Medical Jurisprudence Commons^™

Medication Abortion And The Mails: The Ghost Of Anthony Comstock Rides Again?, Lars Noah

UF Law Faculty Publications

Mail-order dispensing of the prescription drug mifepristone has become the latest flashpoint in this country’s long-running debate over abortion access. It also has brought back from the dead one of the oldest federal statutes to address that contentious subject. In their fight to limit access to a drug approved by the FDA one quarter of a century ago, abortion opponents have rediscovered the Comstock Act. Although amended on several occasions since 1873, Congress never managed to repeal or clarify its ambiguous language relating to abortion. On its narrowest reading, this provision would have no impact whatsoever on access to mifepristone; …

The Chemical Straightjacket: Institutional Over-Use Of Psychotropic Drugs On Children In Lieu Of Therapeutic Community Mental Health Services, Marisa Leib-Neri

Indiana Journal of Law and Social Equality

This Article argues that the abysmal state of children’s mental health in America is in part due to an overreliance on and over prescription of psychotropic drugs inside psychiatric residential institutions in lieu of community based mental health services. This overreliance on residential institutions and psychotropic drugs has allowed a new form of chemical restraint to flourish—the chemical straitjacket. This Article uses the medication lists of twelve children in seven different North Carolina psychiatric residential treatment facilities to demonstrate how the chemical straitjacket operates: the prescription of drugs not approved for pediatric populations, counter to evidence-based practices for particular diagnoses, …

A Bloody Mess: Why Blood Plasma Donation Centers Are Not Public Accommodations Subject To Title Iii Of The Americans With Disabilities Act, Kevin D. Marshall

Indiana Journal of Law and Social Equality

No abstract provided.

Genetic Property Rhetoric And The Public Domain, David Fagundes

Faculty Articles

Among the many themes that illuminate Jorge Contreras’s The Genome Defense, this Essay focuses on property. It considers the rhetorical role played by property in convincing both courts and the public that patenting genetic data was legally and ethically objectionable. This Essay begins by locating property—and public property—as a major theme in the dialogue surrounding the Myriad litigation. It then situates this rhetorical move in the context of property-talk generally, highlighting the distinctiveness of leveraging public rather than private ownership as a means of accessing moral intuitions. Finally, this Essay reflects on what the use of public property rhetoric …

Customary Corruption, Ani B. Satz, Liza Vertinsky

Faculty Articles

For over a hundred years, it has been well-accepted among tort scholars that physicians—as one of the legally recognized professions— determine their own customary practices. Within tort law, and medical malpractice more specifically, customary practice establishes whether physicians breach or uphold the required standard of care toward their patients. The results of our hand-coded examination of decided cases and statutes show a more complex picture. While some states have endeavored to shift the standard away from professional custom, it continues to play a critical, and in many cases a determinative, role in establishing physician liability in most states.

Using illustrative …

Unvaccinated By Doubt: How Covid-19 Governance Sparked A Measles Revival, Ellen Black

FIU Law Review

A measles outbreak occurred in the United States this year, with measle cases reaching the highest levels in over two decades, even though the disease had been declared eliminated in 2000. In large part, this measles resurgence can be traced to unvaccinated individuals who have chosen to disregard public health officials' vaccination guidance. Clearly, the public has lost trust in their governmental public health officials. As the next disease outbreak looms, the need for restoration of trust becomes imperative.

This article demonstrates how the government's actions during COVID-19 further led to this lack of trust, by providing conflicting guidance as …

A Right To Be Born?: What Dobbs Could Mean For Artificial Reproductive Technologies, Stewart Chang

Scholarly Works

No abstract provided.

Dialing In Or Dialing Out? The Relationships Between State Telemedicine Law And Access To Buprenorphine, Stacey A. Tovino

Faculty Articles

This Article begins by reporting the results of a comprehensive 50-state survey assessing state laws and other state sources governing the telemedicine induction (“tele-induction”) and subsequent telemedicine prescription (“tele-prescription”) of buprenorphine for the treatment of opioid use disorder (“OUD”) following the expiration of the COVID-19 public health emergency (“PHE”). Original, concrete findings include: (1) the glaring patchwork of state law governing the tele-induction and subsequent tele-prescription of buprenorphine for the treatment of OUD in the United States; (2) the variety of primary authorities and secondary sources that house relevant permissions, prohibitions, and affiliated requirements; (3) the number of primary authorities …

Medicare Drug Price Negotiations: A Blueprint For Ethical Pricing Across The Healthcare System, Jacqueline Fox

FIU Law Review

In a healthcare system with scarce resources, profit that exceeds the value of what is being paid for cries out for justifications. The Medicare Drug Price Negotiation Program, created by the Inflation Reduction Act of 2022, is a new program that allows Medicare to begin negotiating with drug companies to determine the maximum fair price for a small set of drugs. This Article argues that the methods for conducting these negotiations represent a significant step forward in a dramatic and important reordering of how we view the healthcare financing system, allowing us to consider rational, coherent concepts of value without …

An In-Depth Review Of Euthanasia-Related Practices, Arguments For/Against Them, And Proposed Solutions For Their Most Glaring Legal/Ethical Problems, Macon Plecha

Williams Honors College, Honors Research Projects

This paper’s goal is to cover the topic of euthanasia-related practices at great length. Terminology, history, and current programs around the world are discussed first, with the last point covering a wide geographical range: Colombia, Japan, Israel, and Africa, to name a few outside of the Western world standard. Arguments for and against euthanasia-related practices are explored. Within these arguments, several pressing legal and ethical issues arise, and the most severe of these are expanded on through the offering of potential solutions: how to handle stand-alone psychiatric cases, how to improve advanced directives and poor reporting rates, and how to …

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 …

Clinicians In The Loop Of Medical Ai, W. Nicholson Price Ii

Articles

As medical AI begins to mature as a health-care tool, the task of governance grows increasingly important. Ensuring that medical AI works, works where it’s used, and works for the patient in the moment is a challenging, multifaceted task. Some of this governance can be centralized—in review by FDA or by national accreditation labs, for instance. Some must be local, performed by the hospital or health system about to use the product in their own, unique environment. But a large amount of governance is left to the individual provider in the room, the human in the loop who presumably knows …

Do Specialized Medical Llms Demand A Radically New Approach Under The Eu's Medical Device Regulation, Hannah Louise Smith, W. Nicholson Price Ii

Articles

We examine the arguments made by Onitiu and colleagues concerning the need to adopt a “backward-walking logic” to manage the risks arising from the use of Large Language Models (LLMs) adapted for a medical purpose. We examine what lessons can be learned from existing multi-use technologies and applied to specialized LLMs, notwithstanding their novelty, and explore the appropriate respective roles of device providers and regulators within the ecosystem of technological oversight.

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 …

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 …

Burns V. Smith: Assessing The Sufficiency Of Affidavits Supporting Prejudgment Attachments In Medical Malpractice Actions, Margaret Christie Kenney

Maine Law Review

The process of attachment allows a plaintiff to request that the court bring a defendant's property into the court's custody for the purpose of satisfying any subsequent judgment that the plaintiff may obtain. In Maine, a plaintiff may proceed either with notice to the defendant or ex parte. In order to proceed ex parte, by which only the plaintiff appears before the court without notice to the defendant, the plaintiff must satisfy the requirements of Rule 4A of the Maine Rules of Civil Procedure. Rule 4A embodies two distinct safeguards for defendants whose property a plaintiff seeks to attach ex …

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 …

Ending The Never-Ending Medical Malpractice Crisis, Allen Redlich

Maine Law Review

Another nationwide outbreak of what is commonly called the medical malpractice "crisis" is spreading. Once again, as during prior episodes, the public hears of dramatic increases in the cost of malpractice insurance, of growing numbers of multimillion dollar awards, and of increases in the number of suits filed. Already several states have passed statutes in attempts to resolve the crisis. This crisis atmosphere resembles the crisis of the mid-seventies when every state enacted so-called "remedial" statutes, which failed to solve the crisis. A physician would define a "crisis" as a turning point in the course of a disease; nonmedical definitions …

In Re Debra B.: The Best Interest Standard In Court-Authorized Sterilization Of The Mentally Retarded, Sheila M. Donahue

Maine Law Review

Pursuant to the Due Process in Sterilization Act of 1982, Maine courts may hear petitions for sterilization of the mentally retarded. In In re Debra B., a mother petitioned to have her mentally retarded daughter sterilized. The Maine Supreme Judicial Court, sitting as the Law Court, vacated the order granting the petition. In a unanimous opinion, the court held that a finding of procreative capability is a sine qua non for determining whether sterilization is in an incompetent person's best interest. Through its holding, the court thereby extended the statute's clear and convincing standard of proof to a factor not …

Maine's Living Will Act And The Termination Of Life-Sustaining Medical Procedures, Eric R. Herlan

Maine Law Review

The Maine Legislature recently enacted a law authorizing the execution and use of living wills. The execution of a living will, essentially a document of "informed consent," allows a person to preserve in a legally recognized form his desire that, once he has been diagnosed to have a terminal medical condition and is no longer competent to make treatment decisions, the doctor should discontinue all life-sustaining procedures. With the passage of this act, Maine has joined thirty-four other states and the District of Columbia in enacting living will provisions. In addition, the National Conference of Commissioners on Uniform State Laws …

Patient-Practitioner Relationship In The Post-Dobbs American Landscape, Lynette B. Martins, Scott J. Schweikart

Pace Law Review

The patient-practitioner relationship is among the most sacred and fundamental in health care, particularly in the realm of reproductive care. Laws regulating what practitioners can and cannot discuss in the exam room with patients have made a resurgence in the post-Dobbs era. In the reproductive care context, these restrictive laws impact patients’ access to critical medical services but also the fundamental underpinnings of the patient-practitioner relationship. In a post-Dobbs era, laws restricting abortion are increasingly dangerous to the health of those seeking these services. With no federal protection for access to abortion services and abortion services hinging on …

We Have Lost Our Minds, Teneille Ruth Brown

Pace Law Review

This Article examines the paradoxical treatment of autonomy in American healthcare law. While autonomy has become the dominant principle in medical ethics and neoliberal market philosophies, pregnant people have been systematically denied this same autonomy through increasingly restrictive abortion statutes. Using the rhetoric of “informed consent,” abortion-restrictive statutes ironically pervert the animating principles behind the doctrine—rendering it almost meaning- less. I argue that this contradiction stems from the dehumanization of pregnant people who seek abortions, particularly through the denial of their capacity to have individual, complex mental states and feelings. Drawing on moral psychology, the Article demonstrates how pregnant people …

Formulating Public Pharma, Shweta Kumar

IPIPC Papers & Reports

In 2022, prices for both brand-name and generic drugs in the U.S. were nearly three times as high as prices in comparably industrialized nations, with the cost of insulin products in particular being nearly ten times as high. As a result, 3 out of 10 American adults cannot afford to take their medication as prescribed. Furthermore, in 2024 the U.S. experienced its worst drug shortage in over a decade, with more than 300 drugs in short supply. Generic drugs are particularly vulnerable to shortage, as manufacturers have poor economic incentives to produce drugs with slim profit margins. While the Biden …

Antiracist Medicine In Colorblind Courts, Govind Persad

Michigan Law Review

This Article considers how health professionals’ efforts to combat racial health inequities interact with legal restrictions constraining their ability to consider race. In light of the Roberts Court’s recent invalidation of two university admissions programs, intensifying a “colorblind” judicial shift, the collision between antiracist medicine and colorblind law is a pressing concern. This Article anticipates the implications of this collision and explores how health professionals and systems can design programs that survive judicial examination.

In Part I, the Article examines the frameworks that will apply if antiracist medicine faces legal challenges. These include the Equal Protection Clause and federal statutes …

Establishing A Perinatal Medical-Legal Partnership To Address The Health-Harming Legal Needs Of Pregnant And Postpartum Birthing People, Loral Patchen, Roxana Richardson, Lisa Kessler, Deborah Perry, Kimberly Martinez, Vicki W. Girard

Georgetown Law Faculty Publications and Other Works

This Report from the Field chronicles the establishment of Georgetown University’s Perinatal Legal Assistance and Wellbeing Project, a medical-legal partnership in Washington, D.C. It describes foundational steps, implementation strategies, and lessons learned, and reflects on impacts of addressing the unmet legal needs of birthing individuals.

Clinical Use Of Placebos: Medicine, Neuroscience, Ethics And The Law, Steven B. Perlmutter

Tennessee Journal of Law and Policy

My patient, a twenty-eight year old woman, presented with a three-week history of constant twitching of her left lower eyelid. She found it distracting and annoying, albeit it did not impair her vision. She had no other ocular symptomatology. Past ocular and medical histories were unremarkable, and she took no medications. She was preoccupied with a toxic divorce, which was traumatizing her eight-year-old son. She noted difficulty falling and staying asleep. Six weeks prior, her internist pronounced her a healthy but stressed woman. My examination revealed left lower orbicularis myokymia, i.e., spontaneous, involuntary twitching of the left lower eyelid. Her …

The Legal Landscape After Roe's Reversal, Rachel Rebouché

University of Cincinnati Law Review

No abstract provided.

Joy V. Eastern Maine Medical Center: Extension Of A Physician's Duty To Third Parties, Timothy H. Norton

Maine Law Review

In Joy v. Eastern Maine Medical Center, the Maine Supreme Judicial Court, sitting as the Law Court, held that a claimant may sue a physician to recover damages for injuries that were caused by a negligently treated patient. The Law Court focused its analysis on the concept of duty and reasoned that a physician's duty to his patient extends to third parties whose injuries are a foreseeable result of negligent treatment. The Joy case sets forth a broad rule that provides a new and untested means of recovery against physicians and hospitals. This Note examines the new rule against the …

Maine Recognizes The Independent Tort Of Negligent Infliction Of Emotional Distress: Gammon V. Osteopathic Hospital, Jaye E. Rooney

Maine Law Review

Gerald Gammon opened his deceased father's hospital bag, expecting to find his personal effects. Instead, he discovered a bloodied leg, severed below the knee and bluish in color. Recoiling in horror, he yelled, "Oh my God, they have taken my father's leg off.” His aunt later recalled at trial that "he was as white as a ghost" and she thought he was going to have a heart attack. Gerald received a call on November 7, 1982, from the Osteopathic Hospital of Maine informing him that his father, Linwood Gammon, had succumbed to cancer that morning. A funeral home employee picked …