Medical Jurisprudence Commons^™

The Commerical Speech Doctrine In Health Regulation: The Clash Between The Public Interest In A Robust First Amendment And The Public Interest In Effective Protection From Harm, David Orentlicher

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No abstract provided.

Controlling Health Care Costs Through Public, Transparent Processes: The Conflict Between The Morally Right And The Socially Feasible, David Orentlicher

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No abstract provided.

Constitutional Challenges To The Health Care Mandate: Based In Politics, Not Law, David Orentlicher

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No abstract provided.

Reduced Discretion In Corporate Governance As Applied To The Pharmaceutical Industry In Nevada, Timothy Koval

Nevada Law Journal

This Note focuses on an education-based alternative to promote effective interactions between pharmaceutical corporations and physicians that benefit patients while allowing these corporations to exercise business discretion. Specifically, educational programs that teach physicians how to interact with pharmaceutical corporations most effectively may maximize the benefits for all parties involved. Although many of the arguments presented may be extended to corporations that sell or market medical devices or appliances, their application in that context is beyond the scope of this Note. In Part II, this Note discusses the background of corporate decision-making and its application in the pharmaceutical industry in Nevada. …

Neuroimaging Research Into Disorders Of Consciousness: Moral Imperative Or Ethical And Legal Failure?, Stacey A. Tovino

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This article explores the ethical and legal implications of enrolling individuals with disorders of consciousness (DOC) in neuroimaging research studies. Many scientists have strongly emphasized the need for additional neuroimaging research into DOC, characterizing the conduct of such studies as morally imperative. On the other hand, institutional review boards charged with approving research protocols, scientific journals deciding whether to publish study results, and federal agencies that disburse grant money have limited the conduct, publication, and funding of consciousness investigations based on ethical and legal concerns. Following a detailed examination of the risks and benefits of neuroimaging research involving individuals with …

Incidental Findings: A Common Law Approach, Stacey A. Tovino

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Federal regulations governing human subjects research do not address key questions raised by incidental neuroimaging findings, including the scope of a researcher’s disclosure with respect to the possibility of incidental findings and the question whether a researcher has an affirmative legal duty to seek, detect, and report incidental findings. The scope of researcher duties may, however, be mapped with reference to common law doctrine, including fiduciary, tort, contract, and bailment theories of liability.

The Impact Of Neuroscience On Health Law, Stacey A. Tovino

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Advances in neuroscience have implications for criminal law as well as civil and regulatory law, including health, disability, and benefit law. The role of the behavioral and brain sciences in health insurance claims, the mental health parity debate, and disability proceedings is examined.

Functional Neuroimaging And The Law: Trends And Directions For Future Scholarship, Stacey A. Tovino

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Under the umbrella of the burgeoning neurotransdisciplines, scholars are using the principles and research methodologies of their primary and secondary fields to examine developments in neuroimaging, neuromodulation, and psychopharmacology. The path for advanced scholarship at the intersection of law and neuroscience may clear if work across the disciplines is collected and reviewed and outstanding and debated issues are identified and clarified. In this article, I organize, examine and refine a narrow class of burgeoning neurotransdiscipline scholarship; that is, scholarship at the interface of law and functional magnetic resonance imaging.

Functional Neuroimaging Information: A Case For Neuro Exceptionalism?, Stacey A. Tovino

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The field of neuroethics has been described as an amalgamation of two branches of inquiry: “the neuroscience of ethics” and “the ethics of neuroscience.” The neuroscience of ethics may be described as “a scientific approach to understanding ethical behavior.” The law and ethics of neuroscience is concerned with the legal and ethical principles that should guide brain research and the treatment of neurological disease, as well as the effects that advances in neuroscience have on our social, moral, and philosophical views. This Article is a contribution to the law and ethics of neuroscience.

No longer new or emerging, the burgeoning …

Psychiatric Restraint And Seclusion: Resisting Legislative Solution, Stacey A. Tovino

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The use of restraint and seclusion in the American psychiatric setting has a rich history—rich in medical, ethical, legal, and social controversy. For centuries, mental health care providers used movement restrictions and solitary confinement to manage psychiatric patients. Superintendents of eighteenth and early nineteenth century insane asylums and other institutions of confinement believed that strait-waistcoats, “tranquilizer chairs,” “maniac beds,” chains, shackles, and “quiet rooms” deescalated agitation and promoted self-control. Reforms beginning in the nineteenth century helped make some psychiatric institutions more humane, in part because staff members were trained to find ways to calm potentially violent patients without imposing holds …

Imaging Body Structure And Mapping Brain Function: A Historical Approach, Stacey A. Tovino

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Now in its second decade, functional magnetic resonance imaging (fMRI) localizes changes in blood oxygenation that occur in the brain when an individual performs a mental task. Physicians and scientists use fMRI not only to map sensory, motor, and cognitive functions, but also to study the neural correlates of a range of sensitive and potentially stigmatizing conditions, behaviors, and characteristics. Poised to move outside the traditional clinical and research contexts, fMRI raises a number of ethical, legal, and social issues that are being explored within a burgeoning neuroethics literature. In this Article, I place these issues in their proper historical …

Book Review: "Law And The Brain", Stacey A. Tovino

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Edited by Semir Zeki and Oliver Goodenough, Law and the Brain is a wonderful collection of fourteen essays that examine a range of topics at the intersection of law and neurobiology. Although neurotransdiscipline texts, collections, and journal symposia abound, what makes Law and the Brain so special is its focus on the special challenges raised by the neuroscience-policy interface. These challenges flow from basic differences in the orientation of the brain and brain science, on the one hand, and the law on the other hand.

Book Review: "Hardwired Behavior: What Neuroscience Reveals About Morality", Stacey A. Tovino

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The field of neuroethics has been described as an amalgamation of two branches of inquiry: the ethics of neuroscience and the neuroscience of ethics. The ethics of neuroscience, which has received considerable attention over the past three to four years, is concerned with the ethical principles that should guide brain research and the treatment of neurological disease, as well as the effects that advances in neuroscience have on our social, moral, and philosophical views. The neuroscience of ethics, which has received considerably less attention, may be described as a scientific approach to understanding ethical behavior. Psychiatrist and lawyer Laurence Tancredi …

The Visible Brain: Confidentiality And Privacy Implications Of Functional Magnetic Resonance Imaging, Stacey A. Tovino

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Functional magnetic resonance imaging (fMRI) has built on a number of technologies, including electroencephalography, magnetoencephalography, positron emission tomography, and single-photon emission computed tomography, to become one of the decade’s most powerful tools for mapping sensory, motor, and cognitive function. Scientists also are using fMRI to study the neural correlates of a range of conditions, characteristics, and social behaviors, including severe brain injury, major depression, schizophrenia, dyslexia, cocaine addiction, compulsive gambling, pedophilia, racial evaluation, deception, cooperation, altruism, and even sexual preference. Poised to move outside the research context, fMRI and its ability to detect correlations between brain activations and sensitive and …

Incorporating Literature Into A Health Law Curriculum, Stacey A. Tovino

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Literature has had a long relationship with medicine through literary images of disease, literary images of physicians and other healers, works of literature by physician-writers, and the use of literature as a method of active or passive healing. Literature also has had a long relationship with the law through literary images of various legal processes, lawyers, and judges, works for literature by lawyer-writers, and the use of literature as therapy. At last count, eighty-four law schools in the United States and Canada reported offering some variations of a “law and literature” course and recent scholarship demonstrates that literature increasingly is …

Confidentiality And Privacy Implications Of Functional Magnetic Resonance Imaging, Stacey A. Tovino

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Advances in science and technology frequently raise new ethical, legal, and social issues, and developments in neuroscience and neuroimaging technology are no exception. Within the field of neuroethics, leading scientists, ethicists, and humanists are exploring the implications of efforts to image, study, treat, and enhance the human brain.

This article focuses on one aspect of neuroethics: the confidentiality and privacy implications of advances in functional magnetic resonance imaging (“fMRI”). Following a brief orientation to fMRI and an overview of some of its current and proposed uses, this article highlights key confidentiality and privacy issues raised by fMRI in the contexts …

Book Review: "The Birth Of Surrogacy In Israel", Stacey A. Tovino

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Instead of analyzing Israel’s Surrogate Motherhood Agreements Act from a purely legal or theoretical perspective, D. Kelly Weisberg weaves individuals, events, and other factors into a fascinating story about the Israeli legislative process. A case in point: Weisberg begins by exploring the private lives of Rachel and Benjamin, the biological parents of twin babies carried by Sarah, the first surrogate moth to carry a baby under Israel’s surrogacy law. Weisberg also explores the story of Naomi and Dan, the biological parents of a baby boy carried by Hanna, the second surrogate mother to carry a baby under the legislation. Readers …

Book Review: "Jewish Biomedical Law: Legal And Extra-Legal Dimensions", Stacey A. Tovino

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Three extra-legal themes—the influence of morality upon Jewish law (halakhah), the growing awareness and implementation of the value of patient autonomy, and the role of scientific progress in the shaping of halakhic decisions—distinguish Daniel Sinclair’s work from other sin the field of Jewish biomedical law. Students and lawyers new to Jewish biomedical law may struggle with Sinclair’s decision to reserve until the final chapter his theories regarding how biomedical halakhah works. However, advanced students and scholars in the field will appreciate the opportunity to understand Sinclair’s three extra-legal themes in context and his decision to root his final …

Book Review: "Introduction To Jewish And Catholic Bioethics: A Comparative Analysis", Stacey A. Tovino

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Aaron Mackler’s agenda is to provide an orientation to ethical reasoning in the Roman Catholic and Jewish traditions, explore Roman Catholic and Jewish deliberations in five areas of bioethics, and identify and examine the traditions’ divergent and convergent methodologies. Mackler’s spirit is to learn more about his own religious traditions by studying the traditions of others. Accomplishing his agenda while remaining true to his spirit, Mackler shows just how much Jewish and Catholic thinkers can learn from one another.

Use And Disclosure Of Protected Health Information For Research Under The Hippa Privacy Rule, The: Unrealized Patient Autonomy And Burdensome Government Regulation, Stacey A. Tovino

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This article offers a legal and ethical analysis of the requirements of federal privacy regulations (herein after the “Privacy Rules”) relating to the use and disclosure of individually identifiable health information for research activities. Section II of this article provides a legal summary of the Privacy Rules’ complex research provisions. Sections III and IV of this article analyze the Privacy Rules’ research provisions from a legal and ethical perspective. Specifically, Section III addresses whether the Privacy Rules promote autonomy by analyzing certain of the legal rights attributed to individuals who are the subjects of health information including: (1) the general …

Procedural Provisions In Nevada Medical Malpractice Reform, Carl Tobias

Nevada Law Journal

No abstract provided.

The Implementation Of Oregon’S Death With Dignity Act: Reassuring, But More Data Are Needed, David Orentlicher

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Undoubtedly, empirical data from Oregon will play a key role for academics, legislators, judges, and the public as debate over the legalization of physician-assisted suicide continues. A central issue in the debate is whether a right to assisted suicide can be limited to only the truly compelling cases, or whether it will in practice be provided to patients who choose it out of depression, coercion, or misunderstanding. Empirical research can provide critical insights into this question.

Medical Malpractice: Treating The Causes Instead Of The Symptoms, David Orentlicher

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No abstract provided.

The Misperception That Bioethics And The Law Lag Behind Advances In Biotechnology, David Orentlicher

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No abstract provided.

Advertising Policies Of Medical Journals: Conflicts Of Interest For Journal Editors And Professional Societies, David Orentlicher

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No abstract provided.

The Alleged Distinction Between Euthanasia And The Withdrawal Of Life-Sustaining Treatment: Conceptually Incoherent And Impossible To Maintain, David Orentlicher

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Richard Epstein, in his book Mortal Peril, supports euthanasia and assisted suicide and rejects the distinction between them and withdrawal of treatment. In this essay, Professor Orentlicher argues that Epstein is correct in finding no meaningful moral distinction between euthanasia and treatment withdrawal, examines the reasons why the distinction has persisted in American jurisprudence, and explains why the distinction has eroded.

Epstein also concludes in his book that there is no constitutional right to euthanasia or assisted suicide. Professor Orentlicher's response is that constitutionality is not the appropriate inquiry; rather, the better question is whether to recognize a right to …

The Supreme Court And Terminal Sedation: Rejecting Assisted Suicide, Embracing Euthanasia, David Orentlicher

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No abstract provided.

The Legalization Of Physician-Assisted Suicide: A Very Modest Revolution, David Orentlicher

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No abstract provided.