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.     

Queensland general practitioners' applications of the "mature minor" principle: the role of patient age and gender

Most Australian jurisdictions do not have legislation that stipulates an age by which a minor can make their own medical treatment decisions. Instead, they rely on Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, an English common law decision that recommends individual assessments of "maturity". This study explores how medical practitioners in the State of Queensland understand and apply this legal authority when faced with a young person wishing to make a contentious medical treatment decision. Almost 200 doctors made decisions about a hypothetical patient's competence and confidentiality, and detailed their reasoning in an open-ended format. The data indicate that the vagaries of existing legal criteria allow for a range of philosophical perspectives and idiosyncratic heuristics to play a role in assessment practices, and that particular combinations of patient age and gender made these cognitive shortcuts more likely to occur. A notable proportion of such processes are not consistent with legal guidelines, and this has implications for general practitioners' vulnerability to litigation as well as young patients' treatment trajectories.     

U.S. Industries v. Director: "claim" versus "condition" in the analysis of workers' compensation cases

Under most workers' compensation statutes, an injury must "arise out of " and "in the course of" employment in order to qualify as a compensable disability. In U.S. Industries v. Director, the Supreme Court held that the Longshoremen's and Harbor Workers' Compensation Act must be strictly construed to avoid transforming the compensation system into a form of social insurance. In U.S. Industries, the Court denied a disability claim based on an arthritic condition which was manifested while the worker was at home in bed. This Note contends that the Supreme Court neglected to consider pertinent medical realities when analyzing the causation question. Thus, the decision undermines the overall rationale behind workers' compensation legislation. Nonetheless, the Note argues that the case does not relax the requirement of adequately scrutinizing the causative elements underlying any reasonable claim for disability benefits. An analysis adequately accommodating both medical and legal facts, instead of relying upon the vagaries of statutory interpretation, is necessary to improve the efficiency and fairness of workers' compensation disability determinations.     

The twilight zone between scientific certainty and legal sufficiency: should a jury determine the causation of schizophrenia?

In lawsuits involving complex scientific issues of causation, dispute resolution requires that a final decision be reached in each case, regardless of whether science is able to provide definitive answers to the questions of causation raised at trial. Proving causation before science has is a concept that scientists may find disconcerting and foreign to some of their basic assumptions. This paper explores the foregoing issues, discusses medical versus legal concepts of causation, outlines the legal tests for admissibility of novel scientific evidence (including Federal Rule of Evidence 702 and the Frye test of general acceptance by the relevant scientific community), and presents a toxic tort case in which expert psychiatric testimony addressed the issue of causation of schizophrenia. The paper articulates concerns about the "misleading aura of certainty" posed by scientific evidence and the burden of decision making that is cast upon the legal system in such scientific issue cases.     

Factual causation in medical negligence

The conventional approach to causation in negligence is the "but for" test, decided on the balance of probabilities. Even when supplemented by the "material contribution" principle, satisfying the onus of proof of causation can be an insuperable obstacle for plaintiffs, particularly in medical cases. Yet, having found a breach of duty, a court's sympathies may gravitate toward the plaintiff at this point in the case. Accordingly, courts have sometimes accepted a relaxation of strict causation principles. The judicial devices are described: a special principle of causation in particular duties of care; a shifting burden of proof; "bridging the evidentiary gap" by drawing a robust inference of causation; treating a material increase in risk as sufficient proof of causation; and permitting causation to be established on the basis of the loss of a material chance of achieving a better outcome and discounting damages. In Accident Compensation Corp v Ambros [2007] NZCA 304 the New Zealand Court of Appeal recognised the need for a legal device to ameliorate the injustice sometimes caused by the strict rules of causation, and preferred the "inferential reasoning" approach favoured by the Canadian common law for use in the context of the accident compensation scheme. It is hoped that the New Zealand Supreme Court approves Ambros if the opportunity arises.     

Vitamin C: ascerbic ethical discussions

The issue of a patient's rights to demand treatment has recently been raised by a dramatic case in which a patient made a remarkable recovery following the use of an unconventional treatment that the hospital staff initially refused to administer. The normal position in such cases is that the relatives can take part in a clinical decision but the medical staff are bound to make it according to a clinical assessment of the best interests of the patient. That assessment is only required to take into account what would be regarded as acceptable regimens of treatment for the patient's condition. There is no ethical or legal basis for the patient's relatives being able to demand any treatment that the clinical team do not consider indicated nor to demand a highly unconventional treatment The case therefore poses a problem. When should we allow ourselves to be persuaded to step outside the bounds of accepted medical practice at the urging of relatives or patients? There are plausible arguments that a demonstration of efficacy in a particular patient or some reputable evidence of probability of efficacy would both be good enough grounds. In addition, one could argue that where the patient's predicted clinical course is terminal, then desperate measures of unproven efficacy can be tried in that the balance of harm and benefit cannot be further worsened. The implication of the actual events in the case in question is that a certain humility in the light of the incompleteness of medical knowledge is always appropriate and an objective weighing of the facts of the case, free from prejudicial theoretical commitments, is needed in the face of medical uncertainty.     

Capacity and medical self-determination in Australia

The expansion of patients' rights and the increasing complexity of the science of medicine raises serious legal and social questions, particularly when they pertain to end-of-life decision-making. Medical science continues to find ways of maintaining or extending life in a body or mind affected by disease or trauma and regular advances in medical technology and practice mean that the natural course of illness or injury will rarely be uninterrupted by some form of medical intervention. This progressive "medicalisation" of death, together with enhanced patient autonomy, means that choices can increasingly be made regarding medical treatment which may ultimately influence both the time and the way in which a person dies. This article examines both legislation and the common law in Australia particularly as it pertains to medical decision-making at end-of-life and the patient's right of self-determination.     

Medical confidentiality

Confidentiality in the medical relationship is an important, but by no means absolute, concept. It is a means by which the law protects the patient's privacy. But there are sometimes more important ideals than the protection of privacy. In order to determine whether confidentiality is to be recognised, the patient's interest in his privacy must be balanced with other potentially conflicting interests. Each legal system must determine for itself the weight to be given to any particular interest.     

Excellence in Psychological Injury and Law: Book Review of Motor Vehicle Collisions by Duckworth, Iezzi, and O’Donohue (2008)

In several ways, the book on motor vehicle collisions by Duckworth, Iezzi, and O’Donohue (2008) breaks new ground and should be considered a must-read for workers in the area of psychological injury and law. The editors have assembled a team of expert authors who have cogently analyzed the scientific evidence in the area of motor vehicle collisions and their aftermath, while calling for more research. The book is replete with information that will help practitioners understand and deal with cases involving conditions such as chronic pain, posttraumatic stress, and traumatic brain injury. Practitioners will learn about complications in such cases, including threats to validity and legal aspects. The inclusion of chapters from a medical perspective is a welcome innovation. The book is only lacking in that, although assessment is considered throughout, chapters specifically addressing this topic are not included. The book review concludes that the Motor vehicle collisions book by Duckworth et al. should be included as part of the growing list of excellent resources in the area of psychological injury and law.     

The Organization of lawyers' Work: Size, Intensity, and Co-Practice of the Fields of Law

Using data from personal interviews with 777 Chicago lawyers, constituting a random cross section of the urban bar, the authors estimate the relative volumes of effort devoted to each of several fields of law, analyze the degree to which practitioners specialize in fields or groups of fields, and examine the patterns of co-practice of the fields. They find that the total effort of the Chicago bar is about evenly divided between work for corporate clients and work for individual clients. They also suggest that, while relatively few lawyers are highly specialized to a particular doctrinal area of the law, most are specialized to the service of the needs of a particular type of client. Exploring possible implications of their findings, the authors speculate that lawyers who are specialized to clients rather than to substantive fields may lack the incentive to devote their resources to the rationalization of legal doctrine.     

Legal medicine and the medical establishment

Formal medical discipline-based regulation and professional support for legal medicine practitioners have been a long time coming. While informal associations and societies of like-minded doctors and dentists have existed for some time, they have not had the sort of "establishment credibility" that is required to influence policy-makers and drive formal processes for professional training and regulation in this area. The recent creation of formal medical College status for medico-legal specialists within the medical establishment is described and the advantages discussed. The creation of formal career pathways, organised training structures and policy advisory systems in legal medicine for government has the potential to support recruitment to this difficult and challenging area of medical practice. This can only be of benefit to the legal profession who rely on these medical practitioners in so many areas. The standards setting, recertification, revalidation and accreditation activities of a formal Royal Medical College are likely to have significant influence on the work of health and legal policy regulators at a time of considerable change.     

活体鉴定400例放射学特点分析──兼论法医临床学与放射学的关系

为探讨法医临床学鉴定与放射学的关系，本文对４００例活体鉴定就放射学检查的有关问题进行回顾性研究。结果表明：２６６例进行了放射学检查（占６６．５％），其中Ｘ线１７６例（６６．２％），ＣＴ４３例（１６．１％），两者均有的４７例（１７．７％）。放射学检查部位中，Ｘ线以四肢为多，ＣＴ以颅脑为多。误诊率为９．０２％，放射学检查与致伤原因之间有一定关系，轻微伤中不必要的ＣＴ检查多见。并就放射学误诊的法律后果及不必要的放射学检查问题进行了讨论。本文从法医临床学的角度对放射学进行了评价，指出在活体鉴定中可以应用放射学知识协助证明损伤、推断损伤形成机制、个人识别及研究损伤时间。因此法医学鉴定人必须有放射学理论和技术方面的知识。作者还试图提出法医临床放射学。     

论矿业法律责任的重构

现行矿业制度几乎没有安全与健康、环境污染、矿业相邻关系以及公权力行政等方面的重要法律责任,因而在矿山企业违法结果发生后则以人治取代法治而治不胜治,这主要是以“矿”为主的财产性《矿产资源法》法律渊源的局限。应制定以“业”为主的管制性《矿业法》,以矿山企业应承担的社会责任为依据设置第一性义务,不履行第一性义务则按第二性义务承担不利后果。第二性义务是以社会性矿业法律责任为主,与经济性、政治性法律责任等构成矿业法律责任体系。社会性矿业法律责任的民事侵权适用严格责任原则、无过错原则、因果关系推定以及并不以违法为条件等。     

医疗侵权损害赔偿制度立法问题剖析——兼论医疗机构化解责任风险的途径

当前，我国司法实践中医疗侵权纠纷案件适用法律很混乱。主要原因是我国医疗侵权损害赔偿制度由多层次立法文件交叉规定，且各条款不一致。笔者认为，由国务院颁布的《医疗事故处理条例》中的医疗事故损害赔偿条款属于违宪违法的条款，应当尽快废止。而医疗侵权损害赔偿应统一适用民事基本法中的一般人身损害赔偿条款。此外，建立医疗责任保险制度是在市场经济体制中医疗机构化解责任风险的较优选择。     

Preserving human potential as freedom: a framework for regulating epigenetic harms

Epigenetics is a rapidly evolving scientific field of inquiry examining how a wide range of environmental, social, and nutritional exposures can dramatically control how genes are expressed without changing the underlying DNA. Research has demonstrated that epigenetics plays a large role in human development and in disease causation. In a sense, epigenetics blurs the distinction between "nature" and "nurture" as experiences (nurture) become a part of intrinsic biology (nature). Remarkably, some epigenetic modifications are durable across generations, meaning that exposures from our grandparents' generation might affect our health now, even if we have not experienced the same exposures. In the same vein, current exposures could affect the health of not only individuals currently living but also future generations. Given the relative novelty of epigenetics research and the multifactorial nature of human development and disease causation, it is unlikely that conclusive proof can be established showing that particular exposures lead to epigenetic risks that manifest into specific conditions. Using the Capabilities Approach ("CA") developed by Amartya Sen and Martha Nussbaum, this article argues that epigenetic risk is not merely a medical issue, but that it more generally implicates the underlying fairness and justice of our social contract. For instance, how we develop mentally or physically has a tremendous impact upon our inherent capabilities and our set of life options. The CA prompts us to ask questions such as: (1) what impact do particular epigenetic risks have on our ability to exercise free choices; (2) are these risks avoidable; and (3) how are these risks distributed across society? Due to the complex nature of epigenetic risk, tort law is predictably incapable of addressing this harm. Further, while regulatory agencies possess the statutory authority to begin addressing epigenetic harms, currently these agencies are not attuned to measure or to respond to this type of harm. This article argues that it is imperative to initiate a regulatory framework to address epigenetic risk from specific substances even if conclusive proof of disease causation cannot be established. Shifting the burden of generating epigenetic risk data to producers of suspected harmful substances serves as a start. As information concerning epigenetic risks accrues, the regulatory response should evolve concurrently. As part of a dynamic policy-making approach our goals need to encompass the following: (i) promotion of knowledge in the scientific, legal, and public domains; (ii) assessment and modification of current regulations to address preventable risk; and (iii) an overarching commitment to protect human capabilities in an equitable manner.     

Causing harm: Criminal law

This paper offers two related things. First, a theory of singular causal statements attributing causal responsibility for a particular harm to a particular agent based on the conjunction of a positive condition (necessitation) and a negative condition (avoidability) which captures the notions of sufficiency and necessity in intuitive ideas about agent causation better than traditional conditio sine qua non based theories. Second, a theory of representation of causal issues in the law. The conceptual framework is that of Game Trees and Games in Extensive Form. Causal conditions are defined set-theoretically over Game Trees; causal issues and fundamental distinctions (dependent versus independent intervening causes, foreseeability or not of harm etc.) arising in legal cases are accommodated by the device of a probability distribution over the game-tree representation of cases.This theory of causing harm, or agent causation is presented in greater detail in L. Aqvist & P Mullock, Causing Harm: a logico-legal study (forthcoming, de Gruyter, Berlin) dealing primarily with causation in tort law.     

医疗行为中医务人员“意思表示”的法律效力分析

“意思表示”是医务人员在医疗行为过程中将其期望发生某种法律效果的内心意思以一定方式表现于外部的行为,是医疗行为的核心内容。针对当前临床医疗实践中医务人员意思表示的具体情况,本文分析了医务人员“意思表示”的构成要素、表示形式及法律效力,尤其是具体分析了意思表示不真实情况下医疗行为的法律效力,对医院规范管理医务人员的医疗行为具有一定的积极意义。     

A hospital's non-delegable duty of care

Visiting, honorary and staff medical practitioners, to name but a few, provide medical treatment and services to a variety of "patients", including private, public, in-patients and out-patients. The legal implications arising from the often complex fact situations created by the interactions of these participants and the relationship between hospitals and these participants can lead to hospitals both incurring and avoiding liability for injuries sustained by patients from negligent medical treatment. This article discusses the legal principles governing hospitals' liabilities in this context on the more onerous non-delegable duty of care ground.     

Causality and Causation in Law, Medicine, Psychiatry, and Psychology: Progression or Regression?

In this article, I review recent developments in the areas of law, medicine, psychiatry, and psychology concerning causality and causation. I analyze the validity of the 2008 edition of the American Medical Association (AMA)’s guides to the evaluation of permanent impairment and its accompanying volume on causation. I conclude with recommendations for a synthetic approach to causality in the legal field and a more consistent model of impairment in the mental health one. The AMA’s book on medical causation needs careful revision.