Medical Jurisprudence Commons^™

Medical Malpractice Law, Sean P. Byrne, Lauran G. Stimac

University of Richmond Law Review

Health care reform took center stage on a national level overthe past year. Despite suggestions that medical liability reform might be incorporated into the federal legislation, in the end, it was not. Similarly, this year saw few legislative developments at the state level in medical malpractice law, as the Virginia General Assembly focused its energy primarily on the budget shortfall and other issues. There were, however, several health care legislative and case developments of note which will impact the medical liability landscape in the coming years. Board of Medicine activity and medical malpractice trial results of interest are also highlighted …

Stateless Crimes, Legitimacy, And International Criminal Law: The Case Of Organ Trafficking, Leslie Francis, John Francis

Utah Law Faculty Scholarship

Organ trafficking—coercion for the purpose of removal of organs (United Nations 2000; GTZ 2004)—is recognized as a significant international problem. Yet unlike sex trafficking or trafficking in children, it is largely left out of international criminal law regimes and to some extent of domestic criminal law regimes as well. It does not come within the jurisdiction of the ICC, except in very special cases such as when it is conducted in a manner that conforms to the definitions of genocide or crimes against humanity. Although the United States Code characterizes trafficking as “a transnational crime with national implications,” (22 U.S.C. …

"What Do I Do About This Word, 'Unavoidable'?": Resolving Textual Ambiguity In The National Childhood Vaccine Injury Act, Jason Lafond

Michigan Law Review First Impressions

The quote in the title of this Essay comes from Justice Breyer, expressing his frustration with the language of section 22(b)(1) of the National Childhood Vaccine Injury Act. Justice Breyer made this comment during the October 12, 2010, oral argument in Bruesewitz v. Wyeth, Inc., a case about the availability of state tort claims based on vaccine design defects. The question before the Court was whether that section expressly preempts such claims against vaccine manufacturers "if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions …

The Affects Of Apprendi V. New Jersey On The Use Of Dna Evidence At Sentencing—Can Dna Alone Convict Of Unadjudicated Prior Acts?, Katharine C. Lester

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Shaping Parental Authority Over Children's Bodies, Alicia Ouellette

Indiana Law Journal

In the health-care setting, parental decisions to size, shape, sculpt, and mine children's bodies through the use of nontherapeutic medical and surgical interventions are a matter of parental choice except in extraordinary cases involving grievous harm. This Article questions the assumption of parental rights that frames the current paradigm for medical decision making for children. Focusing on cases involving eye surgery, human growth hormone, liposuction, and growth stunting, I argue that by allowing parents to subordinate their children's interests to their own, the current paradigm distorts the parent-child relationship and objectifies children in violation of the moral principle, deeply embedded …

Recent Developments In Stem Cell Research: Social, Ethical, And Legal Issues For The Future (George P. Smith Ii Lecture), Loane Skene

Indiana Journal of Global Legal Studies

On February 12, 2009, Professor Skene delivered the George P. Smith II Lecture at the Indiana University Maurer School of Law.

Ensuring Government Accountability During Public Health Emergencies, Fazal Khan

Scholarly Works

The main argument of this Article is that the gravest threat to civil liberties during a public health emergency (PHE) stems from federal powers premised on post-9/11 national security justifications, not putative state powers under the Model State Emergency Health Powers Act (MSEHPA). While I concur with earlier assessments that the MSEHPA is seriously flawed and that PHEs should be construed as primarily federal issues, going forward, more critical attention needs to be focused on the federal role during PHEs as the initially alarming MSEHPA appears to be more of a paper tiger. First, as the responses to Hurricane Katrina …

Professional And Conviction Integrity Programs: Why We Need Them, Why They Will Work, And Models For Creating Them, Barry Scheck

Cardozo Law Review

The best way to effectively prevent Brady violations and other forms of prosecutorial misconduct that cause wrongful convictions is internal regulation of the District Attorney's office. Civil liability, state or bar disciplinary action, the stigma of appellate reversal, and the threat of criminal prosecution have failed to provide effective deterrence against Brady violations as well as other forms of misconduct. However, the lack of alternatives is not the reason why internal regulation is the most promising way to prevent Brady violations, but rather because prosecutors themselves are in the best position to implement procedures that achieve this goal.

Prosecutorial offices, …

Boehner’S Big Gift To The Drug Industry, Joanne Doroshow

Other Publications

No abstract provided.

The "Bad Samaritan" Paradigm, Anthony D'Amato

Faculty Working Papers

This essay will attempt to show that the disparity between the rule of law and the dictates of morality is itself a product of the paradigmatic way in which the "Bad Samaritan" cases are analyzed. If we examine the cases in an entirely different way, many of the standard problems will dissolve and new alternatives will become apparent. The essay will also show that the "Bad Samaritan" paradigm is part of a larger paradigm linking the law of torts with the criminal law, which also needs to be reexamined. Finally a recommendation for dealing with the "Bad Samaritan" problem legislatively …

Aligning Ethics With Medical Decision-Making: The Quest For Informed Patient Choice, Jaime S. King, Benjamin W. Moulton

Faculty Scholarship

No abstract provided.

Are You Covered? The Need For Improvement In Insurance Coverage For Autism Spectrum Disorder, 44 J. Marshall L. Rev. 291 (2010), Marissa Mazza

UIC Law Review

No abstract provided.

The Illinois Mental Health And Developmental Disabilities Confidentiality Act: Lest We Forget The Search For The Truth, Elinor Lynn Hart

Loyola University Chicago Law Journal

No abstract provided.

Some Lessons Learned From The Aids Pandemic, 19 Annals Health L. 63 (2010), Mark E. Wojcik

UIC Law Open Access Faculty Scholarship

No abstract provided.

How Much Anguish Is Enough - Baby Switching And Negligent Infliction Of Emotional Distress, 13 Depaul J. Health Care L. 255 (2010), Marc Ginsberg

UIC Law Open Access Faculty Scholarship

No abstract provided.

Informed Consent: No Longer Just What The Doctor Ordered - The Contributions Of Medical Associations And Courts To A More Patient Friendly Doctrine, 15 Mich. St. U. J. Med. & L. 17 (2010), Marc Ginsberg

UIC Law Open Access Faculty Scholarship

No abstract provided.

Recalibrating The Legal Risks Of Cross-Border Health Care, Nathan Cortez

Faculty Journal Articles and Book Chapters

The nascent scholarship surrounding "medical tourism" assumes, without much scrutiny, that foreign jurisdictions provide few legal remedies to patients, instead focusing on whether U.S. patients can sue in U.S. courts. This article tests that assumption by examining whether patients might recover adequate compensation not only in the United States, but in four common destinations: India, Thailand, Singapore, and Mexico. I analyze how each jurisdiction handles medical malpractice complaints and discuss the unique obstacles patients might face when navigating each of these systems. I conclude that U.S. patients will struggle to recover remotely adequate compensation in each of these jurisdictions. This …

Scientific Understandings Of Postpartum Illness: Improving Health Law And Policy?, Stacey A. Tovino

Faculty Articles

In its broadest sense, this Article examines the relationship between science and the law in the context of postpartum illness. From classical antiquity to the present day, physicians and scientists have investigated the causes, correlates, and consequences of the depressions and psychoses that develop in some women following their transition to motherhood. The scientific investigation of postpartum illness has been characterized by an open-ended search for knowledge with the recognition that scientific findings published one day are subject to revision the next. Legislators and judges also have sought to understand postpartum illness as necessary to make laws that affect and …

State Of Emergency: Why Georgia's Standard Of Care In Emergency Rooms Is Harmful To Your Health, Jason R. Graves

Georgia Law Review

Patients injured by medical negligence have historically
been able to recover for the injuries they sustained. In
2005, however, the Georgia General Assembly passed
Georgia Senate Bill 3, which gave virtual immunity to
emergency room doctors and those practicing in obstetrics
wards. The Bill requires a showing of gross negligence by
clear and convincing evidence to prevail on a medical
malpractice claim against those protected by the statute.
The law prevents injured patients who cannot meet this
standard from recovering any damages, even
compensation for medical bills arising from the negligent
act. The legislature enacted the Bill in an effort …

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. …

Surrogate Selection: An Increasingly Viable, But Limited, Solution To Intractable Futility Disputes, Thaddeus Mason Pope

Faculty Scholarship

This article reviews the strengths and weaknesses of “surrogate selection” as a solution to intractable medical futility disputes. It concludes that while surrogate selection is an increasingly viable solution, it remains only a partial solution because it is often difficult or impossible to demonstrate that a surrogate demanding non-recommended end-of-life medical treatment is acting outside the scope of her authority.

Over the past twelve years, many states have been developing new legislative solutions to intractable medical futility disputes. The most widely-discussed solution empowers healthcare providers to unilaterally refuse patient- or surrogate-requested treatment that the provider deems inappropriate. In Texas, for …

Discrimination Out Of Dismissiveness: The Example Of Infertility, David Orentlicher

Indiana Law Journal

In recent years, antidiscrimination theory and doctrine have rested heavily on the "anticaste" principle first invoked in Strauder v. West Virginia According to this principle, equal protection law and antidiscrimination statutes should eradicate public-and private-policies that subject some persons to ongoing stigma and subordination and therefore to second-class status in society. This Article argues that while a focus on stigma and subordination is important, it misses a key source of discrimination-the discriminationt hat arises from dismissiveness. Antidiscrimination law has recognized the need to overcome the discrimination that results from invidious bias, unfair stereotyping, irrational fear accumulated myths, or simple neglect.A …

Long Road To Justice: The Illinois Supreme Court, The Illinois Attorney General, And The Parental Notice Of Abortion Act Of 1995, Paul Benjamin Linton

Loyola University Chicago Law Journal

No abstract provided.

Contraception, Abortion, And Health Care Reform: Finding Appropriate Moral Ground, Dena S. Davis

Law Faculty Articles and Essays

In this essay, I make the argument that abortion and contraception are fundamentally different actions that occupy fundamentally different moral space, and that justify fundamentally different political action. I conclude that, while it is morally licit, even morally obligatory, for people who believe that embryos are people like us, to attempt to impede access to abortion, it is morally illicit to attempt to block access to contraception (including sterilization).

African Americans Can't Win, Break Even, Or Get Out Of The System: The Persistence Of “Unequal Treatment ” In Nursing Home Care, Ruqaiijah A. Yearby

All Faculty Scholarship

Empirical data show that racial disparities in the quality of care provided by nursing homes are a common occurrence, not isolated to Illinois. Nine years after the publication of the groundbreaking Institute of Medicine Study (“IOM study”) Unequal Treatment: Confronting Racial and Ethnic Disparities in Healthcare, which acknowledged continued racial disparities in health care and provided suggestions for the elimination of these disparities, racial disparities still remain. One chief example of the continuation of racial disparities in health care is in the provision of nursing home care.

Decades of empirical research studies have shown that racial disparities in accessing quality …

Does Twenty-Five Years Make A Difference In “Unequal Treatment”?: The Persistence Of Racial Disparities In Health Care Then And Now, Ruqaiijah A. Yearby

All Faculty Scholarship

In 1985, the Secretary of the U.S. Department of Health and Services (HHS) issued a landmark report that exposed the persistence of racial disparities in the U.S. healthcare system. Unfortunately, twenty-five years later, racial disparities in healthcare continue to persist. For example, since 1985, more African-Americans have died from coronary disease, breast cancer, and diabetes than Caucasians, even though more Caucasians suffer from these diseases than African-Americans. Notwithstanding their increased mortality rates, African Americans “have a statistically significantly lower mean number of annual ambulatory [walk-in] visits and are less likely to have seen a physician in [any given] year.” Studies …

Litigation, Integration, And Transformation: Using Medcaid To Address Racial Inequities In Health Care, Ruqaiijah A. Yearby

All Faculty Scholarship

Instances of racial discrimination in health care continue despite the enactment of civil rights laws, such as Title VI of the Civil Rights Act of 1964 *329 (Title VI). Title VI prohibited racial discrimination by health care entities receiving government funding such as Medicaid payments. The federal government focused its initial efforts on hospitals. Because hospitals relied on federal funding, the federal government was able to force hospitals to integrate without much resistance from the hospital industry. However, since this accomplishment the government has relied too heavily on assurances of compliance from other health care entities, such as nursing homes, …

What Parents Don't Know: Informed Consent, Marriage, And Genital-Normalizing Surgery On Intersex Children, Samantha S. Uslan

Indiana Law Journal

No abstract provided.

Character, Competence, And The Principles Of Medical Discipline, Nadia N. Sawicki

Faculty Publications & Other Works

This Article presents a first-of-its-kind analysis of the disciplinary functions of state medical licensing boards-the frequently overlooked administrative agencies designed to serve as the "gatekeepers" of the medical profession. It concludes that medical boards may have lost sight of their primary goal of patient protection and suggests that a renewed focus on professional licensing boards may go a long way towards addressing some of the quality of care problems plaguing the American medical system.

This Article identifies three fundamental legal principles underlying medical boards' authority to discipline physicians: the goal of public protection, substantive due process limitations based on fitness …

Lines Of Communication: Advances In Stem Cell Policy, Dena Davis, Debra Grega

Journal of Law and Health

This is a transcription of the Journal of Law and Health's Speaker Series event held on November 17, 2009 at the Joseph W. Bartunek III Moot Court Room, Cleveland-Marshall College of Law. The speakers discussed stem cell policy, ethics, oversight, funding restrictions and research restrictions.