Journal of law and health最新文献

Doctors make mistakes--preventable medical mistakes--that kill or seriously injure patients. The best way to reduce these preventable errors is through a medical peer review process typically referred to as a "morbidity and mortality conference." However, over the past twenty years, federal and state courts, state legislatures, and state voters have effectively gutted the morbidity and mortality conference (M+M) as a remedial and preventative tool, resulting in tens of thousands of unnecessary deaths every year. Doctors need our help restoring the effectiveness of M+Ms. Congress has created the means to do so; now, all the courts need do is use it. Otherwise, what has been happening over the last two decades will continue--physicians will fear the M+M, will either not participate in M+Ms or not participate fully, medical errors will not be thoroughly investigated and corrected, and the same preventable medical mistakes will continue to occur because physicians are scared if they admit during an M+M that they committed an error then, in a subsequent medical malpractice lawsuit, their admission will be used against them to prove negligence and liability. Part I of this essay summarizes the extent of the problem--many call it a crisis--of preventable deaths plaguing U.S. hospitals. Part II explains peer review, both in the context of physician credentialing/hiring and M+Ms, and the legal protections afforded under the provisions of immunity, confidentiality, and privilege. Part III discusses how federal and state court decisions, state legislative enactments, and voter initiatives have weakened existing protections for peer review, especially regarding M+Ms. Part IV describes the PSQIA and how it can--and should--be the solution to preventable hospital deaths. Part V concludes with a summation of the argument that courts employ the PSQIA privilege to protect M+Ms, and that physicians and hospitals do their part by fulfilling the requirements of the PSQIA such that they may invoke the privilege therein contained.

There are a multitude of dilemmas faced today by over 3 million significantly disabled Americans, many of whom depend on Medicaid for Long-Term Services and Supports (LTSS) in obtaining the services they need to simply live. While the landmark 1990 Americans with Disabilities Act (ADA) has done a lot to improve the lives of people with disabilities, the reality is that using Medicaid as the vehicle for funding LTSS places unreasonable restrictions on disabled people who want to live independent lives and be as successful as possible. The Federal Government must change funding for LTSS in order to provide disabled Americans with real choices regarding living arrangements and maximize their earning potential without fear of being deprived of support they cannot live without. Part II of this note provides background information on LTSS (what they are, who uses them, what they cost, and how they are currently funded). Part III examines the Medicaid Program and specifically Medicaid HCBS17 Waiver Programs, which provide the bulk of LTSS funding today. A brief history of the federal laws, amendments, and policies that have impacted Medicaid LTSS are provided. Part IV analyzes an alternative to Medicaid for LTSS funding for those working-age disabled individuals who would not otherwise be Medicaid eligible. This section specifically focuses on recommendations from the congressionally established Commission on Long-Term Care and a pilot program proposed by the American Association for People with Disabilities (AAPD). Finally, Part V concludes that the Federal government must take action to establish a stand-alone, non-Medicaid Program to provide LTSS for working-age disabled Americans who are capable of working and living independently.

The case of R. (Quintavalle) v. Human Fertilisation Embryology Authority (and Secretary of State for Health) presents a handful of legal problems. The biggest legal query to arise from the case is the inevitable harvest of babies, toddlers and very young children for their bone marrow. This article unpacks the judicial story behind Quintavalle to reveal how the strict provisions of the Human Fertilisation and Embryology Act 1990--namely 'suitable condition' under schedule 2 paragraph 1(1)(a) and 'treatment services' and 'assisting' under section 2(1)--were widely misinterpreted to introduce the social selection of embryos into law. The legal loopholes created by the judgment (embryo wastage, welfare, eugenics and the legality of child harvest in particular) are also identified. It will be concluded that screening for a tissue match is social selection despite arguments to the contrary and that parents are not yet entitled in law to harvest a very young child for bone marrow, making the creation of a saviour sibling under the 1990 Act as a result of Quintavalle ultimately futile.

This note argues that the Ohio Department of Rehabilitation and Corrections (ODRC) should not obtain lethal injection drugs from unregulated compounding pharmacies. Ohio should only purchase drugs from an FDA-registered outsourcing facility. Part II explores the death sentence statute in Ohio and the use of compounding pharmacies. Part III compares Oklahoma's statute in conjunction with Ohio and illustrates the adverse effects by utilizing compounding pharmacies. Part IV proposes recommendations to Ohio's execution protocol. Part V provides a conclusion.

Because obesity and its associated health problems have been largely attributed to poor self-control, laziness, and various other personal failings, society has been unwilling to assign blame to food manufacturers for their role in contributing to this problem. But, as consumers are becoming more aware of the significantly harmful effect that poor diets can have on a person's heath, the scales may be tipping in favor of bringing "Big Food" to court. Food manufacturers, however, are not exactly vulnerable. Armed with precedent disputing the causal link between consumption of fast food and adverse health effects, judicially-created barriers to admitting epidemiologic evidence, and the defense of personal responsibility, food plaintiffs face an uphill battle. This Comment explores that reality.

Byrne argues that disparities among different courts' interpretations of the Federal Rules of Civil Procedure amendments have caused confusion for those in law and healthcare. Additional amendments to the FRCP are necessary to provide clarity, especially in the area of healthcare electronic discovery. Specifically, future amendments should include: 1. Enforcing the "Meet and Confer" process, especially as related to e-discovery and ESI 2. Clear specification about when the duty to preserve information begins 3. Delineating reasonable and consistent standards for production of information 4. Outlining the details for when sanctions for failing to retain ESI are appropriate.

This paper considers the regulatory reality of sports equipment that is at the center of this brain trauma in sports issue. It reveals that not all regulation concerning athletic head injuries occurs in the public sector. It goes on to explain that in the case of sports helmets, very little is performed by the government and explains how the private sector executes this regulation instead. Protective equipment (helmets, by and large) are regulated, or more precisely, "quasi-regulated" by a structure defined largely by private technical standards. This paper offers an introduction to these standards and explains the key elements and differences between the private regulatory models for helmets. It also evaluates the effectiveness of standards-based regulation of athletic headgear and concludes with recommendations for adjustments to the existing conformity assessment systems and undertakings by the helmet standards community that would serve the end of providing excellent private regulation for equipment that faces the serious challenge of reducing brain injury in sports.

In Part II, I present a legal challenge to the Prescription Drug User Fee Act (PDUFA) from an administrative law perspective. While I share sympathies with those who believe PDUFA represents an unacceptable conflict of interest for the FDA, I posit arguments purely from the framework of permissible administrative agency discretion so as to avoid ambivalent analytical and empirical arguments. My argument is that given the statutory and case law determinations of permissible federal agency discretion, the FDA cannot assess a flat user fee for widely variable types of services it renders during the drug approval process. Thus, the current implementation of PDUFA is legally impermissible. Subsequently, in Part III, I compare PDUFA to three other agency user-fee mechanisms and propose specific improvements to PDFUA to minimize its conflict of interest while maintaining its revenue efficiency.

This article considers in Part II the status and influence of public health research regarding the safety risks of gladiator sports and the field's tendency to neglect the sports' recognized medical and mental health benefits. In Part III, the historical trends in judicial interpretation of the scope of the criminal consent defense and civil doctrines of a privilege of consent to assault and assumption of the risk in the sports context are addressed. Finally, Part IV asserts the need to reform the civil and criminal defenses to intentional misconduct in sports through agency, judicial, and statutory reform, for the purpose of eliminating the strategic use of the intentional foul to better enforce the new medically informed safety regulations and sports rules while protecting the tradition of a wide array of gladiator sports.