The Defibrillation of NOTA: How Establishing Federal Regulation of Waitlist Eligibility May Save Organ Transplant Patients with Disabilities from Flat-Lining – Note by Danielle Richards

From Volume 87, Number 1 (September 2013)

Imagine this: thirty-five-year-old identical twin males are admitted into a hospital for congestive heart failure. Neither twin smokes nor drinks. Neither has other underlying medical conditions. There is, however, one distinct difference between them: at birth, twin “A,” Alex, was delivered normally, but twin “B,” Brian, had his umbilical cord wrapped around his neck, causing oxygen deprivation and resulting in moderate mental disability. As adults, Alex is completely independent, but Brian is not, as he lives with his elderly parents. Both twins are stubborn, but a few times, Brian has reacted especially negatively when placed in new and stressful situations.

The twins have the same doctor who determines that both are equally sick, concluding that each will survive only with a heart transplant. Although it seems Alex can comply with postoperative treatment—first, with help from family and later, alone—Brian may not be able to comply by himself. His parents and his sister, however, are willing to provide Brian with the additional support he needs to comply, such as ensuring he takes his medication, follows other medical restrictions, and attends regular follow-up appointments. If Brian can comply with the postoperative treatment with or without help from his family, the doctor predicts Brian’s long-term prospects for life-prolongation will be the same as Alex’s prospects.

After evaluating the twins, the doctor has to decide independently whether to place each on the national heart transplant waitlist. Knowing the above, what should the doctor decide? Should Alex be placed on the heart transplant waitlist? Should Brian? Should the doctor consider Brian’s mental disability when making his decision? Should it matter that Brian’s parents and sisters have agreed to provide him with additional support?



Gerontology and the Law: A Selected Annotated Bibliography: 2009-2011 Update – Bibliography by Judy K. Davis & Karen Skinner

From Volume 86, Number 6 (September 2013)

This bibliography serves as the 2009–2011 update to Gerontology and the Law: A Selected Annotated Bibliography. First published in 1980 by Law Library Journal the bibliography has since been updated nine times between 1982 and 2010 in the Southern California Law Review. The original bibliography and the first five updates provided citations to a variety of books, articles, and other law related materials on various aspects of the law and gerontology. Starting with the sixth update, the style and content of the bibliography was changed in two ways: first, the bibliographers took a more selective approach in choosing resources to include and second, the bibliographers added annotations briefly describing the source after each citation.

For this update, the bibliographers chose a selection of scholarly books and articles discussing legal issues related to gerontology, aging, and the elderly in the United States published between the years 2009–2011. This bibliography does not include sources that are directed toward the general public, such as popular literature and self-help guides, and sources that do not deal with both law and gerontology. Other sources not included, some of which have been included in prior updates, are book reviews, newspaper articles, government documents, Congressional documents, conference proceedings, dissertations, and sources written in a language other than English. Although the focus of this 2009–2011 update is on the United States, a limited number of sources with an international or foreign perspective are included if deemed useful to researchers in the United States. Newer editions of older works are included if they were published between 2009–2011; however, if more than one edition was published between these dates, only the latest edition is included.

To locate sources to include in this bibliography, the bibliographers searched the following databases periodically from February 2013 to April 2013:

Ageline (produced by the American Association of Retired Person; searched via OvidSP or EBSCO) Journals and Law Reviews (Westlaw Classic database) Legal Resource Index (produced by the Information Access Company; searched via Westlaw Classic) Medline (produced by the National Library of Medicine; searched via OvidSP) Social Sciences Citation Index (produced by Thomson Reuters; searched via ISI Web of Knowledge) WorldCat (produced by OCLC Online Computer Library Center, Inc.; searched via OCLC FirstSearch) As with prior updates, the citations in the bibliography do not conform to The Bluebook: A Uniform System of Citation or to The Chicago Manual of Style. Instead, the citation format is a combination of the two styles and is consistent with previous updates of the bibliography.



A Matter of Life, Death, and Children: The Patient Protection And Affordable Care Act Section 2302 and a Shifting Legal Paradigm – Note by Ryan A. Walsh

From Volume 86, Number 5 (July 2013)

Nick Snow was diagnosed with neuroblastoma, a rare and deadly form of cancer, at the age of six. After undergoing “chemotherapies, surgeries, four types of radiation, a bone marrow transplant and many experimental therapies,” Nick saw his cancer finally go into remission six years after diagnosis. Twice during this grueling ordeal, doctors told Nick that he would soon die and enrolled him in a hospice program. Unexpectedly, Nick’s general health improved during hospice treatment, enabling him to resume the fight against his cancer. Under then-existing federal laws, Nick’s improved health and decision to seek a long-term cure simultaneously rendered him ineligible for hospice services. As this Note discusses and as Nick Snow explained in his own words, this legally mandated result is unsatisfactory.



The Rise of U.S. Food Sustainability Litigation – Article by Stephanie Tai

From Volume 85, Number 4 (May 2012)

This Article provides one of the first critical looks at the interface between the values of the sustainable food movement and its rising use of litigation. In particular, it focuses on two growing areas of food sustainability litigation–challenges to Concentrated Animal Feeding Operations (“CAFOs”) and challenges to the use of genetically modified organisms (“GMOs”) in the food system–chosen because they involve growing sectors of U.S. agriculture over which members of the sustainable food movement have raised significant concerns.



Taxing Youth: Health Care Reform Writes a Costly Prescription that Leaves the Young and Healthy Paying the Bill – Note by Charles P. Litchfield

From Volume 85, Number 2 (January 2012)

With the American health care system facing a looming crisis due to unsustainable rates of medical cost inflation, the government has reacted by passing the Patient Protection and Affordable Care Act. While the present ubiquity of third-party payers in the form of health insurance or government programs spawns inefficiencies and perverse incentives that drive market forces to work against, rather than toward, maximum social welfare, the reform bill threatens to exacerbate the very inefficiencies it seeks to avoid. Rather than focusing on controlling medical cost inflation, the bill seeks to include high-risk groups that are normally priced out of the insurance market, thus placing more stress on the payment model. The individual mandate—making health insurance mandatory—ensures that the low-risk young and healthy demographic will bear the cost of this increased burden on the insurance system. This Note examines how the recent health reform bill proposes to restructure the insurance market itself and analyzes the inadequacies of the individual mandate. Further, it briefly explores the constitutional challenges to the mandate and discusses whether the health reform bill is salvageable in light of its deficiencies.



Psychotropic Medication and Foster Care Children: A Prescription for State Oversight – Note by Michelle L. Mello

From Volume 85, Number 2 (January 2012)

On April 16, 2009, seven-year-old Gabriel Myers locked himself in the bathroom of his Florida foster home and took his own life. Just three weeks prior, Myers was prescribed Symbyax, a combination of antidepressant and antipsychotic drugs not approved by the U.S. Food and Drug Administration (“FDA”) for use in children. Myers’s Department of Children & Families (“DCF”) records document a tragic history of neglect, allegations of sexual abuse, and movement between at least four foster care placements after removal from his mother’s care. Diagnosed with attention deficit hyperactivity disorder, mood disorder, and possibly depression, Myers took several medications including Lexapro and Vyvanse. After his death, DCF appointed a Work Group to assess Myers’s case as well as the use of psychotropic medication for other children in state foster care. While the Work Group determined that safeguards in Florida existed, the “core failures in the system . . . stem[med] from lack of compliance with [such safeguards] and . . . failures in communication, advocacy, supervision, monitoring, and oversight.”

Giovan Bazan was only six-years-old when he was first treated with medication for hyperactivity. Years later, while taking Ritalin at a double dosage, he was prescribed an antidepressant after another physician saw him “so mellowed out that he barely reacted.” Twenty-year-old Bazan is now free of all medications and recognizes that “[t]hey start you on one thing for a problem, then the side effects mean you need a new medicine . . . [a]s a foster kid, I’d go between all these doctors, caseworkers, therapists, and [it] seemed like every time there was a new drug to try me on.”



Altruism or Commercialism? Evaluating the Federal Ban on Compensation for Bone Marrow Donors – Note by Nicolette Young

From Volume 84, Number 5 (July 2011)

Voluntary, altruistic bone marrow donation is currently the only way for a patient to receive a bone marrow transplant. Unfortunately, bone marrow supply from altruism falls far short of demand, making our current system insufficient. Although scholars have proposed numerous avenues for change in the organ donation system, no change has occurred. One popular proposal is to remove the ban on compensation for organ donors, a proposition that implicates many ethical and moral concerns. These moral concerns include the commodification of the human body, the exploitation of poor and ethnic minority populations, and the general repugnance that some feel toward the idea of selling one’s body. If compensation for bone marrow donation were allowed, we may be able to overcome these moral and ethical concerns both conceptually and constitutionally. For example, the ethical dilemmas that surround bone marrow donation are somewhat abated by the rise of new technologies that have made bone marrow donation much less intrusive.



Embracing the New Geography of Health Care: A Novel Way to Cover Those Left Out of Health Reform – Article by Nathan Cortez

From Volume 84, Number 4 (May 2011)

Even after landmark health reform in 2010, our health care system will not achieve universal coverage. The Patient Protection and Affordable Care Act is expected to leave twenty-three million people uninsured after a decade. And until several major provisions take effect in 2014, fifty million people will remain uninsured. This Article argues that cross-border health insurance plans that utilize foreign medical providers are a surprisingly feasible alternative for the residually uninsured. Cross-border plans can be much less expensive than traditional, domestic-only plans. And they might appeal to immigrants and others that are neither eligible for public plans nor able to afford private ones. The Article begins by evaluating the 2010 health reform legislation and the populations that it leaves out. I then reveal how gaps in our health care system are being filled by foreign medical providers. Three major constituents of the U.S. health care system now utilize foreign providers: patients travel as “medical tourists” when they cannot afford care domestically; insurers outsource high-margin procedures to foreign hospitals; and somewhat perversely, some U.S. hospitals facing extraordinary expenses repatriate immigrants to their native countries in a form of international “patient dumping.” These trends reflect what I call the “new geography” of health care. The Article demonstrates how cross-border plans might appeal both to immigrants and to the nonimmigrant middle class that cannot afford traditional insurance. I explain how cross-border plans operate and propose various solutions to the legal and practical impediments that presently discourage such arrangements. For example, the Article applies “new governance” theories to recommend how to impose quality standards on foreign providers that otherwise reside beyond the jurisdiction of domestic regulators. This Article also confronts an underlying normative question: How much should we relax or reconfigure our standards to make health care more accessible? I argue that if a significant portion of residents cannot afford health care in the United States–and if we are not prepared to provide it publicly as most other countries do–then we should reimagine current laws that contemplate only domestic care and create a legal framework that allows patients to seek it elsewhere.



A Congressional Carve Out: The Necessity for Uniform Application of Professional Sports Leagues’ Performance-Enhancing Drug Policies – Note by Lee Linderman

From Volume 84, Number 3 (March 2011)

INTRODUCTION “The use of steroids [in sports] has become a public health crisis. Half a million kids a year in the U.S. are taking steroids . . . and many of them do this because they are emulating their sports heroes.” In the past several years, performance-enhancing drug (“PED” or “steroid”) use in major professional sports has captured the attention of not only average fans, but also lawmakers in Congress. Rampant steroid abuse in Major League Baseball (“MLB”) catalyzed a 2005 congressional hearing at which famous ballplayers like Mark McGwire testified. In 2009, two National Football League (“NFL”) players challenged their suspensions for using substances banned by the NFL collective bargaining agreement (“CBA”) in court. This suggests sports leagues may lack the legal authority to conclusively bargain for and uniformly apply certain aspects of a CBA such as the PED policy—a fact that compelled NFL Commissioner Roger Goodell to seek congressional intervention in the steroids arena.

During this so-called steroids era, sports radio and television shows have shifted in focus from the magic of record-breaking performances to the possibility that PED use tainted those achievements. Cynics have cast the entire 1990s as a statistical lie, claiming there is no way to tell who was taking PEDs and who was not; as a result, many commentators have recommended adding asterisks to individual or team records that indicate those records might have been tainted by PED abuse. Scholars from a variety of fields have explored how PED use has negatively affected the integrity of professional sports, the medical dangers of taking PEDs, and how professional athletes’ use of PEDs has adversely affected youth athletes. In response to this outburst of PED use in professional sports and the subsequent explosion of literature decrying it, leagues such as the NFL and MLB have significantly increased the penalties for players caught using PEDs in an attempt to cleanse the leagues’ images.



Of Financial Rights of Assisted Reproductive Technology Nonmarital Children and Back-Up Plans – Postscript (Response) by Dara E. Purvis

From Volume 84, Number 1 (November 2010)

Responding to Courtney G. Joslin, Protecting Children (?): Marriage, Gender, and Assisted Reproductive Technology, 83 S. Cal. L. Rev. 1177 (2010).

In her article, Courtney G. Joslin persuasively argues that the children born via assisted reproductive technology (“ART”) are placed at a serious financial disadvantage under the law. Joslin is right to point out that parentage provisions that apply only to children born to heterosexual married couples disadvantage nonmarital children of ART financially as well as emotionally and developmentally. Joslin’s solution is to propose extending to such children what she terms the “consent = legal parent” rule, meaning that “any individual, regardless of gender, sexual orientation, or marital status, who consents to a woman’s insemination with the intent to be a parent is a legal parent of the resulting child.” Such a rule removes a period of time during which a child is unprotected by the lack of legal recognition of a parent. This response identifies an ambiguity in and proposes a clarification of Joslin’s consent = legal parent rule with regard to conception, and with regard to consent during the period after conception and before birth.