Medical Jurisprudence Commons^™

Copying Copyright: Adopting A Fair Use Defense In Patent Law In Times Of Public Health Crisis, Kellie C. Van Beck

Brooklyn Law Review

Epidemics have devastated humankind for centuries. Given the simultaneous rise of advanced disease prevention and treatment and the great potential for mass public uptake, it is unsurprising that the U.S. pharmaceutical industry has grown to $775 billion in annual sales revenue. It is clear that the commercialization of important public health measures is not without controversy. Of particular debate is that vaccine and other drug manufacturers monopolize their products and control them through patent laws. Yet there is a strong dichotomy between the importance of patents and the need for public access to innovations. This is not to say that …

Federalized Corporate Governance: The Dream Of William O. Douglas As Sarbanes-Oxley Turns 20, Joan Macleod Heminway

Brooklyn Journal of Corporate, Financial & Commercial Law

The federalization of U.S. corporate governance has been a topic of conversation among policymakers from the very beginning of federal securities law in the New Deal era. Among the early proponents of a federalized system of corporate governance oversight was William O. Douglas—perhaps best known as the longest-serving U.S. Supreme Court justice, but who also was a former commissioner and chair of the U.S. Securities and Exchange Commission. Reflecting on Douglas’s federal corporate governance ideas, Professor Roberta Karmel wrote a law review article for the Delaware Journal of Corporate Law, published in 2005, commenting on the extent and nature of …

Scope Of Duty, Counterfactual Analysis And Birth Defects: The Challenging Case Of Khan V Meadows, Kee Yang Low, Jordan Ting Xuan Chia

Research Collection Yong Pung How School Of Law

The tort of negligence has evolved into a sophisticated and calibrated framework. Even then, aspects of this elaborate structure are constantly being tweaked and, sometimes, challenged. Most recently, in the UKSC decision of Khan v Meadows, the spotlight is thrown on scope of duty analysis against the challenging backdrop of medical negligence and unwanted birth defects. The judgment of the majority suggests there is more that needs to be considered at the stage of damages, and that the sequential framework of negligence may benefit from some rearrangement.

Beyond Data Ownership, Ignacio Cofone

Cardozo Law Review

Proposals for data ownership are widely misunderstood, aim at the wrong goal, and would be self-defeating if implemented. This Article, first, shows that data ownership proposals do not argue for the bundle of ownership rights that exists over property at common law. Instead, these proposals focus on transferring rights over personal information solely through consent.

Second, this Article shows the flaws of a property approach to personal information. Such an approach magnifies well-known problems of consent in privacy law: asymmetric information, asymmetric bargaining power, and leaving out inferred data. It also creates a fatal problem: moral hazard where corporations lack …

Letter In Reply To Bernard Prusak, Et Al., Govind C. Persad

Sturm College of Law: Faculty Scholarship

Scarce medical resource allocation should aim to prevent harm, especially to those who would be most disadvantaged if not helped. Bernard Prusak et al.’s letter reveals a narrow vision of which harms and disadvantages matter, one that overlooks opportunities to simultaneously prevent important harms and avoid exacerbating disadvantage.

Justice Delayed Is Not Justice Denied: Considerations And Concerns For Addressing The National Sexual Assault Kit Backlog, Bryan Schwartz

University of Cincinnati Law Review

Across the nation, many states have started clearing their backlogs of thousands of untested sexual assault kits. Most states have also implemented legislative and procedural safeguards to improve sexual assault investigation and prevent future backlogs. This article first posits that states seeking to address their sexual assault kit backlog should consider Nevada’s approach, which successfully eliminated the backlog and simultaneously reformed its sexual assault investigation procedures. However, this article primarily argues that, without allocating reoccurring future funding to support the recent legislative and procedural changes, states run the risk of future backlogs of sexual assault cases. State legislatures and policymakers …

Shifting Antitrust Laws And Regulations In The Wake Of Hospital Mergers: Taking The Focus Off Of Elective Markets And Centering Health Care, Maya Inka Ureño-Dembar

Brooklyn Law Review

Access to health care requires access to a care center and access to comprehensive health care services. Rampant hospital mergers are uniquely poised to reduce both the number of hospitals, requiring patients to travel further, and the services provided within a newly merged hospital, namely reproductive health services. This phenomenon is clearly seen through the merging of secular and nonsecular hospitals, which often result in patients being forced to travel much further for reproductive health care. In the United States’ current model, health care is not a right, but is treated as a commodity. As such, it is governed by …

I Just Took A Dna Test—Turns Out, I'M 100% Breaching My Donor Anonymity Contract: Direct-To-Consumer Dna Testing And Parental Medical-Decision-Making, Morgan C. York

Indiana Journal of Global Legal Studies

Part I of this note provides a brief history of assisted reproductive technology and its increased use throughout the world, illustrating the growing number of donor-conceived children and the related importance of knowing genetic information. Part I also surveys regulations concerning donor anonymity in the United States and the United Kingdom to illustrate different jurisdictions' approaches to the regulation of donor anonymity. This note uses the United Kingdom as a model of countries that have prohibited sperm donor anonymity. Part II of this note discusses direct-to-consumer DNA testing, specifically 23andMe's products. This note selects 23andMe as the direct-to-consumer company for …

Medical Error Disclosure: A Content Analysis Of State Legislation, Teresa Kathleen Sparks

Graduate Theses and Dissertations

Medical error is a public health problem in the United States (U.S.), causing approximately 250,000 hospital deaths per year. Health care leaders and policy-makers have identified medical error disclosure as one of many viable evidence-based solutions to address the problem of medical error – leading to increased transparency in health care, improved patient outcomes, potential medical malpractice cost reduction, and decreased health care provider distress and turnover. Unfortunately, health care providers are often hesitant to practice disclosure and are not required to do so in most U.S. jurisdictions. A qualitative inquiry using content analysis was conducted to understand the language …

Fighting The Ftca: Medical Malpractice, Veterans, And The Va, Taylor C. Spillers

Arkansas Law Review

Dr. Levy, who served as the Chief of Pathology at the Fayetteville Veterans Health Care System of the Ozarks (“Fayetteville VA”) from 2005 to 2018, diagnosed veterans with an error rate of 10%. The “pathology practice average is 0.7%.” Of the more than 3,000 cases Dr. Levy misdiagnosed, 589 were classified as “Level 3 (major) errors” which should always “trigger an [internal] investigation.” Unfortunately, no investigations ensued until Dr. Levy’s ultimate arrest, although the Fayetteville VA addressed Dr. Levy’s behavior repeatedly throughout his employment.

Let It All In? Expert Witness Qualification In Medical Malpractice Lawsuits, Benjamin M. Parks

Louisiana Law Review

The article discusses expert witness qualification under Louisiana Revised Statutes Section 9:2794, and proposes that state legislature should revise statute to promote clarity and consistency for medical malpractice litigants.

The Constitution, Covid-19, And Civil Disobedience: Federalism In Flames And The Slippery Slope To Socialism, Savannah Snyder

Helm's School of Government Conference - 2021-2024

Our Constitution has been devastatingly corrupted from its original design and vision amid the COVID-19 pandemic. Governors usurped authority in the name of crisis mitigation. Our unalienable rights have been macerated and pulverized by droves of executive orders, each delivering a calamitous blow to the integrity of the American republican framework. Socialized medicine is on the horizon as our compliance is coerced. Conventional civil disobedience has been regulatorily revoked. We have succumbed to the decrees of depraved men who maintain that education, religious expression, and pursuits of happiness can be invalidated by whatever transgressions the state deems necessary. For the …

Getting Away With Murder: How California State Law Determined Recovery In First Roundup Cancer Case Johnson V. Monsato Co., Eliza L. Quattlebaum

Villanova Environmental Law Journal (1991 - )

No abstract provided.

On The Cusp Of The Next Medical Malpractice Insurance Crisis, Philip G. Peters Jr.

Faculty Publications

Medical malpractice claims are dwindling. Total payouts are far lower than during the 2002 crisis. Yet, insurance industry profits have been sinking for a decade and are nearly in the red. After a dozen years with a “soft” insurance market, we are now on the cusp of yet another malpractice insurance crisis.

How can profits be in peril if claims have dwindled and payouts are historically low?
Answering that question requires an understanding of the insurance cycle. The cycle periodically transforms gradual increases in costs and gradual decreases in revenue into explosive increases in premiums.

The industry’s financial statistics today …

"What Makes You Think You Can Do That?": How Venue Restrictions Prevent Access To Abortion For Minors In Arkansas, Bella Mancini Pori

Cardozo Law Review

No abstract provided.

Periods For Profit And The Rise Of Menstrual Surveillance, Michele E. Gilman

All Faculty Scholarship

Menstruation is being monetized and surveilled, with the voluntary participation of millions of women. Thousands of downloadable apps promise to help women monitor their periods and manage their fertility. These apps are part of the broader, multi-billion dollar, Femtech industry, which sells technology to help women understand and improve their health. Femtech is marketed with the language of female autonomy and feminist empowerment. Despite this rhetoric, Femtech is part of a broader business strategy of data extraction, in which companies are extracting people’s personal data for profit, typically without their knowledge or meaningful consent. Femtech can oppress menstruators in several …

Digital Health Passes In The Age Of Covid-19: Are “Vaccine Passports” Lawful And Ethical?, Lawrence O. Gostin, I. Glenn Cohen, Jana Shaw

Georgetown Law Faculty Publications and Other Works

As COVID-19 vaccination rates in high-income countries increase, governments are proposing or implementing digital health passes (DHPs) (vaccine “passports” or “certificates”). Israel uses a “green pass” smartphone application permitting vaccinated individuals’ access to public venues (eg, gyms, hotels, entertainment). The European Union plans a “Digital Green Certificate” enabling free travel within the bloc (see eTable in the Supplement). New York is piloting an IBM “Excelsior Pass,” confirming vaccination or negative SARS-CoV-2 test status through confidential data transfers to fast-track business reopenings. This paper examines the benefits of DHPs, scientific challenges, and whether they are lawful and ethical.

Abortion Delayed Is Abortion Denied: Why The Hyde Amendment's Rescission Of Federal Funding For Medically Necessary Abortions Harms Low-Income Women, Aliza Shatzman

Cardozo Journal of Equal Rights & Social Justice

The article argues that the Hyde Amendment, which restricts federal funding for abortions except in cases of life endangerment, rape, or incest, violates the constitutional rights established by Roe v. Wade. It contends that the amendment disproportionately harms low-income women by denying them access to medically necessary abortions, thereby undermining their health and autonomy. The author asserts that the Hyde Amendment conflicts with the "reliance interest" doctrine outlined in Planned Parenthood v. Casey, where women have come to depend on the availability of abortion services.

Feres: The “Double-Edged Sword”, Kaitlan Price

Dickinson Law Review (2017-Present)

In Feres v. United States, the Supreme Court barred service members from suing the Government under the Federal Tort Claims Act if the injuries occurred “incident to military service.” In establishing this doctrine, the Court discussed the necessity of protecting the military from lawsuits to ensure effective decision-making by military leaders.

Scholars have harshly criticized Feres in the modern era, arguing Feres must be overturned to provide service members with a greater opportunity for recovery. Specifically, many scholars admonish Feres because the Supreme Court failed to provide a clear definition of “incident to military service.” Lacking a clear definition …

When Justice Should Precede Generosity: The Case Against Charitable Immunity In Arkansas, Courtney Jane Baltz

Arkansas Law Notes

This Comment discusses various aspects of the modern hospital and examines charitable immunity’s incompatibility with modern law.

First, Part II explains the historical justifications for immunity and presents the doctrine’s landscape in the United States. Part III examines the role precedent plays in continuing to adhere to the rule of immunity. Part IV takes an in-depth approach of the big business of hospitals by evaluating various financial aspects of charitable hospitals. Part V explores the reality of charitable immunity falling out of touch with concepts of modern law. Part VI takes a more specific look at the application of the …