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Abstract:
Thomas C. Galligan, Jr. (Colby-Sawyer College), Phoebe A. Haddon (Temple), Frank L. Maraist (Louisiana State), Frank M. McClellan (Temple), Michael L. Rustad (Suffolk), Nicolas P. Terry (St. Louis), and Stephanie M. Wildman (Santa Clara) are pleased to announce the Fourth Edition of Tort Law: Cases, Perspectives, and Problems available from LexisNexis.

The authors have dramatically revised the Fourth Edition of this unique casebook. Chapter One is unique among American torts casebooks in its examination of how the dominant twenty-first century tort theories influence judicial decisionmaking and scholarship. That chapter explains six key perspectives on tort law: Law and Economics; Corrective Justice; Critical Race Theory; Critical Feminism; Pragmatism; and Social Justice. This chapter references the famous McDonald's hot coffee litigation as a case study to illustrate these perspectives in action. Subsequent chapters continue to work through that case study and continually reference the perspectives to explain or challenge the decided cases.

This new edition presents the important cases, statutes, empirical data, and competing tort theories in a problems-oriented format designed to help students acquire a sophisticated understanding of tort law through active learning. As before, the text includes a large number of problems. Now, however, problem sets at the end of each substantive chapter organize the updated and considerably expanded Problems. This extensively rewritten and reorganized edition includes the classic common law torts cases, but also presents updated and teachable, cutting-edge decisions that will demand student interest and hold their attention. Particular care has been to take account of the most recent commentaries on tort law, such as the growing importance of the Restatement (Third) of Torts.

The authors seek to provide students with innovative cases and problems, empowering them with practical skills. By exposing students to the most important contemporary tort law theories, the Fourth Edition of this casebook encourages students to go beyond passively memorizing case holdings and the voyeuristic experience of reading appellate opinions and truly gain perspectives on tort law.

The Table of Contents, Preface, and Chapter 1 are available to download here.

Torts, Legal Education, Legal Educator, Discrimination

Abstract:
This is the third in a series of articles exploring the liability implications for technologically-mediated health care. In the first, Cyber-Malpractice: Legal Exposure for Cybermedicine, 25 Am. J. Law & Med. 327 (1999), I primarily looked at online providers and the difficulties faced in constructing causes of action against online medical advice sites. In the second, Structural and Legal Implications of e-Health, 33(4) J. Health L. 606 (2000), I explored some of the more fundamental structural changes wrought by eHealth and outlined some of their implications for liability models. In this article I argue that two well-publicized and pressing health care issues, ensuring the privacy of health information and combating the medical error problem, are closely related. I argue that they find common ground in process re-engineering and the adoption of technologies that, at an operational level, will intersect and frequently combine. The article also explores how infrastructure developments and how some unintended consequences of the HIPAA Privacy Regulations will have important effects on malpractice law and process, in some cases shifting the balance much further towards plaintiffs.

Abstract:
Health care providers and pharmaceutical companies have rapidly ramped up in their presence in cyberspace (cybermedicine). This article examines the content-related liability exposure of cybermedicine providers, mapping real space liability theories such as professional negligence, misrepresentation and products liability to cybermedicine fact-patterns. Cybermedicine encompasses not only the technology and legal issues of telemedicine, but also a far greater array of non-traditional, indeed unique technology-enabled interactions among health care providers and consumer-patients, including marketing, relationship-creation, advice, prescribing and the sale of drugs and devices. The article first describes the cyberspace business models of health care providers and summarizes the themes likely to pervade the discourse during the emergence of cybermedicine. The article then details the legal issues that are raised by health care institutions? web marketing, pharmaceutical manufacturers? web presence, marketing and product support, and by the proliferation of health-oriented advice sites. The article concludes with some brief observations about initial attempts at risk-managing cyber-malpractice exposure.

Abstract:
Examining a number of technological, commercial and professional scenarios the author argues that the law school of the near future must become a hybrid place, what is known in ecommerce as a "click-and-brick" or "click-and-mortar." In a click-and-brick law school distributive-learning techniques will fill much of the space, supplementing traditional class experiences and substituting for many of them. But a true click-and-brick will also integrate distance learning (or distance education) methodologies, reaching out to remote students, enabling collaboration with off-campus faculty and consuming remote content. The article examines the qualitative and institutional arguments frequently raised against such non-traditional legal education and argues that the traditional law school model will be substantially altered not only because of the implications of the new enabling technologies but because law school space is no longer a self-contained autonomous, insulated environment. The article examines how a sustainable click-and-brick model for legal education will involve significant re-engineering of virtual and physical law school space, a re-engineering that must be cognizant of the ways in which law practice is being reshaped and how the law school curriculum will require major re-tooling to be relevant to the Information Age.

Abstract:
The federal government is fast-tracking a nationally based interoperable health records system. What may at first glance appear to be merely a technical program in fact would fundamentally alter the relationships between patients, physicians, and potentially other parties such as the government and pharmaceutical companies. It is a program that the President endorses (for example, in his last several State-of-the-Union addresses) and has broad, bipartisan support in Congress. The genesis of the article was separately prepared testimony that we were called to give before the federal government's advisory National Committee on Vital Statistics. When we testified we realized both how similar our views were and the urgency of articulating solutions more protective of patients. As we note in the article the current administration has framed the privacy-confidentiality issues implicated by a national records system quite narrowly, identifying only divergent state laws as creating barriers to successful implementation of its proposal. In contrast, we believe that some important challenges to patient autonomy and professional responsibilities must be addressed prior to implementation. The article both explores those challenges and makes specific technical and legal recommendations for protecting patients' medical information.

healthcare, privacy, confidentiality, HIPAA, medical records

Abstract:
This Article examines two intersecting phenomena: medical tourism and the outsourcing of health care goods and services. "Medical Tourism" (Part I) involves the resident of one state or country physically experiencing health care in another place. "Outsourcing" (Part II) involves care that appears domestic but has been disaggregated to allow some components to be performed non-domestically. Frequently the patient (or in the case of final beneficiaries of a clinical trial, a domestic user of a subsequently approved drug) does not know that care has been outsourced. These two phenomena currently operate outside, and may be disruptive of, contemporary Western health care regulation. While health care, particularly in the U.S., is our most highly regulated industry, medical tourism and outsourcing appear to operate outside our traditional regulatory matrix. Having examined the extent to which this is an accurate intuition, this Article questions (in Part III) the extent to which we do or will enjoy increased trading of health services and addresses some of the issues that must be considered in approaching any regulatory questions posed by medical tourism and outsourcing.

Abstract:
This article is principally concerned with a subset of electronic health records known as personal health records. In contrast to the more familiar charts, paper records, and electronic medical records maintained by health care providers, personal health records are medical records created and maintained by patients. A personal health records model is superficially attractive because it seems to lack the "misaligned incentives," network effects, and other market failure problems associated with the financing of a national inter-operative EHR model, while the model's patient-centricity purportedly avoids the privacy-confidentiality-security externalities inherent in electronic health records. The principal thrust of this article is that personal health records are dangerously flawed adjuncts to or substitutes for provider-centric records, and while lacking many of the touted quality or cost-reduction benefits of oft-criticized electronic health records they pose substantially higher levels of risk regarding security, privacy, and confidentiality. The conclusion is that, as with their technically more complex electronic health records sibling, personal health records require a fundamental re-working of the legal model applicable to all electronic health records.

Abstract:
This article critically examines the technical and legal models for process-supporting health technologies; technologies that support the ongoing "process" or "system" reform movement by collecting, coding, and distributing patient safety information. This article first describes the intersecting patient safety information technologies. Second, and with particular emphasis on Electronic Health Records technology, it examines some of the possible models for patient information distribution and describes the data model issues faced by the architects of an Electronic Health Record (EHR). Third, there is a critical survey of the legal issues surrounding patient safety IT systems, particularly their error and privacy costs. Fourth, there is an examination of barriers to successful implementation of patient safety systems and proposed solutions. Finally, the article questions whether U.S. policymakers, regulators, and patient safety system architects should shift their focus from purely technical and financial issues to take a more patient-centric approach to the system that they propose.

Electronic health records, interoperability, medical error, medication error, e-health

Abstract:
It is widely expected that the growth of technologically-mediated care will directly reduce medical error and have positive indirect effects such as improving the data sets that underlie peer review, state disciplinary oversight and medical malpractice litigation. A technologically-mediated health care delivery system also should deliver substantial reductions in information costs for consumers, improving choice as to both quality and safety. What seems less clear is the extent to which process re-engineering and conversion to technology-centered error reduction systems will itself will create a new set of quality of care externalities. This article explores some of the liability questions posed by increasing the technology component in health care delivery. First, I take the position that the process and technology reforms triggered by To Err Is Human inevitably will confirm institutional liability as the default position for modern malpractice claims. Second, I argue that the likely adverse event scenarios that will result from technologically-mediated diagnosis, treatment and care will severely test our current torts operational rules, particularly those that lie at the intersection of malpractice and products liability.

Abstract:
Social networks connect intimates, friends, and acquaintances that share history, strangers who share interests, or businesses and the customers they serve. This article explores how participation in online social networks blurs the boundaries between personal and professional relationships or commentary, while making available 'private' information in what only appears to be a secluded area. These issues are explored within the framework of the highly regulated health domain, casting doubts on the appropriateness of some professional activities and identifying considerable risks for patients and their health-related information.

privacy, HIPAA, confidentiality, malpractice, social network

Abstract:
The EHR is a database record that incorporates a patient's health care details from conception to death and which can be distributed over a number of sites or aggregated at a particular source. This article describes the function and concept of the EHR by relating it to other medical information technologies, other changes in health care delivery, and a holistic health information model. The article compares the progress that Europe, Australia, and the US have made in the journey towards EHR implementation and concludes by highlighting some of the costs, barriers and consequences associated with the transition to a comprehensive EHR system. (Australian Journal of Legal Medicine, Vol. 12, No. 26, 2004.)

Abstract:
This article seeks to identify some of the reasons why “privacy” remains so contentious. Here I suggest several possible answers ranging from “micro” issues such as what we understand by health privacy to more “macro” and operational issues as we seek to protect health information. First, lawyers have made consistent errors in the terminology applied to the protection of medical privacy; second, both the legal and ethical domains have failed to apply a consistent and robust rationale for health privacy, leaving it prey to consequentialist thought and policy; third, the declining importance of the physician-patient relationship as the touchstone for obligations, particularly confidentiality, has created a “rights” vacuum; fourth, the health information revolution truly is revolutionary in its reach and its concomitant threats to privacy and confidentiality; and, finally, as privacy regulation increasingly lies in the sphere of governmental command-control regulation, it has joined the list of targets in the professionalism-market-regulation conflict over millennial healthcare delivery.

Abstract:
This essay seeks to contextualize e-health for the health law teacher. First, the history of e-health illustrates the way that health care in the United States has devalued patient expectations and access to care while over-investing in processes and technologies that serve the few. Second, e-health provides a rich source of examples revealing the transformation of health law away from an increasingly marginalized doctrine rooted in professional and personal paradigms. Third, e-health provides a disruptive model, particularly in its most recent iterations, that can be used to shake out otherwise dormant issues of law and policy.

ehealth, law and technology, health law, healthcare policy

Abstract:
This Article argues that the threat posed by rogue Internet prescribing and dispensing does not justify the level, style, and mechanics of current regulation. Current and emerging regulation may chill the development of lawful, efficient, necessary, and patient-friendly services and recommends alternate approaches. Part I of the Article sets out the key distinguishing features of the aforementioned initiatives and suggests that simple confusion between different and emergent models seem to be misleading legislators and regulators and imperiling patient choice. Part II discusses current regulation of Internet prescribing and dispensing and addresses the areas that most concern regulators. In the process, it examines the regulation of Internet prescribing by state licensing boards and the controversy surrounding transnational prescription dispensing. Parts III and IV of the Article then look beyond the current forms of Internet prescribing and dispensing to identify the stakeholders and critically analyze the regulatory themes that populate the landscape. These themes, including those labeled as uneasy federalism, under-regulation, and over-regulation, help us better understand the ways our legal and regulatory systems create disincentives to the adoption of new technologies or business models. Part V of the Article describes the steps necessary to maintain rigorous control over healthcare quality while avoiding disincentives to the provision of the next generation of effective and efficient healthcare.

health law, ehealth, health policy, Internet prescribing, FDA, medical boards

Abstract:
This chapter seeks to identify some of the reasons why "privacy" remains so contentious. Here I suggest several possible answers ranging from "micro" issues such as what we understand by health privacy to more "macro" and operational issues as we seek to protect health information. First, lawyers have made consistent errors in the terminology applied to the protection of medical privacy; second, both the legal and ethical domains have failed to apply a consistent and robust rationale for health privacy, leaving it prey to consequentialist thought and policy; third, the declining importance of the physician-patient relationship as the touchstone for obligations, particularly confidentiality, has created a "rights" vacuum; fourth, the health information revolution truly is revolutionary in its reach and its concomitant threats to privacy and confidentiality; and, finally, as privacy regulation increasingly lies in the sphere of governmental command-control regulation, it has joined the list of targets in the professionalism-market-regulation conflict over millennial healthcare delivery.

health law, privacy, confidentiality, bioethics, health policy, HIPAA

Abstract:
This article details the major issues faced by US regulators concerned with health information; the quality of publicly available health information, cross border medical and pharmacy practice, and privacy of records. It is suggested that it is both appropriate and practical to shift regulatory emphasis away from the quality of advice given on the Internet. Outdated, inaccurate, fraudulent, or even dangerous information on the web is notoriously difficult to regulate. Rather, it is argued that regulatory energies are better devoted to pressing health information problems that are soluble, such as Balkanised approaches to regulating cross border health interactions and the security and privacy of personal medical information.