Medical Jurisprudence Commons^™

Dispute Resolution Mechanisms For Intractable Medical Futility Disputes, Thaddeus Mason Pope

Faculty Scholarship

Medical futility disputes occur frequently in healthcare facilities across the United States. In this Article, I provide an overview of dispute resolution mechanisms through which healthcare providers can resolve these disputes. In Section I, identify three distinctive features of medical futility disputes. First, they usually concern life-sustaining medical treatment for patients in a hospital’s intensive care unit. Second, these patients typically lack decision making capacity. So, a surrogate must make treatment decisions on the patient’s behalf. Third, this surrogate and the patient’s physician disagree over the treatment plan. The surrogate wants to continue life-sustaining treatment. But the physician thinks that …

The Split Benefit: The Painless Way To Put Skin Back In The Health Care Game, Christopher Robertson

Faculty Scholarship

This Article proposes a solution to the growth of health care costs, focusing on the sector of expensive, and often unproven, treatments. Political, legal, and market limits prevent insurers or physicians from rationing care or putting downward pressure on prices. Since the insurer bears the cost, the patient is also not sensitive to price, and thus consumes even low-value treatments.

The traditional cost-sharing solution is stymied by the patients’ limited wealth. When treatments can cost $25,000 or more, the median patient cannot be expected to pay a significant portion thereof. Instead, patients often enjoy supplemental insurance or exhaust their cost-sharing …

The Duty To Rescue In Genomic Research, Michael Ulrich

Faculty Scholarship

Applying the duty to rescue to incidental findings in genomic research provides benefits over the ancillary care framework. A rescue model avoids conflating the return of genetic information with providing needed clinical care, it recognizes the ethical duties researchers have toward the research study and offers a mechanism for appropriately balancing these with obligations to individual subjects, and answers definitively that there is no duty to search for incidental findings.

"Off With His __": Analyzing The Sex Disparity In Chemical Castration Sentences, Zachary Edmonds Oswald

Michigan Journal of Gender & Law

Societies around the world have performed castration, in its various forms, on their male and female members for thousands of years, for numerous reasons. Even within the United States, prisoners have been sentenced to castration (as a form of punishment or crime prevention) since the early twentieth century. In recent years, legislatures have perpetuated this practice but with a modern twist. Now, states use chemical injections to castrate their inmates. It turns out, however, that systemic problems plague the chemical castration sentencing regime. These problems arise from the nature of the crimes eligible for chemical castration sentences, the manner of …

The North Carolina Woman’S Right To Know Act: An Unconstitutional Infringement On A Physician’S First Amendment Right To Free Speech, Ryan Bakelaar

Michigan Journal of Gender & Law

The North Carolina Woman’s Right to Know Act represents the crossroads of the Supreme Court’s First Amendment, informed consent, and abortion-related jurisprudence. The Act requires physicians to perform an obstetric ultrasound, verbally convey specific information regarding ultrasonographic findings, and communicate a host of other information to patients seeking abortions. The purported goal of the Act is to ensure that physicians obtain appropriate informed consent from such patients. By compelling a physician to convey this information, the State violates the physician’s First Amendment rights. Indeed, the State may not compel an individual to convey the State’s ideological message. Further, any statute …

Information Overload: How The Wisconsin Supreme Court Expanded The Doctrine Of Informed Consent, 46 J. Marshall L. Rev. 1097 (2013), Michael Rohde

UIC Law Review

No abstract provided.

Deconstructing Antisocial Personality Disorder And Psychopathy: Guidelines-Based Approach To Prejudicial Psychiatric Labels, Kathleen Wayland, Sean O'Brien

Faculty Works

Prejudicial psychiatric labels such as antisocial personality disorder and psychopathy have an inherently prejudicial effect on courts and juries, particularly in cases involving the death penalty. This article explains how and why these labels are inherently aggravating, and also discusses the mental health literature indicating that they are subjective, unreliable and non-scientific. The authors conclude that no competent defense lawyer would pursue a mitigation case based on such a damaging and scientifically questionable psychiatric label. Further, a proper life history investigation conducted in accordance with the ABA Guidelines on the Appointment and Performance of Defense Counsel in Death Penalty Cases …

Nfib V. Sebelius: Proportionality In The Exercise Of Congressional Power, David Orentlicher

Scholarly Works

With its opinion on the constitutionality of the Affordable Care Act (ACA), the U.S. Supreme Court sparked much discussion regarding the implications of the case for other federal statutes. In particular, scholars have debated the significance of the Court's recognition of an anticoercion limit to the Spending Clause power.

When it recognized an anticoercion limit for the ACA's Medicaid expansion, the Court left considerable uncertainty as to the parameters of that limit. This essay sketches out one valuable and very plausible interpretation of the Court's new anticoercion principle. It also indicates how this new principle can address a long-standing problem …

The Fda’S Graphic Tobacco Warning And The First Amendment, David Orentlicher

Scholarly Works

No abstract provided.

Deactivating Implanted Cardiac Devices: Euthanasia Or The Withdrawal Of Treatment?, David Orentlicher

Scholarly Works

No abstract provided.

Concussion And Football: Failures To Respond By The Nfl And The Medical Profession, David Orentlicher

Scholarly Works

No abstract provided.

The Confrontation Clause And Forensic Autopsy Reports-A "Testimonial", 74 La. L. Rev. 117 (2013), Marc Ginsberg

UIC Law Open Access Faculty Scholarship

This Article examines the landscape of legal issues involved in determining whether the presence at trial of a surrogate pathologist, whose testimony refers to a forensic autopsy report prepared by the examining pathologist and provides the foundation for the admissibility of the forensic autopsy report, implicates the Confrontation Clause of the Sixth Amendment. This Article concludes that the practice of surrogate testimony and admission of the forensic autopsy report, well known and often required in criminal homicide prosecutions, implicates and violates the Confrontation Clause.

The Locality Rule Lives! Why? Using Modern Medicine To Eradicate An “Unhealthy” Law, 61 Drake L. Rev. 321 (2013), Marc Ginsberg

UIC Law Open Access Faculty Scholarship

The "locality rule" places a geographical dimension on the professional standard of care in medical negligence litigation. It requires the measurement of a physician's conduct by a standard focusing on the geographical location of the treatment provided. This Article traces the origin of the locality rule, discusses its related practical problems, focuses on the states in which it exists, suggests that the rule is archaic, and explains how modern medicine (undergraduate medical education, graduate medical education, state medical licensure, board certification, continuing medical education and practice guidelines) is well positioned to eradicate it.

Life, Heartbeat, Birth: A Medical Basis For Reform, David F. Forte

Law Faculty Articles and Essays

This Article does not revisit the moral, legal, and constitutional critiques of the Court’s position [in Roe v. Wade]. The voluminous commentaries on the flaws in the Court’s opinions speak for themselves. Rather, this Article seeks to ground an expansion of the protection available to the unborn on the implicit principles underlying current Supreme Court doctrine, refined and modified by recent medical research on nature of pregnancy and human pre-natal development. It will argue that the State’s compelling interest in the protection of what the Court has called “potential life” ripens at an earlier point in time than what the …

Kicking Ohio Medicaid Recipients When They Are Down: How Ohio's Third Party Liability Medicaid Statute Violates Federal Law As Interpreted By Ahlborn, Kelly Voyles

Cleveland State Law Review

This Note argues that Ohio’s Medicaid third party liability statute must either be invalidated by the Ohio Supreme Court or repealed by the Ohio General Assembly. This Note then goes on to argue that the Ohio General Assembly must amend its Medicaid third party liability statute to require settlement allocation before ODJFS can recover the medical payments it made on behalf of Ohio Medicaid recipients. Finally, this Note argues that Ohio should also amend its Medicaid third party liability statute to require that the parties come to an allocation agreement themselves or, if that proves impossible, to require a judicial …

Loss Of Chance, Probabilistic Cause, And Damage Calculations: The Error In Matsuyama V. Birnbaum And The Majority Rule Of Damages In Many Jurisdictions More Generally, Robert J. Rhee

UF Law Faculty Publications

This short commentary corrects an erroneous understanding of probabilistic causation in the loss-of-chance doctrine and the damage calculation method adopted in Matsuyama v. Birnbaum. The Supreme Judicial Court of Massachusetts is not alone. Many other common law courts have made the same error, including Indiana, Nevada, New Mexico, Ohio, and Oklahoma. The consistency in the mistake suggests that the error is the majority rule of damages. I demonstrate here that this majority rule is based on erroneous mathematical reasoning and the fallacy of probabilistic logic.

Legal, Medical, And Ethical Issues In Minnesota End-Of-Life Care: An Introduction To The Symposium, Thaddeus Mason Pope

Faculty Scholarship

As America grays, and medicine’s ability to treat the sickest of patients expands, the legal, medical, and ethical issues in end-of-life care become more numerous, pressing, and intertwined. Because Minnesota’s citizens, clinicians, and courts are not far from these concerns, the Hamline University Health Law Institute and the Hamline Law Review hosted an interdisciplinary Symposium entitled "Legal, Medical, and Ethical Issues in Minnesota End-of-Life Care."

On November 9, 2012, we welcomed more than 200 participants to the newly opened Carol Young Anderson and Dennis L. Anderson Center on Hamline University’s Saint Paul campus. These participants included: attorneys, physicians, nurses, social …

Updated Who Guidance On Safe Abortion: Health And Human Rights, Joanna Erdman, Teresa Depiñeres, Eszter Kismodi

Articles, Book Chapters, & Popular Press

Since its first publication in 2003, the World Health Organization's “Safe abortion: technical and policy guidance for health systems” has had an influence on abortion policy, law, and practice worldwide. To reflect significant developments in the clinical, service delivery, and human rights aspects of abortion care, the Guidance was updated in 2012. This article reviews select recommendations of the updated Guidance, highlighting 3 key themes that run throughout its chapters: evidence-based practice and assessment, human rights standards, and a pragmatic orientation to safe and accessible abortion care. These themes not only connect the chapters into a coherent whole. They reflect …

The Speakers’ Bureau System: A Form Of Peer Selling, Lynette Reid, Matthew Herder

Articles, Book Chapters, & Popular Press

Physicians need to stay abreast of information about emerging drugs and devices, but the time pressures of clinical practice may limit their ability to do so independently. The companies that manufacture and sell these products have the resources and the motivation to “educate” physicians but cannot be expected to distinguish their marketing goals from physicians’ educational needs. Physicians’ professional associations and regulatory bodies, as well as medical journal publishers and editors, drug and device regulatory agencies, and academic medical institutions, have long debated their respective roles and responsibilities in ensuring the safety, efficacy, and probity of prescribing in light of …

Moving Forward With A Clear Conscience: A Model Conscientious Objection Policy For Canadian Colleges Of Physicians And Surgeons, Jocelyn Downie, Jacquelyn Shaw, Carolyn Mcleod

Articles, Book Chapters, & Popular Press

In 2008, one of us (JD) together with the former Dean of Law at the University of Ottawa (Sanda Rodgers), wrote a guest editorial for the Canadian Medical Association Journal on the topic of access to abortion in Canada. In the editorial, we argued, among other things, that "health care professionals who withhold a diagnosis, fail to provide appropriate referrals, delay access, misdirect women or provide punitive treatment are committing malpractice and risk lawsuits and disciplinary proceedings." In response to a series of letters to the editor written about our editorial, we wrote that, under the CMA Code of Ethics …