Medical Jurisprudence Commons^™

Modernizing The Medical Malpractice Standard Of Care, Philip G. Peters Jr.

Faculty Publications

The standard of care for health care providers proposed by section 5 of the Restatement of the Law Third, Torts: Medical Malpractice marks a fundamental shift in the American Law Institute's position on professional tort liability. According to both conventional wisdom and prior Restatement provisions, the standard of care for physicians is determined by their customary practices. Professionals alone are given the unique privilege to set their own legal standard of care. However, the proposed section 5 departs from this position. Instead, reasonable care for health care providers is defined as conduct "regarded as competent" by medical peers. Customary practices …

El Derecho A La Interrupción Voluntaria Del Embarazo A Inicios Del Gobierno De Javier Milei (Argentina, 2024) / The Right To The Voluntary Interruption Of Pregnancy At The Beginning Of The Government Of Javier Milei (Argentina, 2024), Willa Rudel

Independent Study Project (ISP) Collection

El objetivo de esta investigación fue entender las realidades del activismo en relación con el derecho al aborto en Argentina en el período después de la aprobación de la ley 27.610 del derecho a la interrupción voluntaria del embarazo, particularmente en 2020 y durante el gobierno actual de Javier Milei. Para responder la pregunta que articula la presente investigación, realicé seis entrevistas con activistas procedentes de una variedad de formaciones y con distintos tipos de participación en el movimiento. Primero describo la historia del activismo a favor del aborto en Argentina hasta la aprobación de la ley y el estado …

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 …

On The Human Right To Healthy Menstruation, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

This short essay introduces the Bellagio Declaration on the Human Right to Healthy Menstruation, a statement signed by an interdisciplinary group of academics, artists, policymakers, clinicians, and practitioners in 2024. The Declaration frames the human right to healthy menstruation as including (1) non-discrimination on the basis of menstruation; (2) dignity in all matters related to menstruation; (3) access to facilities, resources, and supplies that facilitate the management of menstruation in a manner that is affordable and safe and that fosters a clean, healthy, and sustainable environment; (4) lifelong access to timely and medically accurate information about all aspects of menstruation; …

Patient Access To Health Device Data: Toward A Legal Framework, Charles Duan, Christopher J. Morten

Faculty Scholarship

New health care devices, including at-home diagnostic devices, are generating and aggregating data on patients’ health at a staggering pace. Yet much of that data is inaccessible because it is held in data siloes, most often cloud services controlled by device manufacturers. This proprietary siloing of patient data is problematic from ethical, economic, scientific, and broad public policy perspectives. This chapter frames these concerns and begins to sketch a regulatory framework for patient access to health care device data. As with other consumer data, breaking down siloes and securing patients’ access to their device data safeguards patients’ ownership interests, promotes …

Introduction: Medical-Legal Partnerships: Equity, Evolution, And Evaluation., Katherine L. Kraschel, James Bhandary-Alexander, Yael Z. Cannon, Vicki W. Girard, Abbe R. Gluck, Jennifer L. Huer, Medha D. Makhlouf

Faculty Scholarly Works

The COVID-19 pandemic laid bare systemic inequities shaped by social determinants of health (SDoH). Public health agencies, legislators, health systems, and community organizations took notice, and there is currently unprecedented interest in identifying and implementing programs to address SDoH. This special issue focuses on the role of medical-legal partnerships (MLPs) in addressing SDoH and racial and social inequities, as well as the need to support these efforts with evidence-based research, data, and meaningful partnerships and funding.

How Remote Support Technology Can Alleviate The Caregiver Shortage, Thomas Tarver

Marquette Benefits and Social Welfare Law Review

Since the COVID-19 pandemic, nearly every sector of the economy has struggled with workforce shortages, and one of the most severely impacted industries is the long-term care services industry. Indeed, this industry has historically been unable to attract and retain enough caregivers to meet the needs of its clients and the pandemic only exacerbated this problem. Those who rely on long-term care services are typically members of some of society’s most vulnerable populations such as frail elders and individuals with disabilities. Not having enough caregivers adversely affects these populations as care staff shortages are more likely to lead to abuse …

Ptsd As Bodily Injury: Perspectives From Neuroscience And Medical Psychology, Jennifer Sweeton

UMKC Law Review

This Comment proposes that PTSD be reconceptualized, and reclassified, as a bodily injury in personal injury cases. In Part II, this Comment reviews the way courts describe PTSD in personal injury cases. Part III examines psychiatric literature and discusses the symptoms and classification of PTSD as both an emotional and medical condition. It also identifies several structural and functional brain alterations associated with PTSD, in addition to physiological changes that occur as a result of PTSD. Part IV asserts that the brain processes physical and emotional pain almost identically, and that most injuries include both emotional and physical components. In …

Ain't No Sunshine: Bringing Physician Conflicts Out Of The Dark, Jacob T. Ellberg

University of Richmond Law Review

Many mechanisms have been tried to protect patients from the effects of undisclosed payments to physicians so that patients can make informed decisions about whether their physician’s recommendations are tainted because of the physician’s conflict of inter- est. Over the past decade, those efforts have been dominated by the Physician Payments Sunshine Act (“Sunshine Act”). A decade ago, the Sunshine Act took effect with the aim of increasing transparency of financial relationships between health care providers and manufacturers of pharmaceuticals and medical devices. Yet a decade and more than a billion dollars in effort later, the highly touted Act is …

Transparency In Forensic Exams, Dorothy Sims, Chris Dove, Richard Frederick

Nevada Law Journal

Medical examination of injured plaintiffs by doctors hired by defendants is a staple of modern tort litigation. Federal Rule of Civil Procedure 35 and its state counterparts authorize such examinations when the plaintiff’s physical or mental condition is at issue. Although typically dubbed “independent” medical examinations or IMEs, their use often appears to be anything but independent in that defense-retained medical professionals have a strong financial incentive to dispute or diminish injury claims in order to obtain or retain a steady stream of lucrative work from defendants and their insurers.

Although often tainted, defense-driven medical examinations rema33330p[in necessary as a …

Charging Abortion, Milan Markovic

Faculty Scholarship

As long as Roe v. Wade remained good law, prosecutors could largely avoid the question of abortion. The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has now placed prosecutors at the forefront of the abortion wars. Some chief prosecutors in antiabortion states have pledged to not enforce antiabortion laws, whereas others are targeting even out-of-state providers. This post-Dobbs reality, wherein the ability to obtain an abortion depends not only on the politics of one’s state but also the policies of one’s local district attorney, has received minimal scrutiny from legal scholars.

Prosecutors have broad charging discretion, …

Medical Malpractice As Murder? Using Root Cause Analysis As A Guiding Framework For Criminal Medical Malpractice, Kinsey Novak Booth

West Virginia Law Review

Unprecedented criminal prosecutions for medical errors have increased throughout the nation: A Tennessee nurse was charged with reckless homicide for an isolated medication error; two South Carolina nurses were charged with criminal neglect for failing to change a wound dressing for just two days; and an Ohio pharmacist was charged with involuntary manslaughter for failing to detect that a solution contained too much sodium. Introducing criminal charges for cases of typical medical malpractice, which are most often the result of system failures, will dismantle hospitals’ error-reporting systems and lead to long-term catastrophic results for patient safety. This Note applies system …

Systemic Failures In Health Care Oversight, Julie L. Campbell

Georgia Law Review

Hospitals are intentionally shirking their duty to identify and report incompetent medical practitioners, and it is causing catastrophic injuries to patients. Why are hospitals doing this? Two decades of health care reforms have changed the way physicians and hospitals interact in the U.S. health care system, and as a result, the traditional health care oversight tools no longer work to ensure physician competence. With three out of four physicians now employees of hospitals or health care systems, hospitals have become the guardians of both the internal and external warning systems designed to flag incompetent practitioners. As the guardians, hospitals are …

Disseminating False Medical Information On Websites: Its Ruling And Its Impacts From A Jurisprudential Perspective, Asma Salmeen Al-Aryani Dr.

UAEU Law Journal

jurisprudential rulings and effects of dissemination of wrong medical information on websites. The study follows the inductive and descriptive approach. Some of the most important findings of the study are as follows: Adapting the medical advice revolves around being a lease or royalty agreement, and adapting the unpaid dissemination of medical information is an act of righteousness. The doctor who publishes false information ignorantly is a guarantor. If a doctor who strives to publish information on a website, after verifying it, finds out later on that it is false information, he will be rewarded by Almighty Allah, but he has …

Descriptive Analysis Of State And Federal Malpractice Litigation In The United States Related To Neuroendovascular Procedures, Nazaneen Amjadi, Sohum Desai

Research Symposium

Introduction: Medical malpractice interests the medical community at large. While previous neurosurgical review articles have analyzed malpractice in the context of spinal surgery, few have reviewed malpractice data surrounding neurovascular procedures as a whole. Here we present a retrospective review of characteristics associated with malpractice litigation in cases involving neuroendovascular procedures in the United States.

Methods: Google Scholar Case Law, Casetext and Westlaw legal databases were searched for verdict and settlement reports pertaining to neurovascular procedures from 1984 to 2023. Data were collected regarding type of procedure, patient age and gender, defendant specialty, outcome, award, and alleged cause of malpractice. …

Navigating The Conundrum Of Mandatory Reporting Under The Pocso Act: Implications For Medical Professionals, Nanditta Batra

Articles

To address the under reporting of sexual offences against children, the Protection of Children from Sexual Offences (POCSO) Act, 2012, makes reporting of such offences mandatory. The duty to report such offences has been extended to healthcare professionals. The inclusion of healthcare professionals within mandatory reporting, however, strikes at the very foundation of the doctor-patient relationship based on trust and confidentiality and conflicts with the patient confidentiality safeguards of the Mental Healthcare Act, 2017. It also has unintended public health consequences, such as denial of medical termination of pregnancy due to fear of prosecution under POCSO. An urgent reassessment of …

Safe Babies, Safe Moms: A Multifaceted, Trauma Informed Care Initiative, Loral Patchen, Asli Mccullers, Charmain Beach, Melanie Browning, Shy Porter, Aimee Danielson, Evelyn Asegieme, S. Roxana Richardson, Ali Jost, Caitlin S. Jensen, Naheed Ahmed

HJA Scholarship

Purpose

This report describes a multifaceted, trauma-informed initiative developed to address racial/ethnic maternal and infant health inequities in Washington, D.C.

Description

Structural racism and systemic oppression of marginalized communities have played a critical role in maternal and infant health inequities in the United States. Black birthing individuals are exponentially more likely to experience adverse birth outcomes, including preterm birth, low birth weight and maternal mortality. In response to these statistics, the Safe Babies Safe Moms (SBSM) initiative was developed to support patients of marginalized identities and improve health outcomes. SBSM Women’s and Infants’ Services Specialty Care (WIS-SC) is one component …

Henderson And The Objective Observer Standard: The Future Of Race-Conscious Standards Post-Students For Fair Admissions, Gabriela Dionisio

Seattle University Law Review

On June 29, 2023, the Supreme Court of the United States decided Students for Fair Admissions v. President & Fellows of Harvard College, which struck down race-conscious admissions policies. Within just a year after its ruling, Students for Fair Admissions has already had a sweeping impact, reaching beyond higher education. Although the Supreme Court did not indicate whether Students for Fair Admissions applies to sectors beyond higher education, law firms, and other employers have already modified their diversity policies and initiatives, erasing race and company diversity considerations. Given those dramatic changes, there is growing fear that Students for Fair Admissions …

Same Crime, Different Time: Sentencing Disparities In The Deep South & A Path Forward Under The Fourteenth Amendment, Hailey M. Donovan

Seattle University Law Review

The United States has the highest incarceration rate of any country in the world. The American obsession with crime and punishment can be tracked over the last half-century, as the nation’s incarceration rate has risen astronomically. Since 1970, the number of incarcerated people in the United States has increased more than sevenfold to over 2.3 million, outpacing both crime and population growth considerably. While the rise itself is undoubtedly bleak, a more troubling truth lies just below the surface. Not all states contribute equally to American mass incarceration. Rather, states have vastly different incarceration rates. Unlike at the federal level, …

Public Primacy In Corporate Law, Dorothy S. Lund

Seattle University Law Review

This Article explores the malleability of agency theory by showing that it could be used to justify a “public primacy” standard for corporate law that would direct fiduciaries to promote the value of the corporation for the benefit of the public. Employing agency theory to describe the relationship between corporate management and the broader public sheds light on aspects of firm behavior, as well as the nature of state contracting with corporations. It also provides a lodestar for a possible future evolution of corporate law and governance: minimize the agency costs created by the divergence of interests between management and …