Article by Zachary E. Shapiro, Chaarushena Deb, Caroline Lawrence, Allison Rabkin Golden, Jaclyn Wilner, Allison Durkin, Zoe M. Adams, Wenqing Zhao, Keturah James, Adam Pan, Megan S. Wright, and Joseph J. Fins
Our Article considers what the legal system can do to identify and support the recovery and reintegration of persons with severe brain injury, suffering from disorders of consciousness. We explore the possibility of marshaling law to advocate for this cohort of patients, who are currently overlooked by the medical and legal systems. Despite their potential for recovery, many of these individuals remain segregated in nursing homes, where they do not receive adequate medical care, much less the rehabilitation that might permit the restoration of functional communication, which is so central to their reintegration to the nexus of their homes and families. Deprived of these medical interventions, these patients are further isolated and segregated from civil society. We view this situation as unethical and as a violation of the American with Disabilities Act. To remedy this violation of law, we explore the application of Olmstead enforcements to patients with severe brain injury. We trace the legal evolution of disability law and Olmstead enforcements, deriving from the leading United States Supreme Court case regarding deinstitutionalization and community reintegration, Olmstead v. L.C. ex rel. Zimring. Our Article highlights how Olmstead could be used in an effort to desegregate and reintegrate those with hidden consciousness back into their communities.
About the Authors
Zachary E. Shapiro, Chaarushena Deb, Caroline Lawrence, Allison Rabkin Golden, Jaclyn Wilner, Allison Durkin, Zoe M. Adams, Wenqing Zhao, Keturah James, Adam Pan, Megan S. Wright, and Joseph J. Fins.
Zachary E. Shapiro J.D., MSc., is a Post-Doctoral Fellow in the Division of Medical Ethics at Weill Cornell Medical College. He also holds an appointment as a Senior Research Fellow and Senior Advisor at the Solomon Center for Health Law and Policy at Yale Law School, where his scholarship supports the Consortium for the Advanced Study of Brain Injury at Yale Law School (CASBI @YLS). He is the Co-Chair of the Hospital Ethics Committee at The Rockefeller University in New York City. Shapiro served as the Presidential Scholar of Law at the Hastings Center and as a Fellow at the Massachusetts General Hospital's Center for Law, Brain, and Behavior. In 2017, he clerked for the Honorable Judge Timothy B. Dyk on the United States Court of Appeals for the Federal Circuit in Washington, D.C. Shapiro received his B.A. from Brown University, MSc. from the London School of Economics and Political Science, and graduated from Harvard Law School cum laude in 2016.
Chaarushena Deb is a second-year student at Yale Law School. Caroline Lawrence is a second-year student at Yale Law School. Allison Rabkin Golden is a third-year student at Yale Law School. Jaclyn Wilner is a third-year student at Yale Law School. Allison Durkin is a second-year student at Yale Law School. Zoe M. Adams is a third-year student at Yale School of Medicine. Wenqing Zhao is a third-year student at Yale Law School.
Keturah James graduated from Yale Law School in 2019. She currently works at Jenner & Block in New York. James received her B.A. in Psychology with a concentration in Neuroscience from Yale College.
Adam Pan, J.D., Ph.D., is a legal advisor to the Honorable Judge Timothy B. Dyk. He received his B.A.Sc. in engineering science from the University of Toronto and his Ph.D. in medical engineering and medical physics from MIT. Pan attended Yale Law School.
Megan S. Wright, J.D., Ph.D., is Assistant Professor of Law, Medicine, and Sociology at Penn State Law and the Departments of Humanities and Public Health Science at Perm State College of Medicine, as well as an affiliate faculty member with the Department of Sociology and Criminology and the Rock Ethics Institute in the College of the Liberal Arts at the Pennsylvania State University. She is also an Adjunct Assistant Professor of Medical Ethics in Medicine at Weill Cornell Medical College. Concurrently, she served as a Research Fellow and Senior Adviser to the Consortium for the Advanced Study of Brain Injury Project at the Solomon Center for Health Law and Policy at Yale Law School (CASBI@YLS). Prior to earning her J.D., Professor Wright served as a Law and Social Science Research Fellow at the James E. Rogers College of Law and as a qualitative analyst at the Southwest Institute for Research on Women, both at the University of Arizona. Professor Wright earned a Ph.D. in Sociology from the University of Arizona.
Joseph J. Fins, M.D., M.A.C.P., F.R.C.P. is the E. William Davis, Jr. M.D. Professor of Medical Ethics and Chief of the Division of Medical Ethics at Weill Cornell Medical College, where he is a Tenured Professor of Medicine, Professor of Medical Ethics in Neurology, Professor of Medical Ethics in Rehabilitation Medicine, Professor of Health Care Policy and Research, and Professor of Medicine in Psychiatry. He is the founding Chair of the Ethics Committee of New York-Presbyterian Weill Cornell Medical Center, where he is an Attending Physician and Director of Medical Ethics. A member of the Adjunct Faculty of Rockefeller University and Senior Attending Physician at The Rockefeller University Hospital, Professor Fins co-directs the Consortium for the Advanced Study of Brain Injury (CASBI) at Weill Cornell Medicine and Rockefeller. He is a Visiting Professor of Law and the Solomon Center Distinguished Scholar in Medicine, Bioethics and the Law at Yale Law School, where he leads CASBI@YLS. Professor Fins is a Master of the American College of Physicians and Fellow of The Royal College of Physicians (London). He is an elected Member of the National Academy of Medicine (formerly the Institute of Medicine) of the National Academy of Sciences, a Fellow of the American Academy of Arts and Sciences, the Dana Alliance for Brain Initiatives, and by Royal Appointment an Academico de Honor (Honored Academic) of the Real Academia Nacional de Medicina de España (the Royal National Academy of Medicine of Spain).
Professor Fins gratefully acknowledges the support of a grant from the NTH BRAIN Initiative for Cognitive Restoration: Neuroethics and Disability Rights [1 RFA MH12378-011]. He also acknowledges the Jerold B. Katz Foundation, John Usdan and Eva Colin Usdan, Joseph Lesser, and Dr. Anthony Hollenberg and the Department of Medicine at Weill Cornell Medical College. The authors want to thank the Solomon Center for Health Law and Policy at Yale Law School and Professor Abbe Gluck for her support and for making this collaboration possible.
Citation
95 Tul. L. Rev. 525 (2021)