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Back Issues and Articles

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Full Journal
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Table of Contents
Table of Contents
Articles
Between a Rock and a Hard Place: Can Physicians Prescribe Opioids to Treat Pain Adequately While Avoiding Legal Sanction?
Kelly K. Dineen & James M. DuBois - [PDF]

Prescription opioids are an important tool for physicians in treating pain but also carry significant risks of harm when prescribed inappropriately or misused by patients or others. Recent increases in opioid-related morbidity and mortality has reignited scrutiny of prescribing practices by law enforcement, regulatory agencies, and state medical boards. At the same time, the predominant 4D model of misprescribers is outdated and insufficient; it groups physician misprescribers as dated, duped, disabled, or dishonest. The weaknesses and inaccuracies of the 4D model are explored, along with the serious consequences of its application. This Article calls for development of an evidence base in this area and suggests an alternate model of misprescribers, the 3C model, which more accurately characterizes misprescribers as careless, corrupt, or compromised by impairment.
Stopping Deceptive Health Claims: The Need for a Private Right of Action Under Federal Law
Diane Hoffmann & Jack Schwartz - [PDF]

This Article offers a thorough analysis of an important public health issue, namely how to confront the growing problem of deceptive claims regarding foods and dietary supplements, including increasingly prevalent but unverifiable claims. The authors call for the creation of a limited private right of action under the Federal Trade Commission (FTC) Act for deceptive health-related claims for these products. The proposal responds to the growing market for these products and the inadequacy of current laws and enforcement actions to prevent such claims. In crafting the limited private right of action, the authors attempt to enhance consumer protection without undermining federal agency primacy in enforcement. The Article ends with an appendix setting forth proposed language for a statutory amendment to the FTC Act incorporating the authors' proposal.
Mandating Disclosure of Conscience-Based Limitations on Medical Practice
Nadia N. Sawicki - [PDF]

Stakeholders in law, medicine, and religion are unable to reach consensus about how best to address conflicts between healthcare providers' conscientious objections to treatment and patients' rights to access medical care. Conscience laws that protect objecting providers and institutions from liability are criticized as too broad by patient advocates and as too narrow by defenders of religious freedom. This Article posits that some of the tension between these stakeholders could be mitigated by statutory recognition of a duty on the part of healthcare institutions or providers to disclose conscientiously motivated limitations on practice. While this solution would not guarantee a patient's access to treatment, referral, or information from any given provider, it would prevent some of the more egregious cases of denial of treatment- those where patients are not made aware that a legal and clinically defensible treatment option is excluded from a provider's or institution's scope of practice and so have no opportunity to seek care elsewhere.
Bartering for a Compatible Kidney Using Your Incompatible, Live Kidney Donor: Legal and Ethical Issues Related to Kidney Chains
Evelyn Tenenbaum - [PDF]

Kidney chains are a recent and novel method of increasing the number of available kidneys for transplantation and have the potential to save thousands of lives. However, because they are novel, kidney chains do not fit neatly within existing legal and ethical frameworks, raising potential barriers to their full implementation.
Recent Court Decisions
Increasing Recognition of "Risk of Harm" as an Injury Sufficient to Warrant Standing in Class Action Medical Data Breach Cases
Yelena Greenberg - [PDF]

On November 20, 2015, the Superior Court of Massachusetts (the "Trial Court") for Suffolk County denied Defendant Boston Medical Center Corporation's (herein after "Defendant" or "BMC") motion to dismiss for lack of standing. Patients of BMC brought a class action on behalf of themselves and similarly situated patients after they received notice from BMC that their patient records "were inadvertently made accessible to the public through an independent medical record transcription service's online site." Plaintiffs filed suit on June 10, 2015 against BMC, BMC's medical record transcription servicer, MDF Transcription, LLC ("MDF"), and MDF's manager and owner, Richard Fagan ("Fagan") (collectively "Defendants"). Plaintiffs sued Defendants for invasion of privacy, breach of confidentiality, breach of fiduciary duty, negligence, negligent supervision, and breach of implied contract. Plaintiffs also sued MDF and Fagan, individually, for breach of contract.