Medical Jurisprudence Commons^™

New National Practitioner Data Bank Guidebook Impact On Bylaw Standards, Rick D. Barton

Center for Health Law Policy and Bioethics

No abstract provided.

Legal Aspects Of Assessing The Aging Physician—An Update, Rick D. Barton

Center for Health Law Policy and Bioethics

No abstract provided.

Confidentiality & Reporting Requirements For Physician Well-Being Committees, Rick D. Barton, Natalie V. Mueller, Shelly A. Carder, Mitchell J. Green, Tom Curtis

Center for Health Law Policy and Bioethics

No abstract provided.

Ethical Implications Of Posthumous Reproduction, Valarie K. Blake, Hannah L. Kushnick

Book Chapters

No abstract provided.

Everything You Wanted To Know About Breast Augmentation Surgery But Were Afraid To Ask: A Medical - Legal Overview, Samuel D. Hodge, Marshall G. Miles, James B. Pancio

Florida A & M University Law Review

This article will provide a medical/legal perspective to breast augmentation surgery. Written by an attorney who teaches anatomy and a plastic surgeon who routinely performs the procedure, it will initially offer a medical analysis of how the procedure is performed along with its attendant risks. The second part will focus on the court cases and legal theories that have arisen when things go wrong. The article will explain the convoluted litigation history involving breast augmentation when suits were common place and a group of experts linked breast implants to the development of autoimmune disease without any real scientific basis to …

Health Information And Data Security Safeguards, 32 J. Marshall J. Info. Tech. & Privacy L. 133 (2016), Jane Kim, David Zakson

UIC John Marshall Journal of Information Technology & Privacy Law

The healthcare industry possesses information coveted by cyber criminals. Unfortunately, healthcare providers are also among the most vulnerable and unprepared to deal with cyber attacks. The Introduction sets the background of this paper with cyber security statistics of the healthcare sector. Part A of this paper will discuss how new Russian law impacts global data security. Part B takes a broad look at data security safeguards. Part C focuses on U.S. attempts at safeguarding data through NIST and its Presidential Policy Directive. In Part D, the paper explores in greater detail causes that precipitate security breaches and specific security defenses …

Instrumental And Transformative Medical Technology, Nicole Huberfeld Professor Of Law

Vanderbilt Journal of Entertainment & Technology Law

This Article considers how medical technologies impact universality in health care. The universality principle, as embodied in the Patient Protection and Affordable Care Act (ACA), eliminated widespread discriminatory practices and provided financial assistance to those otherwise unable to become insured--a democratizing federal act that was intended to stabilize health care policy nationwide. This Article posits that medical technology, as with all of medicine, can be universalizing or exclusionary and that this status roughly correlates to its being "instrumental technology" or "transformative technology." Instrumental technology acts as a tool of medicine and often serves an existing aspect of health care; in …

Medical Decision Making For Youth In The Foster Care System, 49 J. Marshall L. Rev. 1103 (2016), Zach Strassburger

UIC Law Review

Youth in the foster care system often have no one person who is clearly authorized to make medical decisions for them. From a caseworker insisting upon a vaccine to a birth parent refusing permission for psychotropic medication, the evidence supports the argument that who makes these decisions matters for children’s rights. The Author reviewed relevant laws and policies, surveyed stakeholders to understand actual practices, then interviewed a subset of these stakeholders to get further details about who decides what care a young person receives. This Article argues that policies should be nuanced but consistent, promoting birth parent involvement and family …

A House Divided Against Itself Cannot Stand: The Need To Federalize Surrogacy Contracts As A Result Of A Fragmented State System, 49 J. Marshall L. Rev. 1155 (2016), Brett Thomaston

UIC Law Review

This comment will explain the necessity for federal regulation of surrogacy contracts by analyzing the current state of surrogacy laws across the United States. This will be accomplished by examining the fragmented state system and how this largely ignored area of the law has been a feeding ground for widespread forum shopping and inconsistent results. This comment will then address the public policy reasons in support of enforcing these contracts. Next, this comment will examine the avenues of congressional power for regulating these types of contracts. Lastly, this comment will propose that the federal government implement legislation containing key language …

Use Of Facial Recognition Technology For Medical Purposes: Balancing Privacy With Innovation, Seema Mohapatra

Faculty Scholarship

No abstract provided.

Do Black Lives Matter? Race As A Measure Of Injury In Tort Law, 18 Scholar: St. Mary's L. Rev. & Soc. Just. 41 (2016), Alberto Bernabe

UIC Law Open Access Faculty Scholarship

Discussions of race-related issues are a constant in American society. Within the last year alone, there have been several high profile events that have prompted important debates about race. Most of the events attracting nationwide attention involved the conduct of law enforcement agents, including incidents in which unarmed black men died at the hands of police officers, peaceful protests that turned violent following the failure to indict the police officers involved in those cases and the use of excessive force on black teenagers attending social events and while at school. Other events included the racial identity controversy regarding a member …

The Patenting Of Gene Based Diagnostic Assays In A Post Mayo And Myriad World, 16 J. Marshall Rev. Intell. Prop. L. 1 (2016), Michael Sanzo

UIC Review of Intellectual Property Law

Recent advances in biotechnology have given researchers the ability to comprehensively examine the genetic basis of disease in unprecedented ways and will undoubtedly result in many new and valuable gene based diagnostic assays in the near future. These advances came during a period of roughly thirty years during which the patent eligibility of such assays was essentially unquestioned. Then, beginning in 2010, the Supreme Court embarked on a series of decisions that will, in almost all cases, preclude the patenting of diagnostic assays that rely on genetic mutations or gene expression patterns. This article suggests that reason that the issue …

Can Dna Be Speech?, Jorge R. Roig

Scholarly Works

DNA is generally regarded as the basic building block of life itself. In the most fundamental sense, DNA is nothing more than a chemical compound, albeit a very complex and peculiar one. DNA is an information-carrying molecule. The specific sequence of base pairs contained in a DNA molecule carries with it genetic information, and encodes for the creation of particular proteins. When taken as a whole, the DNA contained in a single human cell is a complete blueprint and instruction manual for the creation of that human being. In this article we discuss myriad current and developing ways in which …

Abortion, Informed Consent, And Regulatory Spillover, Katherine A. Shaw, Alex Stein

Indiana Law Journal

The constitutional law of abortion stands on the untenable assumption that any state’s abortion regulations impact citizens of that state alone. On this understand-ing, the state’s boundaries demarcate the terrain on which women’s right to abortion clashes with state power to regulate that right.

This Article uncovers a previously unnoticed horizontal dimension of abortion regulation: the medical-malpractice penalties imposed upon doctors for failing to inform patients about abortion risks; the states’ power to define those risks, along with doctors’ informed-consent obligations and penalties; and, critically, the possi-bility that such standards might cross state lines. Planned Parenthood v. Casey and other …

Clinical Criteria For Physician Aid In Dying, David Orentlicher

Scholarly Works

More than 20 years ago, even before voters in Oregon had enacted the first aid in dying (AID) statute in the United States, Timothy Quill and colleagues proposed clinical criteria AID. Their proposal was carefully considered and temperate, but there were little data on the practice of AID at the time. (With AID, a physician writes a prescription for life-ending medication for a terminally ill, mentally capacitated adult.) With the passage of time, a substantial body of data on AID has developed from the states of Oregon and Washington. For more than 17 years, physicians in Oregon have been authorized …

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 …

From Rights To Dignity: Drawing Lessons From The Movements For Aid In Dying And Reproductive Rights, Yvonne F. Lindgren

Faculty Works

In Roe v. Wade the Supreme Court identified the abortion right as “inherently, and primarily, a medical decision” to be decided between doctors and their patients. Early abortion case law closely linked the right to the doctor-patient relationship and situated abortion within the context of healthcare. Over the last forty years, however, the abortion right has come to be viewed almost exclusively as a constitutional right of decision-making or “choice.” Under the Court’s current analysis, the abortion right is cabined exclusively as a constitutional right to decide to terminate a pregnancy and, as a result, the Court has upheld significant …

Lessons Learned By An Interdisciplinary Research Team Evaluating Medical-Legal Partnership With The Department Of Veterans Affairs, Margaret Middleton, Jack Tsai, Robert Rosenheck

South Carolina Law Review

No abstract provided.

Technology, Gender And Fashion, Jeanne L. Schroeder

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Heads Up: The Concussion Crisis, Gabriel Blum

Cardozo Journal of Equal Rights & Social Justice

The note examines the concussion crisis in sports, particularly focusing on the severe health risks associated with traumatic brain injuries (TBIs) and chronic traumatic encephalopathy (CTE). It argues that while some view the issue as overblown, the growing evidence of debilitating short- and long-term health consequences for athletes, especially young ones, necessitates stronger legislative action. The note advocates for New York legislators to amend the Concussion Management and Awareness Act to include more robust protections and enforcement mechanisms to reduce concussion rates and improve care for affected athletes.

Involuntary Consent: Conditioning Access To Health Care On Participation In Clinical Trials, Ruqaiijah A. Yearby

All Faculty Scholarship

Although the controversy over the lack of consent in fetal-tissue clinical trials is relatively new, history is replete with instances of medical researchers who have conducted clinical trials with minorities and the economically disadvantaged without their consent.1 Traditionally, American bioethics has served as a safety net for the rich and powerful (for they are not forced to act as research subjects to obtain access to health care for themselves or their children) while failing to protect the vulnerable, which includes minorities and the economically disadvantaged. Without access to health care, minorities and the economically disadvantaged are unduly influenced to participate …

Missing The “Target”: Preventing The Unjust Inclusion Of Vulnerable Children For Medical Research Studies, Ruqaiijah A. Yearby

All Faculty Scholarship

Nearly everyone has experienced a burn and the resulting pain. Now imagine that you suffer a third-degree radiation burn that injures all the layers of your skin as well as the tissue, causing you extreme pain. . The burn turns your skin white, cherry red, or black and may produce blisters that are dry, hard, and leathery-looking. The burn can also be seen on the surface of your lungs and gastrointestinal tract. If the burn is big enough you will need skin grafts and surgery to replace the skin and tissue that will never grow back, as well as treatment …

Agonizing Identity In Mental Health Law And Policy (Part I), Sheila Wildeman

Articles, Book Chapters, & Popular Press

In this two-part paper, the author explores the significance of identity in mental health law and policy. In this as in other socio-legal domains, identity functions to consolidate dissent as well as to effect social control. The author asks: where do legal experts stand in relation to the identity categories that run so deep in this area of law and policy? More broadly, she asks: is “mental health” working on us — on the mental health disabled, legal scholars, all of us — in ways that are impairing our capacity for social justice? In the first part of the paper, …

Agonizing Identity In Mental Health Law And Policy (Part Ii): A Political Taxonomy Of Psychiatric Subjectification, Sheila Wildeman

Articles, Book Chapters, & Popular Press

This is the second part of a two-part essay exploring the function of identity in mental health law and policy, or more broadly, the function of identity in the politics of mental health. Part one began with the Foucauldian exhortation to undertake a “critical ontology of ourselves,” and adopted the methodology of autoethnography to explore the construction or constructedness of the author’s identity as an expert working in the area of mental health law and policy. That part concluded with a gesture of resistance to identification on one or the other side of the mental health/ illness divide (the divide …

International Human Rights And The Mistreatment Of Women During Childbirth, Rajat Khosla, Christina Zampas, Joshua P. Vogel, Meghan A. Bohren, Mindy Roseman, Joanna Erdman

Articles, Book Chapters, & Popular Press

International human rights bodies have played a critical role in codifying, setting standards, and monitoring human rights violations in the context of sexual and reproductive health and rights. In recent years, these institutions have developed and applied human rights standards in the more particular context of maternal mortality and morbidity, and have increasingly recognized a critical human rights issue in the provision and experience of care during and after pregnancy, including during childbirth. However, the international human rights standards on mistreatment during facility-based childbirth remain, in an early stage of development, focused largely on a discrete subset of experiences, such …

The Law Of Stigma, Travel, And The Abortion-Free Island, Joanna Erdman

Articles, Book Chapters, & Popular Press

In 1988, the Supreme Court of Canada decriminalized abortion in R. v. Morgentaler. Almost immediately thereafter, the Maritime province of Prince Edward Island ("P.E.I.") passed a legislative resolution opposing the provision of abortion services on the Island except to save the life of a pregnant woman. P.E.I. is a small pastoral province of rolling hills and ocean coves in the St. Lawrence Gulf, and since 1988, through various regulatory actions, its government has honored this policy promise to keep the Island abortion-free and to preserve its moral landscape.

The same year that abortion was banished from P.E.I., Prince Edward Islanders …

Is It Time To Adopt A No-Fault Scheme To Compensate Injured Patients?, Elaine Gibson

Articles, Book Chapters, & Popular Press

The tort system is roundly indicted for its inadequacies in providing compensation in response to injury. More egregious is its response to injuries incurred due to negligence in the provision of healthcare services specifically. Despite numerous calls for reform, tort-based compensation has persisted as the norm to date. However, recent developments regarding physician malpractice lead to consideration of the possibility of a move to “no-fault” compensation for healthcare-related injuries. In this paper, I explore these developments, examine programs in various foreign jurisdictions which have adopted no-fault compensation for medical injury, and discuss the wisdom and feasibility of adopting an administratively-based …

Permitting Voluntary Euthanasia And Assisted Suicide: Law Reform Pathways For Common Law Jurisdictions, Jocelyn Downie

Articles, Book Chapters, & Popular Press

End of life law and policy reform is the subject of much discussion around the world. This paper explores the pathways to permissive legal regimes that have been tried in various common law jurisdictions. These include legislation, prosecutorial charging guidelines, court challenges, jury nullification, the exercise of prosecutorial discretion in the absence of offence-specific charging guidelines, and the exercise of judicial discretion in sentencing. In this paper, I describe these pathways as taken (or attempted) in five common law jurisdictions (USA, UK, Australia, New Zealand, and Canada) and reflect briefly on lessons that can be drawn from the recent experiences …

Medical Certificates Of Death: First Principles And Established Practices Provide Answers To New Questions, Jocelyn Downie, Kacie Oliver

Articles, Book Chapters, & Popular Press

Voluntary euthanasia became legal in Quebec in December 2015,1 although the legislation is currently the subject of litigation. In addition, physician-assisted death will become legal across Canada in February 2016, barring an extension on the deadline being given by the Supreme Court of Canada. There are many questions about how physician-assisted death should be regulated. One as-yet-unanswered question is “Should physician-assisted death be recorded anywhere on the medical certificate of death?” If so, a second question follows: “How should it be recorded — as manner and/or cause?” and if the latter, “Which category of cause: immediate, antecedent or underlying?”

To …

Judging The Social Sciences In Carter V Canada (Ag), Jodi Lazare

Articles, Book Chapters, & Popular Press

This paper examines a recent example of evidence-based decision making affecting social policy at the trial court level. It offers a close reading of Carter v Canada (AG), decided by the British Columbia Supreme Court, and of Justice Lynn Smith's careful scrutiny of the social science evidence when invalidating the Criminal Code prohibition on assistance in dying. Drawing on literature which examines the legal system's use of social science evidence and expert witnesses, this paper suggests that Justice Smith's treatment of the evidence in Carter provides an example of skilled judicial treatment of the extensive amounts of social science evidence …