Health Law and Policy Commons^™

My Patient Or Law Enforcement, Who Gets First Say?, Hollis T. Redden

Arkansas Law Notes

Law enforcement is often left struggling with determining how to appropriately respond to nurses who refuse their request to collect a suspect’s blood when that patient is suspected of intoxicated driving and the officer has a valid search warrant. These scenarios trigger compliance issues including a patient’s right to privacy and consent, “particularly when a medical entity’s compliance with the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) provisions directly conflicts with law enforcement needs and goals.” Once a suspect becomes a patient, whose interest prevails? Is it healthcare providers’ interest in abiding by the rights, health, and safety …

The Harm In The Fiduciary Myth, Kelli Alces Williams

BYU Law Review

Fiduciary law has become the doctrine of choice in scholarship aiming to protect vulnerable parties from powerful decisionmakers. But fiduciary law cannot fill all the gaps in those impersonal, public relationships because the beneficiary class is large, disparate, and widely dispersed. Public leaders and decision makers cannot zealously pursue the interests of all parties vulnerable to their decision making and they are often driven by various personal interests in choosing which set of beneficiary interests to prioritize. The persistent myth that leaders of large groups are fiduciaries and that fiduciary obligation is the answer to all power imbalance problems harms …

Confronting Cosmetic Carcinogens: A Proposal Regarding The Dangers Of Talcum Powder, Rachael Howell

Helm's School of Government Conference - 2021-2024

The Federal Government needs to stop the import, export, mining, and distribution of talcum powder in the United States. This is an issue that affects all Americans, especially active-duty military members.

Since 2013, there have been over 38,000 lawsuits against Johnson & Johnson, which allege that their talcum-based baby powder caused cancer. The plaintiffs in the very first talc case in the U.S. have died. All four of the plaintiffs from a 2019 suit have died. Yet, the 2019 case has been reversed and remanded. The FDA has redacted the names of scientist(s) that conduct “safety tests” on talc samples. …

Understandings Of Vulnerability And Social Determinants Of Health In Forensic And Expert Social Anthropology: A Scoping Review, James W. W. Rose, David M. Tran

The Qualitative Report

Forensic and expert social anthropology (FESA) is a branch of social anthropology that specialises in the provision of evidence to legal-administrative processes, which are overseen by courts and other legally empowered bodies, and which give regard to the social cultures of legally and administratively involved individuals and communities (LAIICs). Despite a preoccupation with political advocacy in the broader philosophy of social anthropology, FESA literature does not typically give regard to LAIIC vulnerability defined qualitatively in terms of social determinants of health, including physical, mental, and social well-being. This paper presents findings from a JBI/PRISMA-ScR scoping review of n=1,674 texts, identifying …

Secrets Clutched In A Dead Hand: Rethinking Posthumous Psychotherapist-Patient Privilege In The Light Of Reason And Experience With Other Evidentiary Privileges, Jared S. Sunshine

Journal of Law and Health

Attorney-client privilege was held by the Supreme Court to extend beyond death in 1996, albeit only ratifying centuries of accepted practice in the lower courts and England before them. But with the lawyer’s client dead, the natural outcome of such a rule is that privilege—the legal enforcement of secrecy—will persist forever, for only the dead client could ever have waived and thus end it. Perpetuity is not traditionally favored by the law for good reason, and yet a long and broad line of precedent endorses its application to privilege. The recent emergence of a novel species of privilege for psychotherapy, …

California V. Texas: Avoiding An Antidemocratic Outcome, Jon Lucas

Journal of Law and Health

The Affordable Care Act (“ACA”) contains a section titled “Requirement to Maintain Essential Minimum Coverage.” Colloquially known as the Individual Mandate, this section of the Act initially established a monetary penalty for anyone who did not maintain health insurance in a given tax year. But with the passage of the Tax Cuts and Jobs Act, the monetary penalty was reset to zero, inducing opponents of the ACA to mount a legal challenge over the Individual Mandate’s constitutionality. As the third major legal challenge to the ACA, California v. Texas saw the Supreme Court punt on the merits and instead decide …

Privileges, Immunities, And Affirmative Action In Medical Education, Gregory Curfman

Journal of Law and Health

In Students for Fair Admissions v. President & Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina, the Supreme Court ruled that affirmative action in university admissions, in which an applicant of a particular race or ethnicity receives a plus factor, is unconstitutional. This ruling was based on both the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. This article argues that a more natural fit as the basis for constitutional analysis would be a different clause in the Fourteenth Amendment, the Privileges or Immunities …

Nonfinancial Conflict Of Interest In Medical Research: Is Regulation The Right Answer, Nehad Mikhael

Journal of Law and Health

Medical research plays a vital role in advancing human knowledge, developing new therapies and procedures, and reducing human suffering. Following the atrocities committed in the name of medical research by German physicians during the Nazi era, the Nuremberg trials were held, and an ethical code was created to establish the limits within which medical research can operate. Consequently, legal regimes built upon this ethical foundation to develop laws that ensure the integrity of medical research and the safety of human subjects. These laws sought to protect human subjects by minimizing conflicts of interest that may arise during the process. Furthermore, …

A Trigger Warning: Red Flag Laws Are Still Constitutionally Permissible And Could Reduce The Suicide Rates In The Country's Most Vulnerable States, Joseph C. Campbell

Journal of Law and Health

Montana, Alaska, and Wyoming lead the United States in a category coveted by no one: the suicide rate. Firearm ownership drives the rate to the disproportionate level it reaches year after year and the states are left with little recourse. This article argues the usefulness and constitutionality of narrowly tailored red-flag laws aimed exclusively at reducing the rate of suicide in these mountain states. The article follows Supreme Court jurisprudence leading up to New York Rifle & Pistol Association v. Bruen and offers an analysis that complies with the hyper textualist history and tradition test laid out by Scalia in …

Ensnared Care: How Restrictive Healthcare Laws Impact Mothers, Mckenzie Richards

School of Public Policy Capstones

Do restrictive healthcare policies impact whether expectant mothers receive adequate prenatal care? Could such policies also affect access to alternative birthing options for delivery? Through a literature review and a two-way fixed effects model using panel data, this study investigates two categories of state-level restrictive healthcare policies: scope of practice laws and certificate of need laws. The literature demonstrates the detriments of scope of practice care on access to care and maternal health. However, the statistical models presented on scope of practice find no relationship between scope of practice laws and adequate prenatal care or alternative birthing options. Though the …

Toward Accessing Hiv-Preventative Medication In Prisons, Scott Shimizu

Northwestern University Law Review

The Eighth Amendment is meant to protect incarcerated individuals against harm from the state, including state inaction in the face of a known risk of harm. While the Eighth Amendment’s protection prohibits certain prison disciplinary measures and conditions of confinement, the constitutional ambit should arguably encompass protection from the serious risk of harm of sexual assault, as well as a corollary to sexual violence: the likelihood of contracting a deadly sexually transmitted infection like HIV. Yet Eighth Amendment scholars frequently question the degree to which the constitutional provision actually protects incarcerated individuals.

This Note draws on previous scholarship on cruel …

Shots Fired, Shots Refused: Scientific, Ethical & Legal Challenges Surrounding The U.S. Military's Covid-19 Vaccine Mandate, Shawn Mckelvy, L. William Uhl, Armand Balboni

St. Mary's Law Journal

The COVID-19 pandemic provided uncertain and challenging circumstances under which to lead a nation and the military that protects it. Those in charge and in command faced unique challenges—scientific, ethical, and legal—at our various levels of government to both keep people safe while keeping government and society functioning. While there were many successes to celebrate, there are also many criticisms for how this “whole-of-government approach” may have degraded some of our most cherished liberties along the way. The authors focus on the U.S. military’s vaccine mandate and propose military leaders may have failed to fully consider the evolving science, weigh …

The World Health Organization Was Born As A Normative Agency: Seventy-Five Years Of Global Health Law Under Who Governance, Lawrence O. Gostin, Benjamin Mason Meier, Safura Abdool Karim, Judith Bueno De Mesquita, Gian Luca Burci, Danwood Chirwa, Alexandra Finch, Eric A. Friedman, Roojin Habibi, Sam F. Halabi, Tsung-Ling Lee, Brigit Toebes, Pedro Villarreal

Georgetown Law Faculty Publications and Other Works

The World Health Organization (WHO) was born as a normative agency and has looked to global health law to structure collective action to realize global health with justice. Framed by its constitutional authority to act as the directing and coordinating authority on international health, WHO has long been seen as the central actor in the development and implementation of global health law. However, WHO has faced challenges in advancing law to prevent disease and promote health over the past 75 years, with global health law constrained by new health actors, shifting normative frameworks, and soft law diplomacy. These challenges were …

Malpractice Litigation Related To Management Of Varicocele: A Legal Database Review, Eric Zhou, Nicholas Sellke, Helen Sun, Kimberly Tay, Sherry Mortach, Ramy Abou Ghayda, Aram Loeb, Nannan Thirumavalavan

Student Scholarship

There have been studies that examined litigation procedures stemming from the management and treatment of various urological issues [6, 8]. Varicocele is a common urologic condition and can be associated with pain, subfertility, and infertility, thus greatly impacting patient well-being and quality of life. It has a prevalence of 15% in the general male population and up to 35% in males with infertility [9]. Varicocele has a range of treatment options, from observation to pain management to surgical correction. To our knowledge, no legal claims database investigation into varicocele cases exists. Elucidating the factors that go into varicocele litigation could …

"I Am Become Death, The Destroyer Of Worlds": Applying Strict Liability To Artificial Intelligence As An Abnormally Dangerous Activity, Renee Henson

Faculty Publications

Artificial intelligence (AI)-enabled tools have produced a myriad of injuries, up to and including death. This burgeoning technology has caused scholars to ask questions, such as, How do we create a legal framework for AI? Because AI creators have acknowledged that even they do not know the capacities of their technology for good or bad outcomes, this Article argues that an existing framework, strict liability, is an appropriate fit for harms arising from this new technology because a party need not prove negligence to prevail. Strict liability was uniquely developed to handle those activities that are “abnormally dangerous.” An abnormally …

Clearing The Path: Improving Implementation Of Georgia’S Pathways To Coverage Program, Nicholas Smith

Emory Law Journal Online

Georgia’s Medicaid program is in flux. The State recently launched Pathways to Coverage, a partial Medicaid expansion program for non-disabled adults in households under 100% of the Federal Poverty Line, with eligibility contingent on reporting 80 hours of work per month. Pathways’ rollout coincides with Medicaid “unwinding,” an ongoing post-COVID redetermination process in which thousands of Georgians have already lost coverage. As such, Pathways could play an important role in offsetting the unwinding’s disenrollment effects. But Pathways may also serve as a test case for conservative lawmakers hoping to institute (or reinstitute) work requirements to restrict Medicaid coverage in their …

Standing Up To Bounty Laws: Examining State Standing Jurisprudence And Its Effect On Laws Enforced Through Private Rights Of Action, Olivia A. Luzzio

Washington and Lee Journal of Civil Rights and Social Justice

The Texas Heartbeat Act (SB 8) adopted a unique enforcement scheme that succeeded in circumventing Roe v. Wade’s protection of a woman’s right to abortion before viability. By prohibiting enforcement of the Act by public officials and instead authorizing enforcement solely through civil actions by “any person,” SB 8 effectively ended a women’s right to abortion after a fetal heartbeat is detected. The passage of this law placed the protection of other constitutionally endowed rights in jeopardy and facilitated the passage of similarly constructed legislation, such as California’s Senate Bill 1327, which authorizes “any person” to sue anyone who manufactures …

Emotionally Harmed? It Might Not Matter: An Analysis Of Cummings V. Premier Rehab Keller And Its Implications For Title Ii Of The Americans With Disabilities Act Of 1990, Sotir Zhupa

Cardozo Law Review

On April 28, 2022, the U.S. Supreme Court handed down an opinion that shocked the disability rights community. In Cummings v. Premier Rehab Keller, P.L.L.C., the Court ruled that compensatory damages for emotional distress may not be recovered by claimants who sue for disability discrimination under section 504 of the Rehabilitation Act of 1973 (section 504) and section 1557 of the Patient Protection and Affordable Care Act of 2010..

Cummings involved a woman, Jane Cummings, who is both deaf and legally blind. Because of her disabilities, she communicates through American Sign Language (ASL)—her first and primary language—and cannot communicate …

Dentistry’S Cdt Code: Its Origins, Use And Future, Frank J. Pokorny Ii, Mba, Facd(Hon)

The Journal of the Michigan Dental Association

Today’s version of the Code on Dental Procedures and Nomenclature – commonly referred to as CDT 2024 -- is the latest iteration of the code set first published in 1969. The CDT Code is ADA intellectual property that serves dentists and the dental community at large as the HIPAA standard for documenting and reporting services delivered to patients. CDT supports multiple needs: e.g., documentation; billing and reimbursement; revenue; data analytics. The code set’s maintenance is an open process overseen by the ADA Council on Dental Benefit Programs’ Code Maintenance Committee. Any dentist or interested party may submit a maintenance request. …

Agents Of Change: Which One Are You?, Michelle C. Dziurgot Dds

The Journal of the Michigan Dental Association

In her editorial, Michelle C. Dziurgot, DDS, explores various roles dentists play as agents of change, including catalysts for urgency, collaborators with specialists, diligent workers for accuracy, risk-taking entrepreneurs, charismatic leaders, and peacemakers who resolve conflicts within their practices.