Age Discrimination in Health Care

Among other things, the recent “death panel” controversy highlights our collective unease with the thought of elderly people being denied needed medical care based on someone else’s decision that their lives are not worth saving.  Yet, even without death panels, much research demonstrates that the elderly already suffer a great deal of discrimination in the health-care system, from the use of demeaning or patronizing language by medical personnel to disqualification from experimental treatments to dismissive responses regarding health complaints.  However, legal remedies for age discimination in health care have proven elusive.

Phoebe Weaver Williams explores ageism in health care, as well as potential remedies under the Age Act of 1975, in a pathbreaking new article recently published in the Marquette Elder’s Advisor.  She argues that legal theories developed in connection with employment discrimination litigation, such as the hostile environment theory, might be adapted for use in the health-care context.

Entitled “Age Discrimination in the Delivery of Health Care Services to Our Elders,” Phoebe’s article was published at 11 Marq. Elder’s Advisor 1.  The abstract appears after the jump. 

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The Economic Loss Doctrine and Other Property

Ralph Anzivino continues his exploration of the economic loss doctrine in a new paper on SSRN.  The economic loss doctrine indicates that economic losses resulting from a defective product are recoverable, if at all, under contract law, instead of tort law.  In applying this doctrine, however, courts have run into difficulty with damage to other property besides the defective product.  For instance, in one case, a ship caught fire and sunk as a result of defective hydraulic equipment, and the court had to decide whether the ship owner could recover the value of other equipment on the ship under a tort theory of strict products liability.  Courts have adopted a variety of conflicting and uncertain tests to determine whether such damages to other property are governed by tort or contract law. 

In his paper, Ralph proposes a new test that emphasizes contract principles first.  Parties should be permitted to allocate the risk of losses between themselves.  Thus, if a contract validly addresses losses to other property, Ralph would enforce the contract; otherwise, tort principles would apply.  He defends this approach as clearer and more consistent with the underlying purposes of the economic loss doctrine than approaches currently in use.

Entitled “The False Dilemma of the Economic Loss Doctrine,” Ralph’s paper is forthcoming in the Marquette Law Review.  His other recent articles on the economic loss doctrine are here, here, and here.

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