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Full-Text Articles in Health Law and Policy

Cold Comfort Pharmacy: Pharmacist Tort Liability For Conscientious Refusals To Dispense Emergency Contraception, Kristen Marttila Gast Feb 2007

Cold Comfort Pharmacy: Pharmacist Tort Liability For Conscientious Refusals To Dispense Emergency Contraception, Kristen Marttila Gast

ExpressO

The past several years have seen an increasing number of pharmacists refuse to dispense emergency contraception, an effective, post-coital form of contraception, on the grounds that the drug violates their personal beliefs. This Article addresses the impact of those pharmacist refusals under existing principles of tort law. The Article draws on existing pharmacy case law, state-specific refusal clauses, and ethics statements promulgated by professional pharmacy associations to investigate whether pharmacists have a legal duty to dispense emergency contraception, notwithstanding religious or ethical objections. Concluding that in most states, such a legal duty does exist, the Article develops a “wrongful conception ...


Accessing Reproductive Technologies: Invisible Barriers, Indelible Harms, Judith F. Daar Feb 2007

Accessing Reproductive Technologies: Invisible Barriers, Indelible Harms, Judith F. Daar

ExpressO

The use and success of assisted reproductive technologies (ART) over the past decade has contributed perceptibly to family formation nationwide. Today, 3 of every 100 children born owe their existence to some form of assisted conception. Despite, or perhaps because of, its technical successes, a growing body of evidence suggests that barriers to ART are being constructed to prevent procreation among select populations. The article’s theme is one of harm, specifically the harm that befalls patients, physicians, offspring and society when fertility treatments are denied on the basis of personal characteristics, including race, marital status and sexual orientation. While ...


Overriding Mental Health Treatment Refusals: How Much Process Is "Due"?, Samuel Jan Brakel Jan 2007

Overriding Mental Health Treatment Refusals: How Much Process Is "Due"?, Samuel Jan Brakel

ExpressO

No abstract provided.


Of Elephants And Embryos: A Proposed Framework For Legal Personhood, Jessica Berg Jan 2007

Of Elephants And Embryos: A Proposed Framework For Legal Personhood, Jessica Berg

ExpressO

No abstract provided.


Doomsday: A Look At The Ethical Issues Behind The Government's Coercive Powers In Response To A Public Health Nightmare., Jacob M. Chapman Jan 2007

Doomsday: A Look At The Ethical Issues Behind The Government's Coercive Powers In Response To A Public Health Nightmare., Jacob M. Chapman

ExpressO

This article posits a hypothetical scenario in which a deadly pandemic is unleashed upon the United States and the several individuals whom appear to have a natural immunity refuse to participate in necessary research. The article then examines the possible legal and ethical approaches available for reacting to the pandemic.

The hypothetical scenario addressed in this article highlights a gap in current public health law. While various states have laws and procedures relating to quarantine and forced inoculation, these laws and procedures do not suggest whether the state may or may not coerce non-threatening individuals into participating in potentially dangerous ...


New Differences Between Negligence And Strict Liability And Their Implications On Medical Malpractice Reform, Noam Sher Dec 2006

New Differences Between Negligence And Strict Liability And Their Implications On Medical Malpractice Reform, Noam Sher

ExpressO

The present article seeks to explore previously undiscussed differences between the negligence and strict liability rules and thereby examine the required medical liability reform, if such reform is indeed required. Our main thesis is that negligence as a basis for liability entails a unique mechanism, which is essentially different than the strict liability mechanism, and is more efficient for several reasons, related to the legal function of resolving partial information problems which cause partial failure in the healthcare market. Among other things, the negligence mechanism (1) motivates the parties to a potential damages claim to invest in information gathering; (2 ...


Patent Political Economy - Indian Lessons On Pharmaceutical Patent, Julien L. Chaisse, Samira Guennif Dec 2006

Patent Political Economy - Indian Lessons On Pharmaceutical Patent, Julien L. Chaisse, Samira Guennif

ExpressO

The Intellectual Property Rights (IPR) regime adopted by any country is essentially a tool that strives to ensure both the growth of the domestic pharmaceutical industry and people’s access to medicines. But, contrary to the very easily advanced theory, there is no paradox between the two. From this perspective, the Indian experience has shown that it is precisely the relaxation of its national IPR regime that promoted the growth of its domestic industry, thereby ensuring a better patient access to medicines. However, the globalisation process does not overlook any sector, which means that medicines too are submitted to the ...


A Complete Property Right Amendment, John H. Ryskamp Oct 2006

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.


Medical Self-Defense, Prohibited Experimental Therapies, And Payment For Organs, Eugene Volokh Oct 2006

Medical Self-Defense, Prohibited Experimental Therapies, And Payment For Organs, Eugene Volokh

ExpressO

Three sisters lie in adjoining hospital rooms. A fourth lives a block away. All are in deadly peril.

Alice is seven months pregnant, and the pregnancy threatens her life. Her fetus has long been viable, so she no longer has the Roe/Casey right to abortion on demand. But because her life is in jeopardy, she has a constitutional right to save her life by hiring a doctor to perform a post-viability abortion, though it means the death of a viable fetus. She would even have such a right if the pregnancy were only posing a serious threat to her ...


Plan B Contraceptive And The Role Of Politics In Medicine: A Comparative Analysis Of The "Switch" Of Emergency Contraception From Prescription To Non-Prescription In The United States, France, The United Kingdom, And Canada, Mary E. Armstrong Sep 2006

Plan B Contraceptive And The Role Of Politics In Medicine: A Comparative Analysis Of The "Switch" Of Emergency Contraception From Prescription To Non-Prescription In The United States, France, The United Kingdom, And Canada, Mary E. Armstrong

ExpressO

Of the approximately 6 million pregnancies in the United States each year, almost half are unintended. Of these unintended pregnancies, approximately four in ten will end in abortion. Plan B emergency contraception is a drug that has the potential to reduce the number of abortions performed each year in half. Despite contentions from various religious and political sects, Plan B is not an abortifacient. It acts by preventing a pregnancy from starting rather than terminating a pregnancy that is already established. On December 16, 2003, a panel of medical and scientific experts gathered by the Food and Drug Administration (FDA ...


Brain Imaging And Privacy: How Recent Advances In Neuroimaging Implicate Privacy Concerns , David P. Finn Sep 2006

Brain Imaging And Privacy: How Recent Advances In Neuroimaging Implicate Privacy Concerns , David P. Finn

ExpressO

This paper deals with recent advances in neuroimaging technologies which could begin to implicate privacy concerns in the near future.


Biopolitics At The Bedside: Proxy Wars And Feeding Tubes, Joshua E. Perry Sep 2006

Biopolitics At The Bedside: Proxy Wars And Feeding Tubes, Joshua E. Perry

ExpressO

In the aftermath of Terri Schiavo’s dramatic final weeks of life, George Annas speculated that proponents of “culture of life” politics might “now view [themselves] as strong enough to generate new laws . . . to require that incompetent patients be kept alive with artificially delivered fluids and nutrition.” Indeed, Professor Annas’ prescience has been demonstrated by the post-Schiavo introduction in two dozen state legislatures of over fifty different bills making it more onerous to remove a patient’s artificial nutrition and hydration (ANH). With minor exception, however, most of the proposed legislation has either stalled or been watered down, prompting columnist ...


Hedonic Damages, Hedonic Adaptation, And Disability, Samuel R. Bagenstos, Margo Schlanger Sep 2006

Hedonic Damages, Hedonic Adaptation, And Disability, Samuel R. Bagenstos, Margo Schlanger

ExpressO

This article contributes to the broad debate over “adaptive preferences” in law, economics, and political philosophy by addressing an important ongoing controversy in tort law. Hedonic damages compensate for the lost enjoyment of life that results from a tortious injury. Lawyers seeking hedonic damages in personal injury cases emphasize their clients’ new status as compromised and damaged persons, and courts frequently uphold jury verdicts awarding hedonic damages to individuals who experienced disabling injuries based on a view that disability necessarily limits one’s enjoyment of life. This view is consonant with a general societal understanding of disability as a tragedy ...


Disability Discrimination In Long-Term Care: Using The Fair Housing Act To Prevent Illegal Screening In Admissions To Nursing Homes And Assisted Living Facilities, Eric M. Carlson Aug 2006

Disability Discrimination In Long-Term Care: Using The Fair Housing Act To Prevent Illegal Screening In Admissions To Nursing Homes And Assisted Living Facilities, Eric M. Carlson

ExpressO

Nursing homes and assisted living facilities routinely require applicants to disclose an extensive amount of medical information. Not infrequently, these long-term care facilities use the information to deny admission to those applicants with relatively greater care needs. These denials constitute illegal discrimination under the Americans with Disabilities Act and the Rehabilitation Act, but generally consumers are unaware of these protections or find litigation too expensive and time-consuming under their generally difficult circumstances.

These illegal denials of service could be limited by active enforcement of the Fair Housing Act’s no-inquiry regulation, which prohibits a housing provider from inquiring into an ...


The Convicted Felon As A Guardian: Considering The Alternatives Of Potential Guardians With Less-Than-Perfect Records, Mike Jorgensen Aug 2006

The Convicted Felon As A Guardian: Considering The Alternatives Of Potential Guardians With Less-Than-Perfect Records, Mike Jorgensen

ExpressO

Courts require discretion in appointing guardians. Oftentimes, the legislature prevents the courts from exercising discretion when statutes are enacted that prohibit felons from serving as guardians under any circumstances. Yet, the need for guardians is increasing and will continue to do so due to the exponential growth in the aging elder population.

At the same time, however, the pool of potential guardians is shrinking in size. Additionally, the same reducing pool of eligible guardians is being attenuated further by having a disproportionate amount of felonies.

The groups most impacted by these trends are the indigent and the minorities. The indigent ...


A Friendly Approach To Reducing Medical Malpractice Litigation, Aaron A. Bucco Aug 2006

A Friendly Approach To Reducing Medical Malpractice Litigation, Aaron A. Bucco

ExpressO

A Friendly Approach to Reducing Medical Malpractice Litigation focuses on practical and feasible solutions to the rising threat of medical malpractice litigation by establishing that psychological principles are fundamental to point-of-care physician-patient interaction. Several universities discussed in the article have recognized the benefits of incorporating bedside manner techniques into the curriculum. The article attempts to extend the logic understood by those universities to medical malpractice insurance providers as a means to effectively preempt litigation as opposed to maintaining a reactive posture, or worse, limiting the rights of patients, thereby raising their guard and weakening their tolerance for error.


Protecting Rights Or Waiving Them? Why 'Negotiated Risk' Should Be Removed From Assisted Living Law, Eric M. Carlson Aug 2006

Protecting Rights Or Waiving Them? Why 'Negotiated Risk' Should Be Removed From Assisted Living Law, Eric M. Carlson

ExpressO

Assisted living facilities claim that negotiated risk agreements give residents the freedom to act against facility advice. On the contrary, negotiated risk was proposed originally to waive a facility’s liability for inadequate care, and liability waiver remains a significant component of negotiated risk.

This Article offers the first detailed legal analysis of state negotiated risk laws. Due to negotiated risk’s dueling definitions – based either on the against-facility-advice scenario or the inadequate care scenario – state law is marked by ambiguity and inconsistency. Currently, fifteen states address negotiated risk in law, and an additional state has developed a standardized negotiated ...


In Sickness, Health, And Cyberspace: Protecting The Security Of Electronic Private Health Information, Sharona Hoffman, Andy Podgurski Aug 2006

In Sickness, Health, And Cyberspace: Protecting The Security Of Electronic Private Health Information, Sharona Hoffman, Andy Podgurski

ExpressO

The electronic processing of health information provides considerable benefits to patients and health care providers at the same time that it creates serious risks to the confidentiality, integrity, and availability of the data. The Internet provides a conduit for rapid and uncontrolled dispersion and trafficking of illicitly-obtained private health information, with far-reaching consequences to the unsuspecting victims. In order to address such threats to electronic private health information, the U.S. Department of Health and Human Services enacted the HIPAA Security Rule, which thus far has received little attention in the legal literature. This article presents a critique of the ...


Why It Is Time To Eliminate Genomic Patents, Together With Natural Extracts Doctrine That Have Supported Such Patents, Allen K. Yu Jul 2006

Why It Is Time To Eliminate Genomic Patents, Together With Natural Extracts Doctrine That Have Supported Such Patents, Allen K. Yu

ExpressO

The constitutional purpose of intellectual property is to “promote the progress of science and useful arts.” Given the utilitarian basis of patents, it is critical that policies and laws must be continually adjusted to reflect the needs of new technologies. When the law tries to shield itself from rather than confront the realities of underlying technologies, patents end up actually subverting rather than promote technological progress. This paper explores why the natural extracts doctrine belongs to the class of doctrines that subvert progress. The doctrine, established over a century ago to enable the patenting of purified compounds for use as ...


“Just Scanning Around” With Diagnostic Medical Ultrasound: Should States Regulate The Non-Diagnostic Uses Of This Technology?, Archie A. Alexander Jul 2006

“Just Scanning Around” With Diagnostic Medical Ultrasound: Should States Regulate The Non-Diagnostic Uses Of This Technology?, Archie A. Alexander

ExpressO

Recent advances in medical imaging have provided physicians with more accurate diagnostic information, which has allowed them to tailor their therapies to reduce health care costs. These recent advances have caused the New England Journal of Medicine to hail diagnostic medical imaging as one of the greatest contributions to medicine in last thousand years. Yes, modern diagnostic imaging plays a major role in medicine, especially in the case of diagnostic imaging technology. One reason this technology has assumed such a prominent position worldwide is the usage of higher sound intensities by its manufacturers for better image quality. A recent survey ...


Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp Jun 2006

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.


Till Death Do Us Part: Marriage, Hiv/Aids And The Law In Zimbabwe, Slyvia Chirawu Jun 2006

Till Death Do Us Part: Marriage, Hiv/Aids And The Law In Zimbabwe, Slyvia Chirawu

ExpressO

Lying in Sub Saharan Africa, the epicenter of the HIV/AIDS epidemic, Zimbabwe has grappled since 1985 to prevent and mitigate the impact of HIV/AIDS. Statistics point out to one glaring factor- the disproportionate impact of HIV/AIDS on women and in the case of Zimbabwe married women. Laws, policies and practices in relation to marriage predispose married women to HIV/AIDS infection. The answer to protecting women does not lie entirely in the law but in transformative gender equality.

Zimbabwe has two types of recognized marriages and the third type , the unregistered customary law union is given limited ...


Zoning And Eminent Domain Under The New Minimum Scrutiny, John H. Ryskamp May 2006

Zoning And Eminent Domain Under The New Minimum Scrutiny, John H. Ryskamp

ExpressO

Recently the Supreme Court has made it clearer that minimum scrutiny is a factual analysis. Whether in any government action there is a rational relation to a legitimate interest is a matter of determining whether there is a policy maintaining important facts. This has come about in the Court’s emerging emphasis on developing fact-based criteria for determining government purpose. Thus, those who want to affect zoning and eminent domain outcomes should look to what the Court sees as important facts, and whether government action is maintaining those facts with its proposed land use or eminent domain action.


Stealing What's Free: Exploring Compensation To Body Parts Sources For Their Contribution To Profitable Biomedical Research, Jo-Anne Yau May 2006

Stealing What's Free: Exploring Compensation To Body Parts Sources For Their Contribution To Profitable Biomedical Research, Jo-Anne Yau

ExpressO

It is undisputed in the biotechnology industry that human body parts play a vital role in research. The body parts donors, referred to as "Sources" in this article, are subjected to physical and financial exploitation. Forbidding the explosion of profits from trickling down to the Source presents an irrational inequity. Despite established law, it is evident from case analysis, prevailing social practices, and constitutional interpretation that Source compensation is a plausible solution.

This article proposes a model of compensation for Sources, whereby Sources are compensated based on a proportionate share of the research profits set aside for the Source as ...


Crossing The Immunological Barrier, Farrah Qazi Apr 2006

Crossing The Immunological Barrier, Farrah Qazi

ExpressO

No abstract provided.


Should It Be Illict To Solicit? A Legal Analysis Of Policy Options To Regulate Solicitation Of Organs For Transplant, Alexandra K. Glazier, Scott Sasjack Apr 2006

Should It Be Illict To Solicit? A Legal Analysis Of Policy Options To Regulate Solicitation Of Organs For Transplant, Alexandra K. Glazier, Scott Sasjack

ExpressO

Recently, there have been several well-publicized cases in which a patient in need of a transplant has solicited an organ through the use of commercial advertising and organized media campaigns. When deceased organs are directed to an individual as a result of solicitation rather than allocated through the national system, equity and medical utility are sacrificed. For this reason, regulation of deceased organ solicitation may be desirable. However, because solicitation of organs is likely to be considered constitutionally protected charitable speech, there are significant legal issues to consider. This article analyzes the legality of four possible policy options to resolve ...


Standard Errors: How Budget Rules Distort Lawmaking, Timothy M. Westmoreland Apr 2006

Standard Errors: How Budget Rules Distort Lawmaking, Timothy M. Westmoreland

ExpressO

The article argues that the Congress’s budget process has invisibly influenced its legislative activities and structurally skewed its policy choices. The budgetary structure and tools as they affect lawmaking are largely unanalyzed. Until they are widely appreciated, they may often be random, inefficient, unrepresentative, and even deceptive. Review, critique, and change are overdue in any case. Inasmuch as the Congress is now, after a period of budget anarchy, debating how to refocus on the budget, this is a particularly good time for such activities.

The article also argues that additional structures are needed to “counter-balance” both the skewing that ...


Tackling The "Evils" Of Interlocking Directorates In Healthcare Nonprofits, Nicole Huberfeld Apr 2006

Tackling The "Evils" Of Interlocking Directorates In Healthcare Nonprofits, Nicole Huberfeld

ExpressO

No abstract provided.


The Weldon Amendment: The Ongoing Restrictions On A Woman's Right To Choose, John Patton Fortuno Apr 2006

The Weldon Amendment: The Ongoing Restrictions On A Woman's Right To Choose, John Patton Fortuno

ExpressO

Under the Weldon Amendment, a “physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility” may refuse abortions, counseling, or referrals, even in cases of rape, incest, or medical emergency.


Reproductive Cloning Case:How Law And Bioethics Measure A Compelling Governmental Interest, Paulo Farias Mar 2006

Reproductive Cloning Case:How Law And Bioethics Measure A Compelling Governmental Interest, Paulo Farias

ExpressO

Law and Bioethics should be partners in developing public policies to deal with cloning. Law as a Government tool must enforce decisions made in Bioethics Commissions such as the NBAC and the President’s Council, because the Commissions’ discussions offer an array of principles to help legislators and policy makers understand how to find compelling governmental interests. For instance, human dignity is not a vague and obscure legal or bioethical concept. In truth, it is a way of connecting Law and Bioethics to answer questions such as the relationship between the legal protection of procreation and the Report of the ...