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Health Law Symposium Issue
Spring 2009 - Volume 1 Number 2 - Articles


We are proud that this Health Law Symposium issue is in the first Volume of the Law Review. These articles are derived from our first major Health Law conference, the Thirty-First Annual Health Law Professors Conference, held at Drexel last June 2008. A symposium serves a multiplicity of purposes: it educates an audience as to a current legal, social, or political problem; it allows experts to test their ideas in the crossfire of audience and panelist debate and comment; and it provides a published record of this reflection and debate. This issue of the Drexel Law Review serves these purposes well. The papers provide a superb treatment of some of the many topics that can be grouped within the large health law family.

Personal Health Records: Directing More Costs and Risks to Consumers?

This Article is principally concerned with a subset of Electronic Health Records (EHRs) known as personal health records (PHRs). As the George W. Bush Administration's national EHR project lost some of its momentum due to technical and financial barriers, interest in this more modest, atientcentric model has grown. Mark Rothstein's observation that "the private sector is racing ahead" was confirmed by the 2008 launches of Google Health and Microsoft’s HealthVault, and the considerable press attention they attracted.

What Lessons Should We Learn from the First Malpractice Crisis of the Twenty-first Century?

We have just emerged from the first malpractice crisis of the twenty-first century, and the third malpractice crisis in the past three decades. This Article highlights five lessons that scholars, policy analysts, and legislators should take away from the most recent crisis. My modest hope is that this analysis will provide a toolkit for informing the policy debate when we have our next crisis—which given the turmoil in the financial markets, may well occur sooner rather than later.

Stopping an Invisible Epidemic: Legal Issues in the Provision of Naloxone to Prevent Opioid Overdose

Early in 2008, Australian actor Heath Ledger died in his Manhattan apartment as a result of a drug overdose caused by a cocktail of prescription drugs, including powerful prescription opioids. Death by drug overdose is not particularly unusual among celebrities. Indeed, in the same week that Ledger died, actor Brad Renfro also joined fallen stars like River Phoenix, John Belushi, Mark Tuinei, Janice Joplin, and Jim Morrison in meeting a premature end by overdosing on prescription opioids, heroin, or both.

Pandemic Preparedness: A Return to the Rule of Law

On January 15, 2009, US Airways flight 1549 apparently struck a flock of birds shortly after taking off from New York's LaGuardia airport and lost power in both of its engines. The pilot, Chesley Sullenberger, made a skillful emergency landing in the Hudson River, and all 150 passengers and five crew members safely evacuated the plane. The passengers calmly helped each other out onto the wings and into the plane's life rafts. Local ferries, seeing the plane coming down, sped to the site and took the passengers on board. What might have been a fatal disaster in the eighteen degree Fahrenheit temperature was in fact a fairly typical example of American's response to emergencies.

Candor After Kadlec: Why, Despite the Fifth Circuit's Decision, Hospitals Should Anticipate an Expanded Obligation to Disclose Risky Physician Behavior

This Article argues that, the Fifth Circuit's decision notwithstanding, hospitals should anticipate being held to a duty of greater candor in responding to physician credentialing inquiries than would be found in the usual business context. Recognition of this obligation follows from converging trends in health law theory, institutional liability, and hospital practice. Furthermore, although Kadlec was the first case of its type, given the increased stake hospitals have in sound credentialing decisions, it is unlikely to be the last. A limited response such as Lakeview Medical's might well be the basis for liability in a case not grounded in Louisiana law, particularly if the injured patient were also a party, if the hospital could be shown to have violated a mandatory reporting duty, and if the court focused on ways in which the credentialing of physicians differs from standard employment arrangements.

Patient Safety and the Fiduciary Hospital: Sharpening Judicial Remedies

Banks evaporate, markets shed value, and jobs float ghostlike into economic history. We no longer trust our bankers and brokers, our realtors, our mutual fund administrators, and our regulators. Can our hospitals be far behind? They offer us treatment, but also all too often deliver unexpected infections, injury as the result of errors, aggressive debt collection practices, rude behavior, and concealment of secrets about their mistakes - not a pretty picture.

What does a hospital owe its patients? Should they promise us a trouble-free procedure or stay? Honest and candid disclosure of their mistakes? The best care currently available? And if they fail, what can we expect? A refund? Restitution for services that ended up valueless, damaging, or lethal? Damages for dishonesty as well as personal injury and suffering? An apology, plus all of the above? Shame?

Marriage Equality? First, Justify Marriage (If You Can)

With recent positive developments in Connecticut, Vermont, Iowa, and New York, mixed success in California, and setbacks in Arizona and Florida, the marriage equality movement remains in the center of political, legal, and social debate in the United States. Proponents, including me, have argued that granting the right to marry to same-sex couples is compelled as a matter of simple fairness and equality, while opponents have continued to make a host of related - but unconvincing - arguments about the intrinsic meaning of marriage and how this will be lost or compromised if marriage equality takes hold. But below this turbulent surface, courts called upon to solve real problems confronting same-sex couples have expressly or impliedly recognized that a much deeper problem exists: the vast and often unexamined privileging of marriage over other forms of family and other kinds of relationships. Legal scholars, too, have questioned marriage - sometimes by focusing on the privileges that attach to it, but sometimes more broadly, by questioning the status itself. These unavoidable questions reveal that the controversy over same-sex marriage is but the most visible part of a much larger set of issues about equality and social justice.

Three Ways of Looking at a Health Law and Literature Class

Literature has had a long relationship with medicine through literary images of disease, literary images of physicians and other healers, works of literature by physician-writers, and the use of literature as a method of active or passive healing. Literature also has had a long relationship with the law through literary images of various legal processes, lawyers, and judges; works of literature by lawyer-writers; and the use of literature as therapy. This Part examines the development of the fields of 'literature and medicine' and 'law and literature' and places current coursework in law, literature, and medicine in its proper historical and pedagogical context.

Spring/Summer 2009 | Volume 2 Number 1 | Note

A Flexible Solution to a Knotty Problem: The Best Interests of the Child Standard in Relocation Disputes

In the past two decades many United States jurisdictions have adopted statutes promoting joint legal custody, shared parental responsibility, and continuing contact with both parents following separation and divorce. However, our society has become increasingly mobile, as Americans move, on average, once every seven years. Americans relocate for various reasons, but when parents move they expect to take their children with them. As a result, when one parent petitions the court to relocate, the court, in evaluating and weighing the paramount interests of the child, is forced to confront the competing interests of the relocating and nonrelocating parent. This paper focuses on the dilemma courts face when the relocating parent is the custodial parent and the parent opposing relocation is the noncustodial parent. The custodial parent seeking to relocate frequently has an interest in beginning a new life elsewhere in the United States to pursue better educational, personal, and career opportunities, whereas the noncustodial parent possesses a strong desire to maintain frequent and regular contact with his or her child.