Medical Jurisprudence Commons^™

Conflicts Credentialing: Hospitals And The Use Of Financial Considerations To Make Medical Staffing Decisions, James W. Marks, Jayme R. Matchinski

William Mitchell Law Review

The emerging practice of conflicts credentialing represents a significant change in the economic and professional interests of physicians and in the relationship between medical staffs and hospitals. In this article, the authors explain the interrelationship between the authority of hospitals and medical staffs to manage their respective affairs and the legal developments that have led toward conflicts credentialing. The authors next discuss the medical community’s reaction to conflicts credentialing and the legal challenges facing the use of economic factors in physician credentialing.

Note: Capping Noneconomic Damages In Medical Malpractice Suits Is Not The Panacea Of The “Medical Liability Crisis”, Melissa C. Gregory

William Mitchell Law Review

This note explores the history behind the rising costs of medical malpractice insurance rates and the responsive state legislative proposals to limit noneconomic damages. The current state of health care liability and the recent federal proposals that include caps on noneconomic damages are then discussed. This note analyzes the reasons why the federal government should not cap noneconomic damages, primarily because: (1) states are better able to regulate health care, (2) noneconomic damages are not the determinate cause of rising medical malpractice insurance rates, and (3) caps infringe on equal protection guarantees by limiting compensation of medical malpractice victims. This …

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

Scholarly Works

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

Scholarly Works

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

Scholarly Works

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

Scholarly Works

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

Scholarly Works

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.

The Epa's Hpv Challenge Program: A Tort Liability Trap?

Washington and Lee Law Review

No abstract provided.

Health Courts: Panacea Or Palliative?, Carl W. Tobias

Law Faculty Publications

Professor Tobias weighs the pros and cons of legislation proposed in several states that would create "health courts" for the handling of medical malpractice cases.

Preface, Betsy Driver

Cardozo Journal of Equal Rights & Social Justice

The preface highlights the growing recognition of intersex legal issues, emphasizing the shift from medical protocols focused on concealment to more patient-centered approaches. It underscores the significance of the 2005 symposium at Cardozo School of Law, which brought together scholars and activists to address intersex rights, medical practices, and legal frameworks. The publication resulting from the symposium provides a comprehensive resource on intersex advocacy, critiques existing medical and legal practices, and explores future directions for the intersex movement.

David Reimer's Legacy: Limiting Parental Discretion, Hazel Glenn Beh, Milton Diamond

Cardozo Journal of Equal Rights & Social Justice

The article argues that parents should not have unilateral authority to consent to surgeries aimed at normalizing intersex children's genitalia. It emphasizes that such decisions should be deferred until the child can make informed choices, highlighting the long-term psychological and physical risks associated with early surgeries.

Hacking The Gender Binary Myth: Recognizing Fundamental Rights For The Intersexed, Sara R. Benson

Cardozo Journal of Equal Rights & Social Justice

The article argues that current medical practices allowing parents and doctors to assign a physical sex to intersex children through surgery violate the child's fundamental rights to bodily integrity, personality, gender identity, and sexuality. These rights, while not yet fully defined in jurisprudence, provide a framework for protecting individuals from unwarranted governmental and medical intrusion. The article advocates for delaying such decisions until the child can consent, drawing on the Colombian Constitutional Court's recognition of a child's right to develop their gender identity. It also highlights the broader implications for transgender rights and challenges societal gender binaries.

Cutting It: Surgical Interventions And The Sexing Of Children, Marie Fox, Michael Thomson

Cardozo Journal of Equal Rights & Social Justice

The article critiques the normalization of non-consensual surgical interventions on children, particularly focusing on male circumcision and intersex surgeries, arguing that these practices are rooted in cultural and gender norms rather than medical necessity. It challenges the legal and ethical frameworks that allow such surgeries, emphasizing the need for informed consent and stricter regulations.

Intersex And Intrasex Debates: Building Alliances To Challenge Sex Discrimination, Julie A. Greenberg

Cardozo Journal of Equal Rights & Social Justice

The article discusses the challenges faced by the intersex movement in challenging medical protocols for intersex infants and the debates within the movement regarding treatment approaches. It highlights the importance of forming alliances with other social justice movements, such as feminists and LGBT organizations, to effectively combat sex discrimination. The article proposes using a gender nonconformity theory, as recognized in legal cases like Price Waterhouse v. Hopkins, to unify these groups in their fight against discrimination.

Distracted Attentions: Intersexuality And Human Rights Protections, Morgan Holmes

Cardozo Journal of Equal Rights & Social Justice

The article argues that the medicalization of intersex conditions, often justified under an "emergency" rationale, undermines the autonomy and human rights of intersex individuals, particularly children. It critiques the framing of intersex as a medical emergency, which allows clinicians to bypass informed consent and prioritize the interests of families and medical professionals over those of the intersex individual. The article advocates for a shift in approach, emphasizing human rights protections and the need to respect the autonomy of intersex persons.

From The Hospital To The Courtroom: A Statutory Proposal For Recognizing And Protecting The Legal Rights Of Intersex Children, Erin Lloyd

Cardozo Journal of Equal Rights & Social Justice

The article advocates for stronger legal protections for intersex children against unnecessary and harmful medical interventions, emphasizing the need for informed consent and judicial oversight to safeguard their rights and well-being.

Out Of The O.R. And Into The Streets: Exploring The Impact Of Intersex Media Activism, Sharon E. Preves

Cardozo Journal of Equal Rights & Social Justice

Babies are born intersexed, with ambiguous genitalia or other reproductive anatomical features, every day. Physical sexual ambiguity occurs frequently, affecting approximately one in 2000 births. Most infants born intersexed are surgically and hormonally altered to reflect the sexual anatomy associated with "standard" female or male sex assignment. This article explores the mobilization and methods of intersex individuals and their allies to destigmatize intersexuality and to alter the medical treatment they receive. I explore the intersex movement's use of mass media as a strategic activist tool and the implications of this mobilization for cultural and medical reform, arguing that media attention …

Approaching Critical Mass: An Exploration Of The Role Of Intersex Allies In Creating Positive Education, Advocacy And Change, Moonhawk River Stone M.S.

Cardozo Journal of Equal Rights & Social Justice

The purpose of this article is to explore the role of allies working on behalf of intersex people. The article approaches this exploration from various perspectives that have informed the author's ally work with intersex issues for more than ten years. First, the author begins with the personal perspective and the way in which the author became an ally of intersex people. Second, the article discusses the perspective of psychological trauma, the tapestry of which is interwoven through all aspects of intersex history and experience. Third, the author delineates ally attitudes, behaviors, and tasks that are important when one is …

Finders-Keepers: A Bright-Line Rule Awarding Custody To Gestational Mothers In Cases Of Fertility Clinic Error, Josh Deutsch

Cardozo Journal of Equal Rights & Social Justice

The note advocates for the adoption of a "gestational brightline rule" to resolve custody disputes arising from fertility clinic errors, arguing that this approach provides legal clarity, avoids emotional harm, and withstands constitutional scrutiny. It critiques the intent test for its inadequacy in such cases and proposes that the gestational mother should be awarded custody, with exceptions for cases involving felony or substance abuse by the birth mother. The rule is justified by the gestational mother's physiological and emotional connection to the child, as well as the need to prevent legal uncertainty and reduce litigation costs.

Do Prisoners Get A Better Deal? Comparing The Abortion Rights And Access Of Military Women Stationed Abroad To Those Of Women In Prison, Leah Ginsberg

Cardozo Journal of Equal Rights & Social Justice

The note examines the systemic barriers faced by military women and incarcerated individuals in accessing abortion services, despite Supreme Court rulings that establish a woman's right to abortion. It highlights how statutory bans, restrictive policies, and logistical challenges disproportionately affect these groups, arguing that their unique circumstances—such as overseas deployment or incarceration—subject them to additional layers of legal and practical obstacles. The analysis underscores the need for legislative or executive action to address these inequities and ensure constitutional rights are upheld.

Medicare To Provide Preventive Care Services In 2005, Felisha L. Thomas

Public Interest Law Reporter

No abstract provided.

New Law Seeks To Treat The Mentally Ill, Reduce Crime, Suzanne Blaz

Public Interest Law Reporter

No abstract provided.

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

Faculty Articles

No abstract provided.

An Idea Whose Time Should Never Have Come, Roger B. Dworkin

Articles by Maurer Faculty

No abstract provided.

Is It Too Late For Title Vi Enforcement? - Seeking Redemption Of The Unequal United States' Long Term Care System Through International Means, Ruqaiijah A. Yearby

All Faculty Scholarship

Permeating every facet of life including health care, racial segregation has been a part of the history of the United States since its creation. In fact, the history of African-Americans has been one of tragedy, laced with the hope of equality. This tragedy is a result of three hundred years of slavery, one hundred years of the limited freedom of segregation, three years of the promise of equality granted from the civil rights struggle, and thirty-seven years of resegregation through white flight and institutional racism. Hence, African-Americans have been fighting for the right to freedom, equality, and human dignity for …

Rights And The Need For Objective Moral Limits, Charles E. Rice

Journal Articles

In this article, we will examine the natural law conception that rights are rooted in human nature, which nature itself is of divine origin through creation. We will compare this natural law concept to the premises and social consequences of the secular, relativist, and individualist approaches common to the jurisprudence of the Enlightenment. This article will offer the conclusion that only a grounding of right in the nature of persons as immortal beings created by God can offer moral and cultural security against the depersonalization characteristic of regimes premised on a relativist individualism.

Dynamic Complementarity: Terri's Law And Separation Of Powers Principles In The End-Of-Life Context, O. Carter Snead

Journal Articles

The bitter dispute over the proper treatment of Theresa Marie Schiavo - a severely brain-damaged woman, unable to communicate and with no living will or advance directive - has garnered enormous attention in the media, both national and international. What began as a heated disagreement between Ms. Schiavo's husband and parents mushroomed into a massive political conflict involving privacy advocates on one side, and right-to-life and disability activists on the other. The battle raged on the editorial pages of the world's newspapers, in the courts, and ultimately, in the legislative and executive branches of the Florida state government. After nearly …

Sports Medicine Conflicts: Team Physicians Vs. Athlete-Patients, Steve P. Calandrillo

Articles

Team physicians for professional sports franchises face a conflict of interest created by the competing loyalties they owe to the team that employs them and to the athlete-patient they must treat. Marketing agreements under which physicians pay significant sums of money to be designated as the team's "official healthcare provider" exacerbate this conflict. These marketing arrangements call into question the independent judgment of team physicians and cause players to question the quality of care they receive.

This paper explores several solutions to the growing conflicts between athletes and team doctors with the goal of enhancing players' trust in the medical …

A Primer On The Law And Ethics Of Treatment, Research, And Public Policy In The Context Of Severe Traumatic Brain Injury, Stacey A. Tovino

Faculty Articles

No abstract provided.

Turning From Damage Caps To Information Disclosure: An Alternative To Tort Reform, Kathryn Zeiler

Faculty Scholarship

Medical malpractice damage caps are among the most popular instruments of tort reform at the state level. Recently the Bush administration proposed a federal damage cap on non-economic damages to quell the rise of medical malpractice insurance premiums despite the paucity of empirical evidence demonstrating that damage caps actually decrease premiums. This Case Study argues that imposing statutory caps on medical malpractice damages is not an effective method of remedying the medical malpractice insurance crisis: therefore, policymakers should consider alternatives to damage caps. In particular, evidence suggests that implementing mandatory disclosure of the contract terms between managed care organizations and …