Medical Jurisprudence Commons^™

Cruel And Unusual Punishment In The Provision Of Prison Medical Care: Challenging The Deliberate Indifference Standard, Michael C. Friedman

Vanderbilt Law Review

Most Americans have little knowledge or concern about what hap- pens inside this Nation's prisons.' Unless prisoners riot, they generally are far removed from the popular consciousness. Members of society beyond prison walls hear about only the most severe and exceptional cases of prisoner suffering. When prisoners do not receive adequate medical treatment, however, they may suffer harm beyond the segregation from society and loss of liberty contemplated by incarceration. A discussion of the medical care that prisoners receive must begin, therefore, with a recognition of the paradox of taking care of individuals about whom very few people in society …

Screening And Treatment Of Newborns, Ellen Wright Clayton

Vanderbilt Law School Faculty Publications

With the advent of new genetic technologies and the Human Genome Initiative, interest in the problems posed by genetic diagnostics in general, and by genetic screening in particular, has surfaced. Many recent works focus on the problems posed by the "new genetics" in the contexts of prenatal diagnosis, carrier detection, employment, and insurance. In the midst of all this discussion, the routine testing of newborns for genetic disorders seems relatively uncomplicated and has, in fact, become "a part of common practice and accepted public policy with little thought having been given to the implications." The relative lack of concern about …

The Use Of Government Funding To Discourage Abortion: Who Will Protect The Rights Of The Poor?, Claudia J. Postell

University of the District of Columbia Law Review

No abstract provided.

Legitimate Exercise Of Parens Patriae Doctrine: State Power To Determine An Incompetent Individual's "Right To Die" After Cruzan Ex Rel. Cruzan V. Director, Missouri Dept. Of Health, Carl Hernandez Iii

Brigham Young University Journal of Public Law

No abstract provided.

Mandatory Hiv Testing Issues In State Newborn Screening Programs, John M. Naber, David R. Johnson

Journal of Law and Health

The newborn screening model is fairly straightforward. Typically, before the infant is discharged from the hospital (around 24 to 36 hours of age), heel stick blood is placed on special filter paper, dried, and mailed to the state health department for testing. Medical and laboratory research has led to the discovery that other diseases could also be screened in newborns using these dried blood specimens. Currently, all states and the District of Columbia test all newborns for at least PKU and congenital hypothyroidism. There are generally five criteria to satisfy before a disease is considered appropriate for newborn screening: 1. …

"Comparing Medical Provider Performance: A First Look At The New Era Of Medical Statistics", Neil B. Cohen, Aaron D. Twerski

Faculty Scholarship

No abstract provided.

Comparing Medical Provider Performance: A First Look At The New Era Of Medical Statistics, Aaron Twerski, Neil B. Cohen

Faculty Scholarship

No abstract provided.

The New Aids Look Back Statute: Contact Tracing In The Health Care Setting - A Step In The Wrong Direction, 25 J. Marshall L. Rev. 769 (1992), Margery M. Tamburro

UIC Law Review

No abstract provided.

One Hundred Years Of Harmful Error: The Historical Jurisprudence Of Medical Malpractice, Theodore Silver

Scholarly Works

In this Article, Professor Silver examines the origins of present-day malpractice law. He begins by noting that negligence and medical malpractice as the common law now knows them made their debut in the nineteenth century although their roots lie deep in the turf of trespass and assumpsit. He argues, however, that toward the turn of the century several episodes of linguistic laziness purported to produce a separation between negligence and medical malpractice so that the two fields are conventionally thought to rest on separate doctrinal foundations. According to Professor Silver, historically based scrutiny of medical malpractice and its ties to …

Selling The Womb: Can The Feminist Critique Of Surrogacy Be Answered?, Katherine B. Lieber

Indiana Law Journal

No abstract provided.

A Medical-Legal Dilemma: When Can "Inappropriate" Nutrition And Hydration Be Removed In Indiana?, Kathleen M. Anderson

Indiana Law Journal

No abstract provided.

Hey Doc, Can You Keep A Secret - An Ohio Physician's Right To Warn Third Parties That They May Be At Risk Of Contracting Hiv, Mark Wiseman

Journal of Law and Health

This note will seek to determine if granting a physician the right to warn third parties at risk is the appropriate solution to the above scenario and others like it. Part I will supply a background on the virus that causes AIDS. Part II will review possible legal justification for this breach of the confidential doctor/patient relationship. Part III discusses why there is a need to maintain strict confidentiality of AIDS-related information. Finally, Part IV will discuss alternatives to granting physicians the right to warn.

Compelled Medical Procedures Involving Minors And Incompetents And Misapplication Of The Substituted Judgment Doctrine, Lynn E. Lebit

Journal of Law and Health

In many cases, courts have incorrectly applied the doctrine of "substituted judgment" to violate the bodily integrity of a minor (who is usually physically or mentally disabled), or an adult incompetent, to bring about a result which on its face seems beneficial to all involved. What courts have failed to do, however, is protect the best interests of these incompetent persons and to recognize their right to be protected, especially when they cannot consent, from non-therapeutic bodily invasions. In this context, "best interests" are determined by weighing the risks, needs and benefits to the affected person. The type of "non-therapeutic" …

The World Of Law, Science And Medicine, According To George P. Smith, Ii, Raymond C. O'Brien

Scholarly Articles

No abstract provided.

Risky Business: Setting Public Health Policy For Hiv-Infected Health Care Professionals, Leonard H. Glantz, Wendy K. Mariner, George J. Annas

Faculty Scholarship

An analysis of the restrictive proposals provoked by the case of Kimberly Bergalis and four other patients apparently infected with HIV during the course of dental treatment reveals that they resulted from an inability to evaluate appropriately the infinitesimal risk of HIV transmission from practitioner to patient. The proposals also resulted from an effort to create risk prevention policy without appreciating the distinction between regulating things or procedures, which have no human rights, and regulating people, who have rights that should not be infringed without serious justification. This analysis demonstrates that the proposed restrictive policies are not justified because they …

Qualified Plans And Identifying Tax Expenditures: A Rejoinder To Professor Stein, Edward A. Zelinsky

Articles

No abstract provided.

A Free Market Analysis Of The Effects Of Medical Malpractice Damage Cap Statutes: Can We Afford To Live With Inefficient Doctors, Franklin D. Cleckley, Govind Hariharan

West Virginia Law Review

No abstract provided.

Experimenting With The "Right To Die" In The Laboratory Of The States, Thomas A. Eaton, Edward J. Larson

Scholarly Works

The purposes of this Article are twofold. Our first purpose is to reexamine the legal foundations of a patient's right to refuse treatment. The Court's equivocal handling of the federal constitutional issues in Cruzan v. Director, Missouri Department of Health invites a closer look at state constitutional, statutory and common law. The source of the underlying right will affect state experimentation with substantive and procedural rules in this area. Our second purpose is to describe the current status of the states' experiments with the right to die. That is, we elaborate in more detail on the state constitutional, statutory and …

A Descriptive Study Of Commitment Practices In A Selected Jurisdiction, Louis A. Pesnicak

Community & Environmental Health Theses & Dissertations

This study examines the application of commitment procedures in one urban community in Virginia. The study investigated: the concordance rates of clinical recommendation for treatment and the outcome of the commitment hearing. the time lapse between detention of an individual and the hearing outcome. the presenting symptomatology and outcome. and the pre-detention compliance to treatment and outcome. The study's findings showed a concordance rate of 64% between clinical recommendation and outcome. It provided no significant differences in symptomatology/outcome, compliance/outcome, and time lapse/outcome. The lack of any significant findings seems to suggest that application of commitment laws might benefit from institution …

Controlling Conflicts Of Interest In The Doctor-Patient Relationship: Lessons From Moore V. Regents Of The University Of California, Joseph M. Healey Jr., Kara L. Dowling

Mercer Law Review

No abstract provided.

Statutory Criteria For Determining Human Death, James M. Humber

Mercer Law Review

Until approximately twenty years ago, human beings were not declared dead until they experienced an irreversible cessation of respiratory and circulatory functions. Use of these criteria-which are known as the heart-lung criteria for determining human death-was not problematical until modern medicine invented the means for artificially maintaining heartbeat and respiration. With the development of artificial life-support mechanisms, patients who were irreversibly comatose could be kept "alive" indefinitely. Maintaining these patients imposed financial and emotional hardships upon family members, utilized scarce medical resources in nonefficient ways, and denied use of comatose patients' organs for transplant purposes. In an attempt to remedy …

Legal Theory In Late Modernity, Alan G. Nasser

Mercer Law Review

The contemporary intellectual climate bears a striking resemblance to the milieu of epistemological and moral insecurity that characterized the dawn of Modernity. Rene Descartes, the so-called "father of modern philosophy," felt obliged, in the original epistemological gambit of modern philosophy, to subject the then-current orthodoxy to universal methodical doubt. Descartes felt driven to this procedure by the drastic deprecation of traditional beliefs that accompanied the mathematical, scientific, and social revolutions of the sixteenth and seventeenth centuries. The demise of the geocentric cosmology, the rise of a mechanistic ontology with its attendant undermining of teleological modes of explanation, and the emergence …

The Solomon Decision: A Study Of Davis V. Davis, Margie Mietling Eget

Mercer Law Review

An individual's basic right to control procreation has come head-tohead with the ability of modern science to bypass the normal procedure through in vitro fertilization and cryopreservation. This was the issue that confronted the Tennessee court in a divorce proceeding between Mary Sue and Junior Davis. The appellate court held that the lower court's awarding of the fertilized ova to Mary Sue against Junior's will constituted impermissible state action and violated Junior's constitutionally protected right not to beget a child when no pregnancy had taken place. The court noted that the right to procreate and to prevent procreation are basic …

Antiprogestin Drugs: Medical And Legal Issues, Rebecca J. Cook

Mercer Law Review

The United States Supreme Court decision in Webster v. Reproductive Health Services, one aspect of which upheld state conditions limiting delivery of late abortion services, underscores the need for safe and reliable means to perform abortion early in pregnancy. The Missouri statute reviewed in Webster raised an additional issue in its preamble, which contained the words: "The life of each human being begins at conception."' The Court saw no need to address the implications of this language yet, and is prepared instead to await a judicial challenge to legislation specifically providing for state intervention on these grounds. It is …

Autonomy's Paradox: Death, Fear, And Advance Directives, Richard P. Vance

Mercer Law Review

"The trouble with our times," noted Paul Valery, "is that the future is not what it used to be." As it is with' the zeitgeist, so it is with advance directives ("ADs"). ADs are declarations that one does not want particular kinds of medical treatment when one loses decision-making capacity. These mechanisms have received increased attention since the first living will statute was passed in 1976. Even more interest has arisen in light of the United States Supreme Court decision in Cruzan v. Director, Missouri Department of Health. Since many states may now legitimately require "clear and convincing evidence" …

Treatments Of Last Resort: Informed Consent And The Diffusion Of New Technology, Nancy M.P. King, Gail Henderson

Mercer Law Review

Professor Alexander Capron's seminal 1974 article, "Informed Consent in Catastrophic Disease Research and Treatment,"1 opens with a discussion of Karp v. Cooleys a lawsuit arising from Dr. Denton Cooley's first use of the artificial heart, in which Haskell Karp's widow unsuccessfully claimed that her husband's consent to use of the experimental device was inadequately informed. Today, more than twenty years after that surgery took place, American medical technology has markedly advanced and public awareness of informed consent has greatly increased, but doctors and patients may not have changed much at all. Both still have contradictory needs and desires. We want …

The Status Of The Permanently Unconscious: "You Call That Living?", Jay A. Gold

Mercer Law Review

In the aftermath of the United States Supreme Court decision in Cruzan v. Director, Missouri Department of Health, the writer Nat Hentoff described the prospects for resolving the issue of termination of treatment for the permanently unconscious as "The Coming Civil War":

It will be very much like the civil war . . . since the Supreme Court ... allowed the states to increase their regulatory powdr over abortion, ... there will now be intensified lobbying to amend or create state laws that will either make it harder or easier for death to come calling. . . . .As …

Dna Fingerprinting: A Scientific Perspective, Linda R. Adkison

Mercer Law Review

The birth of genetics in the 1860s occurred in a solitary monastery by a humble monk, Gregor Johann Mendel, who performed unprecedented experiments with garden peas. The rebirth of his work at the turn of the century has slowly led to an intermingling of various physical, chemical, and biological sciences. This process, in turn, is continually yielding an understanding of how characteristics are inherited, combined, assorted, and reassorted through generation after generation. The common thread connecting these divergent, yet convergent, disciplines is the remarkable double stranded helix, described by James D. Watson and Maurice H.F. Crick and known as deoxyribonucleic …

Cruzan And The Right To Die: A Perspective On Privacy Interests, Désirée E. Watson

Mercer Law Review

On June 25, 1990, the United States Supreme Court decided that Nancy Beth Cruzan does not have a constitutional right to die. In Cruzan v. Director, Missouri Department of Health, a five-four majority held that a state may require clear and convincing evidence of a now-incompetent person's wishes when a guardian seeks to discontinue life support, including artificial nutrition and hydration, for a person diagnosed as being in a persistent vegetative state.

Leckelt V. Board Of Commissioners Of Hospital District No. 1: Fifth Circuit Affirms Hospital's Right To Require Testing Of Nurse Reasonably Suspected Of Exposure To Hiv, Philip Walden

Mercer Law Review

In Leckelt v. Board of Commissioners of Hospital District No. 1, the United States Court of Appeals for the Fifth Circuit affirmed a hospital's right to demand the results of a nurse's HIV test if a reasonable suspicion exists that the nurse has been exposed to HIV. The court also upheld the hospital's right to fire the nurse for withholding the test results Although the nurse, Kevin Leckelt, attacked the hospital's action on both constitutional and statutory grounds, this Casenote focuses on the court's determination that the Rehabilitation Act of 1973 (the "Act" or the "Rehabilitation Act") permits the …