Educational Research and the Protection of Human Subjects

Educational research is increasingly subject to legal restrictions designed for the protection of human subjects of research. In this article the author discusses legal restrictions–both in the courts and under HEW regulations–on educational research, comparing these restrictions with those on biomedical research. He finds that although educational research in particular instances may give rise to suits for damages for invasion of privacy or intentional infliction of psychological distress, the legal issues relating to educational research will most often be resolved in proceedings before institutional review boards charged by HEW with the responsibility for passing upon proposals to conduct research on human subjects. He argues that the interests protected in proceedings before institutional review boards are not limited to those that have received judicial recognition in suits for damages. The author finds that the requirement that the informed consent of subjects be obtained presents difficult issues for educational research. He notes in particular the problems presented by research proposals that as an element of the research design contemplate the observation of subjects without their knowledge and the use of children as research subjects.     

我国离婚损害赔偿制度之完善

针对我国离婚损害赔偿制度存在的缺陷,应考虑从以下几方面完善:拓宽离婚损害赔偿的适用范围;完善离婚损害赔偿举证责任的内容,适当适用过错推定原则;明确损害赔偿应包括物质损害赔偿和精神损害赔偿;规制赔偿数额。     

Measuring damages for lost enjoyment of life: the view from the bench and the jury box

Civil jury instructions are inconsistent in defining what constitutes noneconomic damages, which may include pain, suffering, disability, disfigurement, and loss of enjoyment of life (LEL), among other injury sequelae. This inconsistency has been manifested recently in court decisions that have considered whether LEL should be treated as a separate element of noneconomic damages, distinct from pain and suffering. This paper reviews the case law on this issue and also describes a jury simulation experiment. Mock jurors awarded damages after they received instructions on noneconomic damages in which LEL was (1) not identified as a distinct element of damages; (2) defined as an element of damages distinct from pain and suffering, but participants awarded a single amount for noneconomic damages; or (3) defined as a distinct element of damages, and participants awarded separate amounts for LEL and pain and suffering. Instructions about LEL resulted in larger awards, but only when mock jurors also made a separate award for that element of damages.     

Medicolegal Implications of Nosocomial Infections: A Case Report of Aspergillus Contamination during Cardiac Surgery

Nosocomial infections have become a major issue of public health and lead to an increasing number of suits for damages. We present a rare case of Aspergillus contamination during cardiac surgery, describe the medicolegal investigation, and present the new system for compensation of bodily injury after nosocomial infection in France, based on the law of March 4, 2002 on patient rights and quality in the health system. This case demonstrates the limits of compensation for nosocomial infections on the grounds of national solidarity. The expert report requested by the regional commission for conciliation and compensation is of fundamental importance in enabling the commission to decide between fault and inherent risk of treatment.     

Economic impact of Wicks v State Rail Authority (NSW) (2010) 84 ALJR 497

In Wicks v State Rail Authority (NSW) (2010) 84 ALJR 497 the High Court of Australia held that, among other things, plaintiffs (who establish that they suffer a recognised psychiatric illness as a result of the breach of duty of care owed to them by the defendant under s 32 of the Civil Liability Act 2002 (NSW)) are entitled to recover damages for pure mental harm under s 30 if their psychiatric injury arose "wholly or partly from" a "series of shocking experiences" in the form of "a sudden and disturbing impression on the mind and feelings" in connection with witnessing at the scene "another person ('the victim') being killed, injured or put in peril by the act or omission of the defendant". The High Court construed the phrase "being ... injured or put in peril" to include plaintiffs who suffer pure mental harm by witnessing at the scene another person being injured through the process of suffering pure mental harm in the form of psychiatric injury occasioned by the defendant's negligent act or omission. The Wicks decision raises the question whether the expanded liability of defendants for pure mental harm is economically sustainable.     

Forensic psychiatry and malpractice

This paper concerning the last 87 malpractice cases referred to the Department of Psychiatry and Law, Menninger Clinic, includes 57 suits against mental health practitioners and/or institutions, and 30 nonpsychiatric suits against general hospitals, surgeons, obstetricians, etc. A patient was available for interview in only 12 percent of the psychiatric cases; in 88 percent we reviewed medical records and consulted with attorneys. In the psychiatric cases the crucial question was whether a generally accepted standard of care was breached. The inherent problems of applying appropriate criteria to standards of care by practitioners and institutions are discussed. In half the psychiatric cases we found no significant deviation from acceptable clinical performance; in half we concluded that negligent practice had occurred. We did see a litigant for evaluation in 90 percent of the nonpsychiatric cases. The main issue involving them concerned harm or disability related to presumed negligence by medical personnel. How we evaluate such cases and apply disability criteria is discussed.     

Police civil liability: An analysis of section 1983 actions in the Eastern and Southern districts of New York

This article examines the Section 1983 civil damage remedy and the Bivens-type action — the direct claim of the victim of official wrongdoing to obtain compensation for the denial of his or her Fourth Amendment rights. Using court records of cases filed under this statute from 1983 to 1987 in the Eastern and Southern districts of New York, the study determined: (1) the nature and volume of damages awarded by the courts in Section 1983/Bivens actions, (2) the differences in the amount of damages recovered from bench trials, jury trials, and settlements, (3) the parties involved in Section 1983 suits, (4) the trials and settlements, and (5) the time and resources spent by the parties and the courts on these cases. The analysis of the data was used to gauge the impact of these suits on individual police and police administrators.     

论美国有毒物质侵权诉讼中的健康检查费损害赔偿诉讼

在有毒物质侵权诉讼领域,美国普通法新近发展了预防性的健康检查费损害赔偿诉讼,亦即如果原告暴露于有毒物质中,即使还没有发现因此而产生的明显疾病,但对此而进行的合理医疗检查所产生的费用也可以获得赔偿。该诉讼是在美国环境司法实践中产生发展的,具有普通法上的法理基础,同时在适用时又有一定的条件要求。对具体赔偿金额的执行也较为特别。这一诉讼对我国目前环境侵权法的研究和实践具有借鉴价值。     

The Impact of Psychological Injuries on Sexual Harassment Determinations

Although a plethora of studies focus on jury decision making in sexual harassment cases, few studies examine damage award assessments in such suits, and even fewer explore the impact of psychological injury on jurors’ liability and damage award assessments. In the present study, 342 undergraduates read a hostile environment sexual harassment case that manipulated the plaintiff’s psychological injury level (severe vs. mild vs. control) to investigate whether males and females made different damage decisions. Males using a reasonable person standard found more liability as the severity of the plaintiff’s psychological injury increased. However, males using a reasonable woman standard found less liability with the addition of any psychological injury information. Similarly, for mild and severe injuries, males using the reasonable woman standard awarded lower damages than males using the reasonable person standard. Females tended to find more harassment than males, but psychological injury and legal standard had little impact on females’ legal decisions. We discuss these findings in light of the positive relationship often observed between the plaintiff’s injury severity level and pro-plaintiff verdicts.     

Wrongful death claims. Harriton v Stephens. [2002] NSWSC 461. Edwards v Blomeley. [2002] NSWSC 460. Waller v James [2002] NSWSC 462

Studdert J in all three cases went to great length to summarise the global judicial position of "wrongful life" claims. He did not, however, examine in great length how or whether "wrongful life" claims or "wrongful birth" claims are reconcilable with tort and common law principles. Although the cases identify the difficulty in assessing and quantifying damages, they do not directly address the strict legal principles which apply in the assessment of damages. The main conclusion of the three judgments was that no duty of care is owed to the plaintiff in these circumstances and, even if a duty could be established, the impossibility of quantifying damages and public policy considerations warrant the rejection of such a claim: "thus conscience does make cowards of us all." The significance of the decisions cannot be understand. The decisions deny recognition of "wrongful life" claims in circumstances where a disabled person has incurred injuries en ventre sa mere (in the mother's womb) as a result of infections contracted by a plaintiff's mother or genetic material passed on by a plaintiff's parents. Some countries have now legislated for the abolition of "wrongful life and birth" suits. In January 2002 the French legislature passed a Bill overturning the "wrongful life" decision of the Cour de Cassation in Perruche (17 November 2000). As the issue now falls for ultimate determination by the French Senate, the French pro-life movement continues to lobby for the prohibition of "wrongful birth" suits as well. Furthermore, eight States in the United States have prohibited either one or both actions and the State of Michigan prohibited both actions in 2001. It is likely that all three cases will be appealed. The appeal in Harriton will re-examine the viability of a "wrongful life" claim in Australia whereas the cases of Edwards and Waller still need to determine the "wrongful birth" claims brought by the plaintiffs' parents. It is likely that the latter two cases will not be determined until the High Court has considered the Queensland "wrongful birth" case of Melchior v Cattanach, expected to be late in 2002.     

The Human Rights Review Tribunal and the rights of health and disability consumers in New Zealand

In New Zealand where there is a statutory bar on the right to sue for compensatory damages arising out of personal injury, and therefore injury arising out of negligent health care, the Human Rights Review Tribunal, in certain circumstances, provides relief for people who are aggrieved by the care they have received from a provider of a health or disability service. That relief may range from a declaration that the provider has breached the Code of Health and Disability Services Consumers' Rights to awards of compensatory and exemplary damages. The article explores the use of this tribunal by the Director of Proceedings of the Office of the Health and Disability Commissioner in holding providers of health and disability services accountable and obtaining relief for consumers and their families.     

创伤性脑损伤后生物分子标志物的研究进展

创伤性脑损伤(traumatic brain injury,TBI)是指机械性外力作用于头部时发生的损伤,导致一个或者多个病变,如颅内损伤、神经病学或者神经心理学改变、意识障碍或者死亡。TBI可因直接打击、缺血缺氧性脑损伤、炎性介质、细胞因子及氧自由基等机制诱发神经元死亡。TBI发生发展过程中产生了大量生物分子标志物,深入研究TBI后生物分子标志物的变化及其规律,对法医学鉴定及临床治疗都有重大意义。本文结合相关文献概述了TBI相关生物分子标志物的研究进展,为寻找更精确的与TBI诊断相关的生物分子标志物提供参考依据。     

Legal damages for losses of chances

Traditionally, damages for torts have been awarded on an all-or-nothing basis. In malpractice suits, however, a growing number of courts are holding doctors liable for negligent acts that reduces a patient’s chance of survival, even if the patient’s chances for recovery have already been less than 50%. For lack of a general principle, a disparate variety of loss of chance rules seems in use. To provide some more systematic guidance, the present paper proposes to look directly at the interaction between the injurer’s act and a random move of nature that captures the uncertainty. For any given move of nature, damages are still awarded on an all-or-nothing basis. If however, for lack of observability, moves of nature cannot sufficiently be distinguished, averages of correct damages over observable events are taken. While the scheme aims at compensatory goals of tort law, as a by-product, it also generates efficient precaution incentives provided that due care standards obey the Hand Formula.     

CISG违约附加费用赔偿实证研究

违约附加费用是受损害方因对方违约而遭受的价值损失之外的损失,在实践中的表现形式是多样的。在合理和必要的前提下,作为受损害方的实际损失,违约附加费用是可以得到赔偿的。受损害方因对方违约而向第三方和有权机关承担的责任也可以作为附加费用求偿,但在合理和必要的标准外,还要特别强调其可预见性。受损害方在程序外的法律费用和雇佣收债公司的费用虽然原则上可以作为附加费用求偿,但不同裁判庭在认定标准上存在较大差异。     

核事故的赔偿问题

日本《原子能赔偿法》规定原子能经营者对核事故承担绝对责任与无限责任。因此,核事故发生最大的问题就是赔偿范围。在这次事故中,虽然因放射能引起的健康损害还没有现实出现,但是,为避难产生的精神损害、财产损害,对土地建筑物损害,对农业、渔业的损害,谣传损害,清除污染的费用等,赔偿数额巨大。因此,如何确保赔偿资金是重中之重的问题。法律规定的保险等措施(1,200亿日元)是远远不够的。日本的《原子能赔偿法》没有规定国家的赔偿责任,国家构建了原子能损害赔偿支援机构,对该机构交付国债支援赔偿。     

瑞克麦斯热那亚航运公司、瑞克麦斯轮船公司诉CS海运株式会社船舶碰撞损害赔偿纠纷案——论海事赔偿责任限制“先抵销、后限制”的具体适用

海事赔偿责任限制制度有着悠久的历史,在实践中也发挥了重要作用。《中华人民共和国海商法》对海事赔偿责任限制也有明确的规定,但在具体适用上,还存在着一些不足之处。《中华人民共和国海商法》规定救助款项不属于可限制性债权的范围,但这仅针对被救助方而言。当被救助方将自己所支付的救助款项作为己方损失要求对方赔偿时,因该救助款项是碰撞所致损害的一部分,对方可以主张适用海事赔偿责任限制。如果一次海难事故一方存在非人身伤亡的赔偿请求,另一方存在人身伤亡的赔偿请求,两类不同性质的赔偿请求不能依据民法债的一般原理先行抵消,应依法适用各自的责任限额,最后再实现债的抵消。保险人取得代位求偿权后,向责任方主张其应承担的赔偿责任时,应视为＂就同一事故向请求人提出反请求＂,因此在被保险人享受责任限制的情况下,保险人的请求金额应当适用＂先抵销、后限制＂的规定。     

Using a Five-Stage Model to Evaluate Workplace Discrimination Injuries

Psychological assessment for workplace discrimination injuries is often complex, as each complainant has a particular personal history and context, including different coping skills, psychopathologies and unique life circumstances. A five-stage model based on best practice guidelines can assist forensic assessment practitioners in determining compensatory damages for psychological or psychiatric injuries and in formulating defensible, evidence-based reports that meet legal standards. The model incorporates legally relevant theories of causation to guide the evaluating psychologist to discern the nature and extent of any injury, and whether discrimination was the likely proximate cause. The focus is not on diagnosis but on functional performance (cognitive, affective, interpersonal and physical) in four key contexts: activities of daily living, relationships, the workplace and hedonic pursuits. This assessment method compares functioning in the complainant’s life until the “day before” the alleged discrimination event with the complainant’s condition at the time of the alleged discrimination, and any symptoms or reactions experienced subsequently. The five-stage model provides a systematic method to examine compensatory damages claims and increase the comprehensiveness and accuracy of the forensic evaluation.     

The pathology of self-mutilation and destructive acts: a forensic study and review.

Self-destructive behavior of man and its consequences may be presented in various forms, including self-mutilation, injury, and malingering, and with various manifestations, including the Munchausen syndrome, polysurgery, purposeful accidents, impotence, and frigidity. The general subject of focal suicide has been a relatively unknown and unrecognized entity for different reasons, including the fact that most physicians are trained to approach a case in a manner which treats the patient-physician relationship as one of honor and faith regarding the authenticity of the complaints of the patient. The maturity of years and experience may be required before the physician becomes aware of the motivation of patients' behavior. It is hoped that this article will provide new insight into areas which may be unfamiliar to the forensic practitioner and clinician but which might enable them to learn about the background of an unexpected death or the possibilities of motivation in civil suits alleging professional negligence or malpractice.     

反垄断法中交易不成损害的可赔偿性

交易不成损害应被视为垄断民事损害的典型表现之一,对该种损害提供赔偿救济,符合法律原则和损害赔偿法理论。但在各国司法实践中,是否判决赔偿和如何计算赔偿金额,却缺乏定论与共识。建立以"转换成本"为核心的判定标准,可简化交易不成损害可赔偿性的判断与计算过程,增强此类损害赔偿诉讼裁判的稳定性与连续性。我国未来出台的反垄断民事诉讼司法解释文件,宜对交易不成损害的可赔偿性及赔偿金额的计算方法作出规定。