Medical Jurisprudence Commons^™

Paging King Solomon: Towards Allowing Parents To Donate Organs Of Anencephalic Infants, Fazal Khan, Brian Lea

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In October of 1987, Canadian doctors artificially sustained the life of an anencephalic infant so that her organs could be transplanted into another child, touching off a fiery debate. At the request of her parents, doctors connected Baby Gabrielle, who was born missing most of her brain, to a respirator before flying her to Loma Linda, California, where her heart was transplanted into the world's youngest recipient of a heart transplant. While Baby Gabrielle's parents insisted that their daughter's organs be used in this manner and were presumably happy with the resulting transplant, one of Baby Gabrielle's doctors expressed qualms …

Amicus Brief, Lebron V. Gottlieb Memorial Hospital, Neil Vidmar, Tom Baker, Ralph L. Brill, Martha Chamallas, Stephen Daniels, Thomas A. Eaton, Theodore Eisenberg, Neal R. Feigenson, Lucinda M. Finley, Marc Galanter, Valerie P. Hans, Michael Heise, Edward J. Kionka, Thomas H. Koenig, Herbert M. Kritzer, David I. Levine, Nancy S. Marder, Joanne Martin, Frank M. Mcclellan, Deborah Jones Merritt, Philip G. Peters, Jr., James T. Richardson, Charles Silver, Richard W. Wright

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Illinois Public Act 82-280, § 2-1706.5, as amended by P.A. 94-677, § 330 (eff. Aug. 25, 2005), and as codified as 735 ILCS 5/2-1706.5(a), imposes a $500,000 “cap” on the noneconomic damages that may be awarded in a medical malpractice suit against a physician or other health care professional, and a $1 million “cap” on the noneconomic damages that may be awarded against a hospital, its affiliates, or their employees.

This brief will address two of the questions presented for review by the parties:

1. Does the cap violate the Illinois Constitution’s prohibition on “special legislation,” Art. IV, § 3, …

The Human Factor: Globalizing Ethical Standards In Drug Trials Through Market Exclusion, Fazal Khan

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Given the tremendous financial reward that a blockbuster therapy might generate, there are strong incentives to move drug research and development to developing countries, which have minimal ethical guidelines and little transparency. The danger in this race for the prize--or for the bottom--is the exploitation of subaltern populations that have little legal recourse to hold drug companies accountable for the harm that those populations suffer as a result of unethical clinical trials. In other words, the drug industry is acutely aware that there is a minimal threat of costly civil suits and criminal sanctions for their ethical violations in impoverished …

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.

"It's Not About The Money!": A Theory On Misconceptions Of Plaintiffs' Litigation Aims, Tamara Relis

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This Article examines from a new angle a long-standing debate on a central question of the legal system: why plaintiffs sue and what they seek from litigation. Legal research has documented various extra-legal aims or non-economic agendas of plaintiffs who commence legal proceedings for various case-types. However, current debates have failed to address this issue in depth from the perspectives of plaintiffs themselves, subsequent to lawyers conditioning them on legal system realities and translating their disputes into legally cognizable compartments. Nor have understandings of plaintiffs' aims been examined from the perspectives of defense lawyers. These are significant gaps in the …

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 …

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 …

Georgia's Professional Malpractice Affidavit Requirement, Robert D. Brussack

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Section 9-11-9.1 of the Georgia Code might be the state's most notorious procedural statute. Enacted in 1987 to protect professionals against the harm done by groundless malpractice litigation, the statute provides that a professional malpractice claim ordinarily must be accompanied by an affidavit executed by an expert. In the affidavit, the expert must substantiate the claim by attesting that some act or omission alleged in the claim was a negligent act or omission--a departure from a professional standard of conduct. During the past decade, Georgia's appellate courts have returned again and again to the problem of what section 9-11-9.1 means, …

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.

Implementation And Impact Of The Patient Self-Determination Act, Denise C. Park, Thomas A. Eaton, Edward J. Larson, Helen T. Palmer

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The Patient Self-Determination Act became effective in December 1991 and mandates that patients be given information about legal rights regarding living wills and durable powers of attorney for health care. We investigated the impact this law has had on hospitals, medical personnel, and patients. We conducted a survey of all hospitals in the state of Georgia, collecting data regarding implementation and knowledge of the law, as well as effects of the law and beliefs about it. The data indicated that hospitals relied primarily on the Georgia Hospital Association for implementation policy, that "minimalist" implementation of the law occurs in most …

One Hundred Years Of Harmful Error: The Historical Jurisprudence Of Medical Malpractice, Theodore Silver

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In this Article, Professor Silver examines the origins of present-day malpractice law. He begins by noting that negligence and medical malpractice as the common law now knows them made their debut in the nineteenth century although their roots lie deep in the turf of trespass and assumpsit. He argues, however, that toward the turn of the century several episodes of linguistic laziness purported to produce a separation between negligence and medical malpractice so that the two fields are conventionally thought to rest on separate doctrinal foundations. According to Professor Silver, historically based scrutiny of medical malpractice and its ties to …