Medical Jurisprudence Commons^™

Who Says You're Disabled? The Role Of Medical Evidence In The Ada Definition Of Disability, Deirdre M. Smith

Faculty Publications

The Americans with Disabilities Act (ADA), enacted by Congress seventeen years ago, offered disabled people a hope of equality and access that has not been fulfilled. ¹ Court decisions halt an overwhelming majority of claims, particularly in the employment context, at the summary judgment stage. ² A key mechanism for fencing out disabled people's claims is the pernicious requirement, based upon the very construction of disability that the ADA's proponents aimed to dispel, that medical evidence is required as a threshold matter to demonstrate that the plaintiff is entitled to seek protection under the statute. ³ The medical evidence requirement …

Health Care Law, Sean P. Byrne, Paul Walkinshaw

University of Richmond Law Review

Arguably, no other field of law in Virginia matches the complexity, magnitude, and universality of health care. It therefore comes as little surprise that Virginia's legislative and judicial branches of government devoted substantial attention to health care law issues in 2006 and 2007. Between April 2006 and April 2007 the time period covered by this article the Supreme Court of Virginia decided a large number of cases directly affecting health care law in the Commonwealth. The 2007 legislative session also addressed a host of health care issues and those with the most impact are summarized herein. These judicial and legislative …

Disparities Between Asbestosis And Silicosis Claims Generated By Litigation Screenings And Clinical Studies, Lester Brickman

Cardozo Law Review

No abstract provided.

A Final Plea For "Death With Dignity": A Proposal For The Modification And Approval Of The Assisted Dying For The Terminally Ill Bill In The United Kingdom, Lindsay Pfeffer

Cardozo Journal of International and Comparative Law

Increasing respect for personal autonomy in health-related decision-making, major alterations in the assisted suicide laws of other European countries (especially Switzerland and the Netherlands), and the rising popularity of Swiss suicide clinics have introduced the need for the British legislature to reevaluate the United Kingdom's stance on assisted suicide and to adjust medical practices to contemporary social needs. The introduction and obstruction of a bill in the House of Lords for the legalization of physician-assisted suicide for terminally ill individuals has provoked opposition from the British medical community and serious concern on behalf of members of the government regarding the …

Human Genetics Studies: The Case For Group Rights, Laura S. Underkuffler

Cornell Law Faculty Publications

No abstract provided.

Medical Product Information Incentives And The Transparency Paradox, Daniel R. Cahoy

Indiana Law Journal

Recent allegations that essential safety and efficacy information is often suppressed by medical product manufacturers or poorly evaluated by regulators have led to calls for greater information transparency. The public is justifiably concerned that its ability to conduct an informed risk-benefit assessment of drugs and medical devices is compromised. Several changes have already been made to federal regulatory law and medical research policy to mandate greater disclosure and more changes are being considered. However, it is possible that these measures may backfire by enhancing significant tort-based economic disincentives for generating new information.I n other words, greater disclosure requirements could, paradoxically, …

Challenging The Constitutionality Of Montana's Statute Limiting Medical Malpractice Non-Economic Damages, Alexander Blewett Iv

Montana Law Review

Challenging Montana's Limits

The Applicability Of The Consumer Protection Law In Medical Malpractice Disputes In Taiwan, Ya-Ling Wu

Washington International Law Journal

The issue of whether or not no-fault liability under the Consumer Protection Law (“CPL”) applies in medical malpractice disputes has been a contentious battle in Taiwan. In Bo-Li Li v. Mackay Memorial Hospital, the Taipei District Court interpreted medical care as “services” under Article 7 of the CPL. Under this interpretation, patient services must meet “reasonably expected safety standards,” while health care providers are subject to no-fault liability. This interpretation was strenuously opposed by the medical profession and invoked much debate over its validity in the legal field. After the Bo-Li case, the lower courts expressed different views on …

An Empirical Assessment Of Early Offer Reform For Medical Malpractice, W. Kip Viscusi, Jeffrey O`Connell, Joni Hersch

Vanderbilt Law School Faculty Publications

The early offer reform proposal for medical malpractice provides an option for claimants to receive prompt payment of all their net economic losses and reasonable attorney fees. Using a large sample of closed individual medical malpractice claims from Texas supplemented by data from Florida, this article provides an empirical assessment of the consequences of the early offer reform. Noneconomic damages make up about two-thirds of paid claim amounts. The minimum payment amount for serious injuries will affect the magnitude of insurer savings and claimant compensation. Payments to claimants will be expedited by 2 years by the early offer reform, and …

An Empirical Assessment Of Early Offer Reform For Medical Malpractice, Joni Hersch, W. Kip Viscusi, Jeffrey O'Connell

Vanderbilt Law School Faculty Publications

The early offer reform proposal for medical malpractice provides an option for claimants to receive prompt payment of all their net economic losses and reasonable attorney fees. Using a large sample of closed individual medical malpractice claims from Texas supplemented by data from Florida, this article provides an empirical assessment of the consequences of the early offer reform. Noneconomic damages make up about two-thirds of paid claim amounts. The minimum payment amount for serious injuries will affect the magnitude of insurer savings and claimant compensation. Payments to claimants will be expedited by 2 years by the early offer reform, and …

Integrating The Complexity Of Mental Disability Into The Criminal Law Course, Linda C. Fentiman

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Recognizing The Larger Sacrifice: Easing The Burdens Borne By Living Organ Donors Through Federal Tax Deductions, M. Lane Molen

Brigham Young University Journal of Public Law

No abstract provided.

Straddling The Line Of Medical Malpractice: Why There Should Be A Private Cause Of Action Against Physicians Via Emtala, Lawrence Bluestone

Cardozo Law Review

No abstract provided.

Pangloss, Patrick O. Gudridge

University of Miami Law Review

No abstract provided.

Ethics Schmethics: The Schiavo Case And The Culture Wars, Kenneth Goodman

University of Miami Law Review

No abstract provided.

Wanted! Dead And/Or Alive: Choosing Among The Not-So-Uniform Statutory Definitions Of Death, Jason L. Goldsmith

University of Miami Law Review

No abstract provided.

Assault On The Judiciary: Judicial Response To Cirticism Post-Schiavo, Meghan K. Jacobson

University of Miami Law Review

No abstract provided.

Schiavo: The Road Not Taken, Mary I. Coombs

University of Miami Law Review

No abstract provided.

A Legal Autopsy Of The Lawyering In Schiavo: A Therapeutic Jurisprudence/Preventive Law Rewind Exercise, Bruce J. Winick

University of Miami Law Review

No abstract provided.

Schiavo And Contemporary Myths About Dying, Rebecca Dresser

University of Miami Law Review

No abstract provided.

Fear Of Prescribing: How The Dea Is Infringing On Patients' Right To Palliative Care, Ashley Bruce Trehan

University of Miami Law Review

No abstract provided.

Suppose The Schindlers Had Won The Schiavo Case, Alan Meisel

University of Miami Law Review

No abstract provided.

A New Model For Media Criticism: Lessons From The Schiavo Coverage, Lili Levi

University of Miami Law Review

No abstract provided.

(Mis)Framing Schiavo As Discrimination Against Persons With Disabilities, Leslie Pickering Francis, Anita Silvers

University of Miami Law Review

No abstract provided.

The Bioethics Of Prospective Parenthood: In Pursuit Of The Proper Standard For Gatekeeping In Infertility Clinics, Richard F. Storrow

Cardozo Law Review

No abstract provided.

Keeping The Government Away From Medicaid Recipients' Pocketbook: Protecting Medicaid Recipients' Rights To Proceeds Of Third-Party Settlements In Arkansas Department Of Health & Human Services V. Ahlborn, Sean Sandison

Mercer Law Review

In Arkansas Department of Health & Human Services v. Ahlborn, the United States Supreme Court approached the contentious issue of whether Medicaid and state Medicaid agencies can recover expenses incurred on behalf of a Medicaid recipient from the entirety of the recipient's third-party settlement. Over the past decade, several states and the United States Department of Health and Human Services have reached opposite results on this question. In its unanimous opinion, the Court quelled the debate by limiting Medicaid and the corresponding state programs' recoveries from third-party settlements to the proceeds representing repayment of medical expenses, a move likely …

Do Defendants Pay What Juries Award? Post-Verdict Haircuts In Texas Medical Malpractice Cases, 1988–2003, David A. Hyman, Bernard Black, Kathryn Zeiler, Charles Silver, William M. Sage

Faculty Scholarship

Legal scholars, legislators, policy advocates, and the news media frequently use jury verdicts to draw conclusions about the performance of the tort system. However, actual payouts can differ greatly from verdicts. We report evidence on post-verdict payouts from the most comprehensive longitudinal study of matched jury verdicts and payouts. Using data on all insured medical malpractice claims in Texas from 1988–2003 in which the plaintiff received at least $25,000 (in 1988 dollars) following a jury trial, we find that most jury awards received “haircuts.” Seventy-five percent of plaintiffs received a payout less than the adjusted verdict (jury verdict plus prejudgment …

Do Defendants Pay What Juries Award - Post-Verdict Haircuts In Texas Medical Malpractice Cases, 1988-2003, David A. Hyman, Bernard S. Black, Kathryn Zeiler, Charles Silver, William M. Sage

Faculty Scholarship

Legal scholars, legislators, policy advocates, and the news media frequently use jury verdicts to draw conclusions about the performance of the tort system. However actual payouts can differ greatly from verdicts. We report evidence on post-verdict payouts from the most comprehensive longitudinal study of matched jury verdicts and payouts. Using data on all insured medical malpractice claims in Texas from 1988-2003 in which the plaintiff received at least $25,000 (in 1988 dollars) following a jury trial, we find that most jury awards received "haircuts." Seventy-five percent of plaintiffs received a payout less than the adjusted verdict (jury verdict plus pre-judgment …

Accessing Reproductive Technologies: Invisible Barriers, Indelible Harms, Judith F. Daar

ExpressO

The use and success of assisted reproductive technologies (ART) over the past decade has contributed perceptibly to family formation nationwide. Today, 3 of every 100 children born owe their existence to some form of assisted conception. Despite, or perhaps because of, its technical successes, a growing body of evidence suggests that barriers to ART are being constructed to prevent procreation among select populations. The article’s theme is one of harm, specifically the harm that befalls patients, physicians, offspring and society when fertility treatments are denied on the basis of personal characteristics, including race, marital status and sexual orientation. While ART …

Doomsday: A Look At The Ethical Issues Behind The Government's Coercive Powers In Response To A Public Health Nightmare., Jacob M. Chapman

ExpressO

This article posits a hypothetical scenario in which a deadly pandemic is unleashed upon the United States and the several individuals whom appear to have a natural immunity refuse to participate in necessary research. The article then examines the possible legal and ethical approaches available for reacting to the pandemic.

The hypothetical scenario addressed in this article highlights a gap in current public health law. While various states have laws and procedures relating to quarantine and forced inoculation, these laws and procedures do not suggest whether the state may or may not coerce non-threatening individuals into participating in potentially dangerous …