HealthLawProf Blog

Mental Health and the Legal Profession

Deborah W. Denno (Fordham University), Bruce A. Green (Fordham University), Mental Health and the Legal Profession, 89 Fordham L. Rev. (2021):

The Fordham Law Review’s Symposium collection on Mental Health and the Legal Profession is dedicated to the memory of Professor Deborah L. Rhode. As the Symposium highlights, the mental and emotional well-being of those in the legal profession is one of increasing concern. This November 2020 Symposium focused on current developments that have exacerbated the extraordinary pressures experienced by many legal professionals: the COVID-19 pandemic, racial tensions, and political uncertainty. From law school and into the legal profession, different groups of individuals confront varying challenges that propel mental health problems such as stress, depression, and anxiety. Racial-based adversity in particular compounds these difficulties for minority law students and attorneys; for example, minority women lawyers may be expected to take on additional responsibilities without being credited for their “invisible labor.” This Symposium’s contributors offered possible solutions the legal profession can embrace to address mental health issues and inspire positive change to the legal culture. Such a turnabout could better equip legal professionals to succeed in their professional lives without the cost of their personal lives and mental health.

The Impact of COVID-19 on Fertility Treatment in Australia

Ronli Sifris (Monash University), Karinne Ludlow (Monash University), The Impact of COVID-19 on Fertility Treatment in Australia, J. L. & Med. (2021):

On 25 March 2020, as part of the Australian response to the coronavirus pandemic, all non-essential elective surgery was indefinitely suspended. This had immediate impact on the provision of fertility treatment because the vast majority of fertility treatments were classified as non-essential. The suspension ended on 27 April 2020, although other restrictions continued. Between June and August 2020, we conducted semi-structured interviews to determine the impact of these initial regulatory responses to the pandemic on the provision of fertility treatment in Australia during two key periods: the suspension of non-essential surgery and the reopening. Changes to the practice of fertility treatment demonstrate the importance of planning for prioritisation and other matters to be addressed in preparation for possible future pandemics.

Encouraging Interagency Collaboration: Learning from COVID-19

Rachel Sachs (Washington University in Saint Louis), Encouraging Interagency Collaboration: Learning from COVID-19, J. L. & Innovation (forthcoming 2021):

In the health innovation context, federal regulatory authority is sharply fragmented among different agencies. The National Institutes of Health, Food and Drug Administration, Centers for Medicare and Medicaid Services, and other agencies all share responsibilities in the development and dissemination of new healthcare technologies. Scholars have previously written about the importance of interagency collaboration both in the healthcare area and more generally, and about strategies for encouraging collaborative efforts to promote various policy goals. Under these accounts, a failure to collaborate between federal agencies may be unfortunate, but it does not typically result in or exacerbate a crisis. In the COVID-19 context, however, failures of federal interagency coordination may have had much more severe negative consequences for the spread of the pandemic in the United States. This Article first spotlights two examples of healthcare innovation for COVID-19 – diagnostic tests and vaccines – and details both the ways in which agency failures of collaboration created serious problems for our COVID-19 response and the ways in which interagency collaborations have successfully driven innovation and access to these new technologies. The Article goes on to consider what lessons can be learned from the successes and failures of these innovative efforts about best – and worst – practices in interagency collaboration going forward.

The Nonstationary Newsvendor: Data-Driven Nonparametric Learning

Bora Keskin (Duke University), Xu Min (Tsinghua University) Jing-Sheng Jeannette Song (Duke University), The Nonstationary Newsvendor: Data-Driven Nonparametric Learning, SSRN:

We study a newsvendor problem with unknown demand distribution in a nonstationary demand environment over a multi-period time horizon. The demand in each period consists of a time-varying demand level and an additive random shock. Neither the demand level nor the random shock is separately observable. The amount of change in the demand level over the time horizon is measured by a cumulative variation metric. The problem has widespread applications, such as perishable inventory planning, staffing, and medical resource capacity planning in the wake of COVID-19. We design a nonparametric dynamic ordering policy, termed the moving window ordering policy, that tracks the shifts in the unknown demand level while accounting for the unobservable random demand shocks. To compute the order quantity in each period, this policy only needs the past demand observations, without any access to the underlying demand distribution. For a finite variation "budget," we prove that our ordering policy is first-order optimal in the sense that its regret grows at the smallest possible rate. We also extend our analysis to the case of asymptotically large variation budgets. Through case studies based on real-life data, we show that our policy can save 20-80% of overage and underage costs, relative to policies widely used for perishable inventory replenishment and nurse staffing.

The Effects of E-Cigarette Taxes on E-Cigarette Prices and Tobacco Product Sales: Evidence from Retail Panel Data

Chad D. Cotti (University of Wisconsin), Charles Courtemanche (University of Kentucky), Catherine Maclean (Temple University), Erik Nesson (Ball State University), Michael Pesko (Georgia State University), Nathan Tefft (Bates College), The Effects of E-Cigarette Taxes on E-Cigarette Prices and Tobacco Product Sales: Evidence from Retail Panel Data, Andrew Young School of Policy Studies Research Paper Series (forthcoming):

This paper estimates effects of e-cigarette taxes enacted in eight states and two large counties on e-cigarette prices, e-cigarette sales, and sales of other tobacco products. We use NielsenIQ Retail Scanner data from 2011 to 2017, comprising approximately 35,000 retailers nationally, and develop a method to standardize e-cigarette taxes since adopting localities have taxed these products in heterogeneous ways. We estimate a tax-to-price pass-through rate of 1.44 and a Herfindahl–Hirschman Index of 0.246 for e-cigarette retail purchases, indicating a moderately to highly concentrated market structure theoretically linked to tax over-shifting. We then calculate an e-cigarette own-price elasticity of -1.30 and positive cross-price elasticities of demand between e-cigarettes and cigarettes, suggesting they are economic substitutes. Other analyses explore heterogeneity in tax and price responses across flavored and non-flavored e-cigarettes and cigarettes.

Health Law Faculty Position Opening at Seattle University School of Law

Assistant Professor, Law at Seattle University School of Law in Seattle, WA 

Description

Seattle University School of Law seeks applicants for multiple Assistant Professor tenure-track positions to begin August 1, 2022 (with option to begin July 2022). Our curricular needs are varied, but we are especially interested in hiring one faculty member who will teach legal writing, and one faculty member who will primarily teach subjects related to civil litigation (e.g., civil procedure, torts, evidence). Other areas of teaching interest include criminal law, criminal procedure, health law, environmental law, dispute resolution, and professional responsibility. Seattle U Law has a unitary tenure track; we prioritize excellent and inclusive teaching and support faculty members across the curriculum in developing their research interests. Responsibilities include teaching, research and service.

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'I (Won’t) See You in Court Alternative Dispute Resolution for Medical Liability Conflicts: Examples from Europe'

Vera Lúcia Raposo (University of Macau), 'I (Won’t) See You in Court Alternative Dispute Resolution for Medical Liability Conflicts: Examples from Europe', SSRN:

In many jurisdictions, courts and the related tort liability rules have failed to adequately address conflicts arising from healthcare delivery that has caused harm. The litigation model – the classic model used to deal with medical liability – must be, if not replaced, at least supplemented by another model, and alternative dispute resolution is best suited to this task. Because conflicts are resolved in a less adversarial environment than a courtroom and led by people with knowledge of both medicine and law, alternative dispute resolution promotes a congenial procedure, is faster and cheaper than traditional litigation and can provide more satisfactory outcomes for all parties. This paper reviews some of the failures of litigation as a means of resolving disputes related to medical liability and considers how alternative dispute resolution methods can address these failures, providing some examples from civil law jurisdictions in Europe.

The Law and Politics of Registering Doctors: Lessons From New South Wales, 1937–42

Gabrielle Wolf (Deakin University), The Law and Politics of Registering Doctors: Lessons From New South Wales, 1937–42, 43 Univ. N.S.W. L. J. (2020):

Doctors who fled from Nazi-occupied and dominated Europe sought to pursue their profession wherever they could. Those who arrived in Australia confronted substantial impediments to doing so. In New South Wales (‘NSW’), doctors who represented, registered and educated the medical profession and Members of Parliament attempted to prevent ‘refugee doctors’, as they were described, from practising medicine. Due largely to protectionism and prejudice, many refugee doctors were denied registration to practise medicine irrespective of their qualifications, skills and experience, and despite the low number of refugee doctors who settled in NSW. This article focuses on the law and politics of registering the medical profession. It analyses the treatment of refugee doctors who sought to practise medicine in NSW between 1937 and 1942, and then reflects on the contemporary relevance of this episode in Australia’s history of medical regulation. The article discusses cautionary lessons we might learn from the past so that capable overseas-trained doctors to whom Australia grants refuge are permitted to practise their profession and provide valuable medical services to the community. This article also considers whether changes to the law since that time might constitute some safeguard against repetition of past discrimination.

Alcohol Marketing and Social Media: A Challenge for Public Health Control

Robin Room (La Trobe University), Paula O'Brien (University of Melbourne), Alcohol Marketing and Social Media: A Challenge for Public Health Control, 40 Drug & Alcohol Rev. (2021):

In public health terms, alcohol is no ordinary commodity. It accounts not only for a substantial portion of the world’s burden of disease but also for much social harm. Because of this, a majority of countries have some kind of restrictions beyond general rules for foodstuffs on alcohol’s availability and promotion. On the international level, however, restrictions in the interests of public health are minimal. On the contrary, indeed, international and regional trade agreements are increasingly restricting what national governments can do to control the alcohol market.

Submission to the College of Physicians and Surgeons of Ontario Re: Medical Assistance in Dying

Sean T. Murphy, Submission to the College of Physicians and Surgeons of Ontario Re: Medical Assistance in Dying, SSRN:

The focus of this submission is confined to the exercise of freedom of conscience by practitioners who refuse to do what they believe to be unethical or immoral in relation to euthanasia and assisted suicide (“medical assistance in dying”: EAS, MAiD).

Unanticipated changes in a patient’s condition may trigger an urgent request for immediate provision of EAS that has already been approved. This can be problematic if the responsible EAS practitioner is unavailable to respond. EAS practitioners should be required to be available to respond to urgent requests once EAS has been approved.

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Medical Disobedience and the Conscientious Provision of Prohibited Care

Dov Fox (University of San Diego), Medical Disobedience and the Conscientious Provision of Prohibited Care, 21 Am. J. Bioethics (2021):

Should doctors ever be allowed to offer care that their state or employer forbids? What if their deeply held personal values or beliefs demand they treat patients in need? We’re used to hearing about physicians, nurses, EMTs, pharmacists, and even entire hospitals refusing to perform, participate, or inform patients about care they’re conscientiously opposed to. These conflicts pit clinician conscience against patient welfare, professional norms, or a fair allocation of scarce resources. But restrictions on medical practice raise a question that’s been largely missing from debates in medicine, ethics, and law: When should appeals to conscience exempt a clinician from penalty or prosecution for delivering proscribed care?

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Should Critique on Governmental Policy Regarding COVID-19 Be Tolerated on Online Platforms? An Analysis of Recent Case-Law in the Netherlands

Berdien van der Donk (University of Copenhagen), Should Critique on Governmental Policy Regarding COVID-19 Be Tolerated on Online Platforms? An Analysis of Recent Case-Law in the Netherlands, J. Hum. Rts. Prac. (forthcoming):

This policy and practice note describes and discusses two recent decisions by the District Court in Amsterdam regarding the applicability of YouTube’s and Facebook’s Community Guidelines on COVID-19 misinformation. The decisions (Café Weltschmerz /YouTube and Smart Exit/Facebook) illustrate the tense intersection between, on the one hand, the possibility to express critique on the government’s policy to fight the outbreak of COVID-19 in the Netherlands, and on the other hand, the prevention of (dis)information with the potential to harm public health.

The author will point out that the two decisions, although covering merely the same subject matter, differ significantly in argumentation regarding the (scope of the) application of the freedom of expression. Analysing this divergence in argumentation will show that the root of the difference can be traced back to a different valuation of the role of the online platforms regarding the dissemination of speech. A debate on this divergence is needed to prevent inconsistency in future decisions and contributes to the broader discussion on content regulation in the European Union.

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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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.

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.

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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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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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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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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Health Law Faculty Position Opening at Indiana University Robert H. McKinney School of Law

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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