Severe Brain Injury, Disability, and the Law: Achieving Justice for a Marginalized Population

70 Pages Posted: 26 Jul 2018 Last revised: 6 Oct 2018

See all articles by Megan S. Wright

Megan S. Wright

The Pennsylvania State University (University Park) – Penn State Law

Nina Varsava

University of Wisconsin-Madison

Joel Ramirez

Independent

Kyle Edwards

Yale University, Law School, Students

Nathan Guevremont

Yale University - Law School

Tamar Ezer

Yale University - Solomon Center for Health Law and Policy

Joseph Fins

Weill Cornell Medical College

Date Written: July 5, 2018

Abstract

Thousands of persons with severe brain injury who are minimally conscious or “locked in” are wrongly treated as if they are unconscious. Such individuals are unable to advocate for themselves and are typically segregated from society in hospitals or nursing homes. As a result, they constitute a class of persons who often lack access to adequate medical care, rehabilitation, and assistive devices that could aid them in communication and recovery. While this problem is often approached from a medical or scientific point of view, here we frame it as a legal issue amenable to legal remedies. This Article comprehensively explores and analyzes sources of federal, state, and international human rights law that can be leveraged — both in traditional and novel ways — to improve the lives and protect the rights of persons with severe brain injury. We argue that state laws may be the most promising basis for legal action to ameliorate the clinical marginalization and societal neglect faced by persons with severe brain injury, and to promote their recovery and reintegration into their communities.

Keywords: disability, severe brain injury, disorders of consciousness, ADA, ACA, FDA, CRPD, IDEA, tort

Suggested Citation

Wright, Megan and Varsava, Nina and Ramirez, Joel and Edwards, Kyle and Guevremont, Nathan and Ezer, Tamar and Fins, Joseph, Severe Brain Injury, Disability, and the Law: Achieving Justice for a Marginalized Population (July 5, 2018). Florida State University Law Review, Vol. 45, 2018, Available at SSRN: https://ssrn.com/abstract=3208802

Megan Wright (Contact Author)

The Pennsylvania State University (University Park) – Penn State Law ( email )

Lewis Katz Building
University Park, PA 16802
United States

Nina Varsava

University of Wisconsin-Madison ( email )

United States

HOME PAGE: http://law.wisc.edu/profiles/nvarsava@wisc.edu

Joel Ramirez

Independent ( email )

Kyle Edwards

Yale University, Law School, Students ( email )

127 Wall Street
New Haven, CT 06511
United States

Nathan Guevremont

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

Tamar Ezer

Yale University - Solomon Center for Health Law and Policy ( email )

127 Wall Street
New Haven, CT 06511
United States

Joseph Fins

Weill Cornell Medical College ( email )

1300 York Avenue
New York, NY 10065
United States

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