HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Tuesday, July 27, 2021

Mediation of Health Disputes to Optimise Patient Safety in Bangladesh

Hossain Mohammad Reza, Mediation of Health Disputes to Optimise Patient Safety in Bangladesh, 21 Austl. J. Asian L. (2021):

Legal procedures for medical negligence disputes in Bangladesh fall far short of providing legal redress conforming with patient safety. This paper argues that mediation could be an effective tool for settling such disputes and achieving higher quality health care. I argue that, in addition to providing optimal legal redress for patient injury, mediation, as a non-adversarial approach, would allow health care professionals to disclose shortfalls in the present health care system, which could be used to enhance patient safety.

July 27, 2021 | Permalink | Comments (0)

The Impact of COVID-19 on Immigration Detention

Fatma E. Marouf (Texas A&M University), The Impact of COVID-19 on Immigration Detention, 2 Frontiers in Hum. Dynamics (2021):

COVID-19 has spread quickly through immigration detention facilities in the United States. As of December 2, 2020, there have been over 7,500 confirmed COVID-19 cases among detained noncitizens. This Article examines why COVID-19 spread rapidly in immigration detention facilities, how it has transformed detention and deportation proceedings, and what can be done to improve the situation for detained noncitizens. Part I identifies key factors that contributed to the rapid spread of COVID-19 in immigration detention. While these factors are not an exhaustive list, they highlight important weaknesses in the immigration detention system. Part II then examines how the pandemic changed the size of the population in detention, the length of detention, and the nature of removal proceedings. In Part III, the Article offers recommendations for mitigating the impact of COVID-19 on detained noncitizens.

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July 27, 2021 | Permalink | Comments (0)

On the Cusp of the Next Medical Malpractice Insurance Crisis

Philip G. Peters Jr. (University of Missouri), On the Cusp of the Next Medical Malpractice Insurance Crisis, University of Missouri School of Law Legal Studies Research Paper No. 2021-07:

 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?

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July 27, 2021 | Permalink | Comments (0)

Properly Limiting the Lost Chance Doctrine in Medical Malpractice Cases: A Practitioners’ Rejoinder

Michael C. Mims, Richard Crisler, Properly Limiting the Lost Chance Doctrine in Medical Malpractice Cases: A Practitioners’ Rejoinder, 81 La. L. Rev. (2021):

In this rejoinder, written from the perspective of two defense practitioners, the authors respond to recent calls to relax the "loss of a chance of survival" doctrine in Louisiana. The authors argue that such attempts to relax the doctrine are flawed because they would significantly relax the plaintiff’s burden to prove causation, allowing plaintiffs to recover full or near-full medical malpractice damages, including special damages, potentially far in excess of the $500,000 cap, even when a plaintiff cannot prove causation of a traditional injury. The authors argue that the time has come for legislative clarification of the "lost chance" cause of action, which should involve establishing clear requirements regarding the narrow circumstances in which the lost chance doctrine may be applied, and adopting a percentage probability approach for the calculation of damages.

July 27, 2021 | Permalink | Comments (0)

Monday, July 26, 2021

Uninformed Consent

Ruth Colker (Ohio State University), Uninformed Consent, 101 B.U. L. Rev. (2021):

Since the Supreme Court decided Planned Parenthood of Southeastern Pennsylvania v. Casey in 1992, there has been a race to the bottom to use the doctrine of so-called “informed consent” to coerce pregnant women into becoming mothers by giving birth to a child. Pregnant women are handed glossy brochures with four-week-old fetuses magnified into portrayals of living children and falsely told that their decision to terminate their pregnancy is likely to lead to increased risks of breast cancer, depression, and future fertility problems. Childbirth, by contrast, is romantically portrayed as a risk-free, wholly positive experience, consistent with pregnant women’s natural destiny as mothers.

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July 26, 2021 | Permalink | Comments (0)

Job Posting: Health law tenure track or tenured assistant/associate/professor at Indiana University

Hiring Announcement: Indiana University Robert H. McKinney School of Law

INDIANA UNIVERSITY ROBERT H. MCKINNEY SCHOOL OF LAW invites applications from entry level and lateral candidates with demonstrated interest or experience in health law for a tenure-track or tenured assistant/associate/professor of law position beginning in the 2022-23 academic year.

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July 26, 2021 | Permalink | Comments (0)

Ectogenesis: Is There a Constitutional Right to Substrate-Independent Wombs?

Brit Benjamin (Santa Clara University), Ectogenesis: Is There a Constitutional Right to Substrate-Independent Wombs?, U. Md. L. J. Race, Religion, Gender & Class (2020):

As ectogenetic technologies (“artificial wombs”) inch closer to perfection on a years-not-decades timescale, moral panic from scholars and legislators urge the conclusion that we must ban voluntary reproductive applications. Bioethicist fear mongering, natural human discomfort with transgressive technology, and the general legislative history surrounding reproductive biotechnology all suggest that ectogenesis will not be casually accepted into the lawful repertoire of available reproductive tools.

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July 26, 2021 | Permalink | Comments (0)

Family Planning and its Limits

Dov Fox (University of San Diego), Family Planning and its Limits, 23 J. Contemp. Legal Issues (2021):

A doctor botches a vasectomy. Or says it’d be dangerous to keep a healthy pregnancy. Or misses a risk of passing along disease. Our laws fail to deter such reproductive negligence or compensate its victims. Some are left without the baby they desperately want. Others end up with one they’d set out to avoid — or a child with different traits than what they were led to believe. I call these harms procreation deprived, procreation imposed, and procreation confounded. Thousands of fertility patients were deprived of biological parenthood after their embryos were destroyed in a freezer meltdown. Pregnancy was imposed on hundreds of women whose birth control pills were packaged upside-down. And scores of parents had procreation confounded when the donor a sperm bank claimed was a Ph.D. genius with a spotless record had actually spent years bouncing between prison and psychiatric hospitals related to struggles with mental illness.

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July 26, 2021 | Permalink | Comments (0)

Thursday, July 22, 2021

Job Posting: Research Fellow for the Project on Psychedelics Law and Regulation at Petrie-Flom Center, Harvard Law School

Call for Applications: Research Fellow for the Project on Psychedelics Law and Regulation (POPLAR), Petrie-Flom Center, Harvard Law School

 Deadline: Open until filled.

Overview

The Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School is hiring a full-time postdoctoral fellow to support its newly launched Project on Psychedelics Law and Regulation (POPLAR). This position will likely be a three-year commitment.

This sponsored research project promotes safety, innovation, equity, and access in psychedelics research and clinical medicine. Activities will include conducting cutting-edge academic research and publishing the results in high-impact scientific and legal journals; hosting events, workshops, and academic symposia with experts from industry, government, and academia; educating courts, legislators, government agencies, law students, and the public; partnering with clinical researchers to help them navigate regulatory, legal, and ethical roadblocks in their work; and training the next generation of thought leaders in this area. The overarching goal will be to advance evidence-based psychedelics law and policy.

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July 22, 2021 | Permalink | Comments (0)

Monday, July 19, 2021

Individual Liberty, Public Health, and the Battle for the Nation’s Soul

Scott Burris (Temple University), Individual Liberty, Public Health, and the Battle for the Nation’s Soul, The Regulatory Review (June 7, 2021) https://www.theregreview.org/2021/06/07/burris-individual-liberty-public-health-battle-for-nations-soul/:

This essay examines the legacy of the US Supreme Court case Jacobson v. Massachusetts in the context of the COVID-19 pandemic. The author contends that the vision set by Jacobson — one of coexistence and cooperation in a democratic commonwealth — is in jeopardy as courts in recent COVID-19 constitutional cases have unveiled a new view based less on the social contract than on a strong form of libertarianism.

July 19, 2021 | Permalink | Comments (0)

Thursday, July 15, 2021

Job Posting: Visiting Assistant Clinical Professor of Law in International Human Rights Clinic sought at USC Gould

Visiting Assistant Clinical Professor of Law in International Human Rights Clinic

USC Gould School of Law is seeking a Visiting Assistant Clinical Professor of Law to teach in its International Human Rights Clinic, a 5 unit course, for the fall 2021 semester. The Clinic introduces student attorneys to the substantive law, skills and rules of ethics and professional responsibility for engaging in the Clinic’s cases and projects in the areas of international justice and accountability for atrocity crimes; protection of refugee rights; fair trial monitoring; anti-human trafficking advocacy and racial justice. When engaging in their Clinic practice in the U.S. and abroad, students are exposed to the various litigation and non-litigation strategies for conducting human rights advocacy; lead class discussions on their cases/projects for group problem-solving and feedback; reflect on their human rights lawyering experience in a structured context; and engage in critical examination of the strengths and weaknesses of the global human rights movement.

A J.D., membership in a State bar, and at least five years of experience in legal practice, including in one or more of the Clinic’s subject matter areas is required. In addition, at least one academic year (two semesters) of clinical teaching and/or supervision experience is desirable.

Equity, diversity, inclusion, opportunity and access are of central importance to the Gould School of Law (Gould). Gould holds a unique position in society, and within the university, as every aspect of these principles are influenced by and can be protected through legal rules and institutions. At Gould, we are proudly committed to maintaining a community in which each person respects the rights of others to live, work, and learn in peace and dignity, to be proud of who and what they are, and to have equal opportunity to realize their full potential as individuals and members of society.

July 15, 2021 | Permalink | Comments (0)

Monday, July 12, 2021

Key Ethical Challenges in the European Medical Information Framework

Luciano Floridi (University of Oxford), Ugo Pagallo (University of Turin), Burkhard Schafer (University of Edinburgh), Christoph Luetge (Technische Universität München), Peggy Valcke (KU Leuven), Effy Vayena (ETH Zurich), Janet Addison, Nigel Hughes (U.C. Riverisde), Nathan Lea (University College London), Caroline Sage, Bart Vannieuwenhuyse, Dipak Kalra (University College London), Key Ethical Challenges in the European Medical Information Framework, Edinburgh School of Law Research Paper No. 2021/12:

The European Medical Information Framework (EMIF) project, funded through the IMI programme (Innovative Medicines Initiative Joint Undertaking under Grant Agreement No. 115372), has designed and implemented a federated platform to connect health data from a variety of sources across Europe, to facilitate large scale clinical and life sciences research. It enables approved users to analyse securely multiple, diverse, data via a single portal, thereby mediating research opportunities across a large quantity of research data. EMIF developed a code of practice (ECoP) to ensure the privacy protection of data subjects, protect the interests of data sharing parties, comply with legislation and various organisational policies on data protection, uphold best practices in the protection of personal privacy and information governance, and eventually promote these best practices more widely. EMIF convened an Ethics Advisory Board (EAB), to provide feedback on its approach, platform, and the EcoP. The most important challenges the ECoP team faced were: how to defne, control and monitor the purposes (kinds of research) for which federated health data are used; the kinds of organisation that should be permitted to conduct permitted research; and how to monitor this. This manuscript explores those issues, ofering the combined insights of the EAB and EMIF core ECoP team. For some issues, a consensus on how to approach them is proposed. For other issues, a singular approach may be premature but the challenges are summarised to help the community to debate the topic further. Arguably, the issues and their analyses have application beyond EMIF, to many research infrastructures connected to health data sources.

July 12, 2021 | Permalink | Comments (0)

Peace-of-Mind Consequences of Law: A Proposed Definition and Examples

Kathy L. Cerminara (Nova Southeastern University), Carrie Petrucci, Peace-of-Mind Consequences of Law: A Proposed Definition and Examples, Putting Therapeutic Jurisprudence in the Mainstream, https://mainstreamtj.com/ (Forthcoming):

To apply therapeutic jurisprudence principles is to examine whether laws, procedures, or legal actors enhance or detract from the mental well-being of those affected by them (i.e., are therapeutic or anti-therapeutic). In this piece, the co-authors propose recognition of peace-of-mind laws as those whose very presence brings a long-term therapeutic effect on quality of life for those impacted by them, while their absence elicits a negative impact. They suggest defining a peace-of-mind law as one (a) whose absence creates constant worry and concern (b) over the long-term (c) for the quality of life (d) of defined groups of people. The presence of the peace-of-mind law (a) reduces stress and (b) improves quality of life (c) which brings about peace of mind. Examples in the United States, the co-authors suggest, include aid-in-dying laws, expansion of health care coverage under the Affordable Care Act, long-term-care coverage under the short-lived Community Living Assistance Services and Supports Act, and the Genetic Information Non-Discrimination Act’s assurances that employers and insurers cannot discriminate on the basis of one’s genetic makeup.

July 12, 2021 | Permalink | Comments (0)

Why Death Need Not Be “Reasonably Foreseeable”—The Proposed Legislative Response to Truchon and Gladu v Attorney General (Canada) and Attorney General (Quebec)

Michaela E. Okninski (University of Adelaide), Why Death Need Not Be “Reasonably Foreseeable”—The Proposed Legislative Response to Truchon and Gladu v Attorney General (Canada) and Attorney General (Quebec), Univ. Adelaide Law Research Paper No. 2021-29:

Medical Assistance in Dying (MAID) has become an inescapable reality in Canada since the Supreme Court of Canada (SCC) declared in Carter v Canada (Attorney General) ([2015] 1 S.C.R. 331) (Carter) that the blanket prohibition on physician assisted dying was unconstitutional. Instead of prescribing the regulatory criteria to control the provision of MAID, the SCC invited the respective federal and provincial governments to establish the legislative framework (Carter, [127]).

July 12, 2021 | Permalink | Comments (0)

Ending Confinement and Segregation: Barriers to Realising Human Rights in the Everyday Lives of People Living with Dementia in Residential Aged Care

Linda Steele (University of Technology Sydney), Kate Swaffer, Ray Carr, Lyn Phillipson (University of Wollongong), Richard Fleming (University of Wollongong), Ending Confinement and Segregation: Barriers to Realising Human Rights in the Everyday Lives of People Living with Dementia in Residential Aged Care, Austl. J. Hum. Rts (2020):

Human rights are increasingly being considered in Australian law reform and policy discussions on how to improve the circumstances of people living with dementia in residential aged care facilities. This article enriches understanding of the views on human rights held by people living with dementia and those who support, advocate and care for them, in order to ensure that law and policy reforms which promote human rights can be meaningfully enjoyed in practice. Drawing on data from focus groups and interviews with people living with dementia, care partners, aged care workers and lawyers/advocates, this article argues there is general support for human rights. However, this support was qualified by their acknowledgement of entrenched economic, cultural and sociolegal barriers to their recognition in the everyday lives of people living with dementia. The article concludes that urgent action is required to transform the cultural, economic and social drivers of ambivalence and resistance towards dementia and human rights within aged care and the broader community.

July 12, 2021 | Permalink | Comments (0)

Friday, July 9, 2021

Seeking an Easeful Death: Permutations Within a Penumbra

George P. Smith (Catholic University of America), Seeking an Easeful Death: Permutations Within a Penumbra, CUA Columbus School of Law Legal Studies Research Paper No. 2021-4 (2021):

This Monograph derives from a paper given at The Rothermere American Institute, University of Oxford in the United Kingdom, March 6, 2012.

Contemporary society needs recognition of a fundamental right to compassionate care at the end-stage of life. In a very real way, a right to this quality of care should embrace and incorporate a collateral duty to prevent suffering. Indeed, the duty to relieve pain has long been acknowledged as the least disputed and most universal of the moral obligations of the physician.

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July 9, 2021 | Permalink | Comments (0)

Legal Capacity and the Convention on the Rights of Persons with Disabilities: An Alternative Framework to Promote Law Reform in Hong Kong and Beyond

Kelley Loper (The University of Hong Kong), Carole J. Petersen, (University of Hawaii at Manoa), Legal Capacity and the Convention on the Rights of Persons with Disabilities: An Alternative Framework to Promote Law Reform in Hong Kong and Beyond, 16 J. Compar. L. (forthcoming):

Although widely ratified, the Convention on the Rights of Persons with Disabilities (CRPD) has proven challenging for governments to implement. This article focusses on the right to legal capacity, which is protected by Article 12. According to the UN Committee on the Rights of Persons with Disabilities (CRPD Committee), Article 12 requires governments to abolish all forms of substitute decision-making and provide, instead, mechanisms of supported decision-making for those who need assistance implementing decisions that reflect their own will and preferences. Rather than try to meet that standard, it appears that many governments are choosing not to engage in the process of reforming laws governing adult guardianship, compulsory treatment, and detention on the ground of disability. Hong Kong provides an excellent example of such a jurisdiction. Although bound by the CRPD since 2008, the government has not implemented Article 12 and largely ignored the issue in its 2018 report to the CRPD Committee. Meanwhile, the problems in Hong Kong’s legal framework have become critical. This is partly because the political unrest of 2019 and the crackdown by Beijing in 2020-21 have contributed to a mental health crisis in the territory. Fortunately, the CRPD Committee has requested more detailed information on the right to legal capacity for its upcoming review of Hong Kong. It is, therefore, an ideal time to consider what Hong Kong and other jurisdictions can do to better meet their obligations. This article recognises that the right to legal capacity is a contentious area of law and policy and that it is unrealistic to expect governments to immediately abolish all forms of substitute decision-making. We therefore propose an alternative theoretical framework for interpreting Article 12, one that we hope will promote law reform. Although our approach differs from that taken by the CRPD Committee, it is consistent with the holistic approach to rights that is the hallmark of the CRPD and with the doctrines of interpretation for human rights treaties.

July 9, 2021 | Permalink | Comments (0)

A Momentous Time for Humankind

Paul Enríquez, A Momentous Time for Humankind in Rewriting Nature: The Future of Genome Editing and How to Bridge the Gap between Law and Science (Cambridge University Press forthcoming):

History will mark the twenty-first century as the dawn of the age of precise genetic manipulation. Breakthroughs in genome editing are poised to enable humankind to fundamentally transform life on Earth. Those familiar with genome editing understand its potential to revolutionize civilization in ways that surpass the impact of the discovery of electricity and the development of gunpowder, the atomic bomb, or the Internet. Significant questions regarding how society should promote or hinder genome editing loom large in the horizon. And it is up to humans to decide the fate of this powerful technology.

REWRITING NATURE is a compelling, thought-provoking interdisciplinary exploration of the law, science, and policy of genome editing. The book guides readers through complex legal, scientific, ethical, political, economic, and social issues concerning this emerging technology, and challenges the conventional false dichotomy often associated with science and law, which contributes to a growing divide between both fields.

July 9, 2021 | Permalink | Comments (0)

Climate Change and Gender Discrimination in Indian Health Sector: A Legal Analysis

Jayanta Boruah (North-Eastern Hill University), Climate Change and Gender Discrimination in Indian Health Sector: A Legal Analysis, 1 Juscholars 3 (2020):

Climate Change has become a serious issue in contemporary times everywhere in the world. The most pathetic truth about this issue is that it targets the most vulnerable and the in-secured sections of the population as victims more compared to those who are in an advantageous position in society. Thus, women as they are physically and socially weak stay at the receiving end and suffer the most due to the devastating impacts of climate change. In India, women are held to be socially weak due to the patriarchal nature of most of the Indian societies. Further, women in India are seemed to be neglected mostly in the decision-making process.

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July 9, 2021 | Permalink | Comments (0)

Thursday, July 8, 2021

Ethical Challenges in Discharge Planning: Stories from Patients

Elizabeth Pendo (Saint Louis University), Ethical Challenges in Discharge Planning: Stories from Patients, 10 Narrative Inquiry in Bioethics 3 (2020):

This symposium includes twelve personal narratives from patients and their caregivers who have navigated challenges in planning for discharge from the hospital and transition to care at home, a rehabilitation facility, long-term care facility, or hospice. Three commentaries on these narratives are also included, authored by experts and scholars in the fields of medicine, bioethics, and health policy with particular interest in vulnerable populations. The goal of this symposium is to call attention to the experiences of patients during transitions in care and to enrich discussions of ethical issues in discharge planning.

July 8, 2021 | Permalink | Comments (0)