Medical Jurisprudence Commons^™

Informed Consent In Maine: Woolley V. Henderson And The Informed Consent Statute, John C. Milazzo

Maine Law Review

In recent years, American courts have used two different standards in informed consent actions to define the scope of a physician's duty to disclose to his patient the risks inherent in a proposed medical procedure—the professional disclosure standard and the material-risk standard. In Woolley v. Henderson, the Maine Law Court expressly adopted the professional disclosure standard. Prior to the Law Court's decision, however, but after the cause of action in Woolley arose, the Maine Legislature enacted the Maine informed consent statute. Justice Glassman's opinion in Woolley expressly declined to construe the statute. The continued relevance of Woolley to similar cases …

Hospital Accountability In Health Care Delivery, C. Elisabeth Belmont

Maine Law Review

In recent years, the role of community hospitals in health care delivery has undergone a dramatic change. Until the latter half of the twentieth century, a hospital was merely a "doctor's workshop," providing physicians with the physical facilities, equipment, and personnel necessary to treat their private patients. Due to progressive medical technology, today's hospital has moved from a passive role in patient care to more active participation in the delivery of total health care. The hospital has become a health care provider in its own right, furnishing a broad range of diagnostic and outpatient services, home care assistance, and specialized …

Antitrust Scrutiny Of The Medical Staff Plan, Cynthia Teresa Churchill

Maine Law Review

Advances in medical technology over the past 50 years have made access to a hospital, its medical staff, and the support facilities and equipment it provides essential for many physicians. Until recently it was not difficult for a qualified physician to obtain staff privileges. In recent years, however, an increasing number of hospital governing boards across the United States have begun to design and implement what are known as "medical staff plans." The often-stated purpose of these plans is to alleviate hospital overcrowding and unstructured staff growth by applying an ordered approach to future medical staff growth, taking into account …

Improved Regulation Of Maine Physicians: One Solution To The Medical Malpractice Crisis, Joanne Buttolph Steneck

Maine Law Review

Maine began regulating allopathic and osteopathic physicians around the turn of the century with the passage of two statutes, in 1895 and 1919, commonly referred to as the Medical Practice Acts. As originally enacted, these statutes provided for the establishment of boards, composed of physicians, and empowered the boards to examine and license all persons seeking to practice as physicians and surgeons within the state. The boards were also responsible for investigating complaints of noncompliance with, or violations of, the Acts' provisions, and for revoking licenses for such violations. The boards were left to undertake these licensing and review functions …

Comment On Chapters 1 And 4: Health Ai, System Performance, And Physicians In The Loop, W. Nicholson Price Ii

Book Chapters

Accounts of artificial intelligence (AI) in medicine must grapple, in one way or another, with the interaction between AI systems and the humans involved in delivering healthcare. Humans are, of course, involved throughout the process of developing , deploying, and evaluating AI systems, but a particular role stands out: the human in the loop of an algorithmic decision. In medicine, when an algorithm is involved in a decision , a typical view of the system envisions a human healthcare professional mediating that algorithm - deciding whether and how to implement or react to any recommendation, prediction, or other algorithmic output. …

Growth Beyond Its Limits - How Much Growth Is Too Much For The Purpose Of The Local Government Antitrust Act Of 1984?, Katherine Stern

Cardozo Law Review

No abstract provided.

Why A New Deal Must Address The Readability Of U.S. Consumer Contracts, Michael L. Rustad

Cardozo Law Review

United States companies are increasingly drafting consumer contracts that are complex and unreadable, thus making it difficult for many Americans to comprehend terms of use that apply to goods and services. Many U.S. companies are creating terms of use that are, in effect, rights-foreclosure schemes. Many consumer agreements cap damages at a nominal amount, disclaim all warranties, limit remedies, and impose mandatory arbitration clauses and class action waivers. U.S. courts enforce these unfair mass-market contracts with few exceptions. My proposal for a New Deal for Consumer Contracts, as described in this Article, would impose a more exacting readability standard, enforcing …

Free Speech & Abortion: The First Amendment Case Against Compelled Motherhood, Raymond Shih Ray Ku

Cardozo Law Review

The most important lessons are taught by example. Children learn the fundamental values that guide them throughout their lives from the examples set by their parents, especially their mothers. Before and after they understand language, they learn by observing and imitating the actions of their parents. For almost fifty years, Roe v. Wade guaranteed pregnant women the freedom to determine whether to carry their pregnancy to term. The right to obtain a safe abortion prior to viability is the most significant and controversial aspect of this freedom. The Supreme Court is now poised to overturn what it previously described as …

Unlimited Medical Liability?, Jessica L. Roberts, Leah R. Fowler, Paul S. Appelbaum

Emory Law Journal Online

No abstract provided.

The Regulation Of Complementary And Alternative Medicine (Cam) In South Carolina, What Is Happening And What Needs To Change, Anna C. Smith

South Carolina Law Review

No abstract provided.

Termination Of Hospital Medical Staff Privileges For Economic Reasons: An Appeal For Consistency, June D. Zellers, Michael R. Poulin

Maine Law Review

The relationship between physicians and hospitals is undergoing significant change. Historically, a physician maintained a private practice in the community and looked to the local hospital for ancillary support when his or her patients were too ill to remain at home. This community-based physician gained access to the hospital by obtaining medical staff privileges. These privileges allowed the physician to admit patients to the hospital, treat patients while they were there, and use the hospital's staff and equipment. The physician generally enjoyed the use of the privileges throughout his or her active career, losing them only if found incompetent. Today, …

Conant V. Walters: A Misapplication Of Free Speech Rights In The Doctor-Patient Relationship, Katharine M. Mccarthy

Maine Law Review

In Conant v. Walters, the United States Court of Appeals for the Ninth Circuit addressed the application of the First Amendment's right of free speech to a federal policy that prohibited the recommendation of medical marijuana by physicians. This class action suit, brought by physicians and severely ill patients, successfully enjoined the federal government from enforcing its policy revoking the federal prescriptive licenses of physicians who recommend or approve of marijuana use by patients suffering from certain severe illnesses. The federal government's policy, issued in 1996 through a statement of Barry McCaffrey, director of the Office of National Drug Control …

The Home-Field Disadvantage: Tort Liability And Immunity For Paid Physicians During Disasters Within The Pacific Northwest Emergency Management Arrangement Member States, Stephen Seely

Seattle University Law Review

This Note identifies how the Pacific Northwest Emergency Management Arrangement member states of Alaska, Idaho, Oregon, and Washington apply tort liability and immunity to medical professionals during times of disaster. This Note also identifies an example statutory scheme that, if enacted, will provide equal protection to all physicians who provide care to disaster victims, regardless of their local or out-of-state status.

Save Thousands Of Lives Every Year: Resuscitate The Peer Review Privilege, Alan G. Williams

Journal of Law and Health

Doctors make mistakes—preventable medical mistakes—that kill or seriously injure patients. The best way to reduce these preventable errors is through a medical peer review process typically referred to as a "morbidity and mortality conference." However, over the past twenty years, federal and state courts, state legislatures, and state voters have effectively gutted the morbidity and mortality conference (M&M) as a remedial and preventative tool, resulting in tens of thousands of unnecessary deaths every year. Doctors need our help restoring the effectiveness of M&Ms. Congress has created the means to do so; now, all the courts need do is use it. …

The Treatment For Malpractice – Physician, Enhance Thyself: The Impact Of Neuroenhancements For Medical Malpractice, Harvey L. Fiser

Pace Law Review

This article will introduce some of the issues and offer some possible guidelines which may eventually guide cases of medical malpractice and medical care in the face of neurointerventions. First, I will briefly address the standard of care in medical malpractice cases in general. Second, I will discuss some of the existing and potential physical and neurological enhancements available for physicians. Finally, I will explore how these neurointerventions could alter the standards for medical malpractice for both the enhanced doctors and the entire medical profession.

A Defense Of Physicians’ Gatekeeping Role: Balancing Patients’ Needs With Society’S Interests, Jessica Mantel

Pepperdine Law Review

Although scholars and policymakers increasingly accept the need to ration health care, physicians doing so at the bedside remains controversial. Underling this debate is how to characterize the duty of care physicians owe their individual patients. Ethically, physicians are under strict fiduciary obligations that require them to give primacy to individual patients' best interests. However, new health care delivery models that hold providers financially accountable for health care costs assign to physicians a gatekeeping role, with physicians obliged to balance individual patients' needs with the competing societal goal of controlling costs. This Article explains that the choice between the traditional …

Note: Calvin V. Chater: The Right To Subpoena The Physician In Ssa Cases: Conflict In The Circuits Over The Interpretation Of 20 C.F.R. 404.950(D)(1), Elliot B. Oppenheim

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

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.

A Time To Die?: Deciding The Legality Of Physician-Assisted Suicide, Jennifer Cole Popick

Pepperdine Law Review

No abstract provided.

Two Kinds Of Statistics, The Kind You Look Up And The Kind You Make Up: A Critical Analysis Of Comparative Provider Statistics And The Doctrine Of Informed Consent, Jennifer Wolfberg

Pepperdine Law Review

No abstract provided.

Medical Apology Programs & The Unauthorized Practice Of Law, Gabriel H. Teninbaum

Suffolk University Law School Faculty Works

This Essay was created to accompany a presentation at the New England Law Review/American Health Lawyers Association symposium “On the Table: An Examination of Medical Malpractice, Litigation, and Methods of Reform.” In the last decade, many American medical facilities have instituted medical apology programs. These programs call on doctors who have committed an error to meet with their injured patient, explain what happened and, typically, apologize. Some programs have also adopted policies to accompany these communications with offers of compensation. As part of this process, doctors are typically accompanied to meetings by risk managers who represent the interests of the …

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.

Physicians And Safe Harbor Legal Immunity, Thaddeus Pope

Faculty Scholarship

Professor Sandra Johnson has identified what she calls physician’s “bad law” claims. In some circumstances, physicians perceive that there is significant legal risk in doing what they think is clinically appropriate. In response, physicians sometimes take a medically inappropriate course of action, because it appears safer. For example, physicians might feel intimidated by aggressively enforced drug control laws. In response, they may under-treat patients’ pain to avoid perceived (and real) threats of investigation, discipline, or criminal prosecution. In short, well-meaning laws sometimes have the unintended side-effect of incentivizing physicians to do “bad” things.

Johnson identifies three responses to physicians’ “bad …

Insights From A National Conference: "Conflicts Of Interest In The Practice Of Medicine", David Orentlicher

Scholarly Works

No abstract provided.

Physician-Assisted Suicide In Oregon: A Medical Perspective, Herbert Hendin, Kathleen Foley

Michigan Law Review

This Article examines the Oregon Death with Dignity Act from a medical perspective. Drawing on case studies and information provided by doctors, families, and other care givers, it finds that seemingly reasonable safeguards for the care and protection of terminally ill patients written into the Oregon law are being circumvented. The problem lies primarily with the Oregon Public Health Division ("OPHD"), which is charged with monitoring the law. OPHD does not collect the information it would need to effectively monitor the law and in its actions and publications acts as the defender of the law rather than as the protector …

Doctors & Juries, Philip G. Peters Jr.

Faculty Publications

Legislation is pending in both houses of Congress to transfer medical malpractice cases from civil juries to administrative health courts. The Institute of Medicine also wants to take malpractice cases away from juries through a system of binding early settlement offers. Each of these proposals is premised on the assumption that juries lack the capacity to resolve medical malpractice disputes fairly. This article evaluates that premise. It collects and synthesizes three decades of empirical research on jury decision-making, updating the seminal review done by Neil Vidmar over a decade ago.Four important findings emerge from the data. First, negligence matters. Plaintiffs …

Evidence-Based Medicine In The Law Beyond Clinical Practice Guidelines: What Effect Will Ebm Have On The Standard Of Care?, Carter L. Williams

Washington and Lee Law Review

No abstract provided.

In Defense Of The Professional Standard Of Care: A Response To Carter Williams On "Evidence-Based Medicine", Ann Maclean Massie

Washington and Lee Law Review

No abstract provided.

You Get What You Pay For: Result-Based Compensation For Health Care, David A. Hyman, Charles Silver

Washington and Lee Law Review

No abstract provided.

Exploitation Of The Elite: A Case For Physician Unionization, Dionne L. Koller

All Faculty Scholarship

Our intuition tells us that physicians are elites, and therefore they cannot be exploited. Relying on this intuition, we adopt policies which attempt to provide a health care system that gives first-quality care, at the lowest prices, delivered through a “free-market” system. As the key gatekeepers to health care, physicians are thus caught in the middle. Top-notch American health care costs money and for-profit MCOs must watch their bottom line. Rationing, therefore, is key. The issue is, assuming we have decided that free-market health care is the solution, how much should physicians have to sacrifice in the name of the …