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Full-Text Articles in Medical Jurisprudence

State Medical Reimbursement Lawsuits After Tobacco: Is The Domino Effect For Lead Paint Manufacturers And Others Fair Game? , Richard L. Cupp Jr. Oct 2012

State Medical Reimbursement Lawsuits After Tobacco: Is The Domino Effect For Lead Paint Manufacturers And Others Fair Game? , Richard L. Cupp Jr.

Pepperdine Law Review

In 1998 the tobacco industry reached a settlement with the government for $246 billion. The massive size and scope of the states' tobacco settlement will inevitably exert a powerful influence on tort litigation for decades. The proliferation of copycat lawsuits, such as lead paint claims, seeking to emulate the spectacular success of the tobacco lawsuits will be one of the first aftershocks. The appropriate legislative response to this copycat litigation is to enact legislation limiting mass tort claims by states and other government entities. Because politics and economics may be influencing the filing of these lawsuits, rather than a purer …

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Ringing The Bell On Concussions: The Rise Of Head Injuries And Cognitive Decline In Football Players, And The Nfl's Obligation To Improve Safety Measures, Jarryd Werts Oct 2012

Ringing The Bell On Concussions: The Rise Of Head Injuries And Cognitive Decline In Football Players, And The Nfl's Obligation To Improve Safety Measures, Jarryd Werts

Cardozo Public Law, Policy & Ethics Journal

The NFL faces significant legal and ethical challenges in addressing the long-term health consequences of concussions among its players. While the league has implemented various safety measures and policies, such as rule changes and educational initiatives, these efforts may be insufficient to fully protect players from the risks associated with repeated head trauma. The NFL must continue to improve its safety protocols not only to safeguard its current and future players but also to set a precedent for other contact sports leagues. The legal battles over negligence and fraud highlight the need for a more robust approach to player health …

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The Past And Future Of Deinstitutionalization Litigation, Samuel R. Bagenstos Oct 2012

The Past And Future Of Deinstitutionalization Litigation, Samuel R. Bagenstos

Cardozo Law Review

Two conflicting stories have consumed the academic debate regarding the impact of deinstitutionalization litigation. The first, which has risen almost to the level of conventional wisdom, is that deinstitutionalization was a disaster. The second story challenges the suggestion that deinstitutionalization has uniformly been unsuccessful, as well as the causal link critics seek to draw with the growth of the homeless population. This Article, which embraces the second story, assesses the current wave of deinstitutionalization litigation. It contends that things will be different this time. The particular outcomes of the first wave of deinstitutionalization litigation, this Article contends, resulted from the …

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Scholastic Steroids: Is Generation Rx Cognitively Cheating? , Kelline R. Linton Sep 2012

Scholastic Steroids: Is Generation Rx Cognitively Cheating? , Kelline R. Linton

Pepperdine Law Review

No abstract provided.

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A Secure Medical Communication System For Android Smartphones, Ben Andow Sep 2012

A Secure Medical Communication System For Android Smartphones, Ben Andow

Undergraduate Research Posters 2012

The use of smartphones within the medical field can be beneficial in numerous ways. Communication protocols and access controls ensure that the application prototype is compliant with HIPPA regulations.

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Defensive Medicine And Obstetric Practices, Michael Frakes Sep 2012

Defensive Medicine And Obstetric Practices, Michael Frakes

Cornell Law Faculty Publications

Using data on physician behavior from the 1979–2005 National Hospital Discharge Surveys (NHDS), I estimate the relationship between malpractice pressure, as identified by the adoption of noneconomic damage caps and related tort reforms, and certain decisions faced by obstetricians during the delivery of a child. The NHDS data, supplemented with restricted geographic identifiers, provides inpatient discharge records from a broad enough span of states and covering a long enough period of time to allow for a defensive medicine analysis that draws on an extensive set of variations in relevant tort laws. Contrary to the conventional wisdom, I find no evidence …

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Science On Law's Terms: Implications Of Procedural Legitimacy On Scientific Evidence, Nayha Acharya Aug 2012

Science On Law's Terms: Implications Of Procedural Legitimacy On Scientific Evidence, Nayha Acharya

LLM Theses

Scientific evidence is relied on more and more in litigation. Discussions and debates aimed at enabling courts to make the best use scientific evidence are increasingly critical. This thesis adds the perspective of procedural legitimacy to the science and law discussion. Procedural Legitimacy is the concept that consistent adherence to legal procedure maintains the overall legitimacy of the legal system, and the validity of its outcomes. I argue that the integrity of legal procedures must be maintained where scientific evidence is presented, so that judicial decisions that rely on scientific evidence are legitimate.

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The Disappearing Provision: Medical Liability Reform Vanishes From The Patient Protection And Affordable Care Act Despite State Court Split, Rafael Andre Roberti Aug 2012

The Disappearing Provision: Medical Liability Reform Vanishes From The Patient Protection And Affordable Care Act Despite State Court Split, Rafael Andre Roberti

Legislation and Policy Brief

The legal and medical communities have debated the impact and necessity of medical liability reform for over twenty years. At the heart of the debate is the question of how to strike a balance between compensating patients and their families for the thousands of deaths and injuries resulting from medical errors that occur annually, and encouraging physicians to continue to care for patients across America. While several states have passed medical liability reform laws previously, on March 23, 2010, President Obama signed the Patient Protection and Affordable Care Act (ACA)—colloquially known as the “health care bill”—that contains provisions on medical …

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Pliva Shields Big Pharma From Billions, Cuts Consumers' Rights, Dana Taschner Aug 2012

Pliva Shields Big Pharma From Billions, Cuts Consumers' Rights, Dana Taschner

San Diego Law Review

This Article explores the emergence of the LRA test, as well as its dangers, and explains how an equivalent norm underlies recent monopolization cases. The Author concludes that the law should not require business practices to maximize social welfare to pass muster under the antitrust laws. As tools of public policy directed at unilateral market behavior, antitrust and regulation have long played distinct, though complementary, roles. Natural-monopoly regulation has as its immodest goal the maximization of consumer welfare by simultaneously imposing universal service obligations and spurring the efficiencies associated with competition through the imposition of various behavioral constraints. That such …

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The Informational And Institutional Theories Of Off-Label Promotion, Miguel A. Lopez Aug 2012

The Informational And Institutional Theories Of Off-Label Promotion, Miguel A. Lopez

San Diego Law Review

This Article contends that there are two distinct theories of the offense of off-label promotion—the informational theory and the institutional theory. One is concerned with controlling the flow of medical knowledge and the other is concerned with protecting regulatory legitimacy. Different kinds of evidence are key under each theory. I argue that although the Federal Food, Drug, and Cosmetic Act (FD&C Act) and its accompanying regulations emphasize the informational theory, federal prosecutors rely more heavily on the legal arguments that underpin the institutional theory of enforcement. A corollary to this contention is that the informational theory of off-label promotion does …

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An Artist's Theory Of Money, Franz Kaltenbeck Aug 2012

An Artist's Theory Of Money, Franz Kaltenbeck

Cardozo Law Review

In the eighties, the German-Swiss artist Dieter Roth (1930-1998) formulated a theory of money which throws a cruel light on one of the most important instruments of social exchange. That money often comes from dirty business is a commonplace even if it cannot be denied as a fact. But the artist went beyond this observation. Far from being a "beautiful soul," Dieter Roth developed the idea that it belongs to the essence of money to have dark and criminal origins which arise from the same sources as our fears. Money, he said, is a kind of sedative, used to "conjure …

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Medicating The Ada - Sutton V. United Airlines, Inc.: Considering Mitigating Measures To Define Disability, Ian D. Thompson Jul 2012

Medicating The Ada - Sutton V. United Airlines, Inc.: Considering Mitigating Measures To Define Disability, Ian D. Thompson

Pepperdine Law Review

No abstract provided.

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The Ftca, Veterans, And Future Medical Expenses, R. J. Pinto Jun 2012

The Ftca, Veterans, And Future Medical Expenses, R. J. Pinto

San Diego Law Review

In this comment the author aims to expose the jurisprudential flaws in a particular area of the law and advocate, as his prescription a refocused jurisprudence. Part II describes how courts have historically come to the conclusion that veterans suing under the FTCA should be awarded future medical expenses despite their entitlement to VA medical care. Part III address a threshold issue: the extent to which courts using this framework have overcompensated veterans. Part IV addresses why overcompensating veterans under the FTCA matters on a policy level. Part V exposes the problems with the court's jurisprudence and provides a solution …

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Reply To Critics Of The Heartbeat Bill, David Forte May 2012

Reply To Critics Of The Heartbeat Bill, David Forte

Law Faculty Articles and Essays

Forte's reply to critics of HB 125 – The Heartbeat Bill (2011-2012) appears on the Catholic Conference of Ohio website.

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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 May 2012

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.

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Protecting Private Intellectual Property From Government Intrusion: Revisiting Smithkline And The Case For Just Compensation, John C. O'Quinn May 2012

Protecting Private Intellectual Property From Government Intrusion: Revisiting Smithkline And The Case For Just Compensation, John C. O'Quinn

Pepperdine Law Review

No abstract provided.

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Toward A Theory Of Medical Malpractice, Alex Stein May 2012

Toward A Theory Of Medical Malpractice, Alex Stein

Faculty Scholarship

No abstract provided.

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Federal Efforts To Achieve Mental Health Parity: A Step In The Right Direction, But Discrimination Remains, Lucas Quass Apr 2012

Federal Efforts To Achieve Mental Health Parity: A Step In The Right Direction, But Discrimination Remains, Lucas Quass

Legislation and Policy Brief

Prior to the 1970s, many healthcare plans in the U.S. offered benefits without discriminating between mental health and general healthcare coverage. In the 1970s and 1980s, the cost of healthcare increased dramatically and employers eliminated or limited mental health benefits in an attempt to reduce insurance costs. To manage insurance costs, employers began using more cost sharing mechanisms and benefit caps on mental health benefits. However, these limitations were not applied equally to mental health and general health benefits and a coverage disparity was created. Today, insurers often do not provide coverage for mental health on the same terms as …

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Mold Is Gold: But, Will It Be The Next Asbestos?, Thelma Jarman-Felstiner Apr 2012

Mold Is Gold: But, Will It Be The Next Asbestos?, Thelma Jarman-Felstiner

Pepperdine Law Review

No abstract provided.

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Fetal Pain Legislation: Is It Viable?, Teresa Stanton Collett Apr 2012

Fetal Pain Legislation: Is It Viable?, Teresa Stanton Collett

Pepperdine Law Review

Whether a human fetus experiences pain during an abortion has been the subject of heated debate within medical, legal, and political circles for over two decades. In the 1980's President Reagan's statement that "when the lives of the unborn are snuffed out [by abortion], they often feel pain, pain that is long and agonizing," and the release of a controversial film entitled "The Silent Scream" were merely two of the events that kept this issue in public view. Federal and state legislative efforts to enact "partial birth abortion bans" have reignited public debate over fetal pain." Three years ago, the …

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Stem Cell Research And Conditional Federal Funding: Do State Laws Allowing More Extensive Research Pose A Problem For Federalism?, Charity Schiller Apr 2012

Stem Cell Research And Conditional Federal Funding: Do State Laws Allowing More Extensive Research Pose A Problem For Federalism?, Charity Schiller

Pepperdine Law Review

No abstract provided.

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On The Theory Class's Theories Of Asbestos Litigation: The Disconnect Between Scholarship And Reality?, Lester Brickman Apr 2012

On The Theory Class's Theories Of Asbestos Litigation: The Disconnect Between Scholarship And Reality?, Lester Brickman

Pepperdine Law Review

More than 100,000 new asbestos claims were filed in 2003, the most ever in one year. Asbestos litigation thus continues to thrive even though 80-90% of claimants have no illness recognized by medical science, let alone suffer any lung impairment. To explain how this disconnect between medical science and tort litigation has come about, I cover the following subjects: 1) medical consequences of exposure to asbestos-containing materials; 2) the phenomenon of the unimpaired claimant; 3) medical evidence with regard to the incidence of asbestosis; 4) the effect on asbestos litigation of the failure of the Manville Trust audit to be …

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Keeping Junk Science Out Of Asbestos Litigation, David E. Bernstein Apr 2012

Keeping Junk Science Out Of Asbestos Litigation, David E. Bernstein

Pepperdine Law Review

No abstract provided.

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Medical Malpractice Arbitration In The New Millennium: Much Ado About Nothing ?, Ann H. Nevers Apr 2012

Medical Malpractice Arbitration In The New Millennium: Much Ado About Nothing ?, Ann H. Nevers

Pepperdine Dispute Resolution Law Journal

This paper reviews the constitutional issues surrounding medical malpractice arbitration clauses and the implementation of arbitration contracts, and the existing medical malpractice process. Federal preemption issues under the Federal Arbitration Act, enterprise liability and ERISA preemption, and cybermalpractice will be discussed. Finally, dispute resolution industry standards implemented by the American Arbitration Association and American Health Lawyers Association will be reviewed as well as current medical malpractice mediation practices in industry. While the past has shown that arbitration has not been used a great deal future trends may increase use. Emerging medical malpractice arbitration issues arising in the new millennium include …

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The Future Of Adr, Edward A. Dauer Apr 2012

The Future Of Adr, Edward A. Dauer

Pepperdine Dispute Resolution Law Journal

This article addresses the use of alternative dispute resolution in health care.The article provides a historical analysis of medical malpractice and traces the development of ADR in healthcare. The article discusses the benefits that ADR can and will bring to health care in the future.

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The Right To Die: Definitional Inquiry And The Search For Truth, Bryan A. Kelley Apr 2012

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 …

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Lebron V. Gottlieb And Noneconomic Damages For Medical Malpractice Liability: Closing The Door On Caps, But Opening It To New Possibilities, Jacquelyn M. Hill Apr 2012

Lebron V. Gottlieb And Noneconomic Damages For Medical Malpractice Liability: Closing The Door On Caps, But Opening It To New Possibilities, Jacquelyn M. Hill

Chicago-Kent Law Review

In Lebron v. Gottlieb, decided in February of 2010, the Illinois Supreme Court struck down Public Act 94-677, finding that its cap on noneconomic damages violated the Illinois Constitution's separation of powers clause. The Court primarily relied upon the remittitur doctrine to come to its conclusion. This case comment addresses the Lebron decision and its rationale, particularly its focus on the remittitur doctrine. Additionally, this comment addresses the following concepts: 1) the background and history of attempts to limit common law liability in tort law in Illinois; 2) other jurisdictions' responses to statutory caps; 3) the Lebron majority's distinctions regarding …

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Adultery By Doctor: Artificial Insemination, 1890–1945, Kara W. Swanson Apr 2012

Adultery By Doctor: Artificial Insemination, 1890–1945, Kara W. Swanson

Chicago-Kent Law Review

In 1945, American judges decided the first court cases involving assisted conception. The challenges posed by assisted reproductive technologies to law and society made national news then, and have continued to do so into the twenty-first century. This article considers the first technique of assisted conception, artificial insemination, from the late nineteenth century to 1945, the period in which doctors and their patients worked to transform it from a curiosity into an accepted medical technique, a transformation that also changed a largely clandestine medical practice into one of the most pressing medicolegal problems of the mid-twentieth century. Doctors and lawyers …

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Medical Apology Programs & The Unauthorized Practice Of Law, Gabriel H. Teninbaum Apr 2012

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 …

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Un-Convicting The Innocent: The Case For Shaken Baby Syndrome Review Panels, Rachel Burg Apr 2012

Un-Convicting The Innocent: The Case For Shaken Baby Syndrome Review Panels, Rachel Burg

University of Michigan Journal of Law Reform

This Note proposes that states should develop error-correction bodies to identify past errors that have resulted in wrongful convictions of people accused of shaking a child. These institutions, which I call SBS Review Panels, would be similar to the error-correction bodies and commissions that have recently been established throughout the world to deal with various sorts of wrongful convictions. An SBS-specific commission should be developed because of the high level of scientific expertise that is required to fully understand this diagnosis and the problems associated with using the triad of medical findings as evidence of the defendant's conduct. Part I …

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