Medical Jurisprudence Commons^™

Right To Privacy; Removal Of Life-Support Systems; Leach V. Akron General Medical Center, Stephanie Zembar

Akron Law Review

The decision in Leach v. Akron General Medical Center, marked Summit County's acceptance of the trend allowing the removal of life support systems from an incompetent terminally ill patient. Technological advancements have enabled the medical profession to maintain a person indefinitely in a chronic vegetative state. These advancements have blurred traditional definitions of death and have raised legal, medical and ethical questions to be resolved within our court system. The Leach case was one of first impression in Ohio, and the decision should aid in establishing a framework from which members of the legal and medical professions, as well …

The Unconstitutionality Of Ohio's Medical Malpractice Statute Of Limitations: Minors And Equal Protection, Eric A. Brandt

Akron Law Review

As with all laws, statutes of limitations must apply equally to all persons unless reasonable grounds permit the legislating body to make distinctions between classes of persons affected by the law. Laws that operate unequally, unfairly and unreasonably when applied to the public are unconstitutional. The Ohio Supreme Court addressed was the constitutionality of an Ohio medical malpractice statute of limitations in Schwan v. Riverside Methodist Hospital.

Statute Of Limitations: Discovery Rule For Malpractice, Linda C. Ashar

Akron Law Review

IN OLIVER V. KAISER COMMUNITY HEALTH FOUNDATION the Ohio Supreme Court adopted the discovery standard for medical malpractice actions, which are subject to Ohio's one-year statute of limitations. In Oliver the court held that a medical malpractice cause of action "accrues and the statute of limitations commences to run when the patient discovers, or in the exercise of reasonable care and diligence should have discovered, the resulting injury." Shortly after Oliver, the court applied the discovery rule to legal malpractice cases in Skidmore & Hall v. Rottman. The discovery standard replaces Ohio's previously judicially adopted rule of termination of …

Issues Complicating Rights Of Spouses, Parents, And Children To Sue For Wrongful Death, Dale Katzenmeyer

Akron Law Review

There are two types of wrongful death statutes, the personal representative type, and the beneficiary type. With the personal representative type, the action is brought by the personal representative of the deceased on behalf of all persons statutorily eligible to benefit from the action. In the beneficiary type of statute, the statutorily authorized beneficiaries are joined together and bring the action in their own names.

Irrespective of the type of statute, the statutes seem to name clearly the persons who are acceptable beneficiaries. These beneficiaries, at a minimum, include spouses, parents and children. The difficult issues arise when the plaintiff …

Breach Of Medical Confidence In Ohio, Craig E. Johnston

Akron Law Review

Fortunately, the patchwork of state and federal statutory, administrative, and case law has greatly limited unrestricted disclosure of medical secrets through the threat of civil and criminal liability. While the law governing the disclosure of medical information sorely lacks a comprehensive approach, one overriding principle emerges from this patchwork: the concern for confidentiality represented in the Hippocratic Oath is alive in Ohio and should guide the release of any medical secrets in the state. There are several statutes that regulate the release of certain types of medical information. For example, information concerning patients suffering from alcohol or drug abuse is …

Recovery For The Wrongful Death Of A Viable Fetus: Werling V. Sandy, Janet I. Stich

Akron Law Review

In Werling v. Sandy, the Ohio Supreme Court held a viable fetus, negligently injured "en ventre sa mere" and subsequently stillborn, may be the basis for a wrongful death action pursuant to Ohio Rev. Code § 2125.01.1 The court's ruling represented Ohio's explicit acceptance of the trend allowing a wrongful death action for the death of a fetus. Although Werling was not a case of first impression in Ohio, it presented the Ohio Supreme Court with the first opportunity to expand the legal rights of the unborn.

The Gift Of Life: New Laws, Old Dilemmas, And The Future Of Organ Procurement, Juliana S. Moore

Akron Law Review

In Ohio, the recent enactment of the required request law has already helped grieving families to grapple with a loved one's death. Here and across the nation, modifications to organ donation statutes may provide the impetus to change the way a seemingly willing, but apprehensive population views organ donation. But the statutes governing this area are only one component of the fascinating concept of "giving life through death." Because a wealth of material already exists detailing narrow aspects of this area, the purpose of this comment is to present the reader with an informative overview of organ donation as it …

Updating Ohio's Medical Practice Act (O.R.C. 4731): Automatic And Summary Suspensions Of Physicians' Licenses, Lynne O'Neill

Akron Law Review

The main purpose of this comment is to review two major areas of change in Ohio's Medical Practice Act. The first area deals with automatic suspensions of physicians' licenses. The second area deals with summary suspensions of physicians' licenses. In both of these areas, the Ohio State Medical Board now has the authority to suspend a physician's license before conducting a disciplinary hearing.

Part I of this comment begins by reviewing the current composition of the Board so that the reader will understand how the Board functions in taking disciplinary action against a physician. Part I then explains the new …

Is Medical Thermography A Reliable Tool In Diagnosing Soft Tissue Injuries In Personal Injury Cases?, Gary L. Evans

Akron Law Review

Behind the mundane, albeit pressing and important questions as to whether and to what extent a thermographic exam changes the value of a case, there lurks a more basic issue; is thermography a legally and medically reliable tool in diagnosing soft tissue injuries? This article will examine that issue as it pertains to personal injury litigation and reach some qualified conclusions.

Part I discusses thermography in general and describes electronic and liquid crystal thermography in particular. Part II divides reliability into two categories in an attempt to distinguish between medical and legal reliability. Part III discusses possible impacts caused by …

Johnson V. University Hospitals Of Cleveland: Public Policy Over Traditional Principles, Robert A. Williams

Akron Law Review

This Note will examine the policies and principles relating to the recovery of child rearing expenses in wrongful pregnancy or wrongful conception actions. This Note contends that the Johnson majority overemphasized certain policy considerations and was mistaken in allowing these policies to override traditional legal principles.

Blood Donation: A Gift Of Life Or A Death Sentence?, Sharon L. Dieringer

Akron Law Review

Anyone who has AIDS is a victim. If AIDS produces a victim then who is the perpetrator? AIDS can be transmitted through intimate sexual contact, by sharing contaminated needles, via infected blood or blood products, and through passage of the virus from infected mothers to their newborns.

This comment will concentrate on transmission through infected blood or blood products, and the blood donor. The discussion will focus on the civil and criminal liabilities of a blood donor with the AIDS virus.

United States V. Moore: Aids And The Criminal Law: The Witch Hunt Begins, Robert Louis Stauter Md., J.D.

Akron Law Review

The United States v. Moore opinions written by Federal District Judge Diana E. Murphy and Circuit Judge Timbers reveal a fundamental misunderstanding of the disease process of AIDS. The purpose of this article is to help the reader critically analyze these court opinions. To facilitate this discussion the article will first provide the reader with some very basic, yet very technical, vocabulary used by medical specialists who care for and study patients with AIDS.

Welsh V. United States, The Sixth Circuit Gives A Physics Lesson - For Every Action There Is An Equal And Opposite Reaction, Daniel L. Bell

Akron Law Review

This casenote will review the facts of Welsh v. United States and present the current judicial approaches to spoliation of evidence in civil litigation. Second, the note will analyze the Welsh court's proposed solution to the spoliation problem. Finally, the note will discuss the use of the Welsh approach in litigation and management implications for health care facilities.

Chalk V. United States District Court Central District Of California: A Major Victory For Aids Employees Under The Federal Rehabilitation Act Of 1973, Janet A. Michael

Akron Law Review

This note will first review the facts of Chalk v. United States District Court Central District of California and will present a broad overview of AIDS, outlining current medical knowledge of the disease. Second, this note will analyze the Rehabilitation Act, examining regulations, legislative history, and case law interpreting the Act. Finally, this note will analyze the impact of Chalk on future employment cases.

Statute Of Limitations In Ohio Medical Malpractice An Old Trend Returns And A New Trend Evolves, Sharon L. Dieringer

Akron Law Review

In Gaines v. Preterm Cleveland, Inc. the Ohio Supreme Court reversed prior law in two significant areas of medical malpractice.

First, the court held that, "a plaintiff in a medical malpractice action who reasonably did not discover the cause of their injuries until more than three years after the act constituting the alleged malpractice may not be constitutionally deprived of a full year to pursue a medical claim by virtue of the four-year statute of repose contained in R.C. 2305. II(B)."

Secondly, the court held that, "a positive misrepresentation of a patient's condition, upon which the patient reasonably relies …

Fetal Interests Vs. Maternal Rights: Is The State Going Too Far?, Robin M. Trindel

Akron Law Review

Part One of this Comment traces the historical development and examines the current status of fetal rights. Part Two discusses the implications that the courts' recognition of fetal rights has spawned upon womens' lives. This Comment concludes that forcing women to undergo medical treatment to benefit their fetuses both ignores legal precedent and violates the woman's right to privacy and bodily integrity. The use of civil and criminal sanctions to punish women for prenatal conduct greatly affects all women while accomplishing nothing in furtherance of state goals.

Someone To Watch Over Me: Medical Decision-Making For Hopelessly Ill Incompetent Adult Patients, Debra L. Dippel

Akron Law Review

This comment focuses on the predicament of the hopelessly ill incompetent adult patient. The comment first discusses the legal framework for medical decision-making in general. Next, it examines the legal and medical distinctions between competent and incompetent patients, and the implications of those distinctions. The comment then explores the options in caring for hopelessly ill incompetent adult patients, and the persons who may or should be responsible for exercising those options. The comment also considers the bases upon which the options may be exercised. Finally, the comment contains an examination of the current state of opinion and the law on …

Prozac: Another Drug Wrongfully Attacked - What Can Be Done To Stop The Legal System From Driving Good Drugs Off The Market, While Protecting State And Federal Interests, Melinda M. Katz

Akron Law Review

This Comment will examine the U.S. Food and Drug Administration (FDA) as a regulatory agency, and the status of pharmaceutical products liability. The Comment will describe Prozac, an antidepressant drug currently caught in the products liability dilemma; its compliance with FDA regulations; and opposition to the drug since FDA approval. The Comment will then review American problems with pharmaceutical products liability, and solutions that other commentators have proposed. Finally, the Comment will propose that Congress erect barriers to filing claims against manufacturers for drugs that meet or exceed a higher level of FDA approval, like Bendectin and Prozac, through a …

The Pharmaceutical Access And Prudent Purchasing Act Of 1990: Federal Law Shifts The Duty To Warn From The Physician To The Pharmacist, Michael J. Holleran R.Ph.

Akron Law Review

This article will first discuss the legislation recently enacted as part of the budget reduction package passed by Congress in late 1990 and how that legislation will affect pharmacists' liability. Second, the article will address the applicable statutes of limitation regarding pharmacists in particular and within the general area of malpractice. Third, the applicable standard of care will be explored as it pertains to pharmacists as well as physicians. Coupled with the standard of care discussion is an overview of the various theories of liability which physicians and pharmacists currently face and how these may change under the Act. Finally, …

Attorney General's Warning: Legislation May Now Be Hazardous To Tobacco Companies' Health, Scott Richardson

Akron Law Review

Part I examines the significant aspects of the revised Florida statute and the proposed federal Senate bill. Part II reviews the development and current status of the laws in Florida, Ohio, and federal courts in regards to the toxic tort theories included in the legislation. Part III of this Comment provides a review of the judicial treatment of tobacco cases and past legislative actions toward tobacco. Part IV discusses the due process challenge that could be advanced by the tobacco industry. Finally, Part V concludes with predictions as to the likely success the Medicaid Third-Party Act will have in achieving …

The Constitutional Right To Suicide, The Quality Of Life, And The "Slippery-Slope": An Explicit Reply To Lingering Concerns, G. Steven Neeley

Akron Law Review

[M]any courts and scholars appear to be motivated by yet another and more implicit concern with the so-called "quality of life" argument. [...] This ofttimes subtle design ultimately proves to be nothing more than a variation of the "slippery-slope" argument. This paper will contend that such arguments are logically fallacious and, at best, sway only by emotional appeal. As such, this style of argument should be afforded little forensic weight as it serves only to further confuse the debate over the constitutionality of selfdirected death.

A Defense Of Physicians’ Gatekeeping Role: Balancing Patients’ Needs With Society’S Interests, Jessica Mantel

Pepperdine Law Review

Although scholars and policymakers increasingly accept the need to ration health care, physicians doing so at the bedside remains controversial. Underling this debate is how to characterize the duty of care physicians owe their individual patients. Ethically, physicians are under strict fiduciary obligations that require them to give primacy to individual patients' best interests. However, new health care delivery models that hold providers financially accountable for health care costs assign to physicians a gatekeeping role, with physicians obliged to balance individual patients' needs with the competing societal goal of controlling costs. This Article explains that the choice between the traditional …

The Struggle Over Tort Reform And The Overlooked Legacy Of The Progressives, Rachel M. Janutis

Akron Law Review

In attempting to distinguish the 1950s and 1960s tort expansion from the current tort retraction, the scholarly account depicts the tort expansion as primarily a judicial movement led by legal academics devoid of any self-interest. In contrast, this account holds out the current tort retraction as a mainly political movement driven by the economic self-interest of its proponents...First, contemporary tort reform, rather than solely being a reaction to tort expansion in the 1950s and 1960s, is part of a continuing debate between corporate, professional and insurance interests on one side and consumer interests and the trial bar on the other …

Can't Settle, Can't Sue: How Congress Stole Tort Remedies From Medicare Beneficiaries, Rick Swedloff

Akron Law Review

In this article, I show that, as amended, the MSP will likely have unforeseen consequences to the tort system. I start by reviewing the history of Medicare and the forces that led Congress to enact and amend the MSP. With illustration from the classic economic model of litigation, I then show that, not surprisingly, the MSP – as written – makes it more difficult for Medicare beneficiaries to bring and settle individual tort claims. What may be less obvious is that this amendment may have a profound impact in the area of mass tort litigation. If individual parties to a …

3-D Bioprinting: Not Allowed Or Nota Allowed?, Robert Jacobson

Chicago-Kent Law Review

In 1984, Congress passed the National Organ Transplantation Act (NOTA) to improve the supply of vital human organs. A key provision of NOTA was the prohibition of acquiring, receiving, or otherwise transferring human organs. In effect, this provision bans the purchase of human organs. However, due to recent breakthroughs in 3-D bioprinting technology, scientists are on the verge of being able to create lab-grown organs suitable for transplantation. This Note will examine the applicability of NOTA to 3-D bioprinting technology and recommend amendments to NOTA that would clarify the legality of 3-D bioprinting.

Don't Call Me Crazy: A Survey Of America's Mental Health System, Justin L. Joffe

Chicago-Kent Law Review

Unfortunately, the typical exposure to mental illness for most Americans comes via tragic mass shootings or highly publicized celebrity mental breakdowns. However, the vast majority of mentally ill individuals are not violent murderers or hyper-tweeting celebrities. Rather, they are the ordinary, everyday people that make up the tens of millions of American adults suffering from some form of mental illness. The American mental health system has a lamentable history. The initial policy of locking up mentally ill individuals in jails transitioned to a system of confinement in asylums that quickly became notorious for their poor living conditions and treatment. The …

Estelle V. Gamble In A Post-Affordable Care Act World, Hallie E. Mitnick

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

Dangerous Diagnoses, Risky Assumptions, And The Failed Experiment Of "Sexually Violent Predator" Commitment, Deirdre M. Smith

Faculty Publications

In its 1997 opinion, Kansas v. Hendricks, the U.S. Supreme Court upheld a law that reflected a new model of civil commitment. The targets of this new commitment law were dubbed “Sexually Violent Predators” (SVPs), and the Court upheld indefinite detention of these individuals on the assumption that there is a psychiatrically distinct class of individuals who, unlike typical recidivists, have a mental condition that impairs their ability to refrain from violent sexual behavior. And, more specifically, the Court assumed that the justice system could reliably identify the true “predators,” those for whom this unusual and extraordinary deprivation of liberty …

Is Meaningful Peer Review Headed Back To Florida?, Brendan A. Sorg

Akron Law Review

This comment lays the foundation to evaluate the sustainability of Amendment 7 post-PSQIA in Part II by first examining medical peer review, its origin, its evolution and why peer review remains important to patient safety. Although many physicians dislike peer review, Congress has acknowledged its importance by making peer review mandatory and by providing the statutory protections to ensure peer review remains meaningful.7 States have followed suit, passing their own laws that provide for the protection of peer review materials. Part II also addresses how Amendment 7 reversed Florida’s historical approach providing broad peer review protection and how this erosion …

Using It For All It's Wuerth: A Critical Analysis Of National Union Fire Insurance Company Of Pittsburgh V. Wuerth As Applied To Medical Malpractice In Ohio, Christy L. Wesig

Akron Law Review

This essay discusses the application of this new limitation to the field of medical malpractice, the divergent results reached by Ohio’s appellate courts in the medical negligence and malpractice context since Wuerth, and the various treatments by other jurisdictions. This essay argues that the holding in Wuerth narrowly applies only to law firms, and that applying it to medical malpractice results in a reversal of the settled Ohio law and injustice for those injured by the negligence of medical professionals. Part II examines the history of hospital liability and traces the changes in vicarious liability up to the Wuerth decision. …