Medical Jurisprudence Commons^™

Who Regulates Abortion Now?, Nathan G. Cortez, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

Contrary to both conventional wisdom and recent Supreme Court pronouncements, abortion is not simply a matter of state oversight. For a quarter century now, the federal government has been intimately involved in “regulating” abortion through the U.S. Food and Drug Administration’s approval and continued oversight over mifepristone and other abortion medications. This Article considers the extent to which federal abortion law both coexists and conflicts with state law, as it does with most areas of medicine. We evaluate which body of law is better able at achieving the goals of modern medicine that is evidence-based, ethical, consistent, and individualized.

Brief Videos During Informed Consent May Be Helpful For Participants' Understanding Of Study Information, Abby L. Braitman, Rachel Ayala Guzman, Kristin E. Heron

Psychology Faculty Publications

Although an informed consent process is required for all research, it is not clear how well study participants read informed consent forms and understand their content. A systematic review of medical clinical trials revealed participants had only a 50% rate of understanding for concepts of the consent process, including voluntary participation, blinding, and freedom to withdraw, with lower rates for randomization, risks, and safety issues (Pietrzykowski & Smilowska, 2021). This issue may be more pronounced for online research, with a recent study indicating half of participants report not reading informed consent forms at all (Perrault & Keating, 2017). Although increasing …

Secrets Of The Killing State: The Medical Professional Mandate, Corinna Barrett Lain

Law Faculty Publications

When New Jersey reinstated the death penalty in 1983, the state hadn’t conducted an execution in twenty years, so no one knew how to conduct an execution by lethal injection. Doctors at the state prison refused to participate, citing medical ethics that required them to “support life, not end it,” and that left prison officials thinking that they might have to conduct the executions themselves. “That is not an easy task for an amateur,” a reporter covering the quandary wrote. Unsure of what else do to, officials called upon Fred Leuchter, an engineer who had worked with a number of …

Caught In The Middle: Providing Obstetric Care When Pregnant Women Have Complications, Ellen Clayton, Luke Gatta

Utah Law Review

Physicians in abortion-restrictive states who care for pregnant women who become ill are facing new challenges as they try to meet their patients’ needs while avoiding criminal prosecution on the one hand or civil litigation if there is a bad outcome, especially when care is affected by the threat of vague statutes, on the other. All these legal actions will occur in the public eye. Unfortunately, the proposed changes to HIPAA do not protect against criminal prosecution when the medical exception for the woman’s health is at issue.

Two changes are needed. The first is amending the state statutes to …

Navigating The Conundrum Of Mandatory Reporting Under The Pocso Act: Implications For Medical Professionals, Nanditta Batra

Articles

To address the under reporting of sexual offences against children, the Protection of Children from Sexual Offences (POCSO) Act, 2012, makes reporting of such offences mandatory. The duty to report such offences has been extended to healthcare professionals. The inclusion of healthcare professionals within mandatory reporting, however, strikes at the very foundation of the doctor-patient relationship based on trust and confidentiality and conflicts with the patient confidentiality safeguards of the Mental Healthcare Act, 2017. It also has unintended public health consequences, such as denial of medical termination of pregnancy due to fear of prosecution under POCSO. An urgent reassessment of …

Kachasu (Suing As The Administrator Of The Estate Of The Late Paul Kachasu) V Manda (Sued As Administrator Of The Estate Of The Late Dr Francis Manda) And Ors (Appeal No.163 Of 2021) [2023] Zmca 200 (30 August 2023), O'Brien Kaaba, Hope Sthembile Homela

SAIPAR Case Review

The decision by the Court of Appeal is a forward thinking one that deserves acclaim for its empathetic approach towards religious beliefs and and administering treatment in hospitals. This Judgement is significant to the Zambian jurisprudence as it underscores the paramountcy of patient autonomy and informed consent when administering medical treatment by healthcare providers. This judgement serves as a pivotal reference and precedence for the legal and ethical obligations of healthcare providers to respect the wishes and directives of their patients, even when those wishes are deeply rooted in religious beliefs or amounting to a loss of life, a breach …

Dobbsmacked By The Dobbs Decision: The Need For More Privacy Protection For Personal Health Information, Morgan Vanden Heuvel

Mitchell Hamline Law Review

No abstract provided.

Ethical Malpractice, Nadia N. Sawicki

Faculty Publications & Other Works

Traditional claims of medical malpractice arise from deviations from medical standards of care regarding knowledge, professional decision-making, or technical skill. While many standards of ethical behavior are just as firmly rooted in medical custom as these more technical standards, U.S. courts have typically been unwilling to acknowledge ethical violations as compensable breaches of legal duty. This Article poses a question that should be at the forefront of discussions about medical liability in the 21st century – whether malpractice law should evolve to recognize violations of professional ethical norms as a basis for tort liability. In evaluating this question, it draws …

Fertility Care: Essential Or Non-Essential? Lessons From The Covid-19 Pandemic, Rebecca S. Feinberg

Scholarly Works

At the beginning of the COVID-19 pandemic, in an effort to allocate medical resources towards the anticipated influx of patients infected with the novel virus, many non-essential healthcare services were temporarily paused. The American Society of Reproductive Medicine led the move to halt infertility care in all but the most extreme cases. This cessation of infertility care, compounded by the unknown duration of this recommendation, added to the already high level of stress and anxiety that fertility patients experience and in cases of advanced maternal age or diminished ovarian reserve potentially resulted in suboptimal clinical outcomes. There was vocal disagreement …

Adolescent Medical Decisionmaking Rights: Reconciling Medicine And Law, Doriane Lambelet Coleman, Philip M. Rosoff

Faculty Scholarship

Dennis Lindberg came into his aunt’s care when he was in the 4th grade because his parents struggled with drug addiction and could not provide for him. At thirteen, he was baptized in his aunt’s faith as a Jehovah’s Witness. Just days after he turned fourteen, on November 6, he was diagnosed with acute lymphoblastic leukemia.

The prognosis was that Dennis had a 75% chance of cure with standard oncology treatment. Consistent with the requirements of his new faith, however, Dennis told his doctors, “I do not want to be treated if the requirement is that I would have to …

Encomium For Karen Rothenberg, Ellen W. Clayton

Vanderbilt Law School Faculty Publications

Karen is also a zealous advocate in the very best sense of the word. After Struewing's article appeared, she wrote an editorial that appeared in multiple newspapers arguing that women with these variants should not lose their insurance. She became deeply involved in the National Action Plan for Breast Cancer, a powerful grass roots organization. Additionally, she became involved at the National Institutes of Health and addressed, often in leadership roles, such issues to develop strategies to prevent genetic discrimination for individuals with variants that increased the risk of developing cancer, to create tools to obtain meaningful informed consent for …

On Trust, Law, And Expecting The Worst, Elizabeth F. Emens

Faculty Scholarship

This Review has three parts. Part I aims to convey something of the breadth and interest of Hasday’s fascinating new book, foregrounding the role of gender and beginning to touch the subject of trust. Part II delves briefly but widely into the theme of trust, which pervades the book and invites further examination. Part III presents a framework that combines affective trust and epistemic curiosity and applies this framework to illuminate and sort Hasday’s proposals for reform; to critique a recent, dramatic change in the evidentiary treatment of marital confidences; and to devise a novel approach to prenuptial agreements. Throughout, …

Removing Obstacles To A Peaceful Death, Kathy L. Cerminara, Barbara A. Noah

Faculty Scholarship

We all will die, but the American health care system often impedes a peaceful death. Instead of a quiet death at home surrounded by loved ones, many of us suffer through overutilization of sometimes-toxic therapeutic interventions long past the time when those interventions do more good than harm. This article proposes revisions to health professional training and payment policy to eliminate as much as possible physical and existential suffering while progressing through the terminal phase of illness. The solution lies in seamless progression from treatment with integrated palliative care to hospice before death, but provider attitudes and payor practices must …

Teaching Bioethics: The Role Of Empathy & Humility In The Teaching And Practice Of Law, Barbara A. Noah

Faculty Scholarship

This essay considers the role of empathy and humility in the professional practices of physicians and lawyers and in those who prepare students for these professions. Beginning with an overview of the goals and methods of legal education, it compares similar goals in medical education and the value of practicing law (and medicine) with empathy and humility. The essay then describes exercises used in the law school classroom designed both to teach law students about end-of-life law and also to allow them to practice counseling clients. Through these exercises, law students can experience firsthand the challenges of advising a client …

Healer, Witness, Or Double Agent? Reexamining The Ethics Of Forensic Psychiatry, Matthew U. Scherer

Journal of Law and Health

In recent years, psychiatrists have become ever more prevalent in American courtrooms. Consequently, the issue of when the usual rules of medical ethics should apply to forensic psychiatric encounters has taken on increased importance and is a continuing topic of discussion among both legal and medical scholars. A number of approaches to the problem of forensic psychiatric ethics have been proposed, but none adequately addresses the issues that arise when a forensic encounter develops therapeutic characteristics. This article looks to the rules governing the lawyer-client relationship as a model for a new approach to forensic psychiatric ethics. This new model …

Ethical Implications Of Posthumous Reproduction, Valarie K. Blake, Hannah L. Kushnick

Book Chapters

No abstract provided.

Giving Thanks: The Ethics Of Grateful Patient Fundraising, Stacey A. Tovino

Faculty Articles

Grateful patient fundraising, defined as the solicitation of philanthropic donations by health care providers from current and former patients, raises a number of legal and ethical issues. Elsewhere, I detailed the confidentiality issues raised by the use and disclosure of patient identifiable information by hospital development officers, major gifts officers, institutionally-related foundations, and commercial fundraisers, and proposed corrections to federal health information confidentiality regulations to better balance the competing aims of health care philanthropy and health information confidentiality. In this Article, I analyze several outstanding issues raised by physician involvement in grateful patient fundraising. That is, physicians who solicit philanthropic …

Physician Participation In Executions, The Morality Of Capital Punishment, And The Practical Implications Of Their Relationship, Paul J. Litton

Faculty Publications

Evidence that some executed prisoners suffered excruciating pain has reinvigorated the ethical debate about physician participation in lethal injections. In widely publicized litigation, death row inmates argue that the participation of anesthesiologists in their execution is constitutionally required to minimize the risk of unnecessary suffering. For many years, commentators supported the ethical ban on physician participation reflected in codes of professional medical organizations. However, a recent wave of scholarship concurs with inmate advocates, urging the law to require or at least permit physician participation.

Irreconcilable Differences: Why The Doctor-Patient Relationship Is Disintegrating At The Hands Of Health Maintenance Organizations And Wall Street, Mark O. Hiepler, Brian C. Dunn

Pepperdine Law Review

No abstract provided.

The Right To Die: Definitional Inquiry And The Search For Truth, Bryan A. Kelley

Pepperdine Dispute Resolution Law Journal

This article explores the significant advantages of ADR techniques when dealing with elusive definitions in medical ethics. Part I briefly explores the meaning of definitional inquiry and justifies its important role in debate and achieving truth. Part II illustrates how confusion associated with certain terms leads to faulty reasoning, even in a recent Supreme Court decision. In Part III, some governmental sources of this confusion are revealed. Part IV illustrates the common use of rhetoric in the right-to-die debate as an appeal to emotion, rather than true meaning. Part V attempts to illustrate why this problem greatly affects the medical …

Going After The 'Hired Guns': Is Improper Expert Witness Testimony Unprofessional Conduct Or The Negligent Practice Of Medicine?, Jennifer A. Turner

Pepperdine Law Review

No abstract provided.

Abortion And Informed Consent: How Biased Counseling Laws Mandate Violations Of Medical Ethics, Ian Vandewalker

Michigan Journal of Gender & Law

If we slightly change the facts of the story about the discouraging doctor, it becomes a story that happens every day. Abortion patients face attempts to discourage them from terminating their pregnancies like those the imaginary doctor used, as well as others-and state laws mandate these attempts. While the law of every state requires health care professionals to secure the informed consent of the patient before any medical intervention, over half of the states place additional requirements on legally effective informed consent for abortion. These laws sometimes include features that have ethical problems, such as giving patients deceptive information. Unique …

Standards For Health Care Decision-Making: Legal And Practical Considerations, A. Kimberley Dayton

Faculty Scholarship

This Article explores the guardian’s role in making, or assisting the ward to make, health care decisions, and provides an overview of existing standards and tools that offer guidance in this area. Part II outlines briefly the legal decisions and statutory developments assuring patient autonomy in medical treatment, and shows how these legal texts apply to and structure the guardian’s role as health care decision-maker. Part III examines the range of legal and practical approaches to such matters as decision-making standards, determining the ward’s likely treatment preferences, and resolving conflicts between guardians and health care agents appointed by the ward. …

A Defense Of Embryonic Stem Cell Research, Gregory Dolin

All Faculty Scholarship

On November 21, 2007, sensational scientific developments were reported by major newspapers, both in the United States and abroad. The media reported a new breakthrough in the area of stem cell research. According to two articles published in Science and Cell (both highly respected scientific journals), two teams of scientists were able to “reprogram” adult stem cells into embryonic stem cells, without actually having to experiment on embryos. The discovery was immediately hailed by the White House and other opponents of embryonic stem cell research. The New York Times gushed that the “stem cell wars” may be at an end. …

Jesting Pilate, Carl E. Schneider

Articles

I have two goals this month. First, to examine a case that's in the news. Second, to counsel skepticism in reading news accounts of cases. Recently, I was talking with an admirable scholar. He said that transplant surgeons sometimes kill potential donors to obtain their organs efficiently. He added, "This isn't just an urban legend - there's a real case in California." A little research turned up California v. Roozrokh. A little Googling found stories from several reputable news sources. Their headlines indeed intimated that a transplant surgeon had tried to kill a patient to get transplantable organs. CNN.com: …

Non-Beneficial Pediatric Research And The Best Interest Standard: A Reconciliation, Paul J. Litton

Faculty Publications

Federal efforts beginning in the 1990's have successfully increased pediatric research to improve medical care for all children. Since 1997, the FDA has requested 800 pediatric studies involving 45,000 children. Much of this research is "non-beneficial"; that is, it exposes pediatric subjects to risk even though these children will not benefit from participating in the research. Non-beneficial pediatric research (NBPR) seems, by definition, contrary to the best interests of pediatric subjects, which is why one state supreme court has essentially prohibited it. It also appears that the only plausible rationale for this research is utilitarian, as it risks some children …

Neuroimaging Research Into Disorders Of Consciousness: Moral Imperative Or Ethical And Legal Failure?, Stacey A. Tovino

Scholarly Works

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 …

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.

Imaging Body Structure And Mapping Brain Function: A Historical Approach, Stacey A. Tovino

Faculty Articles

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 …

Functional Neuroimaging And The Law: Trends And Directions For Future Scholarship, Stacey A. Tovino

Scholarly Works

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.