Medical Jurisprudence Commons^™

Hippocrates To Hipaa: A Foundation For A Federal Physician-Patient Privilege, 77 Temp. L. Rev. 505 (2004), Ralph Ruebner, Leslie Ann Reis

UIC Law Open Access Faculty Scholarship

No abstract provided.

Maternity Leave Under The Fmla: An Analysis Of The Litigation Experience , Rafael Gely, Timothy D. Chandler

Faculty Publications

We begin with a brief description of trends in female labor force participation and the presence of dual-earner households in the U.S. labor market, conditions which likely led to the need for family and medical leave legislation. We then review various practices that business and government organizations have implemented to balance work and family conflicts, as well as related features of the FMLA, particularly those pertaining to childbirth and adoption. With this background in place, we introduce a framework for examining FMLA litigation. We then review cases litigated in federal court under the FMLA involving requests for family leave due …

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

Articles

No abstract provided.

Sexually Violent Predator Laws: Psychiatry In Service To A Morally Dubious Enterprise, Eric S. Janus

Faculty Scholarship

This article discusses the role of psychiatrists in determining the treatment of sexually violent predators (SVP). Instead of being released at the end of their prison sentences, sex offenders in the USA who are judged mentally disordered and dangerous are being confined in secure "treatment facilities" for indeterminate terms. This novel and aggressive legislative tactic—embodied in US sexually violent predator laws—commandeers the traditional power of state mental health systems and puts it in service to a core function of the criminal justice system: the control of sexual violence. This transposition of "civil commitment" has forced psychiatry to legitimate and arbitrate …

Good Enough To Use For Research, But Not Good Enough To Benefit From The Results Of That Research: Are The Clinical Hiv Vaccine Trials In Africa Unjust?, Ruqaiijah A. Yearby

All Faculty Scholarship

The epidemic of the Human Immunodeficiency Virus (HIV) infection in Sub-Saharan Africa, the region most affected by the HIV pandemic and where HIV is the leading cause of death, is reaching insurmountable proportions. In fact, out of the 36.1 million HIV infections worldwide, 25.3 million, seventy percent, are in Sub-Saharan Africa. Additionally, of the more than 15,000 people who are infected with HIV every day, ninety-five percent of the cases are in populations that live in developing countries such as those located in Sub-Saharan Africa. Due to the significant number of Africans infected with HIV, many researchers and ethicists have …

When Vitalism Is Dead Wrong: The Discrimination Against And Torture Of Incompetent Patients By Compulsory Life- Sustaining Treatment, Alicia R. Ouellette

Indiana Law Journal

No abstract provided.

A Quantitative Methodology For Determining The Need For Exposure-Prompted Medical Monitoring, Christopher P. Guzelian, Bruce E. Hillner, Philip S. Guzelian

Indiana Law Journal

Some toxic exposures to drugs or other environmental chemicals may create an increased risk of future disease for which periodic preventive medical screening might be desirable. However, many of these risks, even if unacceptable as a matter of public health policy, might still not be significant enough for medical monitoring (periodic diagnostic screening for latent illnesses or medical conditions) to be an appropriate medical intervention. This somewhat unintuitive, but statistically certain, conclusion can be demonstrated in relatively simple mathematical terms. Accordingly, we introduce Bayes's Rule and decision analysis, a quantitative methodology commonly employed by medical practitioners. A review of current …

How A Drug Becomes ‘Ethnic’: Law, Commerce, And The Production Of Racial Categories In Medicine, Jonathan Kahn

Faculty Scholarship

A drug called BiDil is poised to become the first drug ever approved by the Food and Drug Administration (FDA) to treat heart failure in African Americans - and only African Americans. This article explores the story of BiDil and considers some of its broader implications for the use of racial categories in law, medicine, and science. It argues that BiDil is an ethnic drug today as much, if not more because of the interventions of law and commerce as because of any biomedical considerations. The article is, first, a retrospective analysis of how law, commerce, science, and medicine interacted …

Use And Disclosure Of Protected Health Information For Research Under The Hippa Privacy Rule, The: Unrealized Patient Autonomy And Burdensome Government Regulation, Stacey A. Tovino

Scholarly Works

This article offers a legal and ethical analysis of the requirements of federal privacy regulations (herein after the “Privacy Rules”) relating to the use and disclosure of individually identifiable health information for research activities. Section II of this article provides a legal summary of the Privacy Rules’ complex research provisions. Sections III and IV of this article analyze the Privacy Rules’ research provisions from a legal and ethical perspective. Specifically, Section III addresses whether the Privacy Rules promote autonomy by analyzing certain of the legal rights attributed to individuals who are the subjects of health information including: (1) the general …

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.

American Midwifery Litigation And State Legislative Preferences For Physician-Controlled Childbirth, Stacey A. Tovino

Cardozo Journal of Equal Rights & Social Justice

The transition from lay midwife-assisted home births to physician-controlled hospital deliveries in the U.S. was driven by a complex interplay of professional competition, economic interests, and societal biases, which were reinforced by judicial deference to state legislative preferences favoring medical dominance over childbirth practices.

The Ada And Tennessee's Sovereign Immunity Crawl Into The Supreme Court, Mary E. O'Malley

Public Interest Law Reporter

No abstract provided.

Organ Transplants Are Becoming A Possibility For Hiv Patients, Michelle Lammers

Public Interest Law Reporter

No abstract provided.

A Review Of Oklahoma's 2003 And 2004 Tort Reform, Beth Reynolds

Oklahoma Law Review

No abstract provided.

Civil Procedure: Medical Malpractice Gets Eerie: The Erie Implications Of A Heightened Pleading Burden In Oklahoma, Dace A. Caldwell

Oklahoma Law Review

No abstract provided.

Preface To The Justice In Mediation Symposium, Lela Love

Cardozo Journal of Conflict Resolution

On March 12, 2004, the Benjamin N. Cardozo School of Law held a symposium on Justice in Mediation. The papers below represent the first group of articles emanating from that event. More articles will follow in the next issue of the Cardozo Journal of Conflict Resolution.

Steering And Rowing In Health Care: The Devolution Option?, Colleen Flood, Joanna Erdman, Duncan Sinclair

Articles, Book Chapters, & Popular Press

Publicly funded health care systems are often the subject of heated policy debates. All too often (particularly in Canada), these debates focus on the prohibitive costs, the resultant taxation levels, and the questionable efficiency and outcomes associated with a publicly funded system. Moreover, the institutionalization of the system and the entrenchment of its many stakeholders make effecting change particularly difficult. In this article, the authors begin with an assessment of the drawbacks of the Canadian health care system in the federal-provincial context and its resulting gaps in governance (steering), in management (rowing), and in overall accountability (apart from that offered …

The Boundaries Of Medicare: Tensions In The Dual Role Of Ontario's Physician Services Review Committee, Colleen Flood, Joanna Erdman

Articles, Book Chapters, & Popular Press

In this research, we describe and analyse the Physician Services Committee (PSC) in Ontario, focusing on its role in determining what physician services are publicly funded and what services are de-listed (i.e. no longer eligible for public funding). We explain how the PSC's role in determining the boundaries of Medicare is in tension with its role as a medium for labour relations between the government and the medical profession. We suggest that while the values of privacy, secrecy and a lack of transparency may enhance the PSC's fulfillment of its labour relations mandate, they impede the Committee's successful fulfillment of …

Politicizing The End Of Life: Lessons From The Schiavo Controversy, Barbara A. Noah

Faculty Scholarship

The case of Theresa Marie Schiavo raises challenging legal and ethical issues, although the events of the case are not entirely novel. It is a well-settled principle under Florida law that individuals have a right to refuse life-sustaining medical treatment. After years of litigation, numerous courts have confirmed that removal of life support is legally appropriate under the facts of this case. Nevertheless, six days after Theresa's feeding tube was removed, the Florida legislature
opted to intervene in the final judicial decision by granting the Governor the authority to overrule the court's decision and to order the tube reinserted. These …

Damages: Using A Case Study To Teach Law, Lawyering, And Dispute Resolution, Chris Guthrie

Vanderbilt Law School Faculty Publications

Seven law school faculty members and one practicing attorney recently developed and taught a wholly new kind of law course based on an already published case study, Damages: One Family's Legal Struggles in the World of Medicine, by Barry Werth, an investigative reporter who spent several years researching to write the book. Damages, an in-depth account of a medical malpractice case, presents the perspectives of the injured family, the defendant physician, the lawyers, and the three mediators. In this Symposium Introduction, the authors provide a summary of Werth's book, explain why they decided to create a course based on his …

On Kamisar, Killing, And The Future Of Physician-Assisted Death, Norman L. Cantor

Michigan Law Review

Tens - perhaps hundreds - of thousands of trees could have been spared over the last forty-five years had opponents of physician-assisted death only been content to let Yale Kamisar be their exclusive spokesperson. Their movement would have lost no significant substance or persuasive force, for Kamisar's 1958 article - Some Non-Religious Views Against Proposed 'Mercy-Killing' Legislation - presaged the shape and content of the subsequent forty-five year debate over legalizing physician-assisted death ("PAD" ). Kamisar's article preceded by years the development of a whole jurisprudence relating to the withholding/withdrawing of life-sustaining medical treatment ("LSMT") and the administration of pain-relief …

Time To Enter A "Do Not Resuscitate" Order On The National Resident Matching Program's Chart, Gregory Dolin

All Faculty Scholarship

This article focuses on the NRMP system and argues that the process is neither efficient nor pro-competitive. This article argues that Congress erred in bestowing an antitrust exemption on the NRMP and the participating institutions.

This article suggests that although the system may have been necessary to check the problem of early recruiting that was pervasive in the 1950s (similar to the one that plagued the federal judiciary until just two years ago), the system has outlived its usefulness. Part II will explain the Match's history and function and will discuss how the system makes participation in the Match inevitable …

Benumbed, Carl E. Schneider

Articles

I originally intended to write a column on tort liability and research ethics, and I still plan to do so. But this column is a cri de coeur as I finish another semester teaching law and bioethics. This year, I asked with growing frequency, urgency, and exasperation, "Must law's reverence for autonomy squeeze out the impulse to kindness? Where is the beneficence in bioethics?" These questions assail me every term. Why? Consider Steele v. Hamilton County Community Mental Health Board. Mr. Steele was involuntarily "hospitalized after his family reported that he was 'seeing things and trying to fight imaginary …

Deliberate Extinction: Whether To Destroy The Last Smallpox Virus, David A. Koplow

Georgetown Law Faculty Publications and Other Works

The target problem to be examined is smallpox. Specifically, what should we (the United States and the entire world) now do with the last known residual samples of the virus that causes this uniquely horrific disease? The illness itself has virtually disappeared from the catalogue of human afflictions: due to a stunningly imaginative, concerted, and resolute campaign of the World Health Organization (WHO) through the 1970s, no one has contracted this deadly impairment for twenty-five years. Yet the causative element, an insidious scourge known as the variola virus, still remains, housed for now in high-security freezers at the U.S. Centers …

Inconceivable? Deducting The Costs Of Fertility Treatment, Katherine Pratt

ExpressO

No abstract provided.

Fetal Surgery And Wrongful Death Actions On Behalf Of The Unborn: An Argument For A Social Standard, Jonathan D. Stanley

Vanderbilt Law Review

Imagine a young couple in the not-too-distant-future who are eagerly awaiting the birth of their first child. During the eighteenth week of the pregnancy, the mother has an ultrasound performed to detect possible developmental problems with the child. To their dismay, the ultrasound reveals a malformation in the fetus. The defect will not be fatal, but if left untreated will cause the child severe breathing problems once born. The problem can be fixed with surgery after birth, but such a procedure will result in disfiguring facial scars. After thoroughly considering their options, which range from an abortion to carrying the …

The Cloudy Crystal Ball: Genetics, Child Abuse, And The Perils Of Predicting Behavior, Robert D. Stone

Vanderbilt Law Review

In the cinematic world of Minority Report, mankind stands on the brink of a society without murder. Police can see the future, predicting murders and arresting perpetrators before they act. This utopian system is the ultimate evolution in preventative policing because it offers perfect prediction; it does not show what people intend to do, only what they will do. Society accepts the incarceration of pre-murderers, people who have committed no crimes, because there is no such thing as the "wrongfully accused.' Is the ability to predict behavior only science fiction, or can a combination of genetic and environmental factors actually …

The Growing Importance Of Advance Medical Directives In The Military, Thaddeus A. Hoffmeister

School of Law Faculty Publications

While the litigation in the Terri Schiavo case is an extreme example of what can go wrong in the health care decision-making process, it highlights the importance of advance medical directives (AMD) in helping to ensure patient autonomy during end-of-life medical treatment. Unfortunately, large segments of society, to include the military, are still unclear about the role of AMDs in patient care. Thus, this article provides a broad overview of AMDs and their legal applications with a particular emphasis on expanding their use in the military community. This article begins with a discussion of living wills and durable powers of …

Two Wrongs Don't Make A Right: Medicaid, Section 1983 And The Cost Of An Enforceable Right To Health Care, Mark A. Ison

Vanderbilt Law Review

More than a trillion dollars annually is spent on the health care system .... Despite increases in medical care spending that are greater than the rate of inflation, population growth, and Gross Domestic Product growth, there has not been a commensurate improvement in our health status as a nation .... Despite our Nation's wealth, the health care system does not provide coverage to all Americans who want it. These words capture both the essence of America's public health care dilemma and the frustration felt by many of the lawmakers charged with the duty to solve it. The battle to lower …