Medical Jurisprudence Commons^™

A Medical Malpractice Model For Developing Countries?, Nathan Cortez

Faculty Journal Articles and Book Chapters

This Article, written for the symposium "Reforming Medical Liability: Global Perspectives," evaluates the unique plight of developing countries in crafting medical liability regimes. Many developing countries struggle to maintain workable systems for adjudicating physician negligence. This is due to a variety of factors, such as widespread poverty, more pressing public health priorities that demand attention, a scarcity of physicians, immature health care systems, large informal health sectors, regulatory deficits, and weak civil societies, among others. Patients in these countries are also less able than their counterparts in well-developed countries to evaluate and challenge the care they receive and thus serve …

Can Speech By Fda-Regulated Firms Ever Be Noncommercial?, Nathan Cortez

Faculty Journal Articles and Book Chapters

This Article considers whether speech by pharmaceutical, medical device, and other FDA-regulated companies can ever be noncommercial and thus subject to heightened protection under the First Amendment. Since the U.S. Supreme Court first recognized a right to commercial speech in 1976, there have been 24 published federal judicial opinions in which an FDA-regulated firm has argued that its speech was protected. Courts have categorized the speech as commercial in all but two cases, neither of which involved FDA rules or enforcement.

I examine the tests and factors courts claim they use when making this threshold distinction, then identify the various …

Medical Malpractice Law, Sean P. Byrne, Lauran G. Stimac

University of Richmond Law Review

Health care reform took center stage on a national level overthe past year. Despite suggestions that medical liability reform might be incorporated into the federal legislation, in the end, it was not. Similarly, this year saw few legislative developments at the state level in medical malpractice law, as the Virginia General Assembly focused its energy primarily on the budget shortfall and other issues. There were, however, several health care legislative and case developments of note which will impact the medical liability landscape in the coming years. Board of Medicine activity and medical malpractice trial results of interest are also highlighted …

Stateless Crimes, Legitimacy, And International Criminal Law: The Case Of Organ Trafficking, Leslie Francis, John Francis

Utah Law Faculty Scholarship

Organ trafficking—coercion for the purpose of removal of organs (United Nations 2000; GTZ 2004)—is recognized as a significant international problem. Yet unlike sex trafficking or trafficking in children, it is largely left out of international criminal law regimes and to some extent of domestic criminal law regimes as well. It does not come within the jurisdiction of the ICC, except in very special cases such as when it is conducted in a manner that conforms to the definitions of genocide or crimes against humanity. Although the United States Code characterizes trafficking as “a transnational crime with national implications,” (22 U.S.C. …

"What Do I Do About This Word, 'Unavoidable'?": Resolving Textual Ambiguity In The National Childhood Vaccine Injury Act, Jason Lafond

Michigan Law Review First Impressions

The quote in the title of this Essay comes from Justice Breyer, expressing his frustration with the language of section 22(b)(1) of the National Childhood Vaccine Injury Act. Justice Breyer made this comment during the October 12, 2010, oral argument in Bruesewitz v. Wyeth, Inc., a case about the availability of state tort claims based on vaccine design defects. The question before the Court was whether that section expressly preempts such claims against vaccine manufacturers "if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions …

The Affects Of Apprendi V. New Jersey On The Use Of Dna Evidence At Sentencing—Can Dna Alone Convict Of Unadjudicated Prior Acts?, Katharine C. Lester

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Shaping Parental Authority Over Children's Bodies, Alicia Ouellette

Indiana Law Journal

In the health-care setting, parental decisions to size, shape, sculpt, and mine children's bodies through the use of nontherapeutic medical and surgical interventions are a matter of parental choice except in extraordinary cases involving grievous harm. This Article questions the assumption of parental rights that frames the current paradigm for medical decision making for children. Focusing on cases involving eye surgery, human growth hormone, liposuction, and growth stunting, I argue that by allowing parents to subordinate their children's interests to their own, the current paradigm distorts the parent-child relationship and objectifies children in violation of the moral principle, deeply embedded …

Recent Developments In Stem Cell Research: Social, Ethical, And Legal Issues For The Future (George P. Smith Ii Lecture), Loane Skene

Indiana Journal of Global Legal Studies

On February 12, 2009, Professor Skene delivered the George P. Smith II Lecture at the Indiana University Maurer School of Law.

Ensuring Government Accountability During Public Health Emergencies, Fazal Khan

Scholarly Works

The main argument of this Article is that the gravest threat to civil liberties during a public health emergency (PHE) stems from federal powers premised on post-9/11 national security justifications, not putative state powers under the Model State Emergency Health Powers Act (MSEHPA). While I concur with earlier assessments that the MSEHPA is seriously flawed and that PHEs should be construed as primarily federal issues, going forward, more critical attention needs to be focused on the federal role during PHEs as the initially alarming MSEHPA appears to be more of a paper tiger. First, as the responses to Hurricane Katrina …

Professional And Conviction Integrity Programs: Why We Need Them, Why They Will Work, And Models For Creating Them, Barry Scheck

Cardozo Law Review

The best way to effectively prevent Brady violations and other forms of prosecutorial misconduct that cause wrongful convictions is internal regulation of the District Attorney's office. Civil liability, state or bar disciplinary action, the stigma of appellate reversal, and the threat of criminal prosecution have failed to provide effective deterrence against Brady violations as well as other forms of misconduct. However, the lack of alternatives is not the reason why internal regulation is the most promising way to prevent Brady violations, but rather because prosecutors themselves are in the best position to implement procedures that achieve this goal.

Prosecutorial offices, …

Boehner’S Big Gift To The Drug Industry, Joanne Doroshow

Other Publications

No abstract provided.

The "Bad Samaritan" Paradigm, Anthony D'Amato

Faculty Working Papers

This essay will attempt to show that the disparity between the rule of law and the dictates of morality is itself a product of the paradigmatic way in which the "Bad Samaritan" cases are analyzed. If we examine the cases in an entirely different way, many of the standard problems will dissolve and new alternatives will become apparent. The essay will also show that the "Bad Samaritan" paradigm is part of a larger paradigm linking the law of torts with the criminal law, which also needs to be reexamined. Finally a recommendation for dealing with the "Bad Samaritan" problem legislatively …

Are You Covered? The Need For Improvement In Insurance Coverage For Autism Spectrum Disorder, 44 J. Marshall L. Rev. 291 (2010), Marissa Mazza

UIC Law Review

No abstract provided.

Access To Prescription Drugs: A Normative Economic Approach To Pharmacist Conscience Clause Legislation, Joanna K. Sax

Faculty Scholarship

The goals of this Article are two-fold: (1) to explain that pharmacist conscience clause legislation may be expanded to areas concerning controversial biomedical research; and (2) to demonstrate that welfare economics can be applied to analyze pharmacist conscience clause legislation. Regarding the first goal, the broad language of existing and proposed conscience clause legislation creates an umbrella that allows a pharmacist to escape liability for refusing to fill a prescription for almost any type of medication. With respect to the second goal, this Article applies welfare economics to demonstrate that pharmacist conscience clauses are a part of tort law and …

The Illinois Mental Health And Developmental Disabilities Confidentiality Act: Lest We Forget The Search For The Truth, Elinor Lynn Hart

Loyola University Chicago Law Journal

No abstract provided.

Some Lessons Learned From The Aids Pandemic, 19 Annals Health L. 63 (2010), Mark E. Wojcik

UIC Law Open Access Faculty Scholarship

No abstract provided.

How Much Anguish Is Enough - Baby Switching And Negligent Infliction Of Emotional Distress, 13 Depaul J. Health Care L. 255 (2010), Marc Ginsberg

UIC Law Open Access Faculty Scholarship

No abstract provided.

Aligning Ethics With Medical Decision-Making: The Quest For Informed Patient Choice, Jaime S. King, Benjamin W. Moulton

Faculty Scholarship

No abstract provided.

Informed Consent: No Longer Just What The Doctor Ordered - The Contributions Of Medical Associations And Courts To A More Patient Friendly Doctrine, 15 Mich. St. U. J. Med. & L. 17 (2010), Marc Ginsberg

UIC Law Open Access Faculty Scholarship

No abstract provided.

Surrogate Selection: An Increasingly Viable, But Limited, Solution To Intractable Futility Disputes, Thaddeus Mason Pope

Faculty Scholarship

This article reviews the strengths and weaknesses of “surrogate selection” as a solution to intractable medical futility disputes. It concludes that while surrogate selection is an increasingly viable solution, it remains only a partial solution because it is often difficult or impossible to demonstrate that a surrogate demanding non-recommended end-of-life medical treatment is acting outside the scope of her authority.

Over the past twelve years, many states have been developing new legislative solutions to intractable medical futility disputes. The most widely-discussed solution empowers healthcare providers to unilaterally refuse patient- or surrogate-requested treatment that the provider deems inappropriate. In Texas, for …