Doctors, apologies, and the law: an analysis and critique of apology laws

This Article analyzes and critiques apology laws, their potential use, and effectiveness, both legally and ethically, in light of the strong professional norms that shape physicians' reaction to medical errors. Physicians are largely reluctant to disclose medical errors to patients, patients' families, and even other physicians. Some states have passed so-called apology laws in order to encourage physicians to disclose medical errors to patients. Apology laws allow defendants to exclude statements of sympathy made after accidents from evidence in a liability lawsuit. This Article examines potential barriers to physicians' disclosure of medical mistakes and demonstrates how the underlying problem may actually be rooted in professional norms-norms that will remain outside the scope of law's influence. The Article also considers other legal and policy changes that could help to encourage disclosure.     

Legal considerations of sleep deprivation among resident physicians

Medical training in the United States often takes the form of a grueling endurance test in which patients are often those most at risk. This Article discusses sleep deprivation among resident physicians in the United States with an eye towards resolving the problem through legal channels. It analyzes the effects of sleep deprivation on resident physicians, with subsequent discussion of the implications for patient care and medical training. Next, it makes comparisons to medical training in other developed nations, as well as regulations that exist in the airline and trucking industries, where public safety is a principal concern. Furthermore, this Article discusses proposals to mend the dilemmas created by sleep-deprived resident physicians through statutory and regulatory reform, deterrence by way of tort law, and unionization or collective bargaining.     

Physician self referral arrangements: legitimate business or unethical "entrepreneurialism"

An emerging legal and ethical controversy in the health care industry centers on physician investment in health care facilities to which they make patient referrals. This Article analyzes the policy debate surrounding these physician self referral arrangements as well as the various responses to such arrangements. The Article asserts that an effective legal or ethical response to self referral arrangements must acknowledge and balance both the possible pro-competitive effects of such arrangements and the inherent potential for abuses in this type of business practice. From this perspective, the most effective form of regulation consists of extensive structural guidelines which focus on the physician's referral behavior and limit restrictions on investment procedures. Such an approach would minimize referral abuses and conflict of interest concerns but promote business and competitive freedom.     

Understanding the physician-owned specialty hospital phenomenon: the confluence of DRG payment methodology and physician self-referral laws

Physician-owned specialty hospitals have flourished in today's healthcare arena, but also have been the subject of a great deal of controversy. The author argues that the rise of specialty hospitals has been the result of a confluence of two healthcare policies: (1) skewed DRG payment methodologies and (2) the misapplication of exemptions to the Stark Law's ban on physician self-referral. This Article examines the aspects of these healthcare policies that have allowed for the explosion of specialty hospitals, as well as the arguments for and against the creation and need for specialty hospitals. The Article also analyzes the reform proposals to correct the Stark and DRG methodologies and how those proposals will affect both specialty and general hospitals.     

Bonded labor characteristics of U.S. postgraduate medical training

Abuses in labor practices affecting hospital housestaff (residents) have become better understood with the 2002 filing of a federal lawsuit challenging U.S. resident hiring practices. Other initiatives to redress residency employment abuses have included labor action (unionization) and legislative initiatives at both the state and federal levels. This Article suggests that all such initiatives are fated to have limited success because they fail to take into account the economics of the residency system. The author argues that, in several key respects, the U.S. residency employment system resembles the self-perpetrating bonded labor systems of rural Asia. Consequently the Article proposes a radical restructuring of U.S. housestaff employment.     

Managed care liability today: laws, cases, theories, and current issues

Managed care entities face numerous liability issues in today's changing healthcare environment. This Article provides the plaintiff with a comprehensive road map for navigating the many avenues of managed care liability. The author describes ERISA pre-emption provisions and suggests ways plaintiffs' attorneys can strive to narrow the pre-emption. The Article also provides in-depth analysis of each theory of managed care liability that has been litigated against managed care entities to date, and then goes on to explore state laws imposing liability on managed care entities, and how HMO liability is being reformed through legislative action. For plaintiffs' attorneys seeking the full spectrum of theories of managed care liability, or for defendants' attorneys wanting to remain updated on all potential claims to defend, this Article constitutes an extensive primer on the current issues.     

论行政诉讼的司法变更权

行政诉讼法第54条第4项规定:“行政处罚显失公正的,可以判决变更。”这为司法变更权的行使提供了法律依据。但是司法变更权从开始设定到实施,学界和实务部门一直存在分歧和争论。本文从司法变更权的理论基础出发,界定司法变更权的内涵,分析现行法律规定的不足,从理论和实践上突破现行法律的框架,完善司法变更权介入行政诉讼的广度和深度,力求确立一个完善行政诉讼司法变更权的开放性思路。     

Freedom of Opinion and Freedom of Expression: Some Reflections on General Comment No. 34 of the Un Human Rights Committee

The United Nations Human Rights Committee is a body of 18 independent experts (including a member from the Netherlands, Professor Cees Flinterman) who are tasked with monitoring compliance with the provisions of the 1966 International Covenant on Civil and Political Rights (in force 23 March 1976). The Committee deploys four principal activities — periodic examination of State Party reports, interpretation and progressive development of the provisions of the Covenant in the form of General Comments, and adjudication of individual complaints under the Optional Protocol, as well as follow-up procedures. This article analyzes the Committee’s second General Comment on Article 19 of the Covenant, which stipulates freedom of opinion and freedom of expression. In 52 paragraphs the General Comment systematically examines, defines and delimits the concepts contained in the three subparagraphs of Article 19, basing itself primarily on the Committee’s concluding observations upon examination of State Party reports and on the case-law in response to petitions under the Optional Protocol. The Committee highlights the primacy of freedom of opinion, recognizing that it is crucial for a democratic society that persons have access to truthful, reliable and pluralistic information, including through the internet, in order to develop a personal opinion whose expression must then be protected by law. The Committee notes, however, that whereas it is inadmissible to impose any restrictions on freedom of opinion, there are certain responsibilities that attach to the exercise of freedom of expression, namely the respect of the reputation of others as well as considerations of health, morals and national security. The Committee holds that so-called ‘memory laws’ as well as blasphemy laws are incompatible with Article 19 and that defamation laws must strike a balance between competing rights and interests. Paragraph 49 of the General Comment clearly affirms the right to hold non-conformist historical views and the right to be wrong. While it is not the function of lawyers or judges to establish what historical truth is, Article 20 of the Covenant imposes an obligation on governments to prohibit incitement to racial hatred or violence, the criminalization of which requires narrow definition of the elements of the crime.

     

加拿大环境影响评价制度的比较与启示

加拿大从20世纪70年代就开始发展环境影响评价制度,至今其涉及环境影响评价制度的法律法规不计其数。加拿大有关环境影响评价的法律主要是《加拿大环境评价法》,该法明确规定了环境影响评价的主要目的,归纳为谨慎行事、预防污染、重视合作以及鼓励公众参与。而加拿大环评制度的主要内容也很好地体现了这一原则。《加拿大环境评价法》第19条规定了环境评价的主要内容,其中的可替代性方案、缓解措施以及研究委员会的报告都是该部法律中比较有特色而且值得研究的内容,这些严格谨慎的规定使加拿大环境影响评价制度可以发挥更大的作用,更好地预防污染,保护环境。本文以介绍和分析加拿大环境评价制度的对象和内容为主,并对比分析我国环境影响评价的内容,旨在为完善我国环境影响评价制度有所启示和借鉴。     

Extending due process protections in managed care credentialling to hospital privileges

The Article analyzes two recent state court decisions granting due process rights to physicians deselected from managed care networks. The author applauds these decisions and argues that managed care organizations wishing to deselect a physician should be required to demonstrate (1) that they have a legitimate reason for doing so relating to quality of care, economic factors, or administrative considerations, and (2) that the deselection will not unduly affect the quality of healthcare available in the network. In addition, the author contends that these same due process requirements may be applied to the closely analogous area of hospital staff privileges in situations in which the privileges of hospital-based practitioners are tied to employment, or the grant or termination of exclusive contracts.     

Expanding the scope of fiduciary duties to fill a gap in the law: the role of nonprofit hospital directors to ensure patient safety

In the wake of the patient safety movement, there is a glaring disconnect between the increasing responsibilities placed on hospital board members and the limited accountability for those board members if they fail to meet their responsibilities. This Article discusses how the effectiveness of new patient safety laws is diminished by the lack of accountability of nonprofit board members. The Article suggests that an expanded notion of corporatefiduciary duties, enhanced by shifts in social norms, would contribute to patient safety reform.     

The economist and the enlightenment: how Cesare Beccaria changed Western civilization

This Article traces the influence of Cesare Beccaria’s writings on Western civilization. It explores the global impact of Beccaria’s 1764 book, Dei delitti e delle pene, later translated into English as An Essay on Crimes and Punishments. In particular, the Article highlights Beccaria’s advocacy for proportion between crimes and punishments and against the death penalty. The Article gives a short sketch of Beccaria’s life and describes the impact of Beccaria’s book and his legacy in shaping the world’s laws. The Article further describes how Beccaria’s role as an influential eighteenth-century economist has been neglected by some economic historians.     

支付命令与安全程序——美国《统一商法典》第4A编的核心概念及对我国电子商务立法的启示

电子资金划拨是电子商务的重要环节。作为世界上调整大额电子资金划拨最完善的法律,美国《统一商法典》第4A编创设了“支付命令”和“安全程序”等全新的概念与规则。支付命令不仅是4A编所界定的支付指令,而且对确定4A编的调整范围和大额电子资金划拨各当事方权利义务具有重要的意义。安全程序是支付命令的认证手段,其相关规则将欺诈损失在各当事方间进行了分担。美国《统一商法典》第4A编对我国电子商务立法具有如下启示:“功能等同”方法不是电子商务立法的唯一思路,我国立法应借鉴美国《统一商法典》第4A编的经验,考虑创立具有全新概念、全新规则专门调整电子商务特定关系的法律;我国电子商务法应是一个法群,而不是一部法典;我国电子商务立法应就电子化权利的转让问题作出规定。     

Vertical restraints among hospitals, physicians and health insurers that raise rivals' costs. A case study of Reazin v. Blue Cross and Blue Shield of Kansas, Inc. and Ocean State Physicians Health Plan, Inc. v. Blue Cross and Blue Shield of Rhode Island

Two recent district court opinions consider whether affiliations among hospitals, doctors and health insurers--through contract or ownership--violate the antitrust laws. This Article applies a raising rivals' costs framework to the facts of those cases in order to assess whether the practices at issue were unreasonable.     

Commons ignorance: the failure of environmental law to produce needed information on health and the environment

One of the most significant problems facing environmental law is the dearth of scientific information available to assess the impact of industrial activities on public health and the environment. After documenting the significant gaps in existing information, this Article argues that existing laws both exacerbate and perpetuate this problem. By failing to require actors to assess the potential harm from their activities, and by penalizing them with additional regulation when they do, existing laws fail to counteract actors' natural inclination to remain silent about the harms that they might be causing. Both theory and practice confirm that when the stakes are high, actors not only will resist producing potentially incriminating information but will invest in discrediting public research that suggests their activities are harmful. The Article concludes with specific recommendations about how these perverse incentives for ignorance can be reversed.     

EMTALA: dedicating an emergency department near you

Congress enacted the Emergency Medical Treatment and Labor Act (EMTALA) in 1986 to prohibit patient dumping. Subsequent to its passage, however, issues concerning the application of EMTALA have vexed hospitals, patients, regulators, and courts. In an attempt to clarify these issues, the Centers for Medicare & Medicaid Services (CMS) recently promulgated new EMTALA regulations. This Article reviews the basic requirements of EMTALA and highlights the statutory definitions critical to its proper interpretation and application. The article then analyzes the impact of the new regulations, particularly in five major areas: where and when the statute applies, on-call physician requirements, hospital-owned ambulances, managed care, and bioterrorism. It concludes with a discussion of the implications of the new regulations for hospitals and their counsel.     

我国《海商法》承运人迟延交付确定标准之不足

分析国际公约、国外立法例和中国法律关于迟延交付的规定,指出中国《海商法》关于承运人迟延交付仅规定"约定时间"标准之不足,提出在《海商法》迟延交付中引入"合理时间"标准的修改建议。