Medical Jurisprudence Commons^™

Testing The Boundaries Of Family Privacy: The Special Case Of Pediatric Sibling Transplants, Doriane Lambelet Coleman

Faculty Scholarship

A six-year-old girl suffers third-degree burns over eighty percent of her body. Her chance of survival with minimal scarring is said to depend on her identical twin sister’s availability as an organ source. There are other transplant options—including the parents—but because the twins’ skin is “equivalent,” a “sibling transplant” is likely to result in a better medical and aesthetic outcome for the burned twin. Her doctor thus proposes to harvest her healthy sister’s skin on “her backside from her bra line down to the bottom of her buttocks or possibly her thighs.” This procedure would be repeated up to three …

Aligning Incentives In Accountable Care Organizations: The Role Of Medical Malpractice Reform, Laura Hermer

Faculty Scholarship

The Patient Protection and Affordable Care Act (ACA) encourages physicians, hospitals, and other health care providers to deliver better coordinated, high-quality care through the institution of the Medicare Shared Savings Program. Many physicians and other providers moved quickly after the ACA was enacted to enter into arrangements that would allow them to take advantage of the MSSP and similar programs sponsored by private insurers that likely would — and did — arrive on the MSSP’s heels.

Yet despite the initial enthusiasm, it is by no means clear that ACOs will succeed, whether individually or in the greater goal of changing …

The Future Of Medicaid Supplemental Payments: Can They Promote Patient-Centered Care?, Laura Hermer, Merle Lenihan

Faculty Scholarship

Supplemental Medicaid payments such as DSH and UPL are the exception to the financing of specific services to specific patients. Medicaid DSH funds currently finance over 30 percent of hospital care to the uninsured. As a result of the Affordable Care Act (ACA), DSH funds will be substantially reduced. At the same time, their importance will be heightened, especially in states that refuse to take up the ACA’s Medicaid expansion. DSH payments to hospitals have been plagued by a lack of accountability and transparency and an inability to assess whether patients benefit from such payments. Flexibility in the DSH program …

Rationalizing Home And Community-Based Services Under Medicaid, Laura Hermer

Faculty Scholarship

This article examines efforts states are making to expand access to community-based services for elderly and disabled Medicaid beneficiaries and suggests several options that might improve such access nationally. Like much of Medicaid, Medicaid long term services and supports (LTSS) have developed through a complex process of accretion. Policymakers appear only rarely to have considered an overarching view of such services and the needs of those who require them. Rationalizing Medicaid LTSS will accordingly require not only additions but also substantial pruning, and may even warrant a reconsideration of who should have ultimate authority to develop and direct such services. …

The Growing Power Of Healthcare Ethics Committees Heightens Due Process Concerns, Thaddeus Mason Pope

Faculty Scholarship

Complex ethical situations, such as end-of-life medical treatment disputes, occur on a regular basis in healthcare settings. Healthcare ethics committees (HECs) have been a leading dispute resolution forum for many of these conflicts. But while the function of HECs has evolved from mediation to adjudication, the form of HECs has not evolved to adapt to this expanded and more consequential function.

HECs are typically multidisciplinary groups comprised of representatives from different departments of the healthcare facility: medicine, nursing, law, pastoral care, and social work, for example. HECs were established to support and advise patients, families, and caregivers as they work …

Medicaid Expansion As Completion Of The Great Society, Nicole Huberfeld, Jessica L. Roberts

Faculty Scholarship

A state’s decision whether to expand Medicaid has become a highly politicized issue, spawning countless news stories and on-going debate. However, this Essay takes a step back from that highly charged discourse and situates Medicaid expansion in its historical context. We reveal that this latest change universalizes the program, holding the power to finally realize President Johnson’s vision for the Great Society, almost fifty years later. Medicaid can be understood as a universal program for three reasons: (1) the percentage of thepopulation of children, pregnant women, and non-elderly adults it covers; (2) the degree to which Medicaid funds long-term care …

Perceptions Of Efficacy, Morality, And Politics Of Potential Cadaveric Organ-Transplantation Reforms, Christopher Robertson, David V. Yokum, Megan S. Wright

Faculty Scholarship

We sought to explore the political feasibility of potential policy reforms to address the shortage of cadaveric organs for transplantation in America. We recruited 730 human subjects from an online population and assigned them to writing tasks that experimentally manipulated the salience of moral and posthumous risks. Subjects read 95-word descriptions of six proposed policy reforms, rating efficacy, morality, and overall support for each. We created weighted estimates of the overall potential support for each reform (WEOS), correcting for the skew in our study population to very roughly approximate the political affiliations of the American public.

The data suggest that …

Loss Of Chance, Probabilistic Cause, And Damage Calculations: The Error In Matsuyama V. Birnbaum And The Majority Rule Of Damages In Many Jurisdictions More Generally, Robert J. Rhee

Faculty Scholarship

This short commentary corrects an erroneous understanding of probabilistic causation in the loss-of-chance doctrine and the damage calculation method adopted in Matsuyama v. Birnbaum. The Supreme Judicial Court of Massachusetts is not alone. Many other common law courts have made the same error, including Indiana, Nevada, New Mexico, Ohio, and Oklahoma. The consistency in the mistake suggests that the error is the majority rule of damages. I demonstrate here that this majority rule is based on erroneous mathematical reasoning and the fallacy of probabilistic logic.

Dispute Resolution Mechanisms For Intractable Medical Futility Disputes, Thaddeus Mason Pope

Faculty Scholarship

Medical futility disputes occur frequently in healthcare facilities across the United States. In this Article, I provide an overview of dispute resolution mechanisms through which healthcare providers can resolve these disputes. In Section I, identify three distinctive features of medical futility disputes. First, they usually concern life-sustaining medical treatment for patients in a hospital’s intensive care unit. Second, these patients typically lack decision making capacity. So, a surrogate must make treatment decisions on the patient’s behalf. Third, this surrogate and the patient’s physician disagree over the treatment plan. The surrogate wants to continue life-sustaining treatment. But the physician thinks that …

Machine Speech, Tim Wu

Faculty Scholarship

Computers are making an increasing number of important decisions in our lives. They fly airplanes, navigate traffic, and even recommend books. In the process, computers reason through automated algorithms and constantly send and receive information, sometimes in ways that mimic human expression. When can such communications, called here “algorithmic outputs,” claim First Amendment protection?

Constitutional Uncertainty And The Design Of Social Insurance: Reflections On The Aca Case, Michael J. Graetz, Jerry L. Mashaw

Faculty Scholarship

The Health Care Case is best understood as a legal attack on the means but not the goals of the health care legislation. This emphasis on means rather than ends and on state over federal powers potentially poses significant risks for the complex institutional arrangements for social insurance that now exist and may imply harmful constraints on how Congress can restructure these programs to better meet the needs of the American people in the twenty-first-century economy. Not coincidentally, the new constitutional framework announced in the ACA decision favors those who want to dismantle rather than strengthen the nation’s social insurance …

The Missing Due Process Argument, Jamal Greene

Faculty Scholarship

The argument that eventually persuaded five members of the Supreme Court to conclude that the individual mandate exceeded Congress’s power to regulate interstate commerce is one most observers originally considered frivolous. In that respect, it is similar to another potential argument against the mandate — that forcing someone to pay for insurance violates the liberty interests guaranteed by the Constitution’s Due Process Clause. The Commerce Clause argument was the centerpiece of the challenge to the mandate; the due process argument was not meaningfully advanced at all. This chapter suggests reasons why.

Legal, Medical, And Ethical Issues In Minnesota End-Of-Life Care: An Introduction To The Symposium, Thaddeus Mason Pope

Faculty Scholarship

As America grays, and medicine’s ability to treat the sickest of patients expands, the legal, medical, and ethical issues in end-of-life care become more numerous, pressing, and intertwined. Because Minnesota’s citizens, clinicians, and courts are not far from these concerns, the Hamline University Health Law Institute and the Hamline Law Review hosted an interdisciplinary Symposium entitled "Legal, Medical, and Ethical Issues in Minnesota End-of-Life Care."

On November 9, 2012, we welcomed more than 200 participants to the newly opened Carol Young Anderson and Dennis L. Anderson Center on Hamline University’s Saint Paul campus. These participants included: attorneys, physicians, nurses, social …

Clinicians May Not Administer Life-Sustaining Treatment Without Consent: Civil, Criminal, And Disciplinary Sanctions, Thaddeus Mason Pope

Faculty Scholarship

Both medical and legal commentators contend that there is little legal risk for administering life-sustaining treatment without consent. In this Article, I argue that this perception is inaccurate. First, it is based on an outdated data set, primarily damages cases from the 1990s. More recent plaintiffs have been comparatively more successful in establishing civil liability. Second, the published assessments focus on too-limited data set. Even if the reviewed cases were not outdated, a focus limited to civil liability would still be too narrow. Legal sanctions have also included licensure discipline and other administrative sanctions. In short, the legal risks of …

The Split Benefit: The Painless Way To Put Skin Back In The Health Care Game, Christopher Robertson

Faculty Scholarship

This Article proposes a solution to the growth of health care costs, focusing on the sector of expensive, and often unproven, treatments. Political, legal, and market limits prevent insurers or physicians from rationing care or putting downward pressure on prices. Since the insurer bears the cost, the patient is also not sensitive to price, and thus consumes even low-value treatments.

The traditional cost-sharing solution is stymied by the patients’ limited wealth. When treatments can cost $25,000 or more, the median patient cannot be expected to pay a significant portion thereof. Instead, patients often enjoy supplemental insurance or exhaust their cost-sharing …

The Duty To Rescue In Genomic Research, Michael Ulrich

Faculty Scholarship

Applying the duty to rescue to incidental findings in genomic research provides benefits over the ancillary care framework. A rescue model avoids conflating the return of genetic information with providing needed clinical care, it recognizes the ethical duties researchers have toward the research study and offers a mechanism for appropriately balancing these with obligations to individual subjects, and answers definitively that there is no duty to search for incidental findings.

Malpractice Mobs: Medical Dispute Resolution In China, Benjamin L. Liebman

Faculty Scholarship

China has experienced a surge in medical disputes in recent years, on the streets and in the courts. Many disputes result in violence. Quantitative and qualitative empirical evidence of medical malpractice litigation and medical disputes in China reveals a dynamic in which the formal legal system operates in the shadow of protest and violence. The threat of violence leads hospitals to settle claims for more money than would be available in court and also influences how judges handle cases that do wind up in court. The detailed evidence regarding medical disputes presented in this Essay adds depth to existing understanding …

Guidance From Vaccination Jurisprudence, Michael Ulrich

Faculty Scholarship

The lengthy history of case law covering compulsory vaccination policies state consistently that conscientious exemptions and evaluating their validity can be difficult, administratively cumbersome, and potentially unconstitutional.

Toward A Theory Of Medical Malpractice, Alex Stein

Faculty Scholarship

No abstract provided.

Brief Of Professors Of Law As Amici Curiae In Support Of Appellants, Neil Vidmar, David Zevan

Faculty Scholarship

No abstract provided.

Defensive Medicine And Obstetric Practices, Michael D. Frakes

Faculty Scholarship

Using data on physician behavior from the 1979–2005 National Hospital Discharge Surveys (NHDS), I estimate the relationship between malpractice pressure, as identified by the adoption of non-economic damage caps and related tort reforms, and certain decisions faced by obstetricians during the delivery of a child. The NHDS data, supplemented with restricted geographic identifiers, provides inpatient discharge records from a broad enough span of states and covering a long enough period of time to allow for a defensive medicine analysis that draws on an extensive set of variations in relevant tort laws. Contrary to the conventional wisdom, I find no evidence …

Standards For Health Care Decision-Making: Legal And Practical Considerations, A. Kimberley Dayton

Faculty Scholarship

This Article explores the guardian’s role in making, or assisting the ward to make, health care decisions, and provides an overview of existing standards and tools that offer guidance in this area. Part II outlines briefly the legal decisions and statutory developments assuring patient autonomy in medical treatment, and shows how these legal texts apply to and structure the guardian’s role as health care decision-maker. Part III examines the range of legal and practical approaches to such matters as decision-making standards, determining the ward’s likely treatment preferences, and resolving conflicts between guardians and health care agents appointed by the ward. …

Death In Our Life, Joseph Raz

Faculty Scholarship

This is the text of the Annual Lecture of the Society for Applied Philosophy, delivered in Oxford on 22-5-12. I kept the talk style of the paper. It examines a central aspect of the relations between duration and quality of life by considering the moral right to voluntary euthanasia, and some aspects of the moral case for a legal right to euthanasia. Would widespread acceptance of a right to voluntary euthanasia lead to widespread changes in attitude to life and death? Many of its advocates deny that seeing it as a narrow right enabling people to avoid ending their life …

Physicians And Safe Harbor Legal Immunity, Thaddeus Pope

Faculty Scholarship

Professor Sandra Johnson has identified what she calls physician’s “bad law” claims. In some circumstances, physicians perceive that there is significant legal risk in doing what they think is clinically appropriate. In response, physicians sometimes take a medically inappropriate course of action, because it appears safer. For example, physicians might feel intimidated by aggressively enforced drug control laws. In response, they may under-treat patients’ pain to avoid perceived (and real) threats of investigation, discipline, or criminal prosecution. In short, well-meaning laws sometimes have the unintended side-effect of incentivizing physicians to do “bad” things.

Johnson identifies three responses to physicians’ “bad …

Federal/State Tensions In Fulfilling Medicaid’S Purpose, Laura Hermer

Faculty Scholarship

Medicaid has been subject to reconsiderations of the proper role of government in providing for the health and welfare of populations over recent decades. Over the last decade in particular, a number of states have transferred many functions that they once performed to private entities, including, in a number of cases, express policymaking functions. The Patient Protection and Affordable Care Act (ACA) takes some crucial steps towards readjusting the equilibrium of Medicaid. Rather than further prioritizing the market in its reforms, it gives the federal government stronger charge of Medicaid policy, refocusing the program more directly on expanding eligibility and …

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. …

Financial Conflicts Of Interest In Science, Joanna K. Sax

Faculty Scholarship

This article proposes that an analysis of behavior may be utilized to create an effective policy addressing financial conflicts of interest. Importantly, this article focuses on the academics that conduct basic science.

An understanding of the background of the public-private interaction is critical to fully appreciate the rise of the financial conflicts of interest in biomedical science. Part II of this Article describes the rise of financial conflicts of interest and the types of harms that can occur in the absence of effective policy to regulate financial conflicts of interest.

Part III describes the current system addressing conflicts of interest, …

Living Art, Jaime S. King

Faculty Scholarship

No abstract provided.

Resource Restraints: Rethinking Disclosure Of Individual Genomic Findings, Michael Ulrich

Faculty Scholarship

While there has been a seemingly endless debate over whether individual results should be disclosed in genomic research, the role that resources should play in determining a researcher's duty has been left unanswered. This commentary fills this void by fully examining how resource limitations constrain a researcher's duty to disclose. This paper is the first to anchor an obligation in the duty to rescue alone, and as a result, the first to find not only an ethical floor of what must be returned, but also a ceiling of the amount of resources that may be utilized to fulfill this duty. …

Medical Alert: Alarming Challenges Facing Medical Technology Innovation, Lawrence M. Sung

Faculty Scholarship

No abstract provided.