HealthLawProf Blog

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

Saturday, October 29, 2022

Point/Counterpoint - Whether Informed Consent Should Be Obtained for Apnea Testing in the Determination of Death by Neurologic Criteria?

Dr. Thaddeus Mason Pope (Mitchell Hamline School of Law;), Point/Counterpoint - Whether Informed Consent Should Be Obtained for Apnea Testing in the Determination of Death by Neurologic Criteria?, SSRN (2022):

This point/counterpoint debate addresses whether clinicians must obtain family consent before conducting testing to determine death by neurologic criteria (brain death). Professor Pope argues that current law and guidelines do not require consent. Furthermore, compelling policy reasons caution that consent should not be required. Still, clinicians should notify families and offer brief accommodations.

October 29, 2022 | Permalink | Comments (0)

Friday, October 28, 2022

Doctors and Pain Patients Avoid 'Ruan' in the Supreme Court

Mark A. Rothstein (University of Louisville), Mary Dyche (Independent), Julia Irzyk (Independent), Doctors and Pain Patients Avoid 'Ruan' in the Supreme Court, 50 J.L. Med. & Ethics (Forthcoming):

Physicians’ fear of criminal prosecution for prescribing opioid analgesics is a major reason why many chronic pain patients are having an increasingly difficult time obtaining medically appropriate pain relief. In Ruan v. United States, 142 S. Ct. 2370 (2022), the Supreme Court unanimously vacated two federal convictions under the Controlled Substances Act. The lead opinion held that once a defendant produces evidence that his or her conduct as a licensed professional was “authorized,” the government must prove beyond a reasonable doubt that the defendant knowingly or intentionally acted in an unauthorized manner. Although federal convictions of physicians are less likely under this holding, it is not clear whether it will lessen the fears of physicians and result in greater access to appropriate pain management.

October 28, 2022 | Permalink | Comments (0)

Stuck in the Weeds: Implications of Interstate Travel With Medical Marijuana

Savannah Gordon (Cleveland State University), Stuck in the Weeds: Implications of Interstate Travel With Medical Marijuana, SSRN (2022):

Approximately 5,461,491 state-legal patients in the United States use medical marijuana. Consider the following scenario: Robert, a resident of Ohio, suffers from chronic pain and uses medical marijuana to relieve the pain. Robert plans to visit his son in Indiana, but is aware that marijuana, both medicinal and recreational, is illegal. This Note addresses the legal implications of interstate travel for people like Robert who use medical marijuana, as prescribed, to function day-to-day.

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October 28, 2022 | Permalink | Comments (0)

George v. McDonough, Brief of United States Senators Ted Cruz and Mike Lee as Amici Curiae in Support of Petitioner

Jennifer Mascott (George Mason University), R. Trent McCotter (George Mason University), Cassandra Busekrus (George Mason University), Nathaniel A. Lawson (George Mason University), George v. McDonough, Brief of United States Senators Ted Cruz and Mike Lee as Amici Curiae in Support of Petitioner, SSRN (2022):

Congress has expressly authorized the U.S. Department of Veterans Affairs (“VA”) to reopen veteran disability benefits denials where the VA committed a “clear and unmistakable error” applying the then-existing law. In 1977, Petitioner’s benefits claim was denied pursuant to a 1974 VA regulation that the Federal Circuit and the VA itself later agreed was an indefensible interpretation of the underlying benefits statute’s unambiguous text.

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October 28, 2022 | Permalink | Comments (0)

Response to Draft National Medical Commission Registered Medical Practitioner (Professional Conduct) Regulations, 2022

Harleen Kaur (Independent), Manjot Kaur (Independent), Response to Draft National Medical Commission Registered Medical Practitioner (Professional Conduct) Regulations, SSRN (2022):

The draft National Medical Commission Registered Medical Practitioner (Professional Conduct) Regulations, 2022 (“Draft Regulations”) shared by the National Medical Commission (“NMC”) in the public domain are a welcome step to update the ethics and professional conduct standards and guidance for Registered Medical Practitioners (“RMPs”) in India. The existing regulations in this regard, the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 (“MCI Ethics Regulations”) deal with critical issues such as defining professional misconduct and regulating the relationship between doctors and pharmaceutical companies; however, there have been challenges in the manner in which these regulations were implemented. Recently, in the case of Dr. P. Basumani vs The Tamilnadu Medical Council, the Madras High Court observed that the MCI Ethics Regulations do not lay down the procedure to be adopted in disciplinary action for professional misconduct against RMPs and do not specify the stages to be followed from the initiation till the end of a disciplinary action against an RMP. The court further requested that certain guidelines should be included in the new ethics regulations the National Medical Commission Act, 2019 (“NMC Act”), in order to establish a fair and reasonable disciplinary procedure in the interests of the RMPs as well as the public in general.

 

October 28, 2022 | Permalink | Comments (0)

Thursday, October 27, 2022

Tsunami: Recommitting to Address AAPI Mental Health in a Post-COVID Era

Oliver Kim (University of Pittsburgh), Tsunami: Recommitting to Address AAPI Mental Health in a Post-COVID Era, 46 Nova L. Rev. (2022):

For too many in the Asian American and Pacific Islander (AAPI) community, this past year has been one of particular hardships: a global pandemic that caused suffering at home and abroad, political and social unrest, economic hardship, and an ongoing series of violent attacks on Asian Americans.

October 27, 2022 | Permalink | Comments (0)

Foreword: Cruzan and the "Right to Die"

Thomas William Mayo (Southern Methodist University), Foreword: Cruzan and the "Right to Die", 73 SMU L. Rev. 3 (2020):

In his forward to a symposium issue, the author discusses the history and significance of a landmark decision of the Supreme Court of the United States, Cruzan v. Director, Missouri Department of Health.

October 27, 2022 | Permalink | Comments (0)

Abortion Pills

David S. Cohen (Drexel University), Greer Donley (University of Pittsburgh), Rachel Rebouché (Temple University), Abortion Pills, U. Pitt. Legal Studies Res. Paper (2022):

The antiabortion movement is enjoying a victory lap now that Roe v. Wade has been overturned, and abortion is illegal in more than a third of the states. This legal victory, however, must be juxtaposed against a practical challenge unrelated to the Supreme Court or state legislatures: abortion pills. With the prevalence of abortion by medication reaching over fifty percent and pills being more widely available than ever before, abortion provision has radically changed in the last several years and faces never-before-answered legal questions. This Article is the first to pose and address these questions in the post-Roe landscape. Although the future is uncertain in key respects, we highlight the new terrain upon which future battles will be fought and how it will change and influence narratives and perceptions of abortion care moving forward.

October 27, 2022 | Permalink | Comments (0)

Water is Life: Law, Systemic Racism, and Water Security in Indian Country

Heather Tanana (University of Utah), Water is Life: Law, Systemic Racism, and Water Security in Indian Country, 19 Health Security S1 (2021):

The 21st Century has been marked by significant advancements in technology, from travel to Mars and self-driving cars to smartphones and bitcoin. And yet, at the same time, hundreds of thousands of Native Americans live without access to safe, clean and reliable drinking water. By some estimates, 48% of households on Indian reservations do not have clean water or adequate sanitation. This lack of access has been highlighted by the coronavirus pandemic, but it is not a new issue. Native American communities have long suffered inequities stemming from colonization and perpetrated by federal policy. While the pandemic has devastated many Tribal communities, it has also brought attention to issues long ignored, including lack of clean water access and health disparities. As a result, a unique window of opportunity has arisen to address these issues and achieve universal access to clean water across the United States. This commentary discusses common challenges faced by tribal communities to secure clean water access, from lack of infrastructure to laws and legal systems that reduce the access to a clean, safe, and reliable water supply.

October 27, 2022 | Permalink | Comments (0)

Wednesday, October 26, 2022

Water is Life: Law, Systemic Racism, and Water Security in Indian Country

Heather Tanana (University of Utah), Water is Life: Law, Systemic Racism, and Water Security in Indian Country, 19 Health Security S1 (2021):

The 21st Century has been marked by significant advancements in technology, from travel to Mars and self-driving cars to smartphones and bitcoin. And yet, at the same time, hundreds of thousands of Native Americans live without access to safe, clean and reliable drinking water. By some estimates, 48% of households on Indian reservations do not have clean water or adequate sanitation. This lack of access has been highlighted by the coronavirus pandemic, but it is not a new issue. Native American communities have long suffered inequities stemming from colonization and perpetrated by federal policy. While the pandemic has devastated many Tribal communities, it has also brought attention to issues long ignored, including lack of clean water access and health disparities. As a result, a unique window of opportunity has arisen to address these issues and achieve universal access to clean water across the United States. This commentary discusses common challenges faced by tribal communities to secure clean water access, from lack of infrastructure to laws and legal systems that reduce the access to a clean, safe, and reliable water supply.

October 26, 2022 | Permalink | Comments (0)

Ruan v. United States: An Important Ruling or Merely 'Sound and Fury'?

Paul J. Larkin (The Heritage Foundation), Ruan v. United States: An Important Ruling or Merely 'Sound and Fury'?, Geo. J. L. & Pub. Plo’y (2022):

In Ruan v. United States, the U.S. Supreme Court held that, when a physician is charged with overprescribing controlled substances, the government must prove beyond a reasonable doubt that the physician did not have a subjective good faith belief that his prescriptions fell within the range of legitimate medical treatment. The defendant has the burden of raising that issue, but, once he or she does, it is the government that bears the burden of proof. On its face, the Supreme Court’s deci-sion appears to be an important victory for defendants generally, but particularly for physicians charged with overprescription of controlled substances, like opioids. The majority opinion by Justice Stephen Breyer reaffirmed the importance of using a mens rea element to limit criminal liability to those who willfully flout the law.

October 26, 2022 | Permalink | Comments (0)

Developing A Pedagogy of Community Partnership Amidst COVID-19: Medical-Legal Partnership for Children in Hawai'i

Catherine Siyue Chen (Medical-Legal Partnership for Children in Hawaii), Fernando P. Cosio (Medical-Legal Partnership for Children in Hawaii), Deja Ostrowski (Medical-Legal Partnership for Children in Hawaii), Dina Shek (University of Hawaii at Manoa), Developing A Pedagogy of Community Partnership Amidst COVID-19: Medical-Legal Partnership for Children in Hawai'i, 28 Clinical L. Rev. 107 (2022):

The Medical-Legal Partnership for Children in Hawai‘i (MLPC) has partnered with low-income families in community health and public housing settings for over a decade to provide direct legal services and engage in systemic advocacy. The MLPC model of legal services is rooted in our pedagogy of community partnership that seeks to confront the legacies of racial inequality and to change systems of power that stigmatize and delegitimize community expertise. Although theories of community lawyering have been developing for many decades, community lawyering principles are commonly de-centered in many public interest legal spaces across the country, particularly in moments of crisis. And most public interest lawyering efforts do not make explicit commitments to racial justice and systems change. The purpose of this essay is to introduce our developing pedagogy of community partnership through the lens of MLPC Hawai‘i’s work and model before and during the COVID-19 pandemic. This essay highlights key tenets of MLPC’s pedagogy, MLPC’s work during COVID-19 and related crises, and challenges faced by MLPC’s lawyering model, including external criticisms and funding complexities.

October 26, 2022 | Permalink | Comments (0)

Paid Medical Malpractice Claims: How Strongly Does the Past Predict the Future?

Kowsar Yousefi (University of Tehran), Bernard S. Black (Northwestern University), David A. Hyman (Georgetown University), Paid Medical Malpractice Claims: How Strongly Does the Past Predict the Future?, Nw. L. & Econ. Res. Paper (2022):

Using hazard analysis, we study whether various physician characteristics, including prior paid claim history, gender, specialty, years of experience, type of degree (M.D. versus D.O.), country of medical school attendance (U.S. versus non-U.S.), and gender) predict future paid medical malpractice (“med mal”) claims, using detailed data on all licensed physicians and all paid claims in Illinois over a 25-year period. This level of granularity is not available using national data. After controlling for other factors, physicians with a single prior paid claim have a four-fold higher risk of future claims than physicians with zero prior paid claims. Male gender, attending a non-U.S. medical school, and practicing in a high-malpractice-risk specialty all predict higher paid claim risk. Paid claim risk is also higher for physicians with 6-15 prior years of experience than for those who are either earlier or later in their careers. We find having an M.D. (rather than a D.O.) is associated with higher paid claim risk, but only in our multiple-failure models.

October 26, 2022 | Permalink | Comments (0)

Tuesday, October 25, 2022

Environmental Impacts on Maternal Health

Michele Okoh (Lewis & Clark College), Environmental Impacts on Maternal Health, SSRN (2022):

Objectives: To understand how social and environmental determinants impact maternal health. To learn the role of environmental justice in maternal health. To develop tools for identifying how environmental justice influences maternal health. To address issues of health and environmental justice while affirming the pregnant person’s agency in their health.

October 25, 2022 | Permalink | Comments (0)

American Public Health Federalism and the Response to the COVID-19 Pandemic

Nicole Huberfeld (Boston University), Sarah Gordon (Boston University), David K. Jones (Boston University), American Public Health Federalism and the Response to the COVID-19 Pandemic, COVID-19 in Europe and North America (2022):

This chapter is part of an edited volume studying and comparing federalist government responses to the COVID-19 pandemic. The chapter first briefly provides an overview of the American public health emergency framework and highlights key leadership challenges that occurred at federal and state levels throughout the first year of the pandemic. Then the chapter examines decentralized responsibility in American social programs and states’ prior policy choices to understand how long-term choices affected short-term emergency response. Finally, the chapter explores long-term ramifications and solutions to the governance difficulties the pandemic has highlighted.

October 25, 2022 | Permalink | Comments (0)

The Harms of Punishing Substance Use During Pregnancy

Dr. Jennifer J. Carroll (North Carolina State University), Dr. Taleed El-Sabawi (Florida International University), Dr. Bayla Ostrach (Boston University), The Harms of Punishing Substance Use During Pregnancy, Int'l J. of Drug Pol’y (2021):

As rates of substance use have increased in the United States, rates of substance-involved pregnancies have also been on the rise, inspiring new civil policies designed to punish pregnant and parenting individuals who engage in substance use or are living with an untreated substance use disorder. Proponents of punitive civil policies argue that such policies will deter substance use behaviors and/or that substance use during pregnancy deserves punishment for harming the fetus. Current scientific evidence invalidates both claims, offering compelling evidence that punitive civil policies often worsen the harms of substance use for both parent and child. In this commentary, we review this evidence and explain how punitive policies that threaten child removal and the termination of parental rights exacerbate the very problems they are ostensibly designed to reduce. Rather than coercive and punitive responses, families affected by substance use need greater access to affordable, evidence-based treatment as well as services that address the structural and relational concerns underlying substance use. Above all, responses to perinatal substance use in both policy and practice should prioritize keeping families together.

October 25, 2022 | Permalink | Comments (0)

Muted Voices: United States Employees’ Role in Regulating and Protecting Workplace Health

James J. Brudney (Fordham University), Muted Voices: United States Employees’ Role in Regulating and Protecting Workplace Health, 43 Comp. Lab. L. & Pol'y J.(Forthcoming):

The COVID-19 pandemic has given workplace health a higher profile, perhaps its highest since passage of the Occupational Safety and Health Act of 1970 (OSH Act). Increased visibility and public support are based on national awareness of how frontline essential (FE) workers risked their health and lives to protect fellow Americans and preserve economic stability. That said, the greater attentiveness to workplace health risks, and the heroism of FE workers, has been accompanied by what is at best a limited role for employee voice and participation in improving workplace protections. In a larger context, while unions have been heavily involved from the start in OSH Act standard setting, and have had positive enforcement effects on certain outcomes targeted by regulators, the overall record of accomplishment has been disappointing. Moreover, developments in Congress since 1970 reflect a persistent decline in workers’ ability to influence occupational safety-and-health policy. This Article reviews the status of employee voice on workplace health in the United States, focusing on successes and failures during the pandemic as well as in a broader setting. It then suggests some possible ways forward, based in part on a new structural approach and also on modification of existing labor law provisions.

October 25, 2022 | Permalink | Comments (0)

Monday, October 24, 2022

The Arkansas LL.M. Program: Forty Years of Leadership

Susan A. Schneider (University of Arkansas), The Arkansas LL.M. Program: Forty Years of Leadership, 18 J. Food L. & Pol'y (2022):

The University of Arkansas School of Law has been a leader in agricultural law education for over forty years through its innovative LL.M. Program in Agricultural and Food Law. This essay memorializes the history of this signature Program and charts its progress through the decades as agricultural law issues evolved and the discipline expanded to incorporate food law and policy. Arkansas has played a unique role in the development of both the discipline of agricultural law and the newer field of food law and policy. This essay chronicles that development.

October 24, 2022 | Permalink | Comments (0)

The Semiotics of Meat: FSIS Regulations and the Construction of Meaning

Saylor S. Soinski (Yale University), The Semiotics of Meat: FSIS Regulations and the Construction of Meaning, 13 J. Animal & Env't L. 41 (2022):

In response to the development of cell-cultured meat, the Food Safety and Inspection Service (FSIS) has indicated that it will promulgate a new standard of identity. This response does not align with agency policy, which requires a new standard only when the physical characteristics of a novel product differ from a known product—for example, cloned meat did not receive a new standard. This Article argues that FSIS’s break from policy is a response to a semiotic framework that inextricably links “real meat” to slaughter and that FSIS is acting inappropriately in regulating meat as a symbol rather than material object.

October 24, 2022 | Permalink | Comments (0)

Cognitive Content Moderation: Freedom of Thought and the First Amendment Right to Receive Subconscious Information

Mason Marks (Florida State University), Cognitive Content Moderation: Freedom of Thought and the First Amendment Right to Receive Subconscious Information, SSRN (2022):

In the sci-fi television series Severance, employees of Lumon Industries receive brain implants that segment their memories of work and home life. When they arrive each morning, implants suppress employees’ access to memories of the outside world, including those regarding friends, family, and society. They can retrieve only work-related memories formed within the building. When employees leave work for the day, their implants restore access to memories of the outside world while restricting work-related content.

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October 24, 2022 | Permalink | Comments (0)