications For Malpractice Law And Policy, Lori B. Andrews

All Faculty Scholarship

No abstract provided.

Punishing Tobacco Industry Misconduct: The Case For Exceeding A Single Digit Ratio Between Punitive And Compensatory Damages, Sara D. Guardino, Richard A. Daynard

ExpressO

This article addresses large punitive damages awards that juries have granted to plaintiffs in recent cases against the tobacco industry, and demonstrates why such high awards are a warranted and necessary incentive for the companies to change their dangerous course of conduct.

In State Farm v. Campbell, the United States Supreme Court announced that “few awards exceeding a single-digit ratio between punitive and compensatory damages” will be constitutional. In a subsequent smoking and health case brought against Philip Morris, however, a state appeals court allowed a punitive damages award that was almost 97 times the compensatory damages award. This decision …

Induced Autism The Legal And Ethical Implications Of Inoculating Vaccine Manufacturers From Liability, Helia Garrido Hull

Faculty Scholarship

No abstract provided.

Constitutional Law—State Employees Have Private Cause Of Action Against Employers Under Family And Medical Leave Act—Nevada Department Of Human Resources V. Hibbs, 538 U.S. 721 (2003)., Gabriel H. Teninbaum

ExpressO

The Eleventh Amendment of the United States Constitution provides that non-consenting states are not subject to suit in federal court. Congress may, however, abrogate the states’ sovereign immunity by enacting legislation to enforce the provisions of the Fourteenth Amendment. In Nevada Department of Human Resources v. Hibbs, the Supreme Court of the United States considered whether Congress acted within its constitutional authority by abrogating sovereign immunity under the Family and Medical Leave Act (FMLA), which allows private causes of action against state employers to enforce the FMLA’s family-leave provision. The Court held abrogation was proper under the FMLA and state …