Medical Jurisprudence Commons^™

Should Medical Assistance In Dying Be Extended To Incompetent Patients With Dementia? Research Protocol Of A Survey Among Four Groups Of Stakeholders From Quebec, Canada, Gina Bravo, Claudie Rodrigue, Vincent Thériault, Marcel Arcand, Jocelyn Downie, Marie-France Dubois, Sharon Kaasalainen, Cees M. Hertogh, Sophie Pautex, Lieve Van Den Block

Articles, Book Chapters, & Popular Press

Background: Alzheimer’s disease and related disorders affect a growing number of people worldwide. Quality of life is generally good in the early stages of these diseases. However, many individuals fear living through the advanced stages. Such fears are triggering requests for medical assistance in dying (MAiD) by patients with dementia. Legislation was recently passed in Canada and the province of Quebec allowing MAiD at the explicit request of a patient who meets a set of eligibility criteria, including competence. Some commentators have argued that MAiD should be accessible to incompetent patients as well, provided appropriate safeguards are in place. Governments …

Children’S Anatomy V. Children’S Autonomy: A Precarious Balancing Act With Preimplantation Genetic Diagnosis And The Creation Of “Savior Siblings”, Marley Mcclean

Pepperdine Law Review

On February 3, 2015, Members of the United Kingdom’s Parliament, in an historical move, voted to approve the creation of human beings from three different parents, i.e., the creation of three-person DNA. In doing so, it became the first country ever to approve laws regulating such a procedure. The procedure uses a customized version of in vitro fertilization (IVF) to mix the DNA of two parents with the healthy mitochondria of a donor woman. While three-person DNA is not yet practiced in the United States, there is a controversial ART procedure practiced and unregulated in the United States that also …

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

Book Chapters

No abstract provided.

Introduction, Forrest S. Mosten

Cardozo Journal of Conflict Resolution

This special edition of the Cardozo Journal of Conflict Resolution reflects the current exciting state of the Family Dispute Resolution field, inside and outside of the law school academy. The articles selected for this portion of the issue carry on the vibrant dialogue that took place at the Cardozo Journal of Conflict Resolution's Annual Symposium "All in the Family: Intimate Parties, Intimate Issues and ADR". This Symposium, hosted at the Benjamin N. Cardozo School of Law on October 19, 2015, engaged scholars, practitioners, and students from across the country.

Infinity Goes On Trial: Sanism, Pretextuality, And The Representation Of Defendants With Mental Disabilities, Michael L. Perlin

Articles & Chapters

This paper, presented to the mid-winter meeting of the National Association of Criminal Defense Lawyers (Austin, TX, 2/18/16), explains why it is essential for lawyers representing criminal defendants with mental disabilities to understand the meanings and contexts of sanism - a largely invisible and largely socially acceptable irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry - and pretextuality - the means by which courts regularly accept (either implicitly or explicitly) testimonial dishonesty, countenance liberty deprivations in disingenuous ways that bear …

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 …

Statute Of Limitations: Discovery Rule For Malpractice, Linda C. Ashar

Akron Law Review

IN OLIVER V. KAISER COMMUNITY HEALTH FOUNDATION the Ohio Supreme Court adopted the discovery standard for medical malpractice actions, which are subject to Ohio's one-year statute of limitations. In Oliver the court held that a medical malpractice cause of action "accrues and the statute of limitations commences to run when the patient discovers, or in the exercise of reasonable care and diligence should have discovered, the resulting injury." Shortly after Oliver, the court applied the discovery rule to legal malpractice cases in Skidmore & Hall v. Rottman. The discovery standard replaces Ohio's previously judicially adopted rule of termination of …

Dangerous Diagnoses, Risky Assumptions, And The Failed Experiment Of "Sexually Violent Predator" Commitment, Deirdre M. Smith

Faculty Publications

In its 1997 opinion, Kansas v. Hendricks, the U.S. Supreme Court upheld a law that reflected a new model of civil commitment. The targets of this new commitment law were dubbed “Sexually Violent Predators” (SVPs), and the Court upheld indefinite detention of these individuals on the assumption that there is a psychiatrically distinct class of individuals who, unlike typical recidivists, have a mental condition that impairs their ability to refrain from violent sexual behavior. And, more specifically, the Court assumed that the justice system could reliably identify the true “predators,” those for whom this unusual and extraordinary deprivation of liberty …

Symposium Issue Introduction And Dedication, Shawna Benston

Cardozo Journal of Conflict Resolution

The 2013 Jed D. Melnick Annual Symposium, which took place on November 18th, 2013, was entitled "Bioethics, Healthcare Policy, and Alternative Dispute Resolution in the Age of Obamacare." Scholars and practitioners of bioethics alternative dispute resolution came together to discuss the likely impact of a healthcare overhaul born of an ethical challenge: to achieve the greatest good for the greatest number while continuing to honor the value of the individual. Collectively, the Symposium participants anticipated the particular importance of mediation and bioethical debate within the complex health-delivery system that has been drafted under this biomedical imperative.

Bioethics Mediation & The End Of Clinical Ethics As We Know It, Autumn Fiester

Cardozo Journal of Conflict Resolution

In this Article, I will not only argue that bioethics mediation is a superior approach for resolving ethics conflicts, but I will also defend the controversial position that it is the only ethically justifiable method for resolving values-based conflicts in a pluralistic society. Although it has so far been relegated to the status of mere handmaiden to conventional consultation, bioethics mediation-as its detractors have surmised-has the potential to end clinical ethics consultation as we know it.

Informed Consent In Mediation: Promoting Pro Se Parties' Informed Settlement Choice While Honoring The Mediator's Ethical Duties, Michael T. Colatrella Jr.

Cardozo Journal of Conflict Resolution

In explaining the proper role of informed consent in mediation, this Article will proceed as follows: Part II will examine mediation's core ethical values of self-determination, impartiality and promoting a quality process. Part III will explore the meaning and origins of the informed consent doctrine; and, in Part IV, analyze the application of informed consent policies and principles to mediation in the light of mediation's core ethical values. Part V will explore ways that mediators can promote informed outcome consent within the existing ethical framework and recommend legislative reform that will help clarify the mediator's proper role of promoting fair …

Can I Be Sued For That? Liability Risk And The Disclosure Of Clinically Significant Genetic Research Findings, Ellen Wright Clayton, Amy L. Mcguire, Et Al.

Vanderbilt Law School Faculty Publications

Genomic researchers increasingly are faced with difficult decisions about whether, under what circumstances, and how to return research results and significant incidental findings to study participants. Many have argued that there is an ethical—maybe even a legal—obligation to disclose significant findings under some circumstances. At the international level, over the last decade there has begun to emerge a clear legal obligation to return significant findings discovered during the course of research. However, there is no explicit legal duty to disclose in the United States. This creates legal uncertainty that may lead to unmanaged variation in practice and poor quality care. …

Seeking Genomic Knowledge: The Case For Clinical Restraint, Ellen Wright Clayton, Wylie Burke, Susan Brown Trinidad

Vanderbilt Law School Faculty Publications

Genome sequencing technology provides new and promising tests for clinical practice, including whole genome sequencing, which measures an individual's complete DNA sequence, and whole exome sequencing, which measures the DNA for all genes coding for proteins. These technologies make it possible to test for multiple genes in a single test, which increases the efficiency of genetic testing. However, they can also produce large amounts of information that cannot be interpreted or is of limited clinical utility. This additional information could be distracting for patients and clinicians, and contribute to unnecessary healthcare costs. The potential for genomic sequencing to improve care …

Influencing Nih Policy Over Embryonic Stem-Cell Research: An Administrative Tug-Of-War Between Congress And The President, Scott Davison

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Antitrust Implications Of Medical Peer Review: Balancing The Competing Interests , Joan M. Ruane

Pepperdine Law Review

No abstract provided.

Deconstructing Antisocial Personality Disorder And Psychopathy: Guidelines-Based Approach To Prejudicial Psychiatric Labels, Kathleen Wayland, Sean O'Brien

Faculty Works

Prejudicial psychiatric labels such as antisocial personality disorder and psychopathy have an inherently prejudicial effect on courts and juries, particularly in cases involving the death penalty. This article explains how and why these labels are inherently aggravating, and also discusses the mental health literature indicating that they are subjective, unreliable and non-scientific. The authors conclude that no competent defense lawyer would pursue a mitigation case based on such a damaging and scientifically questionable psychiatric label. Further, a proper life history investigation conducted in accordance with the ABA Guidelines on the Appointment and Performance of Defense Counsel in Death Penalty Cases …

Moving Forward With A Clear Conscience: A Model Conscientious Objection Policy For Canadian Colleges Of Physicians And Surgeons, Jocelyn Downie, Jacquelyn Shaw, Carolyn Mcleod

Articles, Book Chapters, & Popular Press

In 2008, one of us (JD) together with the former Dean of Law at the University of Ottawa (Sanda Rodgers), wrote a guest editorial for the Canadian Medical Association Journal on the topic of access to abortion in Canada. In the editorial, we argued, among other things, that "health care professionals who withhold a diagnosis, fail to provide appropriate referrals, delay access, misdirect women or provide punitive treatment are committing malpractice and risk lawsuits and disciplinary proceedings." In response to a series of letters to the editor written about our editorial, we wrote that, under the CMA Code of Ethics …

An Incompetent's Right To Withdraw From Treatment: Cruzan V. Missouri Department Of Health , Mary A. Watson

Pepperdine Law Review

No abstract provided.

Beyond Abortion: Human Genetics And The New Eugenics, John R. Harding Jr.

Pepperdine Law Review

No abstract provided.

Irreconcilable Differences: Why The Doctor-Patient Relationship Is Disintegrating At The Hands Of Health Maintenance Organizations And Wall Street, Mark O. Hiepler, Brian C. Dunn

Pepperdine Law Review

No abstract provided.

Scholastic Steroids: Is Generation Rx Cognitively Cheating? , Kelline R. Linton

Pepperdine Law Review

No abstract provided.

The Physician Payment Sunshine Act: An Important First Step In Mitigating Financial Conflicts Of Interest In Medical And Clinical Practice, 45 J. Marshall L. Rev. 963 (2012), Alexandros Stamatoglou

UIC Law Review

No abstract provided.

Insights From A National Conference: "Conflicts Of Interest In The Practice Of Medicine", David Orentlicher

Scholarly Works

No abstract provided.

Hela Cells And Unjust Enrichment In The Human Body, Deleso A. Alford

Journal Publications

Henrietta Lacks achieved fame and immortality in the world of science. In 1951, Johns Hopkins Hospital harvested the tissue of Ms. Lacks, a 31-year-old African American woman diagnosed with cervical cancer to mass produce "HeLa cells."' The money derived from her cell line produced wonders and scientific breakthroughs in technology, biology and medicine which "far exceeds that reflected in the published literature, because it is the reference cell in so many research laboratories.”

In this essay, I place Ms. Lacks' parts (tissue cells) back into her body to raise a claim of unjust enrichment. I discuss the ongoing debate as …

Patient Racial Preferences And The Medical Culture Of Accommodation, Kimani Paul-Emile

Faculty Scholarship

One of medicine’s open secrets is that patients routinely refuse or demand medical treatment based on the assigned physician’s racial identity, and hospitals typically yield to patients’ racial preferences. This widely practiced, if rarely acknowledged, phenomenon — about which there is new empirical evidence — poses a fundamental dilemma for law, medicine, and ethics. It also raises difficult questions about how we should think about race, health, and individual autonomy in this context. Informed consent rules and common law battery dictate that a competent patient has an almost-unqualified right to refuse medical care, including treatment provided by an unwanted physician. …

Recent Developments In Stem Cell Research: Social, Ethical, And Legal Issues For The Future (George P. Smith Ii Lecture), Loane Skene

Indiana Journal of Global Legal Studies

On February 12, 2009, Professor Skene delivered the George P. Smith II Lecture at the Indiana University Maurer School of Law.

The Manitoba College Of Physicians And Surgeons Position Statement On Withholding And Withdrawal Of Life-Sustaining Treatment (2008): Three Problems And A Solution, Jocelyn Downie, Karen Mcewen

Articles, Book Chapters, & Popular Press

The College of Physicians and Surgeons of Manitoba (CPSM) recently issued a Statement on Withholding and Withdrawl of Life-Sustaining Treatment (2008). The College should be given enormous credit for trying to provide guidance with respect to physicians' obligations in an area of great confusion and controversy. Unfortunately, however, there are some very serious flaws in the Statement. In this paper, we describe three major problems with it that we believe make the case for the claim that the Statement must be revised. We then provide a revised statement that, if adopted, could represent significant progress as it would provide: greater …

Research With Decisionally Incapacitated Human Subjects: An Argument For A Systemic Approach To Risk-Benefit Assessment, Carl H. Coleman

Indiana Law Journal

The amount of medical research with persons who lack decision-making capacity is rapidly increasing, but in most states it takes place without clear legal authority. In addition to creating significant liability risks for researchers and persons who provide consent on behalf of incapacitated subjects, the lack of explicit legal standards means that few, if any, safeguards exist to protect incapacitated persons' rights and welfare. Previous efforts to close the gap between clinical reality and legal requirements have failed in part because they have not provided a coherent or persuasive ethical justification for permitting this research. This Article seeks to fill …

Non-Beneficial Pediatric Research And The Best Interest Standard: A Reconciliation, Paul J. Litton

Faculty Publications

Federal efforts beginning in the 1990's have successfully increased pediatric research to improve medical care for all children. Since 1997, the FDA has requested 800 pediatric studies involving 45,000 children. Much of this research is "non-beneficial"; that is, it exposes pediatric subjects to risk even though these children will not benefit from participating in the research. Non-beneficial pediatric research (NBPR) seems, by definition, contrary to the best interests of pediatric subjects, which is why one state supreme court has essentially prohibited it. It also appears that the only plausible rationale for this research is utilitarian, as it risks some children …

Who's Minding The Shop? The Role Of Canadian Research Ethics Boards In The Creation And Uses Of Registries And Biobanks, Elaine Gibson, Kevin Brazil, Michael Coughlin, Claudia Emerson, François Fournier, Lisa Schwartz, Karen Szala-Meneok, Karen Weisbaum, Donald Willison

Articles, Book Chapters, & Popular Press

Background: The amount of research utilizing health information has increased dramatically over the last ten years. Many institutions have extensive biobank holdings collected over a number of years for clinical and teaching purposes, but are uncertain as to the proper circumstances in which to permit research uses of these samples. Research Ethics Boards (REBs) in Canada and elsewhere in the world are grappling with these issues, but lack clear guidance regarding their role in the creation of and access to registries and biobanks.

Methods: Chairs of 34 REBS and/or REB Administrators affiliated with Faculties of Medicine in Canadian universities were …