Medical Jurisprudence Commons^™

The Future Of The Affordable Care Act: Protecting Economic Health More Than Physical Health?, David Orentlicher

Scholarly Works

No abstract provided.

Asbestos Wars: In Three Parts, David Partlett

Washington and Lee Law Review

No abstract provided.

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 …

Liberty And Justice For All? Protecting The Right To Privacy For Incapacitated Individuals: The Need For Comprehensive Sterilization Legislation In All Fifty States, Mindy K. Fersel

Cardozo Journal of Equal Rights & Social Justice

The note examines the intersection of disability rights and reproductive rights, highlighting the legal confusion and human rights violations that arise from the lack of comprehensive federal guidance on the sterilization of individuals with disabilities. While landmark Supreme Court decisions like Griswold v. Connecticut and Roe v. Wade established constitutional protections for reproductive autonomy, the legacy of cases such as Buck v. Bell and inconsistent state statutes continue to undermine the rights of individuals with disabilities. The article argues that the absence of clear legislative frameworks leaves vulnerable populations at risk of exploitation and discrimination, necessitating urgent reform to ensure …

Cook County Jail: A De Facto Hosptial For The Mentally Ill, Melissa Kong

Public Interest Law Reporter

No abstract provided.

No Longer Uninsured: Residents Of Illinois With A Preexisting Condition Of Aids, Hiv, Mental Health, Or Substance Use Are Now Covered Under The Affordable Care Act, Sonia A. Antolec, Alexis D. Figueroa

Public Interest Law Reporter

No abstract provided.

Comment: Knowledge Circles And The Duty Of Care, Jill M. Fraley

Washington and Lee Law Review

No abstract provided.

Patent Eligibility Post-Myriad: Reinvigorated Judicial Wildcard Of Uncertain Effect, Christopher M. Holman

Faculty Works

In the 1970s and early 1980s the US Supreme Court issued several landmark decisions establishing the contours of patent eligibility, a judicially created doctrine that serves as a gatekeeper to prevent the patenting of subject matter deemed so fundamental as to be better left unpatented. Over the course of the next 25 years the Court of Appeals of the Federal Circuit oversaw a progressive expansion in the scope subject matter deemed patent eligible, highlighted by the adoption in the 1990’s of a “useful, concrete and tangible” test for patent eligibility that for all practical purposes seemed to subsume the patent …

Symposium Issue Introduction And Dedication, Shawna Benston

Cardozo Journal of Conflict Resolution

The 2013 Jed D. Melnick Annual Symposium, which took place on November 18th, 2013, was entitled "Bioethics, Healthcare Policy, and Alternative Dispute Resolution in the Age of Obamacare." Scholars and practitioners of bioethics alternative dispute resolution came together to discuss the likely impact of a healthcare overhaul born of an ethical challenge: to achieve the greatest good for the greatest number while continuing to honor the value of the individual. Collectively, the Symposium participants anticipated the particular importance of mediation and bioethical debate within the complex health-delivery system that has been drafted under this biomedical imperative.

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

Cardozo Journal of Conflict Resolution

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.

Bioethics Mediation & The End Of Clinical Ethics As We Know It, Autumn Fiester

Cardozo Journal of Conflict Resolution

In this Article, I will not only argue that bioethics mediation is a superior approach for resolving ethics conflicts, but I will also defend the controversial position that it is the only ethically justifiable method for resolving values-based conflicts in a pluralistic society. Although it has so far been relegated to the status of mere handmaiden to conventional consultation, bioethics mediation-as its detractors have surmised-has the potential to end clinical ethics consultation as we know it.

Informed Consent In Mediation: Promoting Pro Se Parties' Informed Settlement Choice While Honoring The Mediator's Ethical Duties, Michael T. Colatrella Jr.

Cardozo Journal of Conflict Resolution

In explaining the proper role of informed consent in mediation, this Article will proceed as follows: Part II will examine mediation's core ethical values of self-determination, impartiality and promoting a quality process. Part III will explore the meaning and origins of the informed consent doctrine; and, in Part IV, analyze the application of informed consent policies and principles to mediation in the light of mediation's core ethical values. Part V will explore ways that mediators can promote informed outcome consent within the existing ethical framework and recommend legislative reform that will help clarify the mediator's proper role of promoting fair …

Accommodation, Establishment, And Freedom Of Religion, Richard W. Garnett

Journal Articles

This short essay engages the argument that it would violate the First Amendment’s Establishment Clause to exempt an ordinary, nonreligious, profit-seeking business – such as Hobby Lobby – from the Affordable Care Act’s contraceptive-coverage rules. In response to this argument, it is emphasized that the First Amendment not only permits but invites generous, religion-specific accommodations and exemptions and that the Court’s Smith decision does not teach otherwise. In addition, this essay proposes that laws and policies that promote and protect religious freedom should be seen as having a “secular purpose” and that because religious freedom, like clean air, is an …

Shopping For Gender: The Unlawfulness Of An Unregulated Market For Prenatal Gender Selection And Selective Gender Abortion, Eujean Park

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Mandatory Ultrasound Statutes And The First Amendment, Shifting The Constitutional Perspective, Cheri D. Smith

Cardozo Journal of Equal Rights & Social Justice

The jurisprudence of abortion law is replete with instances in which the concerns of the woman seeking the procedure have taken a back seat. The newest battleground in abortion regulation involves mandatory ultrasound statutes touted as informed consent regulations. The analysis of courts confronting these statutes has turned on whether the mandatory disclosures violate the physician's First Amendment right to be free from compelled speech. The particular breed of statute at issue in this paper requires a physician not only to perform an ultrasound, but also to make the images visible to the woman, to make audible the heartbeat, and …

In Defence Of Consent And Capacity Boards For End-Of-Life Care, Jocelyn Downie, Michael Hadskis

Articles, Book Chapters, & Popular Press

In Cuthbertson v. Rasouli, the Supreme Court of Canada (SCC) found that, in Ontario, it is the Consent and Capacity Board (CCB) and not the courts per se who will resolve conflicts between substitute decision-makers (SDMs) and health practitioners regarding the withdrawal of lifesustaining treatment from incapable patients. This finding was based on the SCC’s interpretation of the Ontario Health Care Consent Act (HCCA). Hawryluck et al. express concern about the SCC’s determination that the CCB is charged with resolving such conflicts since, in their view, this body is ill-equipped to fulfill this role. Instead, they take the position that …

Toward A Jurisprudence Of Drug Regulation, Matthew Herder

Articles, Book Chapters, & Popular Press

Efforts to foster transparency in biopharmaceutical regulation are well underway: drug manufacturers are, for example, legally required to register clinical trials and share research results in the United States and Europe. Recently, the policy conversation has shifted toward the disclosure of clinical trial data, not just trial designs and basic results. Here, I argue that clinical trial registration and disclosure of clinical trial data are necessary but insufficient. There is also a need to ensure that regulatory decisions that flow from clinical trials — whether positive (i.e. product approvals) or negative (i.e. abandoned products, product refusals, and withdrawals) — are …

Can I Be Sued For That? Liability Risk And The Disclosure Of Clinically Significant Genetic Research Findings, Ellen Wright Clayton, Amy L. Mcguire, Et Al.

Vanderbilt Law School Faculty Publications

Genomic researchers increasingly are faced with difficult decisions about whether, under what circumstances, and how to return research results and significant incidental findings to study participants. Many have argued that there is an ethical—maybe even a legal—obligation to disclose significant findings under some circumstances. At the international level, over the last decade there has begun to emerge a clear legal obligation to return significant findings discovered during the course of research. However, there is no explicit legal duty to disclose in the United States. This creates legal uncertainty that may lead to unmanaged variation in practice and poor quality care. …

Redressing The Patent Imbalance In Genetic Testing, Cheng Lim Saw

Research Collection Yong Pung How School Of Law

In one of the most highly anticipated decisions emanating from the apex Court in the US in recent times, the US Supreme Court in Association for Molecular Pathology v Myriad Genetics Inc was asked to consider, in the main, the patentability of a naturally occurring gene sequence which had been specifically isolated from the human genome. Although the patent was eventually denied, this seminal case will certainly not be the last word on what is clearly a very controversial subject, at least outside of the US.

Report As To Proposed Pilot Project On The Electronic Monitoring Of Forensic Mental Health Patients, Elaine Gibson, Leah Hutt, Sheila Wildeman, Constance Macintosh

Reports & Public Policy Documents

This report was undertaken in response to a request from the Nova Scotia government for assistance in identifying and analyzing legal issues related to the potential establishment of a pilot project. The project would involve the use of electronic monitoring (EM) of forensic mental health patients (patients) detained at the East Coast Forensic Hospital (ECFH) who are exercising indirectly supervised and unescorted community access (community access). The purpose of our analysis is not to determine if an EM policy or its application violates any laws. Rather, the purpose is to consider whether there are factors that may support legal challenges …

Harm And The Fluid Nature Of Identity In Wrongful Life Cases Involving Preimplantation Genetic Diagnosis, Matthew Reisman

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Preemption Without Borders: The Modern Conflation Of Tort And Contract Liabilities, Max N. Helveston

Georgia Law Review

Medical device jurisprudence has taken a turn for the worse recently, turning a deaf ear to patients who have been injured or killed by devices and covertly expanding the boundaries of federal preemption in ways that threaten fundamental contractual principles. Ever since the Court's holding in Riegel v. Medtronic, district and appellate courts have effectively immunized the manufacturers of certain devices from contract, as well as tort, liabilities. The lower courts' rulings are not only

problematic as a matter of law, but raise novel concerns about federal regulatory preemption undermining individuals' contract rights. A comprehensive analysis of the Court's medical …

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 …