Journal of law and health最新文献_第2页

Emotional Distress Claims, Dignitary Torts, and the Medical-Legal Fiction of Reasonable Sensitivity. 精神损害索赔、尊严侵权与合理敏感性的医疗法律虚构。

Journal of law and health Pub Date : 2023-01-01

Alessandra Suuberg

{"title":"Emotional Distress Claims, Dignitary Torts, and the Medical-Legal Fiction of Reasonable Sensitivity.","authors":"Alessandra Suuberg","doi":"","DOIUrl":"","url":null,"abstract":"Can individuals with a highly sensitive temperament recover in tort for intentional infliction of emotional distress (IIED)? In 2019, an article in the University of Memphis Law Review raised this question, referring to the \"Highly Sensitive Person\" (HSP) construct in psychology and asking whether the IIED tort's 'reasonable person' standard discriminates against highly sensitive plaintiffs. Following up on that discussion, the present article considers how the law of IIED has historically treated plaintiffs with diagnosed psychiatric vulnerabilities that are either known or unknown to the defendant. The article also extends this discussion to the law's treatment of temperaments, such as high sensitivity, which are distinct from diagnosed psychiatric disorders; presents hypothetical scenarios with respect to undiagnosed but inferred or predicted vulnerabilities; and explores the history of the dignitary IIED tort and the origins of its reasonableness requirement. This discussion acknowledges that scientific advances can allow uniquely vulnerable plaintiffs to assert harm in new ways--while also (1) pointing out that scientific uncertainties regarding the mind and temperamental sensitivity persist today and (2) touching on clinical and criminal law approaches to intentionally inflicted harms, which can emphasize the defendant's conduct as opposed to the plaintiff's subjective traits or experience for victim-protecting reasons. The purpose of raising these considerations is not to suggest particular reforms or strategies but, rather, to encourage readers to consider the potential impact of focusing on the plaintiff's biology on the one hand, or the defendant's conduct on the other, when deciding how to remedy intentionally inflicted mental harms.","PeriodicalId":73804,"journal":{"name":"Journal of law and health","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"10019098","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Catalyst Pharms., Inc. v. Becerra: When the Food and Drug Administration Repeatedly Ignores the Plain Language of the Orphan Drug Act (ODA). 催化剂制药。， Inc.诉Becerra:当食品和药物管理局一再忽视孤儿药法案(ODA)的简单语言时。

Journal of law and health Pub Date : 2023-01-01

Yifan Wang

引用次数: 0

Face Off: Overcoming the Fifth Amendment Conflict Between Cybersecurity and Self-Incrimination. 对峙:克服第五修正案中网络安全与自证其罪之间的冲突。

Journal of law and health Pub Date : 2023-01-01

Zachary E Jacobson

{"title":"Face Off: Overcoming the Fifth Amendment Conflict Between Cybersecurity and Self-Incrimination.","authors":"Zachary E Jacobson","doi":"","DOIUrl":"","url":null,"abstract":"The Founders included the privilege against self-incrimination in the Constitution to protect individual privacy and ensure a fair judicial process. Courts have failed U.S. citizens by neglecting to protect them from compelled unlocking of biometrically encrypted devices. This inaction has created a loophole that contradicts the framework of the privilege against self-incrimination. To correct this mistake courts should reconsider the trend they have set for the Constitution and the Fifth Amendment and consider adopting a forward-thinking cybersecurity lens to conclude that biometric authentication is testimonial. Courts should consider that biometric encryption is akin to a compelled password entry for the purposes of the foregone conclusion doctrine. The foregone conclusion doctrine should be applied in limited circumstances with a specific and high burden of proof so that the \"jealous protection of the privilege against self-incriminating testimony\" can be preserved. Allowing law enforcement such easy access to smart devices narrows Fifth Amendment protections and the expansive foregone conclusion exception is contrary to both principles of cybersecurity and the spirit of the Fifth Amendment. Courts should move to remediate this at once. These liberties and values can only be guaranteed by courts that are willing to take on cases with issues revolving around biometric encryption, the Fifth Amendment, and the foregone conclusion doctrine.","PeriodicalId":73804,"journal":{"name":"Journal of law and health","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"10394571","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Death by Detox: Substance Withdrawal, a Possible Death Row for Individuals in Custody. 排毒致死:药物戒断，羁押中的个人可能面临的死囚。

Journal of law and health Pub Date : 2023-01-01

Dorothea R Carleton

{"title":"Death by Detox: Substance Withdrawal, a Possible Death Row for Individuals in Custody.","authors":"Dorothea R Carleton","doi":"","DOIUrl":"","url":null,"abstract":"Suffering through substance withdrawal is a major problem for the majority of individuals in custody, yet there are no guidelines or standards to ensure their safety. Instead, individuals in custody are having their Constitutional rights violated and many die at the hands of the justice system. When their families seek accountability for the lack of adequate care provided by correctional facilities and employees, families are faced with a lack of consistency from one circuit to the next for knowing as to the correct standard to have a successful claim. Strain v. Regalado was a chance for the Supreme Court to address this issue, but by denying cert in that case, the Court has signed off on the injustice these individuals face. This note proposed having the subjective prong for the deliberate indifference claim for inadequate medical care for withdrawal for individuals in custody presumed. Allowing the subjective prong to be presumed better aligns with the reality of this issue because correctional officers see many inmates suffering withdrawal and the symptoms which indicate the need for medical intervention are similar to those that would indicate a medical need in any other situation. Additionally, correctional officers are purportedly held to a higher standard. This note then proposed a federal standard for claims and medical care. These are both basic rights in the United States, unless and until a person is in custody.","PeriodicalId":73804,"journal":{"name":"Journal of law and health","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"10394572","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Reconnecting the Patient: Why Telehealth Policy Solutions Must Consider the Deepening Digital Divide. 重新连接患者：为什么远程医疗政策解决方案必须考虑不断加深的数字鸿沟。

Journal of law and health Pub Date : 2022-07-08 DOI: 10.18060/26409

Laura C. Hoffman

{"title":"Reconnecting the Patient: Why Telehealth Policy Solutions Must Consider the Deepening Digital Divide.","authors":"Laura C. Hoffman","doi":"10.18060/26409","DOIUrl":"https://doi.org/10.18060/26409","url":null,"abstract":"This Article attempts to untangle the complicated web of providing telehealth to those populations it is potentially capable of further alienating from access to healthcare including: 1) race/minority populations, 2) aging adults, 3) individuals with disabilities, 4) non-English speakers, 5) individuals living in rural areas, 6) socioeconomic class, and 7) children, in order to advance the argument that telehealth can be successful in providing healthcare access to these populations. Rather than suggesting that telehealth simply \"cannot work\" for these populations, instead this Article considers how telehealth can and must meet the needs of these individuals through technology, access, and policy developments. First, this Article explains how telehealth is defined and how the definition has and can continue to influence policy development. Next, this Article explores the issues surrounding the \"digital divide\" and how this relates to telehealth use. Then this Article discusses how access to technology impacts particular populations. This Article then considers legislation and policy developments both at the federal and state level that have emerged thus far that could help overcome challenges of accessibility, affordability, and usability. Finally, this Article offers policy recommendations for ensuring that the delivery of telehealth can be accessible to those populations with potentially less access to technology to ensure telehealth's successful availability and use for these populations can continue beyond Covid-19.","PeriodicalId":73804,"journal":{"name":"Journal of law and health","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-07-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43695674","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

From Healthcare to Hiring: Impacts of Social and Public Policy on Disabled Veterans in the United States. 从医疗保健到招聘:美国社会和公共政策对残疾退伍军人的影响。

Journal of law and health Pub Date : 2022-01-01

Benjamin Michael Stoflet

{"title":"From Healthcare to Hiring: Impacts of Social and Public Policy on Disabled Veterans in the United States.","authors":"Benjamin Michael Stoflet","doi":"","DOIUrl":"","url":null,"abstract":"Part I of this paper considers the historical foundations, motivations, and evolution of veterans' disability and employment legislation in the United States. Utilizing disability and employment as its framework, Part II then defines, describes, and critiques contemporary policies for disabled veterans in the areas of federal employment protections and uses of Alternative Dispute Resolution (ADR) within the VA's disability decision review process. Part III discusses the roles played by disabled veterans and the federal government in policy reform, finding that both sides act as catalysts and barriers to legislative change. This paper concludes in Part IV, recommending legislation that integrates elements of disability care--currently under the auspices of the VA--into Medicare. Through this newly created insurance component, which this paper will call \"Medicare Part V,\" disabled veterans will be eligible to access all hospitals and clinics currently accepting Medicare. This is anticipated to increase access to care in local facilities. Second, it is essential that the federal government devotes sufficient resources to conduct more longitudinal data collection studies, enabling a more comprehensive assessment of the transitional and employment resource needs of disabled veterans over time. Achieving a greater understanding of these needs may induce greater veteran participation rates in the labor force, benefiting employers and veterans alike. Finally, this paper calls for modernizing and optimizing the VA's claim appeals process by creating a secure online method of Alternative Dispute Resolution for appeals, specifically in Higher-Level Reviews (HLR's) of disability and compensation requests.","PeriodicalId":73804,"journal":{"name":"Journal of law and health","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"10731394","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

How the Conviction and Sentencing of "Tiger Mandingo" Modernized Missouri's HIV-Related Statutes in 2021. “老虎曼丁戈”的定罪和判决如何在2021年使密苏里州的艾滋病毒相关法规现代化。

Journal of law and health Pub Date : 2022-01-01

Ryan Jay McElhose

{"title":"How the Conviction and Sentencing of \"Tiger Mandingo\" Modernized Missouri's HIV-Related Statutes in 2021.","authors":"Ryan Jay McElhose","doi":"","DOIUrl":"","url":null,"abstract":"Michael Johnson or \"Tiger Mandingo\" as he referred to himself on social media, engaged in sexual acts with six different men, all of whom claimed that Michael lied about living with human immunodeficiency virus (HIV). As a result, the State of Missouri charged him with recklessly infecting a partner with HIV exposing or attempting to expose another with HIV. With contradictory trial testimony, no genetic fingerprint testing, and little to no questioning of his sexual partners' credibility, the jury found Michael Johnson guilty of five felony counts which resulted in a 30-year prison sentence. Ultimately the Missouri Court of Appeals overturned Michael Johnson's conviction, but only on the function of a discovery violation; the court did not reach the question of whether Michael's 30-year sentence was cruel and unusual and thus constitutionally impermissible. However, Michael's conviction and sentencing sparked international attention towards how the United States continues to convict people living with HIV under archaic statutes that do not align with medical and scientific advancements or evolving moral standards. Today, HIV is a chronic disease, like diabetes, yet exposure to HIV is still treated as if it is a death sentence in both public opinion and American jurisprudence. These convictions and sentencing guidelines result in harsh sentences for punishments that do not match the crime, misplaces responsibility when two consenting adults choose to have sex, and raises the possibility of exposing people to wrongful convictions. While Missouri and other states have attempted to modernize these antiqued laws, the modernized laws require further analysis to determine whether they in step with the science and if people living with HIV are still vulnerable to harsh sentences and wrongful convictions. This article identifies major legal considerations of the modernized laws and provides guidance on reform.","PeriodicalId":73804,"journal":{"name":"Journal of law and health","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"10353536","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Parens Patriae, Punishment, and Pandemics: The State's Responsibility for Incarcerated Persons During a Public Health Emergency. 父母、惩罚和流行病:突发公共卫生事件中国家对被监禁人员的责任。

Journal of law and health Pub Date : 2022-01-01

Meredith Harrell

引用次数: 0

From Healthcare to Hiring: Impacts of Social and Public Policy on Disabled Veterans in the United States. 从医疗保健到招聘:美国社会和公共政策对残疾退伍军人的影响。

Journal of law and health Pub Date : 2022-01-01 DOI: 10.2139/ssrn.4154745

Benjamin Stoflet

{"title":"From Healthcare to Hiring: Impacts of Social and Public Policy on Disabled Veterans in the United States.","authors":"Benjamin Stoflet","doi":"10.2139/ssrn.4154745","DOIUrl":"https://doi.org/10.2139/ssrn.4154745","url":null,"abstract":"Part I of this paper considers the historical foundations, motivations, and evolution of veterans' disability and employment legislation in the United States. Utilizing disability and employment as its framework, Part II then defines, describes, and critiques contemporary policies for disabled veterans in the areas of federal employment protections and uses of Alternative Dispute Resolution (ADR) within the VA's disability decision review process. Part III discusses the roles played by disabled veterans and the federal government in policy reform, finding that both sides act as catalysts and barriers to legislative change. This paper concludes in Part IV, recommending legislation that integrates elements of disability care--currently under the auspices of the VA--into Medicare. Through this newly created insurance component, which this paper will call \"Medicare Part V,\" disabled veterans will be eligible to access all hospitals and clinics currently accepting Medicare. This is anticipated to increase access to care in local facilities. Second, it is essential that the federal government devotes sufficient resources to conduct more longitudinal data collection studies, enabling a more comprehensive assessment of the transitional and employment resource needs of disabled veterans over time. Achieving a greater understanding of these needs may induce greater veteran participation rates in the labor force, benefiting employers and veterans alike. Finally, this paper calls for modernizing and optimizing the VA's claim appeals process by creating a secure online method of Alternative Dispute Resolution for appeals, specifically in Higher-Level Reviews (HLR's) of disability and compensation requests.","PeriodicalId":73804,"journal":{"name":"Journal of law and health","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68710104","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

False Claims: The Coordinated Exploitation of the United States Government by the Healthcare Industry. 虚假声明:美国政府对医疗保健行业的协调利用。

Journal of law and health Pub Date : 2022-01-01

Grady McMichen

{"title":"False Claims: The Coordinated Exploitation of the United States Government by the Healthcare Industry.","authors":"Grady McMichen","doi":"","DOIUrl":"","url":null,"abstract":"The False Claims Act (FCA) has a long-standing history of protecting the United States government from being defrauded by merchants and other parties submitting claims for repayment. Affording Americans who have enrolled in Medicaid and Medicare expansion plans the same protection afforded to the federal government will allow for action to be brought to prevent large hospital networks from engaging in price-fixing behaviors. Implementing this change will have the effect of reducing healthcare prices for all Americans. Applying the False Claims Act at the price-fixing level will have the largest affect; however, it is still important to iron out procedures for individual claims involving factual and legal falsity. Although the different requirements established for the two types of falsity at first glance appear to be contradictory to each other, it is clear there is no overlap or split between factual and legal falsity. However, if large scale litigation were brought under FCA liability, it is important for Congress or the Supreme Court to offer lower courts guidance in applying these distinct standards. Establishing requirements for FCA liability under factual and legal falsity will allow for healthcare providers to make plans to adhere to the guidance. This change will have the effect of reducing unnecessary healthcare treatments and spending, passing on financial and physical health benefits to the American people.","PeriodicalId":73804,"journal":{"name":"Journal of law and health","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"10787316","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0