Medical Jurisprudence Commons^™

Algorithmic Medicine And The Duty To Disclose: Informed Consent Through The Lens Of Radiology, Lee Rodriguez

Michigan Law Review

Informed consent is the law’s mechanism for protecting patient autonomy by requiring disclosure of facts that bear on the decision to accept or refuse care. Artificial intelligence now helps decide what is medically true for patients, yet informed consent law still assumes that diagnostic judgment is rendered by a human mind whose reasoning is at least in principle communicable. Radiology has become the leading setting for this tension. AI systems triage worklists, flag suspected abnormalities, and anchor first-pass impressions in ways that guide radiologists’ attention and, in practice, can coauthor diagnostic conclusions while remaining invisible to patients. When patients are …

Monitoring, Oversight, And Learning In Medical Ai, W. Nicholson Price Ii

Articles

When medical AI errs, it often goes unnoticed. If there’s a specific patient injury, and the link to AI is obvious, that problem might be reported to the Food and Drug Administration (FDA), but not always. And many other types of problems, like worse performance on specific groups or ineffective integration into health system workflows, simply don’t fall within the contours of regularized reporting. Even if they are noticed by the health system—far from a given—there’s no obvious way to share that information more broadly. Against this backdrop, there are justified calls for better oversight and reporting. But there’s the …

Clinicians In The Loop Of Medical Ai, W. Nicholson Price Ii

Articles

As medical AI begins to mature as a health-care tool, the task of governance grows increasingly important. Ensuring that medical AI works, works where it’s used, and works for the patient in the moment is a challenging, multifaceted task. Some of this governance can be centralized—in review by FDA or by national accreditation labs, for instance. Some must be local, performed by the hospital or health system about to use the product in their own, unique environment. But a large amount of governance is left to the individual provider in the room, the human in the loop who presumably knows …

Do Specialized Medical Llms Demand A Radically New Approach Under The Eu's Medical Device Regulation, Hannah Louise Smith, W. Nicholson Price Ii

Articles

We examine the arguments made by Onitiu and colleagues concerning the need to adopt a “backward-walking logic” to manage the risks arising from the use of Large Language Models (LLMs) adapted for a medical purpose. We examine what lessons can be learned from existing multi-use technologies and applied to specialized LLMs, notwithstanding their novelty, and explore the appropriate respective roles of device providers and regulators within the ecosystem of technological oversight.

Antiracist Medicine In Colorblind Courts, Govind Persad

Michigan Law Review

This Article considers how health professionals’ efforts to combat racial health inequities interact with legal restrictions constraining their ability to consider race. In light of the Roberts Court’s recent invalidation of two university admissions programs, intensifying a “colorblind” judicial shift, the collision between antiracist medicine and colorblind law is a pressing concern. This Article anticipates the implications of this collision and explores how health professionals and systems can design programs that survive judicial examination.

In Part I, the Article examines the frameworks that will apply if antiracist medicine faces legal challenges. These include the Equal Protection Clause and federal statutes …

Liability For Use Of Artificial Intelligence In Medicine, Nicholson W. Price Ii, Sara Gerke, I. Glenn Cohen

Book Chapters

While artificial intelligence (AI) has substantial potential to improve medical practice, errors will certainly occur, sometimes resulting in injury. Who will be liable? Questions of liability for AI-related injury raise not only immediate concerns for potentially liable parties but also broader systemic questions about how AI will be developed and adopted. The landscape of liability is complex, involving healthcare providers and institutions and the developers of AI systems. In this chapter, we consider these three principal loci of liability. At the outset, we note a few issues that shape our analysis.

Comment On Chapters 1 And 4: Health Ai, System Performance, And Physicians In The Loop, W. Nicholson Price Ii

Book Chapters

Accounts of artificial intelligence (AI) in medicine must grapple, in one way or another, with the interaction between AI systems and the humans involved in delivering healthcare. Humans are, of course, involved throughout the process of developing , deploying, and evaluating AI systems, but a particular role stands out: the human in the loop of an algorithmic decision. In medicine, when an algorithm is involved in a decision , a typical view of the system envisions a human healthcare professional mediating that algorithm - deciding whether and how to implement or react to any recommendation, prediction, or other algorithmic output. …

Why Medical Error Is Killing You (And Everyone Else), Phoebe Jean-Pierre

University of Michigan Journal of Law Reform

In 2000, the infamous report To Err is Human rocked society with its focus on the pervasive danger of medical error. More than two decades later, medical error rates remain high and pose a consistent danger to patients. Today, medical error ranks as the fourth leading cause of death behind heart disease, cancer, and COVID-19. Medical error reflects the vulnerabilities of the healthcare process and may be diagnostic in nature. A large concern in responding to medical error is an overemphasis on blame and the idea that good physicians do not make mistakes. Our perspective on how to address medical …

The Impact Of Post-Dobbs Abortion Bans On Prenatal Tort Claims, Aviva K. Diamond

Michigan Law Review

In June 2022, the Supreme Court revoked Americans’ fundamental right to abortion in Dobbs v. Jackson Women’s Health Organization. However, the Court said nothing about how its decision would impact tort claims related to reproductive care. Many states have since adopted near-total or early-gestational- age abortion bans, which has not only diminished access to reproductive care, but has also incidentally impaired the ability of plaintiffs to bring long-recognized prenatal tort claims. Prenatal tort claims—wrongful pregnancy, birth, and life—allow victims to recover when a medical professional negligently performs reproductive or prenatal care. This Note identifies the impact that post-Dobbs …

Feigned Consensus: Usurping The Law In Shaken Baby Syndrome/Abusive Head Trauma Prosecutions, Keith A. Findley, D. Michael Risinger, Patrick D. Barnes, Julie A. Mack, David A. Moran, Barry C. Scheck, Thomas L. Bohan

Articles

Few medico-legal matters have generated as much controversy--both in the medical literature and in the courtroom--as Shaken Baby Syndrome (SBS), now known more broadly as Abusive Head Trauma (AHT). The controversies are of enormous significance in the law because child abuse pediatricians claim, on the basis of a few non-specific medical findings supported by a weak and methodologically flawed research base, to be able to “diagnose” child abuse, and thereby to provide all of the evidence necessary to satisfy all of the legal elements for criminal prosecution (or removal of children from their parents). It is a matter, therefore, in …

Informing Consent: Medical Malpractice And The Criminalization Of Pregnancy, Laura Beth Cohen

Michigan Law Review

Since the early 1990s, jurisdictions around the country have been using civil child abuse laws to penalize women for using illicit drugs during their pregnancies. Using civil child abuse laws in this way infringes on pregnant women’s civil rights and deters them from seeking prenatal care. Child Protective Services agencies are key players in this system. Women often become entangled with the Child Protective Services system through their health care providers. Providers will drug test pregnant women without first alerting them to the potential negative consequences stemming from a positive drug test. Doing so is a breach of these providers’ …

Medical Malpractice And Black-Box Medicine, W. Nicholson Price Ii

Book Chapters

The explosive proliferation of health data has combined with the rapid development of machine-learning algorithms to enable a new form of medicine: “black-box medicine.” In this phenomenon, algorithms troll through tremendous databases of health data to find patterns that can be used to guide care, whether by predicting unknown patient risks, selecting the right drug, suggesting a new use of an old drug, or triaging patients to preserve health resources. These decisions differ from previous data-based decisions because black-box medicine is, by its nature, opaque; that is, the bases for black-box decisions are unknown and unknowable.

Black-box medicine raises a …

Short Fall Arguments In Court: A Probabilistic Analysis, Maria Cuellar

University of Michigan Journal of Law Reform

A discussion about how statistical arguments are used in court, specifically in cases of Abusive Head Trauma in which the defendant has claimed that an accidental short fall, and not shaking or child abuse, has caused the child’s injuries.

Bias, Subjectivity, And Wrongful Conviction, Katherine Judson

University of Michigan Journal of Law Reform

A talk about bias, subjectivity and wrongful convictions.

Police Interrogations, False Confessions, And Alleged Child Abuse Cases, Richard Leo

University of Michigan Journal of Law Reform

A discussion on false confession cases in the United States.

Evidence Of Child Abuse: Inferring The Causes Of Effects, Stephen E. Fienberg

University of Michigan Journal of Law Reform

A statistician's take on evidence of child abuse.

Child Abuse--Nonaccidental Injury (Nai) And Abusive Head Trauma (Aht)--Medical Imaging: Issues And Controversies In The Era Of Evidence-Based Medicine, Patrick Barnes

University of Michigan Journal of Law Reform

A look at nonaccidental injury and abusive head trauma in children with a focus on Shaken Baby Syndrome.

Child Abuse Evidence: New Perspectives From Law, Medicine, Psychology & Statistics: Introduction, Anna Kirkland, David Moran, Angela K. Perone

University of Michigan Journal of Law Reform

Introduction to the University of Michigan Journal of Law Reform Symposium, Child Abuse Evidence: New Perspectives from Law, Medicine, Psychology & Statistics.

Child Abuse Evidence: New Perspectives From Law, Medicine, Psychology & Statistics: Question And Answer Session, Kimberly Thomas, Keith B. Maddox, Samuel R. Sommers, Patrick Barnes, Richard Leo

University of Michigan Journal of Law Reform

A transcript of the Question and Answer session during the University of Michigan Journal of Law Reform Symposium, Child Abuse Evidence: New Perspectives from Law, Medicine, Psychology & Statistics.

Keynote Address: Can A Sign Or Occult Finding Predict A Causal Relationship?: How To Reason About Possible Child Abuse, Peter Aspelin

University of Michigan Journal of Law Reform

Keynote Address for the University of Michigan Journal of Law Reform Symposium, Child Abuse Evidence: New Perspectives from Law, Medicine, Psychology & Statistics.

Child Abuse Evidence: New Perspectives From Law, Medicine, Psychology & Statistics: Opening Remarks, November 6, 2015, Bridget M. Mccormack

University of Michigan Journal of Law Reform

Opening remarks by Justice Bridget McCormack, Michigan Supreme Court on November 6, 2015.

The Crime Lab In The Age Of The Genetic Panopticon, Brandon L. Garrett

Michigan Law Review

Review of Unfair: The New Science of Criminal Injustice by Adam Benforado, Inside the Cell: The Dark Side of Forensic DNA by Erin E. Murphy, and Cops in Lab Coats: Curbing Wrongful Convictions Through Independent Forensic Laboratories by Sandra Guerra Thompson.

Constitutionalizing Fetal Rights: A Salutary Tale From Ireland, Fiona De Londras

Michigan Journal of Gender & Law

In 1983, Ireland became the first country in the world to constitutionalize fetal rights. The 8th Amendment to the Constitution, passed by a referendum of the People, resulted in constitutional protection for “the right to life of the unborn,” which was deemed “equal” to the right to life of the “mother.” Since then, enshrining fetal rights in constitutions and in legislation has emerged as a key part of anti-abortion campaigning. This Article traces the constitutionalization of fetal rights in Ireland and its implications for law, politics, and women. In so doing, it provides a salutary tale of such an approach. …

Spending Medicare’S Dollars Wisely: Taking Aim At Hospitals’ Cultures Of Overtreatment, Jessica Mantel

University of Michigan Journal of Law Reform

With Medicare’s rising costs threatening the country’s fiscal health, policymakers have focused their attention on a primary cause of Medicare’s high price tag—the overtreatment of patients. Guided by professional norms that demand they do “everything possible” for their patients, physicians frequently order additional diagnostic tests, perform more procedures, utilize costly technologies, and provide more inpatient care. Much of this care, however, does not improve Medicare patients’ health, but only increases Medicare spending. Reducing the overtreatment of patients requires aligning physicians’ interests with the government’s goal of spending Medicare’s dollars wisely. Toward that end, recent Medicare payment reforms establish a range …

Piercing The Veil: The Limits Of Brain Death As A Legal Fiction, Seema K. Shah

University of Michigan Journal of Law Reform

Brain death is different from the traditional, biological conception of death. Although there is no possibility of a meaningful recovery, considerable scientific evidence shows that neurological and other functions persist in patients accurately diagnosed as brain dead. Elsewhere with others, I have argued that brain death should be understood as an unacknowledged status legal fiction. A legal fiction arises when the law treats something as true, though it is known to be false or not known to be true, for a particular legal purpose (like the fiction that corporations are persons). Moving towards greater transparency, it is legally and ethically …

For The Love Of The Game: The Case For State Bans On Youth Tackle Football, Adam Bulkley

University of Michigan Journal of Law Reform Caveat

This football season, millions of Americans enjoying their favorite pastime might feel pangs of a guilty conscience. Years of scientific research into the long-term neurological effects of tackle football and a recent settlement between the National Football League (NFL) and thousands of retired NFL players have made football-related traumatic brain injuries (TBI) a topic of national conversation. Current and former NFL players and even President Obama have participated in the conversation, saying that they would hesitate to let their sons play the game for fear of possible brain injury. Because research has uncovered signs of permanent brain damage in players …

Bathroom Bias: Making The Case For Trans Rights Under Disability Law, Daniella A. Schmidt

Michigan Journal of Gender & Law

Disability law is one of the more successful tools currently being used to protect trans people fom discrimination. While the use of disability law as a framework for affirming or creating trans rights has come with some success, many in the community remain reluctant to use disability law for fear of the policy implications and stigma associated with medicalization of trans identity. After exploring the current state of the law on both the federal and state level, this Note will argue how disability law both could and should be used more often to further trans protections. In particular, this Note …

Does The Constitution Protect Abortions Based On Fetal Anomaly?: Examining The Potential For Disability-Selective Abortion Bans In The Age Of Prenatal Whole Genome Sequencing, Greer Donley

Michigan Journal of Gender & Law

This Note examines whether the state or federal government has the power to enact a law that prevents women from obtaining abortions based on their fetus’s genetic abnormality. Such a ban has already been enacted in North Dakota and introduced in Indiana and Missouri. I argue below that this law presents a novel state intrusion on a woman’s right to obtain a pre-viability abortion. Moreover, these pieces of legislation contain an outdated understanding of prenatal genetic testing—-the landscape of which is quickly evolving as a result of a new technology: prenatal whole genome sequencing. This Note argues that the incorporation …

"Off With His __": Analyzing The Sex Disparity In Chemical Castration Sentences, Zachary Edmonds Oswald

Michigan Journal of Gender & Law

Societies around the world have performed castration, in its various forms, on their male and female members for thousands of years, for numerous reasons. Even within the United States, prisoners have been sentenced to castration (as a form of punishment or crime prevention) since the early twentieth century. In recent years, legislatures have perpetuated this practice but with a modern twist. Now, states use chemical injections to castrate their inmates. It turns out, however, that systemic problems plague the chemical castration sentencing regime. These problems arise from the nature of the crimes eligible for chemical castration sentences, the manner of …

The North Carolina Woman’S Right To Know Act: An Unconstitutional Infringement On A Physician’S First Amendment Right To Free Speech, Ryan Bakelaar

Michigan Journal of Gender & Law

The North Carolina Woman’s Right to Know Act represents the crossroads of the Supreme Court’s First Amendment, informed consent, and abortion-related jurisprudence. The Act requires physicians to perform an obstetric ultrasound, verbally convey specific information regarding ultrasonographic findings, and communicate a host of other information to patients seeking abortions. The purported goal of the Act is to ensure that physicians obtain appropriate informed consent from such patients. By compelling a physician to convey this information, the State violates the physician’s First Amendment rights. Indeed, the State may not compel an individual to convey the State’s ideological message. Further, any statute …