“命”的语义分析与庄子的“安命”哲学

古汉语中“命”这个字有命名、生命、命运三重含义,而中国古代哲学中的“命”的深刻含义也就隐藏在这三重含义及其相互关系之中。“命”是对个人生命存在的限定或规定,是个人与社会环境和生活世界的联合体,关注“命”的问题是庄子思想的重要方面,他主张“安其性命之情”,可以称之为“安命”哲学,其内容包括对语言之“命”的悬置,对生命之“命”的保养,对命运之“命”的安顺。     

Patient rights meet managed care: understanding the underlying conflicts

During the past several years, one of the favored areas for legislative (and editorial) debate in our Nation has been the proper level of legal protections that should be accorded to those individuals who have chosen to become members of managed care plans. As examined in the following article, this debate often rages with little notice being paid to the underlying conflicts between managed care and "patient's rights." Indeed, at times, the vociferousness of the debate obscures even those instances in which there is little fundamental conflict.     

Contract program for veterans with alcohol and drug dependence disorders--VA. Final rule

This document amends 38 CFR part 17 by adopting as a final rule the proposal to modify eligibility criteria for veterans participating by contract in the Department of Veterans Affairs' programs of alcohol and drug dependence or abuse treatment and rehabilitation in residential and nonresidential facilities. Previous regulations stipulated that, prior to participation in contract care under this programs, veterans were to be provided hospital care in facilities over which the Secretary has direct jurisdiction. It was proposed to change the regulations to stipulate that, prior to participation in contract care, veterans must have been or must be receiving care (regardless of whether it was or is hospital care) by professional staff over whom the Secretary has jurisdiction (regardless of whether it is direct jurisdiction). The elimination of the requirement of "hospital care" is necessary to address changed clinical practices and continue the intended program. In the past, substance abuse treatment generally was provided in a hospital setting. Now, much substance abuse treatment also is provided in an ambulatory care or residential setting. Further, this document changes "direct jurisdiction of the Secretary" to "jurisdiction of the Secretary" to allow for continuation of any cases in which the VA has had involvement (including, among other things, fee basic care) and thereby help ensure that a complete course of treatment is provided.     

Missing voices: polling and health care

Examining data on the recent health care legislation, we demonstrate that public opinion polls on health care should be treated with caution because of item nonresponse--or "don't know" answers--on survey questions. Far from being the great equalizer, opinion polls can actually misrepresent the attitudes of the population. First, we show that respondents with lower levels of socioeconomic resources are systematically more likely to give a "don't know" response when asked their opinion about health care legislation. Second, these same individuals are more likely to back health care reform. The result is an incomplete portrait of public opinion on the issue of health care in the United States.     

Sudden infant death--focus subject of medico-legal research

The compilation of research activities concerning SID in the field of legal medicine could only choose those out of a great abundance of high-quality examinations which represent applied research. By this they have contributed either to the clarifying of the aetiology which has not been cleared up or to the prophylaxis. For this looking through in a widest sense the basic approach was to consider SID being the result of an intrinsic and/or extrinsic disturbance of the modulation of respiratory regulation of the infant. This namely means a metabolic disturbance of respiratory neurons. One must not share this opinion even if it is given a certain plausibility by newer physiological examinations. But this also means that some examinations did not receive the acknowledgement which they would have received if there had been an immunological approach. The compilation was completely done without a presentation of the primary crisis intervention and the long-term care as being a fundamental medico-legal approach. Altogether may be summarized that legal medicine has completely fulfilled its duty to take care of the problem SID and that the examinations did not remain without success.     

Medicaid program; Medicaid managed care. Withdrawal of final rule with comment period

This document withdraws all provisions of the final rule with comment period on Medicaid managed care that we published in the Federal Register on January 19, 2001 (66 FR 6228) with an initial effective date of April 19, 2001. This January 19, 2001 final rule, which has never taken effect, would have combined Medicaid managed care regulations in a new part 438, implemented Medicaid managed care requirements of the Balanced Budget Act of 1997 (Pub. L. 105-33), and imposed new requirements on entities currently regulated as "prepaid health plans' (PHPs). The regulations set forth in the final rule being withdrawn have been superseded by regulations promulgated in a subsequent rulemaking initiated on August 20, 2001 (66 FR 43613). In addition, this document addresses comments received in response to an interim final rule with comment period that we published on August 17, 2001 in the Federal Register (66 FR 43090) that further delayed, until August 16, 2002, the effective date of the January 19, 2001 final rule with comment period.     

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.     

Incentivizing professionals and patients: a consideration in the context of the United Kingdom and the United States

We are at the beginning of an era in which the pressure to secure the biggest possible "bang" for the health care "buck" is perhaps higher than it ever has been, on both sides of the Atlantic, and within the health policy discourse, incentives, for both professionals and patients, are occupying an increasingly prominent position. In this article, we consider issues related to motivating the professional and the patient to perform targeted actions, drawing on some of the evidence that has thus far been reported on experiences in the United Kingdom and the United States, and we present an admittedly somewhat speculative taxonomy of hypothesized effectiveness for some of the different methods by which each of these two broad types of incentives can be offered. We go on to summarize some of the problems of, and objections to, the use of incentives in health and health care, such as those relating to motivational crowding and gaming, but we conclude by positing that, following appropriate consideration, caution, and methodological and empirical investigation, health-related incentives, at least in some contexts, may contribute positively to the social good.     

Therapeutic jurisprudence: A framework for evidence-informed health care policymaking

Translation of evidence-based practice (EBP) into health care policy is of growing importance, with discussions most often focused on how to fund and otherwise promote EBP through policy (i.e., at system level, beyond the bedside). Less attention has been focused on how to ensure that such policies - as enacted and implemented, and as distinguished from the practices underlying policies - do not themselves cause harm, or at least frustrate accomplishment of "therapeutic" goals of EBP. On a different front, principles of therapeutic jurisprudence (TJ) in law have been developed, most prominently in certain areas of law (e.g., mental health and family law), to support more collaborative, less traumatic advocacy and conflict resolution. This paper draws on current applications of TJ and translates such into a therapeutic approach to health care policymaking that moves beyond promotion of EBP in policy. Health care policy itself may be viewed as an intervention that impacts health, positively or not. The goal is to offer a framework for health care policymaking grounded in TJ principles that does not focus on which evidence is "right" for policy use, but rather how we can better understand how consequences of policy, intended or not, affect the well-being of populations. Such framework thus moves policymaking from an either/or debate to a data- and human-driven process. Utilizing TJ framing questions, policies can be developed and evaluated through open dialogue among diverse voices at the table, including - like interventions - the "patients" or, here, targets of such policies. Collectively, they clarify how ends sought - to enhance (or at least not impair) health - can best be achieved through policy when needed, recognizing that as an intervention, there are limits to and boundaries on the usefulness of policy.     

Access to health care for illegal immigrants: a specific organisation in France

Health care is a fundamental human right in Europe, and all Member States recognise everyone's right to the access to preventive healthcare and to receive medical care in the event of sickness or pregnancy. Nevertheless, this right is focused on citizens and the application to migrants, particularly undocumented migrants, varies widely in the EU. The French legislation is organized with a humanitarian approach. In this article, the authors present the French system of social protection, the "Couvernture médicale universelle" or CMU, which provides the same protection to asylum seekers and documented immigrants as to nationals, and the "Aide médicale d'état" or AME, that is open to every person who does not fulfil the legal conditions to obtain the CMU, such as illegal immigrants. Created in 1995, recently access to the AME has been restricted. A claim of discrimination has been rejected by the Conseil d'Etat and 215,000 persons received the AME in 2009. The expenses incurred by the AME increased by 17% in 2010, and there is a debate in Parliament to limit care and to ask the recipient for a financial contribution.     

法律实证主义的问题意识

法律实证主义作为西方法哲学史上与自然法学派相对立的思想流派.始终饱受误解和质疑.法律实证主义的"问题意识"是深入领会其良苦用心和精神实质的关键.自然法学派与法律实证主义的法律观都具有批判与保守、灵活与随意、确定与僵化的两面性.法律实证主义以"形式正义"取代"实质正义",以"合法性"诠释"正当性",是对自然法的绝对性、抽象性、不确定性等形而上学固有缺陷深刻认识的结果,反映了法律实证主义深刻的问题意识.因之,法律实证主义在实践上具有更稳健、妥切、现实的品格.法律实证主义以特殊的方式理解和处理了正当性观念,它与自然法学派的关系与其说是本体论上的对立,不如说是认识论和方法论上的发展、补充和超越,由此二者才能共同支撑和维护西方法治文明的大厦.     

Cross Border Health Care: An Analysis of Recent ECJ Rulings

Recent rulings of the European Court of Justice show a trend towards a virtual European health-care basket. Four developments underlie this trend. First, the competence of the European Union seems to mature in the field of health care. Secondly, through a variety of authorisation procedures, individual Member States can to a large extent determine the conditions for cross border care. Thirdly, recent court cases indicate that the co-ordination of cross border care increasingly becomes a EU matter. Finally, in particular border regions, more flexible procedures for cross border care are being developed. An analysis of these developments from an (economic) institutional/constitutional point of view shows that potential Pareto-improvements can be expected from recent changes. These improvements depend on the institutional/constitutional framework into which these rules and engagements are embedded. Our analysis suggests that, although the current (increasing) role for the EU seems desirable, diminishing the role that individual Member States can play is not. National authorisation procedures, local/regional arrangements and flexible rulings are mechanisms that can secure an efficient level of output and an optimal size of the jurisdiction responsible for cross border care. This leads to the following recommendations: Current authorisation procedures (which differ per Member State) have to be maintained in order to secure an optimal community size for cross border services and goods; Bilateral agreements and flexible procedures in cross border regions should be stimulated in order to adapt institutional arrangements to the demand for cross border care by (a group of) individuals. The increased competency of the EU in the field of health care can best be used to make authorisation procedures more consistent and stimulate regional cross border care arrangements.     

论“无法”司法——一种对司法过程的另类思考

我国法制建设中历来重视"有法可依、有法必依"。但是对司法过程中普遍存在的"无法"司法问题却有认识不足的倾向。所谓"无法"司法是指在法律没有规定、法律规定不明或者法律规定相互冲突等情况下,由于法官不能拒绝裁判理念的要求,法官必须解决现实的社会纠纷。"无法"司法是以法官自由裁量权和司法经验为表征的,在司法过程中具有普适性。但是"无法司法"毕竟与严格依法原则有冲突,因此也应当对"无法"司法进行必要的规制。     

The strengths and limitations of empirical bioethics

The past two decades have been witness to an "empirical turn" in bioethics. Whereas once this field of study concerned itself purely with theoretical analysis of ethical issues emerging in the design and delivery of health care, increasingly bioethics has embraced a range of empirical research methods from the social sciences and humanities. The emergence of "empirical bioethics" has, however, been the subject of enormous debate, both in regard to its methods and its purpose. For the most part these criticisms fail to appreciate the assumptions that underpin empirical bioethics or misrepresent the claims that are made about its moral utility. This article provides a brief account of the assumptions, strengths and limitations of empirical bioethics.     

论排污权交易失灵与可持续发展法的干预

排污权交易是近年来国内外的热点话题,我国政府曾针对排污权交易广泛实践,在科学研究、试点、管理等方面做了大量的工作,并取得了可观的成绩和经验。但是,对该交易潜在的失灵鲜有提及,缺乏及时和必要的立法准备。本文试图结合这一现状进行探索性的研究,以抛砖引玉,与同行探讨。     

Psychological autopsies: the current Department of Defense effort to standardize training and quality assurance

Psychological autopsies have been gathered by the US military for a long time, both for lessons learned after a known suicide and to investigate an equivocal death. The term "psychological autopsies" is now being restricted to define an investigation by mental health to help determine, in an equivocal death, if the manner of death is a homicide, suicide, an accident, or from natural causes. The Department of Defense has developed policy, and is now implementing training and peer review. A sample model curriculum, report format and quality assurance standards are included.     

The Ethical Health Lawyer: An Empirical Assessment of Moral Decision Making

Writing in 1999, legal ethics scholar Brad Wendel noted that "[v]ery little empirical work has been done on the moral decision making of lawyers." Indeed, since the mid-1990s, few empirical studies have attempted to explore how attorneys deliberate about ethical dilemmas they encounter in their practice. Moreover, while past research has explored some of the ethical issues confronting lawyers practicing in certain specific areas of practice, no published data exists probing the moral mind of health care lawyers. As signaled by the creation of a regular column "devoted to ethical issues arising in the practice of health law" in the Journal of Law, Medicine & Ethics , the time to address the empirical gap in the professional ethics literature is now. Accordingly, this article presents data collected from 120 health care lawyers. Presenting this population with a number of hypothetical scenarios relating to how they would respond when confronting an ethical dilemma without an obvious solution or when facing a situation in which their personal values were in tension with their professional obligations, this article represents a first step toward better understanding how lawyers who practice in health care settings understand and resolve the moral discomfort they encounter in their professional lives.     

Commercialization of genetic testing services: the FDA, market forces, and biological tarot cards

Many women fear being diagnosed with breast cancer, and rightfully so. Despite the capabilities of modern medicine, the cumulative lifetime risk of getting the disease has risen to one in eight and, despite decades of research, no cures exist. In this Article, the authors explore the commercialization of so-called breast cancer gene tests, based upon genetic alterations linked to the disease. Although the authors fully address this specific technology, they use what constitutes the seminal case of predictive genetic testing to analyze the adequacy of the existing regulatory framework. The authors conclude that the present regulatory system is inadequate and places a dangerous amount of reliance on primary care physicians. Their conclusion is grounded in the observation that most primary care physicians lack sufficient knowledge about this evolving investigative technology--which is highly subject to misinterpretation, and, though potentially helpful to some "high risk" patients, offers questionable clinical value for the general public. The authors set forth numerous proposals to promote both the quality and clinical value of predictive genetic testing so that it conforms to public health standards and can be properly integrated as a reliable component of medical care in specific situations.     

医疗纠纷民事案件处理的发展——从“事故论”向“侵权论”的转变

在我国现代历史上。“医疗事故”这一词汇经历了从新闻语言向卫生管理语言、卫生立法语言以及民事、刑事立法语言演变的过程。由于国情和社会制度的特点．卫生行政部门长时间强势主导“医疗事故”事件的处理．也使“医疗事故”概念深深地植入于我国法官的思维之中．对法院民事审判理念产生了深刻地影响作用。因我国医学界、法学界和审判实务界等对于医疗纠纷的法律处理制度和观点分歧之大，超越了其他各国和我国台湾、香港地区的法学认识．以致形成了独特的医学法律观点——即“事故论”和“侵权论”。近年来随着民事法律思想的深入研究以及对侵权法律概念的进一步认识．具有浓厚卫生行政色彩的“医疗事故”概念逐渐退出民事审判的舞台．侵权思想已经逐步回归，充分体现了我国民事法律和民事审判的进步。