HealthLawProf Blog

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

Monday, December 12, 2005

Informed Consent, Medical Devices, and Financial Conflicts of Interest

As reported in today's Kaiser Daily Health Policy Report:

The Wall Street Journal on Monday examined how the Cleveland Clinic advocates and performs heart surgery with a medical device manufactured by AtriCure, despite undisclosed financial ties with the company. According to the Journal, Cleveland Clinic physicians "have been leading advocates of" the surgery, an operation for atrial fibrillation often called the "AtriCure procedure," but the hospital's "relationship with Atricure ... goes deeper." Cleveland Clinic helped found and invested in a venture capital partnership that owns about 4.1% of AtriCure stock, valued at about $7 million, and Clinic CEO Delos Cosgrove had served as a board member of the company until March. In addition, Cosgrove personally invested in the venture capital partnership and had served as a general managing partner of the fund until October. However, Cleveland Clinic did not disclose its financial ties to AtriCure to patients who underwent the AtriCure procedure. According to the Journal, Cleveland Clinic's conflict-of-interest committee raised concerns about the financial ties to AtriCure last spring (Armstrong, Wall Street Journal, 12/12[, page A1 (paid subscription required)].


December 12, 2005 | Permalink | Comments (0) | TrackBack (0)

More on the Ethics of Face Transplants

The American Journal of Bioethics devoted a substantial part of Vol. 3, No. 3 (Sept. 2004) to the ethics of face transplantation.  It ran an article ("On the Ethics of Facial Transplant Research," by by Osborne P. Wiggins, John H. Barker, Michael Cunningham, Cedric G. Francois, Frederico V. Grossi, Moshe Kon, Claudio Maldonado, Serge Martinez, Gustavo Perez-Abadia, Marieke Vossen, Joseph C. Banis), followed by a particularly rich "open peer commentary."  [tm]

December 12, 2005 | Permalink | Comments (0) | TrackBack (0)

Face Transplant in France Produces Ethical Concerns

On November 27, French surgeon Jean-Michel Dubernard and his team performed the world's first face transplant on a woman whose face had been half ripped away by her pet dog.  The ethical questions have been swirling ever since.  They were nicely summarized by Michael Mason and Lawrence Altman in the NY Times on Dec. 6 in "Ethical Concerns on Face Transplant Grow."  The basic concerns are these:

  • the use of stem cells from donor bone marrow to help stave off rejection of the transplanted tissue combined two experimental regimes; the surgeons have made it virtually impossible to know whether the success or failure will be due to some aspect of the surgery or the use of stem cells;
  • "the transplant was performed months after the woman's injury, and before any attempt at conventional reconstructive surgery"; radically experimental surgery is generally made available only after the patient has attempted to live with the alternatives, including traditional surgery;
  • British papers report that the woman was mauled by her Labrador retriever after she had overdosed on sleeping pills; this raises the question of the patient's emotional stability, which in turn raises questions of her ability to stick with the post-surgical medical regime required to avoid rejection of the graft, and the absence of longer-term psychological assessments leave open the question whether the patient will be able to withstand the emotional pressures that will follow.

Despite all this, the AP reported on Sunday that the patient reportedly stated that she has no regrets about undergoing the first face transplant:

"When I looked at my new face I knew straight away that it was me," Britain's Daily Mail quoted the 38-year-old patient as saying. "It was amazing to see a nose and mouth on my face again."

The newspaper did not explain how it obtained the woman's comments. The article was datelined from Valenciennes, northern France, where the woman lives, though she is convalescing 400 miles to the south at a hospital in Lyon.

The woman said she still had no feeling in her face, as the nerves were not yet working correctly, the Daily Mail reported. Doctors hoped feeling would return in six months to a year, she said.

The patient said she had taken a walk in the hospital, but was "very scared of leaving" and being recognized as the face transplant recipient, the paper said.

"I just want to live a normal life, without being stared at all the time," she said. "It's still too early to think about the future. But I regret nothing - if I was asked again, I would do it again."

The AP article also raises the possibility of a previous suicide attempt, which her surgeon continues to deny. [tm]

December 12, 2005 | Permalink | Comments (0) | TrackBack (0)

Sunday, December 11, 2005

WSJ: More on the NEJM/Merck Mess

Monday's Wall Street Journal will have an article (requires paid subscription) that suggests that one of Merck's chief defense witnesses in its Vioxx litigation -- Alice Reisin, a top Merck scientist -- may have been irreparably harmed by last week's NEJM editorial, in which the medical journal suggested scientific misconduct in the underreporting of known instances of myocardial infarctions among Vioxx users.  In Monday's print edition, look for "Top Merck Witness May Become Liability In New Vioxx Trials," by Heather Won Tesoriero & Barbara Martinez, Page B1.  [tm]

December 11, 2005 | Permalink | Comments (0) | TrackBack (0)

NEJM Weighs in on Merck, Vioxx

The New England Journal of Medicine this week released an editorial early by publishing on its web page a piece that will appear in print in the Dec. 29 issue: "Expression of Concern: Bombardier et al., 'Comparison of Upper Gastrointestinal Toxicity of Rofecoxib and Naproxen in Patients with Rheumatoid Arthritis,' N Engl J Med 2000;343:1520-8," by Gregory D. Curfman, M.D., Stephen Morrissey, Ph.D., and Jeffrey M. Drazen, M.D.  The crux of the editorial is this:

We have recently obtained information regarding inaccuracies in data in the report of the VIGOR (Vioxx Gastrointestinal Outcomes Research) study by Bombardier et al. that raise concern about certain conclusions in the article.

The VIGOR study was designed primarily to compare gastrointestinal events in patients with rheumatoid arthritis randomly assigned to treatment with rofecoxib (Vioxx) or naproxen (Naprosyn), but data on cardiovascular events were also monitored. Three myocardial infarctions, all in the rofecoxib group, were not included in the data submitted to the Journal. The editors first became aware of the additional myocardial infarctions in 2001 when updated data were made public by the Food and Drug Administration.

Until the end of November 2005, we believed that these were late events that were not known to the authors in time to be included in the article published in the Journal on November 23, 2000. It now appears, however, from a memorandum dated July 5, 2000, that was obtained by subpoena in the Vioxx litigation and made available to the Journal, that at least two of the authors knew about the three additional myocardial infarctions at least two weeks before the authors submitted the first of two revisions and 41∕2 months before publication of the article. Given this memorandum, it appears that there was ample time to include the data on these three additional infarctions in the article.

Conventional wisdom (as reported by the AP on Sunday): This can't help Merck in its defense of Vioxx suits pending around the country. [tm]

December 11, 2005 | Permalink | Comments (0) | TrackBack (0)

Friday, December 9, 2005

Mass. Contraception Law Applies to Catholic Hospitals, Too

From today's Modern Healthcare (Daily Dose [requires subscription]):

Mass. contraception law to apply to hospitals
Catholic hospitals won't be exempt from Massachusetts law requiring access to emergency contraception for rape victims, although the church prohibits the use or prescription of such drugs once a woman becomes pregnant. Massachusetts Gov. Mitt Romney on Thursday withdrew support for a state Health Department proposal to let hospitals opt out of the soon-to-be-implemented law on religious or moral grounds, the Boston Globe reported. The Catholic Church's religious and ethical directives for hospitals allow for emergency contraception if "after appropriate testing, there is no evidence that conception has occurred already." The law, which survived Romney's veto earlier this year, also allows pharmacies to sell emergency contraception without a prescription. At least seven of Massachusetts' 78 hospitals are affiliated with the Catholic Church, according to the American Hospital Association.


December 9, 2005 | Permalink | Comments (0) | TrackBack (0)

Thursday, December 8, 2005

Gene Basanta Named to Distinguished Professorship

GenebasantaBasanta named to distinguished professorship

CARBONDALE, Ill. -- W. Eugene Basanta, a nationally recognized expert in health law and policy at Southern Illinois University Carbondale, will serve as the law school's inaugural Southern Illinois Healthcare Professor of Law.

Basanta is "a gifted colleague," law school Dean Peter C. Alexander said.

"He has a national reputation in health law and policy. He is a member of the faculty who contributes greatly to the day-to-day operations, as well as the long-term goals of the School of Law."

An investiture ceremony is set for 5 p.m., Dec. 19, in the law school's courtroom. The public is welcome, and reservations are due by Thursday, Dec. 15, to Linda Vineyard at 618/453-8761 or via email at [email protected].


December 8, 2005 | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 7, 2005

Cartoon Roundup

This is the week that was, in cartoons . . . .

Sam Alito came in for his share of hits over his mid-80's DOJ memo on Roe v. Wade:

though not everyone was put off by his memo:

Bird flu? Still hot, though the tie-in for some has moved on from Thanksgiving imagery to Christmas:

  • Dick Locher, Chicago Tribune (extra points for Dr. Seuss allusion)

And the Supreme Court's oral argument this week in the New Hampshire parental-notification/abortion case generated a few, including:

And Medicare Part D continues to garner its share of comment.  This one is typical:


December 7, 2005 | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 6, 2005

Doctrine of Double Effect: It's Everywhere

Three recent postings to SSRN on the doctrine of double effect, or something like it:

  • Aspects of the Theory of Moral Cognition: Investigating Intuitive Knowledge of the Prohibition of Intentional Battery and the Principle of Double Effect [download]
    John Mikhail
    Georgetown University Law Center
    Where do our moral intuitions come from? Are they innate? Does the brain contain a module specialized for moral judgment? Does the human genetic program contain instructions for the acquisition of a sense of justice or moral sense? Questions like these have been asked in one form or another for centuries. In this paper we take them up again, with the aim of clarifying them and developing a specific proposal for how they can be empirically investigated. The paper presents data from six trolley problem studies of over five hundred individuals, including one group of Chinese adults and one group of American children, which suggest that both adults and children ages 8-12 rely on intuitive knowledge of moral principles, including the prohibition of intentional battery and the principle of double effect, to determine the permissibility of actions that require harming one individual in order to prevent harm to others. Significantly, the knowledge in question appears to be merely tacit: when asked to explain or justify their judgments, subjects were consistently incapable of articulating the operative principles on which their judgments appear to have been based. We explain these findings with reference to an analogy to human linguistic competence. Just as normal persons are typically unaware of the principles guiding their linguistic intuitions, so too are they often unaware of the principles guiding their moral intuitions. These studies pave the way for future research by raising the possibility that specific poverty of the stimulus arguments can be formulated in the moral domain. Differences between our approach to moral cognition and those of Piaget (1932), Kohlberg (1981), and Greene et al. (2001) are also discussed.

  • In Incognito: The Principle of Double Effect in American Constitutional Law [download]
    57 Fla. L. Rev. 469 (2005)
    Edward C. Lyons
    Ave Maria School of Law
    In Vacco v. Quill, 521 U.S. 793 (1997), the Supreme Court for the first time in American case law explicitly applied the principle of double effect to reject an equal protection claim to physician-assisted suicide. Double effect, traced historically to Thomas Aquinas, proposes that under certain circumstances it is permissible unintentionally to cause foreseen evil effects that would not be permissible to cause intentionally. The court rejected the constitutional claim on the basis of a distinction marked out by the principle, i.e., between directly intending the death of a terminally ill patient as opposed to merely foreseeing that death as a consequence of medical treatment. The Court held that the distinction comports with fundamental legal principles of causation and intent. Id. at 802.

    Critics allege that the principle itself is intrinsically flawed and that, in any event, its employment in Vacco is without legal precedent. I argue in response to contemporary objections that double effect is a valid principle of ethical reflection (Part II); claims to the contrary notwithstanding, double effect analysis is a pervasive, albeit generally unacknowledged principle employed regularly in American case law (Part III); and drawing on the preceding two sections, Vacco's application of the principle of double effect is appropriate (Part IV).

    My conclusion is that [o]peration of some form of the principle, by whatever name, is inevitable. In an imperfect world where duties and interests collide, the possibility of choices of action foreseen to have both good and evil consequences cannot be avoided. In rare circumstances, ethics and the law require that a person refrain from acting altogether. More often, however, they provide that a determination of whether an actor may pursue a good effect although knowing it will or may unintentionally cause an harmful effect requires a more complex analysis - a double effect analysis.

  • Balancing Acts: Intending Good and Foreseeing Harm - The Principle of Double Effect in the Law of Negligence [download]
    3 Geo. J.L, & Pub. Pol. (2005)
    Edward C. Lyons
    Ave Maria School of Law
    In this article, responding to assertions that the principle of double effect has no place in legal analysis, I explore the overlap between double effect and negligence analysis. In both, questions of culpability arise in situations where a person acts with no intent to cause harm but where reasonable foreseeability of unintended harm is present. Under both analyses, determination of whether such conduct is permissible involves a reasonability test that balances the foreseeable harm against the good intended by the conduct. In both, absent a finding that the foreseeable harm is unreasonable in light of that intended good, no liability will be imposed upon the actor.

    Even conceding, however, such general similarity between double effect and negligence analysis - disagreement over the proper interpretation of the reasonability criterion at play in negligence poses an additional challenge for the attempt to correlate negligence with double effect.

    Economic efficiency interpretations of negligence, for example, purportedly based on the Learned Hand Formula and the RESTATEMENT (SECOND) OF THE LAW OF TORTS, propose that culpability depends upon a utilitarian balancing of good effects of conduct (utility) versus its harmful foreseeable consequences (magnitude of risk of injury). Based on such an interpretation of negligence, however, contrasts between actors' states of mind, and normative differences between kinds of goods and harms, ultimately fade into the background and become irrelevant as essential conditions for properly assessing liability.

    This article elaborates and defends the view that double effect analysis lies at the heart of negligence theory. Part I elucidates in more detail the principle of double effect and describes its prima facie operation in negligence analysis. Part II considers and rejects the economic efficiency interpretation that has been offered as a theory of negligence, overcoming the challenge that such an interpretation presents for the effort to locate double effect analysis in the law. Part III illustrates and confirms the overlap between double effect and negligence by consideration of a series of case applications.

    The Article proposes that the weighing of conflicting values in double effect analysis and negligence is not achieved - as proposed by law and economics theory with respect to negligence - by imposing a consequentialist-utilitarian reduction of all value to a single concept of good and eliminating the relevance of traditional state of mind distinctions between intention and foreseeability. Instead, each mode of analysis recognizes that distinct culpability determinations flow naturally and plausibly from an appreciation of the traditional legal distinctions made between various types of goods and harms, and upon whether such goods and harms come about as result of an actor's intention or mere foreseeability.


December 6, 2005 | Permalink | Comments (0) | TrackBack (0)

Organizational Structure and Minority Health

From SSRN's listing of health-law-related published papers and working drafts:

Organizational Structure and Minority Health in the United States 
University of Georgia - Department of Public Administration and Policy
University of Georgia - Department of Public Administration and Policy
Substantial attention has turned to the elimination of racial health disparities, the role of race in health care provision, and the socioeconomic determinants of public health outcomes in the United States. We shift the focus to the organizational structure of minority health resources and advocacy at the federal level in the United States. We compare and contrast the two agencies most responsible for this issue area: the Office for Civil Rights and the Office of Minority Health. Our purpose is to evaluate their ability to coordinate efforts with other organizations and agencies in the pursuit of eliminating health disparities.

Download draft paper here[tm]

December 6, 2005 | Permalink | Comments (0) | TrackBack (0)

Monday, December 5, 2005

Tom McGarity on Daubert

From the SSRN listing of health-law-related published papers and working drafts:

Daubert and the Proper Role for the Courts in Health, Safety, and Environmental Regulation
University of Texas at Austin - School of Law
95 Am. J.Pub. Health S92 (2005)
The Coronado Conference: Scientific Evidence and Public Policy Paper 

Assigning a Daubert-like gatekeeper role to courts engaged in judicial review of risk assessments prepared by federal agencies is a profoundly bad idea. I describe the role of courts in reviewing regulatory agency decisionmaking and explore the potential impact of incorporating Daubert principles into administrative law. A Daubert form of judicial review will prevent agencies from employing a weight of the evidence approach, forcing them to adopt a corpuscular approach that rewards efforts by regulatees to find and exaggerate flaws in individual scientific studies. Consequently, applying Daubert to federal agency decisionmaking will have a predictable impact on regulatory policy that runs directly counter to the precautionary policies that animate most health, safety and environmental statutes.

Download paper here[tm]

December 5, 2005 | Permalink | Comments (0) | TrackBack (0)

Pentagon Underreported Anthrax-Related Hospitalizations to Congress

According to the first installment in a four-part series in the Hampton Roads Daily Press, "[t]he Pentagon never told Congress about more than 20,000 hospitalizations involving troops who'd taken the anthrax vaccine, despite repeated promises that such cases would be publicly disclosed."

It's unclear how many of the hospitalizations were actually anthrax-related:

No one knows how many, or how few, of the 20,765 hospitalizations are directly attributable to the vaccine. Ruling out certain illnesses, such as broken bones or injuries from falls or other accidents, might appear a safe bet. But military doctors have documented cases where broken bones and other injuries from falling were the result of vaccine-induced loss of consciousness affecting the nervous system - sometimes beginning months after vaccination.

The difficulty of figuring out what's related and what isn't is why safety officials encourage people to file reports even if they're not sure.

There are all kinds of reasons to believe that very few of the hospitalizations are related to the anthrax vaccine, but the military's refusal to help create a database on vaccine recipients certainly isn't advancing the cause of science on this subject.  [tm]

December 5, 2005 | Permalink | Comments (0) | TrackBack (0)

More on TelaDoc

The AP ran another story on TelaDoc on Dec. 3. Here's the gist:

Peter Beasley is a busy man who currently has no health insurance. He's also a customer of TelaDoc Medical Services, a setup that allows him to call an unknown doctor and get medicine prescribed sight unseen.

Within an hour or so of his call to an 800 number, he gets a call from a doctor who discusses his symptoms and will often write a prescription.

TelaDoc provides its members - which the company estimates at 30,000 - with access to a doctor 24 hours a day, seven days a week.

While members like Beasley praise the service as a convenient way to address nagging medical needs at odd hours, others in the health care industry say treating patients without seeing them in person is worrisome, perhaps dangerous. California's medical board is investigating TelaDoc's activities in that state.

Our previous posts on this company are here and here[tm]

December 5, 2005 | Permalink | Comments (0) | TrackBack (0)

Sunday, December 4, 2005

Levinson and Balkin Debate Roe

The debate over at Legal Affairs is entitled, "Should Liberals Stop Defending Roe v. Wade?", and the discussants are Jack Balkin and Sandy Levinson.  Excellent reading.


December 4, 2005 | Permalink | Comments (0) | TrackBack (0)

Commentary on Medical Marijuana Case (Raich)

From SSRN's listing of health-law publications and working drafts:

  • Society Must Be [Regulated]: Biopolitics and the Commerce Clause in Gonzales v. Raich 
    JOHN T. PARRY, University of Pittsburgh School of Law
    9 Lewis & Clark L. Rev. 853 (2005)

    This article - part of a symposium on the recent Gonzales v. Raich decision - makes three points about the case. First, it suggests that Raich complicates the effort to define commerce clause doctrine. Although Raich employed the doctrinal structure created by the Lopez and Morrison decisions, the emphasis was entirely different, and perhaps the only clear doctrinal result of the decision is that pieces of comprehensive regulatory programs will be upheld precisely because they are part of a larger program. Put bluntly, the more Congress regulates, the more it can regulate.

    Second, this article contends that Raich exemplifies an idea of government power that assumes the rationality and desirability of regulation and that this assumption dovetails wtih Michel Foucault's theory of biopolitics, in which the power of the modern state turns on its ability to make live or let die. Specifically, this article explores what it means for constitutional law to accept the biopolitical nature of contemporary government power, particularly in the context of end of life decisions, as well as pain management.

    The third, concluding section briefly considers the possibility that biopolitics, while usually described in negative terms, has more complex normative implications.

Download paper here[tm]

December 4, 2005 | Permalink | Comments (0) | TrackBack (0)

Pass the Gravy

The AP has a story today that is just in time for the holidays: "Professor Loses Weight With No-Diet Diet." Health science prof Steven Hawks lost 50 pounds and kept it off by eating what he wanted, when he wanted, no more, no less:

Hawks calls his plan "intuitive eating" and thinks the rest of the country would be better off if people stopped counting calories, started paying attention to hunger pangs and ate whatever they wanted.

As part of intuitive eating, Hawks surrounds himself with unhealthy foods he especially craves. He says having an overabundance of what's taboo helps him lose his desire to gorge.

There is a catch to this no-diet diet, however: Intuitive eaters only eat when they're hungry and stop when they're full.

That means not eating a box of chocolates when you're feeling blue or digging into a big plate of nachos just because everyone else at the table is.

The trade-off is the opportunity to eat whatever your heart desires when you are actually hungry.

"One of the advantages of intuitive eating is you're always eating things that are most appealing to you, not out of emotional reasons, not because it's there and tastes good," he said. "Whenever you feel the physical urge to eat something, accept it and eat it. The cravings tend to subside. I don't have anywhere near the cravings I would as a 'restrained eater.'"

An outside expert cautiously concurs:

The one thing all diets have in common is that they restrict food, said Michael Goran, an obesity expert at the University of Southern California. Ultimately, that's why they usually fail, he said.

"At some point you want what you can't have," Goran said. Still, he said intuitive eating makes sense as a concept "if you know what you're doing."

Look for more deatils at (currently content challenged).  [tm]

December 4, 2005 | Permalink | Comments (0) | TrackBack (0)

Saturday, December 3, 2005

Pfizer Gives Boot to Whistleblower

The NY Times reported yesterday that Pfizer had terminated the employment of its Vice-President for Marketing Peter Rost "after a federal judge in Boston unsealed a lawsuit Mr. Rost filed in June 2003 against Pfizer, asserting that Pharmacia, a drug maker Pfizer bought in April 2003, illegally promoted the sale of human growth hormone for unauthorized uses."

As The Times reports:

Mr. Rost contends that Pharmacia offered doctors illegal inducements to use genotropin, its growth hormone, as an anti-aging drug for adults. The Food and Drug Administration has not approved human growth hormone for that purpose, and drug makers are not supposed to promote their products for purposes that have not received approval.

The fact that the suit was unsealed is actually a positive development for Pfizer, because it indicates that the government has chosen not to participate in the suit alongside Mr. Rost. Whistle-blower lawsuits typically remain secret when the government participates.

For those of you who want to dig a little deeper, the Docket Number is 1:03-CV-11084-JLT (D. Mass.; Judge Joseph Tauro and Magistrate Judge Robert Collings). 

Meanwhile, on Dec. 1 Pfizer filed a motion to dismiss (Motion_to_dismiss.pdf) based largely on the affidavit of one of its attorneys (Posner_affidavit.pdf) to the effect that Rost's False Claims Act qui tam action was based upon facts previously disclosed to the government.

So, here's my question: How can Pfizer fire Rost, after the U.S. declines to intervene in Rost's qui tam action but while Rost's action against Pfizer is still pending, in light of the following language in 31 USC § 3730(h):

(h) Any employee who is discharged . . . by his or her employer because of lawful acts done by the employee on behalf of the employee or others in furtherance of an action under this section, including investigation for, initiation of, testimony for, or assistance in an action filed or to be filed under this section, shall be entitled to all relief necessary to make the employee whole. Such relief shall include reinstatement with the same seniority status such employee would have had but for the discrimination, 2 times the amount of back pay, interest on the back pay, and compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorneys’ fees. An employee may bring an action in the appropriate district court of the United States for the relief provided in this subsection.

Pfizer can argue that it didn't fire Rost because of his prosecution of the qui tam action, but that looks like an uphill battle in light of the sequence of events. [tm]

December 3, 2005 | Permalink | Comments (0) | TrackBack (0)

JCAHO Safety Goals May Address Disruptive Staff

Well, this should add a little spice to the physician peer-review stew:

The Joint Commission on Accreditation of Healthcare Organizations proposes to call on hospitals to develop codes of conduct to reduce risks to patient safety associated with disruptive behavior by staff and to create processes for managing staff fatigue, among other new patient safety goals for 2007. The JCAHO is accepting public comment on the proposal until Jan. 8, 2006, and expects to release a final list of patient safety goals in July. [From Modern Healthcare]

You can read the proposal here. [tm]

December 3, 2005 | Permalink | Comments (0) | TrackBack (0)

Friday, December 2, 2005

Calif. Appellate Court Rules in Religion- Based Treatment Refusal Case

From FindLaw:

N. Coast Women's Care Med. Group v. Superior Court (12/02/05 - No. D045438)
Summary adjudication for plaintiff on an affirmative defense to a civil rights claim involving defendants' refusal to perform intrauterine insemination (IUI) is reversed where evidence presented by defendants raised a triable issue of fact as to whether the basis for defendants' religiously-based refusal to perform IUI was plaintiff's marital status and not her sexual orientation.

The interest in this case has been intense, as evidenced by the number of amici who filed briefs in the court of appeals. Amici curiae briefs in support of defendants' petition have been filed by the California Medical Association and the Christian Medical and Dental Associations. An amici curiae brief supporting plaintiff and the trial court's summary adjudication ruling was filed by the following organizations: Anti-Defamation League; American Academy of HIV Medicine; American Medical Students Association; Asian Pacific American Legal Center of Southern California; Bienestar Human Services; California Latinas for Reproductive Justice; California Pan-Ethnic Health Network; California Women's Law Center; Coalition for Humane Immigrant Rights of Los Angeles; Gay and Lesbian Medical Association; International Association of Physicians in AIDS Care; Latino Coalition for a Healthy California; Mautner Project; National Center for Lesbian Rights;Mexican American Legal Defense and Educational Fund; and National Health Law Program.  [tm]

December 2, 2005 | Permalink | Comments (0) | TrackBack (0)

Living Wills and Pregnancy Clauses (Canadian Style)

University of Toronto SJD candidate Daniel Sperling has published "Do Pregnant Women Have (Living) Will?," in 8 J. of Health Care L. & Pol'y 331 (2005).  Here is the abstract of his article:

Living wills are documents that instruct health care providers about particular kinds of medical care that an individual would or would not want to have if rendered incompetent.

Under the American legal system, living wills of pregnant women are not legally binding or enjoy a much weaker effect than those of other women, not to mention those of other men.

In Canada, however, the law is silent on this matter. From this silence one can infer either that the legislators were not fully aware of the possibility that incompetency may also occur during pregnancy or that Canada considered the American model and decided not to follow it. By analyzing the American and English legal opinions on pregnancy clauses in living will legislation, this article calls for the adoption of an original Canadian approach deviating from the American model, thereby giving full legal effect to the living will of an incompetent pregnant woman.

The full article is available here[tm]

December 2, 2005 | Permalink | Comments (0) | TrackBack (0)