Medical Jurisprudence Commons^™

Biopolitics At The Bedside: Proxy Wars And Feeding Tubes, Joshua E. Perry

ExpressO

In the aftermath of Terri Schiavo’s dramatic final weeks of life, George Annas speculated that proponents of “culture of life” politics might “now view [themselves] as strong enough to generate new laws . . . to require that incompetent patients be kept alive with artificially delivered fluids and nutrition.” Indeed, Professor Annas’ prescience has been demonstrated by the post-Schiavo introduction in two dozen state legislatures of over fifty different bills making it more onerous to remove a patient’s artificial nutrition and hydration (ANH). With minor exception, however, most of the proposed legislation has either stalled or been watered down, prompting …

Hedonic Damages, Hedonic Adaptation, And Disability, Samuel R. Bagenstos, Margo Schlanger

ExpressO

This article contributes to the broad debate over “adaptive preferences” in law, economics, and political philosophy by addressing an important ongoing controversy in tort law. Hedonic damages compensate for the lost enjoyment of life that results from a tortious injury. Lawyers seeking hedonic damages in personal injury cases emphasize their clients’ new status as compromised and damaged persons, and courts frequently uphold jury verdicts awarding hedonic damages to individuals who experienced disabling injuries based on a view that disability necessarily limits one’s enjoyment of life. This view is consonant with a general societal understanding of disability as a tragedy and …

The Final Battle For Preemption: The Fda And Prescription Drug Labeling Product Liability Actions, Mary J. Davis

ExpressO

The Food and Drug Administration (FDA) has promulgated a new regulation which revises the format for prescription drug labeling, and, in the process, has taken the position that the regulation displaces, or preempts, state products liability laws that seek to assess liability on the manufacturer for a label’s warning adequacy. In the FDA’s 100 year history, it has not taken the position that federal prescription drug labeling regulations preempt common law tort claims until the last few years, beginning with Motus v. Pfizer in 2002. This position, radical to many and rational to others, places federal preemption of prescription drug …

In Sickness, Health, And Cyberspace: Protecting The Security Of Electronic Private Health Information, Sharona Hoffman, Andy Podgurski

ExpressO

The electronic processing of health information provides considerable benefits to patients and health care providers at the same time that it creates serious risks to the confidentiality, integrity, and availability of the data. The Internet provides a conduit for rapid and uncontrolled dispersion and trafficking of illicitly-obtained private health information, with far-reaching consequences to the unsuspecting victims. In order to address such threats to electronic private health information, the U.S. Department of Health and Human Services enacted the HIPAA Security Rule, which thus far has received little attention in the legal literature. This article presents a critique of the Security …

Why It Is Time To Eliminate Genomic Patents, Together With Natural Extracts Doctrine That Have Supported Such Patents, Allen K. Yu

ExpressO

The constitutional purpose of intellectual property is to “promote the progress of science and useful arts.” Given the utilitarian basis of patents, it is critical that policies and laws must be continually adjusted to reflect the needs of new technologies. When the law tries to shield itself from rather than confront the realities of underlying technologies, patents end up actually subverting rather than promote technological progress. This paper explores why the natural extracts doctrine belongs to the class of doctrines that subvert progress. The doctrine, established over a century ago to enable the patenting of purified compounds for use as …

Drugged, Carl E. Schneider

Articles

The Supreme Court's recent decision in Gonzales v. Oregon, like its decision last year in Gonzales v. Raich (the "medical marijuana" case), again raises questions about the bioethical consequences of the Controlled Substances Act. When, in 1970, Congress passed that act, it placed problematic drugs in one of five "schedules," and it authorized the U.S. attorney general to add or subtract drugs from the schedules. Drugs in schedule II have both a medical use and a high potential for abuse. Doctors may prescribe such drugs if they "obtain from the Attorney General a registration issued in accordance with the …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

Psychiatric Patients' Human Rights: With A Case Study Of Abbasiya Hospital-Cairo, Egypt, Nada Ibrahim Hamdan

Archived Theses and Dissertations

No abstract provided.

Stealing What's Free: Exploring Compensation To Body Parts Sources For Their Contribution To Profitable Biomedical Research, Jo-Anne Yau

ExpressO

It is undisputed in the biotechnology industry that human body parts play a vital role in research. The body parts donors, referred to as "Sources" in this article, are subjected to physical and financial exploitation. Forbidding the explosion of profits from trickling down to the Source presents an irrational inequity. Despite established law, it is evident from case analysis, prevailing social practices, and constitutional interpretation that Source compensation is a plausible solution.

This article proposes a model of compensation for Sources, whereby Sources are compensated based on a proportionate share of the research profits set aside for the Source as …

Finding New Constitutional Rights Through The Supreme Court’S Evolving “Government Purpose” Test Under Minimum Scrutiny, John H. Ryskamp

ExpressO

By now we all are familiar with the litany of cases which refused to find elevated scrutiny for so-called “affirmative” or “social” rights such as education, welfare or housing: Lindsey v. Normet, San Antonio School District v. Rodriguez, Dandridge v. Williams, DeShaney v. Winnebago County. There didn’t seem to be anything in minimum scrutiny which could protect such facts as education or housing, from government action. However, unobtrusively and over the years, the Supreme Court has clarified and articulated one aspect of minimum scrutiny which holds promise for vindicating facts. You will recall that under minimum scrutiny government’s action is …

Putting The Caps On Caps: Reconciling The Goal Of Medical Malpractice Reform With The Twin Objectives Of Tort Law, Kyle Miller

Vanderbilt Law Review

Medical malpractice litigation is not a modern invention. Rather, it has been part of the American legal system since before the Revolution,1 and the most recent medical malpractice insurance crisis is not the first this country has known. However, losses to insurers during the earlier medical malpractice insurance crises pale in comparison to the ailments of this most recent crisis.2 Though this most recent medical malpractice insurance crisis seems to be coming to a close,3 by examining the causes of this crisis and enacting changes at present, this country may be able to avoid future crises. Of course, the first …

Medical Malpractice Standard-Setting: Developing Malpractice "Safe Harbors" As A New Role For Qios?, James F. Blumstein

Vanderbilt Law Review

Concern about medical malpractice issues has reemerged, again stemming from escalating costs in some geographic regions and sectors of medical practice. The Bush Administration has (so far unsuccessfully) supported a cap on noneconomic loss as a strategy for coping with the cost aspects of those medical malpractice concerns, the model being the California approach.

Although the overall initiative for reform has considerable merit, the damage-cap has its opponents and its drawbacks. The damage-cap approach is remedy-centric, focusing on the scope of remedy as a vehicle for containing costs in the area of medical malpractice. By concentrating on remedies, the reform …

Rethinking Peer Review: Detecting And Addressing Medical Malpractice Claims Risk, Ilene N. Moore, James W. Pichert, Gerald B. Hickson, Charles Federspiel, Jennifer U. Blackford

Vanderbilt Law Review

A medical center department chair has just been notified that a physician in his department, "Dr. G," is being sued for the fifth time in seven years. The CEO of co-defendant hospital wants the chair to solve Dr. G's "claims problems." At the chair's request, the hospital peer review committee evaluates Dr. G's malpractice cases. While committee members note some minor concerns in the cases, they conclude that in each circumstance he has met the standard of care. They cannot identify any specific technical or educational need, nor can they supply justification for a disciplinary action. The chair is in …

Dishonest Medical Mistakes, Maxwell J. Mehlman

Vanderbilt Law Review

In the medical liability wars, physicians like to think that they are the ones in the trenches. Yet the true soldiers, of course, are the patients. As patients seek to avoid the barrage of malpractice reforms and the spoliation of managed care, one of their key refuges-the fiduciary duty of health care professionals-is being assailed from a number of directions. This Article describes these attacks and suggests how best to thwart them.

Imagine that you are seriously ill and go to a doctor. If you are like most patients these days, you are enrolled in some form of managed care. …

Bridging The Relational-Regulatory Gap: A Pragmatic Information Policy For Patient Safety And Medical Malpractice, William M. Sage, Joshua G. Zivin, Nathaniel B. Chase

Vanderbilt Law Review

The medical malpractice crisis of the last few years has tapped a lot of scholarly energy. Time not spent on original research-adding to the store of knowledge about the medical malpractice system-is often spent communicating with policymakers and the public. These experiences have led us to think a lot about the amount and quality of information circulating within or concerning the medical malpractice system, and about public policy reforms that would improve information flow in the future.

No grand theory has emerged from this meditation. Instead, we have formed definite, though not immutable, opinions about a desirable information policy for …

Million Dollar Medical Malpractice Cases In Florida: Post-Verdict And Pre-Suit Settlements, Neil Vidmar, Kara Mackillop, Paul Lee

Vanderbilt Law Review

Beginning around the year 2000, the cost of medical liability insurance for doctors sharply increased, allegedly doubling in some specialties. As a result, medical malpractice litigation has once again occupied center stage in public debate about tort reform.' Large jury verdicts are cited by insurers, physicians, and defense attorneys as unwarranted and corruptive of the medical system because they set the bargaining rate around which plaintiff and defense lawyers negotiate settlements. One of the most commonly proposed remedies is a cap on the amount that can be awarded for general damages, often called "non-economic damages" or "pain and suffering," following …

"Judicial Hellholes:" Medical Malpractice Claims, Verdicts And The "Doctor Exodus" In Illinois, Neil Vidmar, Russell M. Robinson Ii, Kara Mackillop

Vanderbilt Law Review

Beginning about the year 2000, physicians around the nation experienced an explosive jump in their professional medical liability insurance premiums. The state of Illinois has been identified as one of the "crisis" states by the American Medical Association ("AMA") insofar as cost and availability of liability insurance is concerned. Madison and St. Clair counties, just across the Mississippi River from St. Louis, have garnered particular attention, acquiring the label "judicial hellhole" for medical malpractice claims. The notoriety is so great that President Bush visited Madison County in January 2005 as part of his campaign for a nationwide $250,000 cap on …

Medical Malpractice Litigation And Tort Reform: It's The Incentives, Stupid, David A. Hyman, Charles Silver

Vanderbilt Law Review

Health care providers and tort reformers invariably claim that the medical malpractice litigation system is rife with behaviors that are irrational, unpredictable, and counter-productive. They attack civil juries, asserting that verdicts are skyrocketing without reason, are highly variable, and bear little or no relation to the merits of plaintiffs' claims. They complain about patients, arguing that the few with valid claims sue rarely, while the many who receive non- negligent treatment sue all the time. They attack greedy lawyers, alleging that they rake in obscene profits by routinely filing frivolous complaints. They complain that compensation flows almost randomly, winding up …

Bridging The Relational-Regulatory Gap: A Pragmatic Information Policy For Patient Safety And Medical Malpractice, William M. Sage, Joshua Graff Zivin, Nathaniel B. Chase

Faculty Scholarship

The Article distinguishes and explores three categories of information use: Helping patients understand and participate in their care; Improving patient safety, including analyzing medical errors and identifying unsafe health care providers and practices; and Assessing the performance of the medical liability system in its many dimensions including deterrence, compensation, justice, administrative efficiency, and stability.

For each category, the Article comments on existing laws or programs for information reporting or disclosure, points out major tensions or ambiguities, and suggests pragmatic improvements.

Eyewitness Identification, Democratic Deliberation, And The Politics Of Science, Andrew E. Taslitz

Cardozo Public Law, Policy & Ethics Journal

The article examines the intersection of social science and legal policy in eyewitness identification, focusing on the role of prosecutors and the American Bar Association (ABA) Eyewitness Resolution. It argues that while social science provides critical insights to improve identification accuracy, the translation of these insights into legal policy involves normative judgments that balance competing values, such as protecting the innocent and ensuring public safety. The author critiques the limitations of internal deliberative processes within law enforcement and prosecutorial offices, advocating for more transparent and inclusive deliberative structures to address systemic errors and promote justice.

An Extreme Response Or A Necessary Reform - Revealing How Caps On Noneconomic Damages Actually Affect Medical Malpractice Victims And Malpractice Insurance Rates, Kelly Kotur

West Virginia Law Review

No abstract provided.

Fluconomics--Preserving Our Hospital Infrastructure During And After A Pandemic, Vickie Williams

ExpressO

Influenza pandemics occur regularly. The deadly Spanish flu pandemic of 1918 infected more than 25% of the United States population, and killed 2.5% of those infected. Virtually all experts agree that it is not a question of if another influenza pandemic as deadly as the Spanish flu will occur, but a question of when. The Centers for Disease Control and Prevention estimates that the direct and indirect medical costs in the United States associated with a “medium-level” influenza pandemic would range from $71 billion to $167 billion.

Although public health officials are rapidly implementing pandemic preparedness plans on both the …

Global Pharmaceutical Patent Law In Developing Countries- Amending Trips To Promote Access For All, Angela J. Anderson

ExpressO

This comment will analyze the need to amend and revise the current global pharmaceutical patent system under TRIPS to take into account the needs of developing countries and overall public health. This comment will emphasize that the current international trade rules, which although administered by the WTO, are dictated by developed country governments and powerful pharmaceutical companies, and therefore, without reform will further diminish the access of poor people in developing countries to vital medicines. Part II of this comment will provide a general overview of the international trade law governing patents on pharmaceuticals focusing specifically on the development of …

Essay For The In-Print Symposium On The Myth Of Moral Justice, Stuart A. Scheingold

Cardozo Public Law, Policy & Ethics Journal

Stuart Scheingold responds to Thane Rosenbaum's The Myth of Moral Justice, agreeing with the aspiration to infuse law with moral imagination but critiquing Rosenbaum's oversight of existing moral energy within the legal profession, particularly through cause lawyering. Scheingold argues that Rosenbaum's approach is overly simplistic, failing to account for institutional obstacles and the contested nature of moral discourse, which can lead to conflict rather than harmony. He emphasizes that while moral advocacy, as seen in cause lawyering, can drive positive change, it also faces significant challenges and backlash.

Empire State Injustice: Based Upon A Decade Of New Information, A Preliminary Evaluation Of How New York's Death Penalty System Fails To Meet Standards For Accuracy And Fairness, Sara Darehshori, Jeffrey L. Kirchmeier, Colleen Quinn Brady, Evan Mandery

Cardozo Public Law, Policy & Ethics Journal

The article argues that New York's death penalty system requires significant reforms to address systemic flaws, particularly the risk of wrongful convictions and arbitrary sentencing. It emphasizes the need for the legislature to reexamine and revise the capital punishment framework in light of post-1995 research and recommendations from other states, such as Illinois and Massachusetts. The analysis highlights the importance of narrowing eligibility factors, improving procedural safeguards, and ensuring judicial discretion to prevent unjust outcomes.

Prescription Contraceptives And The Pharmacist's Right To Refuse: Examining The Efficacy Of Conscience Laws, Dennis Rambaud

Cardozo Public Law, Policy & Ethics Journal

The note examines the ethical and legal implications of pharmacists refusing to fill prescriptions for contraceptives based on moral or religious objections. It argues that existing legal protections under Title VII of the Civil Rights Act and professional standards already provide adequate safeguards for pharmacists, rendering additional conscience laws unnecessary. The analysis emphasizes the need to balance pharmacists' rights with patients' access to essential medications, highlighting concerns that conscience laws may hinder patient care without ensuring referrals to alternative providers.

“It’S The [Tort System], Stupid:” Consumer Deductibles; How To More Equitably Distribute The Risks Of Medical Malpractice And Adequately Compensate Victims Without Statutory Damage Caps., Bradford Luke Ledbetter

ExpressO

No abstract provided.

“A Modest Proposal”: Universal Cesarean Section To Reduce Professional Liability Costs, James A. Greenberg, Katherine E. Economy, Andrew W. Beckwith, Jeffrey L. Ecker

ExpressO

ABSTRACT OBJECTIVE: To model the effect of universal cesarean delivery on professional liability costs.

STUDY DESIGN: We examined all obstetric professional liability claims covered by a single insurer between January 1, 1990 and December 31, 2000. We reviewed each case to determine if an alternate route of delivery might reasonably have prevented the lawsuit. Costs were calculated by adding the cost of processing the claim, the legal defense, the settlement payments and/or the actuarially derived adjustments. Using a 20% cesarean rate as our baseline, we modeled the effect on liability costs of cesarean delivery in all patients.

RESULTS: There were …

Physicians As Researchers: Difficulties With The "Similarity Position", David Wasserman, Deborah Hellman, Robert Wachbroit

Faculty Scholarship

No abstract provided.

Health Courts And Malpractice Claims Adjudication Through Medicare: Some Questions, Timothy Stoltzfus Jost

Scholarly Articles

No abstract provided.