Just compensation: a no-fault proposal for research-related injuries

Biomedical research, no matter how well designed and ethically conducted, carries uncertainties and exposes participants to risk of injury. Research injuries can range from the relatively minor to those that result in hospitalization, permanent disability, or even death. Participants might also suffer a range of economic harms related to their injuries. Unlike the vast majority of developed countries, which have implemented no-fault compensation systems, the United States continues to rely on the tort system to compensate injured research participants—an approach that is no longer morally defensible. Despite decades of US advisory panels advocating for no-fault compensation, little progress has been made. Accordingly, this article proposes a novel and necessary no-fault compensation system, grounded in the ethical notion of compensatory justice. This first-of-its-kind concrete proposal aims to treat like cases alike, offer fair compensation, and disburse compensation with maximum efficiency and minimum administrative cost. It also harmonizes national and international approaches—an increasingly important goal as research becomes more globalized, multi-site trials grow in number, and institutions and sponsors in the United States move to single-IRB review.     

医疗损害限额赔偿原则的理论探讨

有关医疗纠纷处理的问题已有不少作者探讨,在许多文献中已有作者提出适当赔偿的办法,也有作者在总结我国法律制度中限额赔偿的做法后,提出了医疗损害限额赔偿的原则.但是尚没有从理论上、实践上进行论述,本文拟从这一角度对医疗损害限额赔偿原则问题进行讨论.     

Can no-fault compensation of impaired infants alleviate the malpractice crisis in obstetrics?

In 1987, Virginia initiated no-fault compensation for birth-related neurological injuries in an attempt to ensure the availability of malpractice insurance for the state's obstetricians. This paper explores some possible causes for the refusal of Virginia's insurers to write malpractice coverage for obstetricians and analyzes the ability of the act to resolve the medical malpractice crisis in obstetrics. It also examines the effect of this limited no-fault compensation scheme on obstetricians' incentives and on the welfare of neurologically damaged children.     

Promoting a "good death": determinants of pain-management policies in the United States

Many Americans do not experience a good death. The inadequate treatment of pain at the end of life has been associated with a lack of supportive public policies more than a lack of evidence-based clinical practices or organizational efforts. Given a widespread lack of understanding about pain policies, we examine the critical role played by state medical boards in developing pain policies and then apply event history analysis to identify the variables most critical to the formation of these policies. We develop an integrated model and evaluate the adoption of eight different types of pain policies. The analytic models incorporate fifteen years of observational data and test the impact of contextual, political, extrinsic, and institutional variables. They reveal that the presence of legal counselors on state medical boards has consistently increased the likelihood that state boards adopt policies associated with progressive pain management. Further, policy has been negatively influenced by historical activity: boards that previously adopted one pain policy have been less likely to subsequently adopt additional pain policies. This work illuminates mechanisms behind state pain-policy adoption and provides valuable information for advocates who seek to improve pain-management policy and reduce the amount of pain at the end of life.     

Toward a criminal justice epidemiology: Behavioral and physical health of probationers and parolees in the United States

Objective

This study explicitly articulates a criminal justice epidemiology by examining the behavioral and physical health of probationers and parolees derived from a nationally representative sample of adults in the United States.

Methods

Using public-use data from the 2009 National Survey on Drug Use and Health (NSDUH), this study employed binary logistic regression with adjustments for complex survey sampling and compared probationers and parolees to the general population with respect to past-year substance use, risk perception, treatment experiences, and health.

Results

After controlling for the effects of age, gender, race, income, and education probationers and parolees are far more likely to report using alcohol and drugs in the past year, have reduced risk perception, and are far more likely to have had some kind of treatment for substance abuse or dependence. Probationers and parolees are also significantly more likely to experience anxiety and depression, asthma, and sexually transmitted diseases.

Conclusions

This criminal justice epidemiology study indicates that the behavioral health of probationers and parolees hamper efforts to increase public safety goals. Forging closer ties between criminal justice and public health systems is necessary to reach these goals.     

美国医疗纠纷替代性解决机制研析

美国医疗纠纷替代性纠纷解决机制卓有成效,其不仅包含作为传统非讼手段的调解、仲裁、和解,还创设出监察员制度、事实调查、建立共识、混合式ADR、聘雇退休法官程序、微型审理、简易陪审团审判、诉前审查庭等多种方式。因受到司法机关与行政单位的重视和民间团体的大力支持,美国ADR制度已经发展成为与民事诉讼制度双轨并行、相互补充的重要纠纷解决机制。针对我国今年医闹事件频发,伤医事件愈演愈烈的情况,将ADR机制导引入国内医疗纠纷领域,不失为一条缓和医患关系、促进医患沟通、妥善解决医疗纠纷的有效可行的途径。     

Physicians' conflicts of interest in Japan and the United States: lessons for the United States

Japanese health policy shows that even with physician ownership and the absence of for-profit, investor-owned health care, physicians' conflicts of interest thrive. Physician dispensing of drugs and ownership of hospitals and clinics were justified in Japan as ways to avoid commercialization of medicine. Instead, they create physicians' conflicts and fuel patient overuse of services. Japan's Ministry of Health and Welfare (MHW) has responded by introducing per-diem payment, thereby creating incentives to decrease services in ways similar to those of American managed care organizations, but with none of their benefits, such as coordination of care, oversight of physicians practices, and quality assurance. Although the United States and Japanese health care systems are organized and financed differently there is convergence in the source of their physicians' conflicts and the way they are addressed. The United States is starting to integrate institutional and physician payment and align their incentives, in a traditional Japanese way. In so doing, the United States creates new physicians' conflicts and reduces the role of countervailing incentives and power, an advantage of previous policy. Japan, in turn, has combined incentives to increase and decrease services, thus moving closer to the U.S. policy.     

The conversion of coroner systems to medical examiner systems in the United States: a lull in the action

Coroner and medical examiner systems in the United States conduct death investigations for most deaths that are sudden and unexplained, or which involve external causes such as injury and poisoning. They play a very important role in the criminal justice, public health, public safety, and medical communities, and they also contribute a substantial portion of autopsy-based mortality data to the state and federal mortality statistics systems. Death investigations often involve complex medical issues and necessarily require the involvement of appropriately trained physicians. Over the years, there has been a trend to replace the elected lay coroner systems with systems run by appointed, physician medical examiners. Presently, about 31% of counties in the United States are served by a medical examiners at the county, district, or state level. Between 1960 and 1989, there was considerable conversion to medical examiner systems, but this trend slowed in the 1990s. Since 2000, only 6 counties in the United States have converted to a medical examiner system, no states have converted since 1996, and 1 county has reverted to a sheriff-coroner system. Possible reasons for this decline are discussed, including legislative, political, geographical, financial, population-based, and physician manpower distribution factors. It is important to ensure that all death investigation systems have appropriate access to medically educated and trained physicians such as forensic pathologists.     

解读美国专利法“不正当行为”理论的适用

美国专利法中"不正当行为"理论要求专利申请人在专利申请的过程中履行诚信披露义务,否则将承担专利无效或不可执行的严重后果。该理论的适用旨在提高专利申请质量和保障公共利益。由于目前尚无对"不正当行为"成立要件的统一标准,法院在适用该理论时形成了多元化解释。多年来,"不正当行为"理论对鼓励申请人履行诚信义务起到了积极的作用。但随着该理论的扩张适用,其弊端也逐渐显现出来。     

Fugitives in the United States

Little is known, empirically, about fugitives in the U.S. There is no research describing basic facts such as the prevalence of warrants or how features of warrants vary across geography or demographics of fugitives.PurposeTo (A) describe the prevalence of warrants in the U.S., including variation in warrant features across geography as well as demographics of fugitives (age, race, and gender). In addition, the paper (B) models a key feature of warrants (extradition limits) as a function of legal and extra-legal factors.MethodsThis study draws on the Wanted Persons file—the central operational database maintained by the National Criminal Information Center (NCIC) for tracking warrants from all jurisdictions in the United States. Warrant factors are described across demographic groups via bivariate comparisons. Extradition is modeled via a multivariate fixed effects logistic regression framework (i.e., within state comparisons)ResultsThe data show approximately 2 million warrants are active on any given day. Warrant features vary significantly across states (per capita), and fugitive demographics. Extradition varies as a function of legal (e.g., crime seriousness) and extra-legal factors (e.g., race of fugitive).ConclusionsWarrants may provide an important new avenue for scholarship on disparity, criminal carreers, and the administration of justice.     

Administrative "health courts" for medical injury claims: the federal constitutional issues

Our article analyzes whether the federal government may constitutionally supplant a traditional system of common-law trials before state judges and juries with new federal institutions designed by statute for compensating victims of medical injuries. Specifically, this article examines the federal constitutional issues raised by various proposals to replace traditional medical malpractice litigation in state courts with a federal system of administrative "health courts." In doing so, we address the following constitutional issues: 1. Is there federal authority to preempt state law (the commerce clause and spending clause issues)? 2. May jurisdiction be created in non-article 3 tribunals, and may claims be decided without trial by jury (the separation of powers and Seventh Amendment issues)? 3. Would pilot programs that require some claims to be pursued in a federal administrative forum while other claimants are left to pursue traditional state tort law remedies be constitutional (the equal protection issue)? The article concludes that a federal compensation system through administrative health courts should be constitutional provided the statute is appropriately drafted and that appropriate factual findings are made concerning the benefits to patients and the public as well as to doctors and their insurers.     

美国“法庭之友“制度中的外国和美国政府

美国"法庭之友"制度是美国诉讼程序中的一项重要制度,本文在对此制度进行相关介绍的基础上,阐明了外国作为"法庭之友"参与美国法院诉论程序的由来、规则与实践,同时也论述了美国联邦政府作为"法庭之友"的规则和特殊性.     

“美国98条协定”的国际法效力评析——基于《罗马规约》和《条约法》的精神与要义分析

来自意大利、芬兰等国的 18名当选法官、来自阿根廷的检察官路易斯·莫雷诺·奥坎波以及来自法国的书记官长布鲁诺·坎撒拉相继于 2 0 0 3年 3月 11日、6月 16日、7月 3日在海牙宣誓就职 ,①人类历史上第一个常设性的国际刑事审判机构———国际刑事法院就此开始运作。与此同时 ,为了使得涉嫌触犯特定国际刑事犯罪的美国人免受国际刑事法院的管辖 ,美国一方面故伎重施 ,以撤出维和行动相威胁强迫联合国安理会于 2 0 0 3年 6月 12日通过新的决议 ,延续 2 0 0 2年 14 2 2号决议的效力 ,赋予参加联合国安理会授权的维和及其他行动人员又 12个月…     

医疗损害赔偿案件中若干问题的思考

《侵权责任法》关于医疗损害责任的归责原则、免责事由、医疗机构实施过度医疗的责任以及患者知情权和隐私权的保护做出了更为明确和系统的规定,这在医疗损害赔偿立法史上是一个巨大的进步,对于维护医患双方的合法权益必将发挥重要的作用。     

A path model of risk factors for intimate partner violence among couples in the United States

The present study was designed to identify the impact of drinking problems, impulsivity, and a history of childhood physical abuse on both male-to-female (MFIPV) and female-to-male intimate partner violence (FMIPV). The data were collected in 1995 from a representative national sample of couples living in the contiguous 48 states. Using a multistage probability sampling design, face-to-face interviews were conducted in respondent' homes, privately with each member of 1, 635 couples. A complex path model building on earlier work was tested for African American, Hispanic, and White couples separately. Multiple-group path analysis demonstrated that impulsivity, alcohol problems, and childhood physical abuse were differentially associated with reports of MFIPV and FMIPV as a function of ethnicity. This study suggests that a history of being physically harmed by parental figures during childhood, impulsivity, and drinking problems are all risk factors for intimate partner violence in the general household population in the United States.