INDIANA HEALTH LAw REVIEW 2012-2013 Editor-in-Chief Pervin Rusi Taleyarkhan Executive Managing Editor Brock Landon Easton Executive Editor Jennifer Nicole Risser Executive Production Editors Daniel Isaac Hageman Kyle Ryan Wood Executive Notes Editor Julia Suzanne Hudson Executive Articles Editor Alyssa Conley James Executive Symposium Editor James M. Inman Executive Business Editor Kimberly Anne Opsahl Note Development Editors Cora Ann Davidson Frandy St. Louis Lindsey Stout Articles Editors John Brett Curry Justin David Rumer William C. Starr Associate Editor Myriam Serrano Members Christopher Michael Anderson James Blair Banister Samuel Dayton Jessica M. Dugdale Romy Naser Elswerky Charlotte Fillenwarth Paul K. Ho Thomas Frederick Martin Charity Ann Mansfield James Timothy Nussbaum Jacob M. O'Brien Janice Kristina Pascuzzi Laura Bolon Sahm Nicole Marie Long Sharp Megan Michelle Smith Faculty Advisors Nicholas P. Terry (Chair) David Orentlicher (Chair) Eleanor D. Kinney (Adviser Emerita) Robert A. Katz Emily Michiko Morris Miriam A. Murphy (Research Liaison) Volume 10 INDIANA HEALTH LAW REVIEW (ISSN 1549-3199) Content. The Indiana Health Law Review publishes articles submitted by academics, practitioners, and students on the topics of health law and policy. The scope includes bioethics, malpractice liability, managed care, anti-trust, health care organizations, medical-legal research, legal medicine, and food and drug law. The Indiana Health Law Review will be published twice during the 2011-12 academic year. Disclaimer. The ideas, views, opinions, and conclusions expressed in articles appearing in this publication are those of the authors and not those of the Indiana Health Law Review or Indiana University Robert H. McKinney School of Law. Subscriptions. The current subscription rate is $20.00 for two issues (domestic mailing). Unless the Business Office receives notice to the contrary, all subscriptions will be renewed automatically. 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The Review publishes articles by prominent legal scholars, practitioners, and policy makers around the world, as well as student-written notes and comments. The Review is published twice annually, with a symposium issue devoted to a specific topic of international or comparative law published intermittently. Past symposium topics have included political and social aspects of Italian law, various aspects of Chinese law, and international terrorism in the twenty-first century. Name School/Firm/Business Address City, State, Zip Code Subscriptions within the U.S. are $18.00 per year and outside the U.S. are $21.00 per year. I enclose $ - for subscription(s) to the Indiana International & Comparative Law Review. Please make your check payable to the Indiana International & Comparative Law Review. Mail to: Executive Production Editor Indiana International & Comparative Law Review Lawrence W. Inlow Hall 530 West Street Indianapolis, IN 46202-3225 Please enter my subscription to the INDIANA LA W RE VIEW Name Address Enclosed is $ for subscription(s) Mail to: ATTN: Editorial Specialist at INDIANA LAW RE VIEW INDIANA UNIVERSITY ROBERT H. MCKINNEY SCHOOL OF LAW Lawrence W. Inlow Hall 530 West New York Street Indianapolis, Indiana 46202-3225 For an academic year, the subscription rate for four issues is: Domestic, $30; Foreign, $35; Student, $20 Single Issue, $10; Survey Issue $20 Symposium Issue, $15 Indiana University Robert H. McKinney School of Law 2012-2013 ADMINISTRATIVE OFFICERS AND FACULTY Administrative Officers MICHAEL A. McROBBIE, President of the University. Ph.D., Australian National University. CHARLES R. BANTZ, Chancellor, Indiana University-Purdue University-Indianapolis; Indiana University Executive Vice President. B.A., M.A., University of Minnesota; Ph.D., Ohio State University. GARY R. ROBERTS, Dean and GeraldL. Bepko Professor ofLaw. B.A., Bradley University; J.D., Stanford University. ANTONY PAGE, Vice Dean, Professor ofLaw and Dean's Fellow. B. Comm., McGill University; M.B.A., Simon Fraser University; J.D., Stanford Law School. KAREN E. BRAvO, Associate Dean for International Affairs, Professor of Law, John S. Grimes Fellow; Dean's Fellow. B.A., The University of the West Indies; J.D., Columbia University School of Law; LL.M., New York University School of Law. GERARD N. MAGLIOCCA, Associate Dean for Research, Samuel R. Rosen Professor of Law. B.A., Stanford University; J.D., Yale Law School. JAMES P. NEHF, Associate Dean for Graduate Studies, Cleon H. Foust Fellow, John S. Grimes Fellow, and Professor of Law. B.A., Knox College; J.D., University of North Carolina Law School. JONNA KANE MACDOUGALL, Assistant Dean for External Affairs and Alumni Relations; Adjunct Professor of Law. B.A., M.A., Indiana University; J.D., Indiana University Robert H. McKinney School of Law. JOHNNY D. PRYOR, Assistant Dean for Student Affairs. B.A., Wittenberg University; J.D., Indiana University Maurer School of Law. CHASITY Q. THOMPSON, Assistant Dean for Professional Development. A.S., B.A., Alabama State University; M.B.A., Auburn University; J.D., Indiana University Robert H. McKinney School of Law. MARK V. WUNDER, Assistant Dean for Development. B.S., J.D., University of Iowa. JOHN R. SCHAIBLEY, III, Executive Director of the Center for Intellectual Property Law and Innovation and Adjunct Professor of Law. B.A., Purdue University; J.D., Indiana University Maurer School of Law. ELIZABETH ALLINGTON, Director of Communications and Creative Services. B.A., Indiana University; M.A., M. Phil., New York University. TERESA (TERRI) J. CUELLAR, Director of Technology Services. B.S., St. Bonaventure University, New York. BRANDT HERSHMAN, Director ofEducational Outreach. Purdue University. AMANDA KAMMAN, Director ofFundraising and Development Services. B.A., Indiana University. PATRICIA K. KINNEY, Director ofAdmissions. B.S., Purdue University; J.D., Indiana University Robert H. McKinney School of Law. VIRGINIA MARSCHAND, Director ofAdministrative and Fiscal Affairs. B.S., Indiana University-Kokomo; M.P.A., Indiana University Purdue University-Indianapolis; J.D., Indiana University Robert H. McKinney School of Law. SONJA RICE, Director ofSpecial Projects. B.A., Purdue University; J.D., Indiana University Robert H. McKinney School of Law. AMY K. SPEARS, Director of Major Gifts. B.A., Earlham College. LAWANDA W. WARD, Director ofPro Bono and Public Interest Programs. B.A., Murray State University; M.A., Illinois State University; M.S., Old Dominion University; J.D., Indiana University Robert H. McKinney School of Law. JACOB J. MANALOOR, Associate Director for Contracts, Grants & Fundraising. B.S., Indiana University Purdue University-Indianapolis; J.D., Indiana University Robert H. McKinney School of Law. ANTHONY MASSERIA, Associate Director for Graduate Programs. B.A., Hanover College; M.S. Ed. Indiana University. SEAN SOUTHERN, Associate Director, Office ofProfessional Development. B.A., Ball State University; M.A., DePaul University; J.D., Loyola University Chicago School of Law. CARLOTA TOLEDO, Associate Director of Student Affairs. A.B., University of Chicago; J.D., DePaul University College of Law. SUSAN K. AGNEW, Assistant Director of Student Affairs. Clark College. WILLIAM J. BAKER, Assistant Director of Technology Services. B.S., Purdue University. SUSAN BUSHUE-RUSSELL, Assistant Business Manager. A.A.S., Lakeland College; B.S., Eastern Illinois University AMANDA GALLAGA, Assistant Director ofRecruitment. B.A., Trinity University. NOAH JOSEPH, Assistant Directorfor Graduate Studies. B.A. Miami University; J.D., Indiana University Maurer School of Law. KAREN H. MILLER, Assistant Director for Admissions. Midway College. LISA SCHRAGE, Assistant Director for Donor Relations. B.S., Marian College. Faculty CYNTHIA M. ADAMS, Clinical Professor ofLaw. B.A., Kentucky Wesleyan College; J.D., Indiana University Robert H. McKinney School of Law. JUDITH FORD ANSPACH, Professor ofLaw and Director, Ruth Lilly Law Library. B.S., M.L.S., Kent State University; J.D., Mississippi College School of Law. CYNTHIA A. BAKER, Clinical Professor of Law and Director, Program on Law and State Government. B.A., J.D., Valparaiso University. GERALD L. BEPKO, Indiana University-Purdue University-Indianapolis Chancellor Emeritus, Indiana University Trustee Professor and Professor of Law. B.S., Northern Illinois University; J.D., ITT/Chicago-Kent College of Law; LL.M., Yale Law School. SHAWN BOYNE, Associate Professor ofLaw, Dean's Fellow; Grimes Fellow. B.A., Cornell University; M.B.A., University of Minnesota; J.D., University of Southern California's Gould School of Law, M.A., Ph.D., University of Wisconsin; LL.M., Justus-Liebig-Universitit. ROBERT BROOKINS, Professor ofLaw. B.S., University of South Florida; J.D., Ph.D., Cornell University. JEFFREY 0. COOPER, Associate Professor ofLaw. A.B., Harvard University; J.D., University of Pennsylvania Law School. ERIC R. DANNENMAIER, Professor ofLaw, Dean 's Fellow; Grimes Fellow. B.A., Drury College; J.D., Boston University; LL.M., Columbia University; M. St., Oxford University. JAMES D. DIMITRI, Clinical Professor of Law. B.S., Indiana University; J.D., Valparaiso University School of Law. JENNIFER A. DROBAC, Professor of Law. B.A., M.A., Stanford University; J.D., J.S.D., Stanford Law School. YVONNE M. DUTTON, Associate Professor ofLaw. B.A., Columbia University; M.A., University of Colorado at Boulder; Ph.D., University of Colorado at Boulder; J.D., Columbia Law School. GEORGE E. EDWARDS, Carl M Gray Professor ofLaw; Faculty Advisor to the LL.M track in International Human Rights Law; Director, Program in International Human Rights Law; John S. Grimes Fellow. B.A., North Carolina State University; J.D., Harvard Law School. FRANK EMMERT, John S. Grimes Professor of Law and Executive Director, Center for International and Comparative Law. Erstes Juristisches Staatsexamen (J.D.), University of Munich Law School; LL.M., The University of Michigan Law School; Ph.D., University of Maastricht; Diploma, European University Institute. NICHOLAS GEORGAKOPOULOS, Harold R. Woodard Professor ofLaw. Ptyhion Nomikis, Athens University School of Law; LL.M., S.J.D., Harvard Law School. CARRIE HAGAN, Clinical Associate Professor of Law. B.A., University of Kansas; J.D., University of Cincinnati College of Law. JOHN LAWRENCE HILL, Professor ofLaw. B.A., Northern Illinois University; J.D., Ph.D., Georgetown University. MAX HUFFMAN, Associate Professor ofLaw; Dean's Fellow. B.A., Cornell University; J.D., University of Cincinnati College of Law. LAWRENCE A. JEGEN, III, Thomas F Sheehan Professor of Tax Law and Policy. B.A., Beloit College; J.D., M.B.A., University of Michigan; LL.M., New York University School of Law. ROBERT A. KATZ, Professor ofLaw. A.B., Harvard College; J.D., University of Chicago Law School. LINDA KELLY HILL, M Dale Palmer Professor ofLaw. B.A., J.D., University of Virginia. MAX HUFFMAN, Associate Professor of Law and Dean's Fellow. B.A., Cornell University; J.D., University of Cincinnati College of Law. ANDREW R. KLEIN, Paul E. Beam Professor ofLaw; ChiefofStaff Office ofthe Chancellor oflUPUI. B.A., University of Wisconsin; J.D., Emory University School of Law. NORMAN LEFSTEIN, Professor ofLaw and Dean Emeritus. LL.B., University of Illinois College of Law; LL.M., Georgetown University Law School. ALLISON MARTIN, Clinical Professor of Law. B.S., J.D., University of Illinois. DEBORAH McGREGOR, Clinical Professor ofLaw and Assistant Director ofLegal Analysis, Research and Communication. B.A., University of Evansville; J.D., Georgetown University Law Center. EMILY MORRIS, Associate Professor ofLaw and Dean 's Fellow. A.B., Harvard University; J.D., University of Michigan Law School. NOVELLA NEDEFF, Clinical Associate Professor ofLaw. B.A., J.D., Indiana University. DAVID ORENTLICHER, Samuel R. Rosen Professor ofLaw and Co-Director ofthe William S. and Christine S. Hall Center for Law and Health. B.A., Brandeis University; J.D., M.D., Harvard University. JOANNE ORR, Clinical Professor of Law. B.S., Indiana State University; J.D., California Western School of Law. MICHAEL J. PITrs, Professor ofLaw; Dean's Fellow and John S. Grimes Fellow. B.S.J., Northwestern University; J.D., Georgetown University Law Center. FRAN QUIGLEY, Clinical Professor ofLaw, Health and Human Rights Clinic, Indiana University Robert H. McKinney School of Law; Senior Advisor, Indiana University Center for Global Health. B.A., Hanover College; M.A., Indiana University; J.D., Indiana University Robert H. McKinney School of Law. FLORENCE WAGMAN ROISMAN, William F. Harvey Professor ofLaw. B.A., University of Connecticut; LL.B., Harvard Law School. JOAN M. RUHTENBERG, Clinical Professor ofLaw and Director ofLegal Analysis, Research and Communication. B.A., Mississippi University for Women; J.D., Indiana University Robert H. McKinney School of Law. MARGARETRYZNAR, Associate Professor ofLaw. B.A., University of Chicago; M.A., Jagiellonian University; J.D., University of Notre Dame Law School. JOEL M. SCHUMM, Clinical Professor of Law. B.A., Ohio Wesleyan University; M.A., University of Cincinnati; J.D., Indiana University Robert H. McKinney School of Law. LEA SHAVER, Associate Professor of Law. B.A., M.A., University of Chicago; J.D., Yale Law School. LAHNY R. SILVA, Associate Professor ofLaw. B.A., M.A., Boston University; J.D., University of Connecticut School of Law; LL.M., University of Wisconsin Law School. FRANK SULLIVAN, JR., Professor ofPractice. A.B., Dartmouth College; J.D., Indiana University Maurer School of Law; LL.M., University of Virginia School of Law. MARGARET C. TARKINGTON, Associate Professor ofLaw. B.A., Brigham Young University; J.D., J. Reuben Clark Law School, Brigham Young University. NICOLAS P. TERRY, Hall Render Professor of Law; Co-Director of the William S. and Christine S. Hall Center for Law and Health. B.A., Kingston University; LL.M., Corpus Christi College, University of Cambridge. CARLTON MARK WATERHOUSE, Associate Professor ofLaw; Dean's Fellow. B.S., Pennsylvania State University; J.D. with honors, Howard University School of Law; M.T.S., Emory University, Chandler School of Theology; Ph.D. with honors, Emory University. FRANCES WATSON, Clinical Professor ofLaw. B.S., Ball State University; J.D., Indiana University Robert H. McKinney School of Law. LLOYD T. WILSON, JR., Professor of Law; Director, Joint Center for Asian Law Studies; Director, Chinese Law Summer Program; Director, American Law for Foreign Lawyers LL.M Program. B.A., Wabash College; M.A., Duke University; J.D., Indiana University Maurer School of Law. DIANA R.H. WINTERS, Associate Professor ofLaw. B.A., Brown University; M.A., Harvard University; Ph.D., Harvard University; J.D., New York University School of Law. R. GEORGE WRIGHT, Lawrence A. Jegen III Professor ofLaw. A.B., University of Virginia; Ph.D., Indiana University; J.D., Indiana University Robert H. McKinney School of Law. Emeriti Faculty THOMAS B. ALLINGTON, Professor of Law Emeritus. B.S., J.D., University of Nebraska; LL.M., New York University School of Law. EDWARD P. ARCHER, Professor ofLaw Emeritus. B.M.E., Renesselaer Polytechnic Institute; J.D., LL.M., Georgetown University Law School. JAMES F. BAILEY, III, Professor ofLaw Emeritus. A.B., J.D., M.A.L.S., The University of Michigan. PAUL N. Cox, Professor of Law Emeritus. B.S., Utah State University; J.D., University of Utah College of Law; LL.M., University of Virginia School of Law. CLYDE HARRISON CROCKETT, Professor ofLaw Emeritus. A.B., J.D., University of Texas; LL.M., University of London (The London School of Economics and Political Science). DEBRA A. FALENDER, Professor ofLaw Emerita. A.B., Mount Holyoke College; J.D., Indiana University Robert H. McKinney School of Law. DAVID A. FUNK, Professor of Law Emeritus. A.B., College of Wooster; J.D., Case Western Reserve University School of Law; M.A., The Ohio State University; LL.M., Case Western Reserve University; LL.M., Columbia Law School. PAUL J. GALANTI, Professor ofLaw Emeritus. A.B., Bowdoin College; J.D., University of Chicago Law School. HELEN P. GARFIELD, Professor of Law Emerita. B.S.J., Northwestern University; J.D., University of Colorado School of Law. HAROLD GREENBERG, Professor ofLaw Emeritus. A.B., Temple University; J.D., University of Pennsylvania Law School. JEFFREY W. GROVE, Professor ofLaw Emeritus. A.B., Juniata College; J.D., George Washington University Law School. WILLIAM F. HARVEY, Carl M. Gray Professor ofLaw & Advocacy Emeritus. A.B., University of Missouri; J.D., LL.M., Georgetown University Law School. W. WILLIAM HODES, Professor ofLaw Emeritus, A.B., Harvard College; J.D., Rutgers University School of Law- Newark. WILLIAM ANDREw KERR, Professor ofLaw Emeritus. A.B., J.D., West Virginia University; B.D., Duke University; LL.M., Harvard Law School. ELEANOR DEARMAN KINNEY, Hall Render Professor ofLaw, Co-director ofthe William S. and Christine S. Hall Center for Law and Health Emerita. B.A., Duke University; M.A., University of Chicago; J.D., Duke University School of Law; M.P.H., University of North Carolina. WILLIAM E. MARSH, Professor ofLaw Emeritus. B.S., J.D., University of Nebraska. SUSANAH M. MEAD, Professor ofLaw Emerita. B.A., Smith College; J.D., Indiana University Robert H. McKinney School of Law. H. KATHLEEN PATCHEL, Associate Professor ofLaw Emerita. A.B., Huntington College; J.D., University of North Carolina Law School; LL.M., Yale Law School. RONALD W. POLSTON, Professor ofLaw Emeritus. B.S., Eastern Illinois University; LL.B., University of Illinois College of Law. KENNETH M. STROUD, Professor ofLaw Emeritus. A.B., J.D., Indiana University-Bloomington. JAMES W. TORKE, Carl M Gray Professor ofLaw Emeritus. B.S., J.D., University of Wisconsin. JAMES PATRICK WHITE, Professor ofLaw Emeritus. A.B., University of Iowa; J.D., LL.M., George Washington University Law School. LAWRENCE P. WILKINS, William R. Neale Professor ofLaw Emeritus. B.A., The Ohio State University; J.D., Capitol University Law School; LL.M., University of Texas School of Law. MARY THERESE WOLF, Clinical Professor ofLaw Emerita. B.A., Saint Xavier College; J.D., University of Iowa College of Law. Ruth Lilly Law Library Faculty JUDITH FORD ANSPACH, Professor ofLaw and Director, Ruth Lilly Law Library. B.S., M.L.S., Kent State University; J.D., Mississippi College School of Law. SUSAN DAVID DEMAINE, Research and Instruction Librarian. B.A., Pennsylvania State University; M.S.L.S., University of Kentucky; J.D., University of Kentucky. DEBRA DENSLAw, Research and Instruction Librarian. B.A., Franklin College; M.S., University of Illinois, Urbana- Champaign; J.D., Valparaiso School of Law. RICHARD HUMPHREY, Reference Librarian. A.A., Brewton-Parker Junior College; B.A., Georgia Southwestern College; M.L.S., University of Kentucky. WENDELL E. JOHNTING, Cataloging and Government Documents Librarian. A.B., Taylor University; M.L.S., Indiana University. BENJAMIN J. KEELE, Research and Instruction Librarian. B.A., University of Nebraska-Lincoln; J.D., Indiana University Maurer School of Law; M.L.S., Indiana University School of Library & Information Science. CATHERINE LEMMER, Head ofInformation Services. B.A., Lawrence University; J.D., University of Wisconsin; M.S., University of Illinois. CHRIS E. LONG, Cataloging Librarian. B.A., Indiana University; M.A., Indiana University; M.L.S., Indiana University. MIRIAM A. MURPHY, Associate Director. B.A., Purdue University; J.D., M.L.S., Indiana University-Bloomington. INDIANA HEALTH LAW REVIEW Volume 10 2013 Issue 1 TABLE OF CONTENTS MCDONALD-MERRILL-KETCHAM MEMORIAL LECTURESHIP AND AWARD FOR EXCELLENCE IN LAW AND MEDICINE Wendy K. Mariner Did Legal Education Fail Health Reform? And How Health Law Can Help .............................................. 1 ARTICLES Katherine Drabiak-Syed Granular Control of EHRs to Overcome Fragmented Disclosure Law: How Policy Choices for Granularity Will Affect Clinical Care, Impact Secondary Use of Health Information, and Alter Risks for Patients and Providers .................................... ..... 39 Kenneth Shuster Because of History, Philosophy, the Constitution, Fairness & Need: Why Americans Have a Right to National Health Care ... ............ 75 Amanda Swanson 510(k) Clearance: Opportunities to Incentivize Medical Device Safety Through Comparative Effectiveness Research ................. 117 NOTES Alyssa James Gestational Surrogacy Agreements: Why Indiana Should Honor Them and What Physicians Should Know Until They Do............................ 175 Kimberly A. Opsahl Using Integrated Care to Meet the Challenge of the ADA's Integration Mandate: Is Managed Long-Term Care the Key to Addressing Access to Services? ........................ 211 Lindsey Stout Negligent Credentialing as a Cause of Action in Indiana Medical Malpractice Litigation .................................. 249 01_10IndHealthLRev[i](2012-2013) 03_10IndHealthLRev[xv](2012-2013)