医疗物品致人损害责任的举证制度研究

医疗物品致人损害责任是医疗损害责任的一种特殊形式，同时又具有产品责任的某些特点。对外．药品、消毒药剂和医疗器械致损的归责原则是无过错原则；而血液致损的归责原则是过错原则。对内。医疗机构承担的是无过错责任．因此在无过错时有权向最终的责任主体追偿。医疗物品责任实行的是“谁主张。谁举证”的归责原则，因此受损害方承担了证明医疗损害责任三个构成要件的证明责任；而医疗产品生产商和医疗机构都可以通过举证《产品质量法》规定的法定情况的存在而免责，但医疗机构不得对“未投入流通”这一情况而免责．血液提供机构承担了证明自己不存在过错的举证责任。为了更好的平衡举证责任和举证能力．我国应该对与证据价值密切相关的两个制度证据保全和医疗鉴定予以完善。     

Looking Ahead: Addressing Ethical Challenges in Public Health Practice

Ethical challenges in public health can have a significant impact on the health of communities if they impede efficiencies and best practices. Competing needs for resources and a plurality of values can challenge public health policymakers and practitioners to make fair and effective decisions for their communities. In this paper, the authors offer an analytic framework designed to assist policymakers and practitioners in managing the ethical tensions they face in daily practice. Their framework is built upon the following set of six considerations: determining population-level utility of the proposed action; demonstrating evidence of need and effectiveness of actions; establishing fairness of goals and proposed implementation strategies; ensuring accountability; and, assessing expected efficiencies and costs associated with the proposed action. Together, these considerations create a structured guide to assist decision-makers in identifying potential ethical challenges and in assessing the moral considerations that underlie public health practice - and possibly even, if the conditions are met, reduce the creation of ethical tension. Although the authors'empirical experiences provide the basis for the framework advanced here, their approach remains to be tested and evaluated by public health practitioners.     

包容性发展理念下的领导伦理的构建:基于政府发展理念的反思

改革开放以来,以经济建设为中心的发展理念在一些领导干部思想中变成了单一的经济增长的发展理念,发展偏离了"人本"的本质,逐渐演变为排他的发展,冷酷的发展,缺乏伦理的畸形发展。因此,重建领导发展伦理,使发展回归"正统"已迫在眉睫。"包容性发展"理念为领导伦理的重建指明了方向。     

Politics and bioethical commissions: "muddling through" and the "slippery slope"

When they have addressed highly controversial subjects, the bioethical commissions of the last decade have tended to avoid explaining the ethical justifications for their recommendations. This omission is consistent with the typical preference of policymakers for "muddling through," because it is often possible to reach agreement on specific decisions even when disagreeing sharply on principles. In bioethical policy, this omission of reasons has some special consequences. It allows commission members to ignore "slippery slope" arguments, which are based on the claim that the logic of justification adopted to address the current problem will ultimately lead us to great harms. Case-by-case decision-making--along with the omission of reasons for decisions--will tend to highlight the benefits of innovation, and downplay possible long-term effects that might be ethically upsetting.     

论"罪疑唯轻"原则下刑事被告之举证负担

罪疑唯轻是刑事法中的重要裁判原则,裁判者在犯罪事实存在疑问时必须作出有利于被告的裁判.如果公诉方不履行法定的证明责任,或者刑事被告提起"有事实根据的合理怀疑"使案件事实真伪不明时,裁判者应当遵守罪疑唯轻原则作出有利于刑事被告的判决."选择确定"本质上是罪疑唯轻原则例外,但刑事被告在选择确定中仍无需承担主观的举证责任,只承担客观的证明责任.在程序性事项上,除重大的影响刑事被告权利的事项外,罪疑唯轻无适用余地.     

Due process traditionalism

In important cases, the Supreme Court has limited the scope of "substantive due process" by reference to tradition, but it has yet to explain why it has done so. Due process traditionalism might be defended in several distinctive ways. The most ambitious defense draws on a set of ideas associated with Edmund Burke and Friedrich Hayek, who suggested that traditions have special credentials by virtue of their acceptance by many minds. But this defense runs into three problems. Those who have participated in a tradition may not have accepted any relevant proposition; they might suffer from a systematic bias; and they might have joined a cascade. An alternative defense sees due process traditionalism as a second-best substitute for two preferable alternatives: a purely procedural approach to the Due Process Clause, and an approach that gives legislatures the benefit of every reasonable doubt. But it is not clear that in these domains, the first-best approaches are especially attractive; and even if they are, the second-best may be an unacceptably crude substitute. The most plausible defense of due process traditionalism operates on rule-consequentialist grounds, with the suggestion that even if traditions are not great, they are often good, and judges do best if they defer to traditions rather than attempting to specify the content of "liberty" on their own. But the rule-consequentialist defense depends on controversial and probably false assumptions about the likely goodness of traditions and the institutional incapacities of judges.     

Invocation of coercion context in compliance communication -- power dynamics in psychiatric care

This article draws on observations from ethnographic fieldwork to develop a theoretical understanding of the power dynamics in psychiatric care. The aim is to analyze how psychiatric clinicians solve compliance problems by invoking "coercion context". It is suggested that clinicians take a rather instrumental approach to laws regulating coercive intervention. Clinicians may invoke a coercion context even with voluntary patients. For example, they may use wordings that connote coercion, or they may make use of how treatment wards are set up to accommodate involuntary patients, thus stalling voluntary patients who cannot exit through locked doors. A coercion context can also be invoked to solve mundane practical problems, e.g. when clinicians talk about "coerced showers". The management of information and maintaining a suitable "awareness context" with regards to coercion is an essential feature in clinical attempts to achieve compliance from patients. In conclusion, the notion of coercion context helps explain the confusing findings from previous research about patients' apparent misconceptions of their formal legal status. Furthermore, it is argued that research that rely on decontextualised, objectifications of "coercion" risk to miss the meaning coercion is assigned in everyday clinical practice.     

Potentiality of 3D laser profilometry to determine the sequence of homogenous crossing lines on questioned documents

The determination of the sequence of line crossings is still a current problem in the field of forensic documents examination. Optical examination, lifting technique, ESDA technique, and electron microscopy are the most widely used methods for the determination of the writing order of crossing texts. However, at present many examinations of intersecting lines result in an inconclusive opinion, particularly if the same type and colour of ink is involved. This paper presents the potentiality of the 3D laser profilometry, which has been to determine the chronological sequence of homogenous "crossing lines". The laser profilometry, illustrated in this paper, has been developed on a conoscopic holography based system. It is a non-contact three-dimensional measuring system that allows producing holograms, even with incoherent light, with fringe periods that can be measured precisely to determine the exact distance to the point measured. This technique is suitable to obtain a 3D micro-topography with high resolution also on surfaces with unevenness reflectivity (usual for the paper surface). The proposed technique is able to obtained 3D profile in non-invading way. Therefore, the original draft are not physically or chemically modified, allowing a multi-analysis in different times. The experiments performed with line crossings database show that the proposed method is able of "positive identification" of writing sequence in the majority of the tests. In absence of a positive identification, the result has been "inconclusive" (no false determination did occur in this work).     

iPLEDGE Allegiance to the Pill: Evaluation of Year 1 of a Birth Defect Prevention and Monitoring System

The United States Food and Drug Administration (FDA), in collaboration with pharmaceutical manufacturers, have recently implemented a heavily revised risk-management program for patients on isotretinoin (Accutane), a drug with known and pronounced teratogenic effects. This revised risk management plan places significant burdens on both providers and patients in the hopes of achieving its goal of reducing fetal exposure to isotretinoin. The main focus of this paper is to discuss the burdens of various aspects of the program in relationship to potential corresponding benefits. In particular, we evaluate the pregnancy rates of women on isotretinoin therapy compared with that of the general population and the rate changes based on the risk management programs. Additionally, we investigate whether the benefits of the program for women have increased as the benefits have risen. We devote special attention to the ethical implications of the intent of the program and to an analysis of the ethical justification of the restrictions placed on women of childbearing potential (WCP) as it compares to the risk-benefit relationship of using isotretinoin.     

后Bilski时代电子商务商业方法专利之因应与挑战

美国法院早期以商业方法属于数学演绎方法为由,将商业方法排除在专利保护之外.受此影响,商业方法在美国一直被认为不应授予专利.后来法院提出如果抽象的商业方法与运用这种方法后发生了某种物理转换或者有形的装置相联系,则应承认其具有可专利性.1998年更是表明只要该项发明能导出“实用、具体、有形之结果”者,仍不失其可专利性,否认了商业方法在美国《专利法》中存在例外.虽然联邦巡回上诉法院在In re Bilski案中,提出美国《专利法》第101条规定的方法发明须符合“机器或转换测试法”,试图限缩商业方法专利的范围,但联邦最高法院在 Bilski v.Kappos案中否认其为审查商业方法专利唯一的判断标准.在迄今为止仍存较大争议的背景下,如果既无技术贡献,亦无技术特征,更未与其实现所必须的计算机设备或计算程序相结合,而仅系解决商业经营的程序、步骤或者流程者,商业方法即应为人类智力活动的规则或方法,属于思想的范畴,而不属于专利权的保护客体.     

The legal basis for ethical withholding and withdrawing of life-sustaining medical treatment in children

Withholding and withdrawing life-sustaining medical treatment are common in paediatric practice, especially in intensive care units. However, not all clinicians apparently adhere to principles in ethical guidelines or to the principles which are to be found in judgments from common law cases arising when doctors and parents dispute treatment. This article examines selected ethical guidelines and compares them to judgments in leading cases. The rationale to forgo treatment is usually the child's "best interests" in both clinical practice guidelines and legal cases but in the former "best interests" may remain ill defined. Although "best interests" must essentially pertain to the individual child, the interests of others are not irrelevant. In legal cases "best interests" of the child are defined in terms such as "burden versus benefit", "futility", "indignity", "intolerability", "prolonging death rather than saving life" and "quality of life". These or like terms should form the basis of ethical decisions in discussions with parents when contemplating withholding or withdrawing life-sustaining treatment.     

Digital camera identification using PRNU: A feature based approach

Source camera identification is one of the emerging field in digital image forensics, which aims at identifying the source camera used for capturing the given image. The technique uses photo response non-uniformity (PRNU) noise as a camera fingerprint, as it is found to be one of the unique characteristic which is capable of distinguishing the images even if they are captured from similar cameras. Most of the existing PRNU based approaches are very sensitive to the random noise components existing in the estimated PRNU, and also they are not robust when some simple manipulations are performed on the images. Hence a new feature based approach of PRNU is proposed for the source camera identification by choosing the features which are robust for image manipulations. The PRNU noise is extracted from the images using wavelet based denoising method and is represented by higher order wavelet statistics (HOWS), which are invariant features for image manipulations and geometric variations. The features are fed to support vector machine classifiers to identify the originating source camera for the given image and the results have been verified by performing ten-fold cross validation technique. The experiments have been carried out using the images captured from various cell phone cameras and it demonstrated that the proposed algorithm is capable of identifying the source camera of the given image with good accuracy. The developed technique can be used for differentiating the images, even if they are captured from similar cameras, which belongs to same make and model. The analysis have also showed that the proposed technique remains robust even if the images are subjected to simple manipulations or geometric variations.     

自杀的认定及其相关行为的刑法评价

刑法中认定自杀有主客观两方面要求。在主观方面,被害人不仅应当认识到并且意欲死亡结果发生,而且必须自愿地、也即自主决定地选择了死亡。对于自愿性的判断应当以有效承诺的主观要件为标准。重大的动机错误同样导致不能成立自杀。此外,被害人还必须客观上事实性地支配着直接导致死亡的行为,在将不可逆转地造成死亡结果的最后关键时刻自己控制着事态的发展。自杀本身并非刑事不法行为,教唆或帮助自杀、对自杀者不予救助或者过失导致他人自杀等自杀相关行为也不应受到刑事处罚。     

Rate increase disclosure and review: definitions of "individual market" and "small group market." Final rule

This final rule amends a May 23, 2011, final rule entitled "Rate Increase Disclosure and Review". The final rule provided that, for purposes of rate review only, definitions of "individual market" and "small group market" under State rate filing laws would govern even if those definitions departed from the definitions that otherwise apply under title XXVII of the Public Health Service Act (PHS Act). The preamble to the final rule requested comments on whether this policy should apply in cases in which State rate filing law definitions of "individual market" and "small group market" exclude association insurance policies that would be included in these definitions for other purposes under the PHS Act. In response to comments, this final rule amends the definitions of "individual market" and "small group market" that apply for rate review purposes to include coverage sold to individuals and small groups through associations even if the State does not include such coverage in its definitions of individual and small group market. This final rule also updates standards for health insurance issuers regarding disclosure and review of unreasonable premium increases under section 2794 of the Public Health Service Act.     

Recent developments in medical law

The most spectacular aspect is the extremely rapid expansion of medical law. Even if there is a close connection between developments in medicine and in law, the question must be asked as to what extent new discoveries and advances in medicine play a dominant role here, and to what extent the emphasis is on the further development of law. How advances in medicine can give rise to new legal problems was most impressively demonstrated some time ago by the discussion about cerebral death. In view of the progress made in the field of re-animation and intensive care, the current question is whether or not the physician's duties and rights to maintain life should be limited in hopeless cases when patients are incapable of making decisions themselves. This is demonstrated in particular by the discussion about the binding character of "patient testaments" in which healthy subjects declare that they do not want treatment under such circumstances. The decisive factor will continue to be the presumptive will of the patient at the respective time, and this will have to be ascertained considering all circumstances prevailing at that time. New questions with regard to the ethical and legal limitation of the technically feasible also arise from the possibility of culturing embryos from legal abortions or extracorporally fertilized ova to obtain transplants, and from the possibility of implanting extracorporally fertilized ova into the uterus, perhaps that of a "hired childbearing wet-nurse." In addition to ethical and legal problems, questions of parentage would arise here similar to those already of current interest in connection with artificial heterologous insemination. For physicians practicing these methods, questions concerning liability and the limitation of professional secrecy vis-à-vis the semen donor might become the issue of law suits in the near future. Current problems of "unsuccessful sterilization" and nonperformance of an abortion through the physician's fault although abortion was indicated for eugenic reasons are, on the other hand, primarily due to the fact that the law--possibility even for acceptable reasons--establishes legal obligations for the physician which, in the last analysis, aim at preventing human life from coming into being.(ABSTRACT TRUNCATED AT 400 WORDS)     

Choice of Law in International Child Support Obligations: Hague or Vague, and Does it Matter?- An American Perspective

This article explores, through American eyes, the choice oflaw rules associated with the child support aspects of the proposedHague Convention on the International Recovery of Child Supportand Other Forms of Family Maintenance. It considers the rolethese rules play in capturing the "construct" that is the "family"for the purposes of child support by implicitly determiningwho is an acceptable claimant and who is an appropriate obligor.In addition, the rules determine which jurisdiction's law willestablish the amount of support and thus, implicitly, they determinewhich jurisdiction sets the standards for family "performance".American constitutional law demands a connection between theindividual to be burdened and the jurisdiction imposing thatburden. The proposed rules seem designed to take this into account,but doing so requires the scheme to abandon a preference forrelying on the law of the creditor's habitual residence. Americanchild support proceedings use pre-established guidelines todetermine the amount of any child support award. These guidelines,which are premised on economic conditions in the individualstates, are not suited to dealing with international disputes.The cases suggest that American courts are reluctant to abandonthe efficiency of the guidelines in favor of detailed fact basedanalysis, even if the result is an "inappropriate" order –certainty comes at a price.     

A metallurgical review of the interpretation of bullet lead compositional analysis

Comparison of the minor and trace element compositions of bullet lead alloys has been used by some forensic examiners to make definitive positive associations between bullets or lead fragments at a crime scene and samples of bullets linked to a suspect(s). Such conclusions have been based on the elemental analysis of isolated groups of bullets with no consideration of the metallurgical processes involved in the production and refining of the bullet lead alloys. An understanding of the metallurgy of lead refining reveals that the elements quantified in the forensic analysis are carefully controlled in the refining process and that there are logical reasons why some elements are more discriminatory than others. Data for lead alloys supplied to two major ammunition manufacturers confirm that multiple indistinguishable shipments of lead alloys from secondary lead refiners to the ammunition manufacturers are made each year and over a period of many years. The data also demonstrate that distinguishable compositions can come from the same melt or "source" of lead alloy. These results clearly indicate that bullets with indistinguishable compositions could have come from different lead "sources" produced in the same or different years. Furthermore, the observation that two bullets have a distinguishable composition does not necessarily mean that they came from a different "source".Our results show that the forensic examiner using a method of bullet lead alloy elemental analysis, which quantifies up to six elements is restricted to concluding only that indistinguishable bullets might have come from the same "source," not that they did come from the same "source". In addition, it is quite possible that multiple bullets with similar but distinguishable compositions could have come from the same "source". The authors therefore feel that there is no scientific validity to any conclusions more positive than attributing the possible association as to molten source among bullets from different samples. An understanding of the metallurgical principles operative in the melting/casting process as well as the data acquired for this study, indicate that any forensic conclusions which associate unknown bullets with the "same source", and/or "same box" should fail most or all Daubert criteria.     

刑法“有利溯及之例外”条款的 合宪性限定解释——基于牛玉强案的思考

《刑法》第12条第2款可称作"有利溯及之例外"条款,近年来广受关注的牛玉强案就涉及这一条款。对于该条款的解释,刑法学上的观点大致可类型化为"完全适用说"、"选择适用说"以及"完全不适用说"。"选择适用说"与"完全不适用说"意在排除该条款在某些个案中的适用,但两种学说都面临一系列学理上的难题。如果引入宪法层面的判断,则可对该条款进行合宪性限定解释。其路径有二:一是以限制基本权利的比例原则对该条款的适用范围加以限缩;二是将罪刑法定原则解释为具备宪法位阶的原则,继而将一部分有罪判决排除出该条款的适用范围。     

论公务员不服从违法命令

公务员法就公务员对违法命令是否服从作了原则性规定,即服从是原则,不服从是例外。但如何理解“上级”、“决定与命令”、“服从”以及“明显违法”的含义,需要认真分析。“公务员执行明显违法的决定或者命令的,应当依法承担相应的责任”,但应以“违反刑事法律或者造成严重后果”为限。     

Eugenics: progress or backward movement?]

Throughout this article there is a critical analysis of how genetics presents a dilemma for "human progress". So much so, that the legal world aims to create unequivocal norms and guarantees in relation with eugenics in order to avoid attempting against human dignity. The document makes the reader reflect on the ethical problems that eugenics can entail.