Journal of law and health最新文献

Can individuals with a highly sensitive temperament recover in tort for intentional infliction of emotional distress (IIED)? In 2019, an article in the University of Memphis Law Review raised this question, referring to the "Highly Sensitive Person" (HSP) construct in psychology and asking whether the IIED tort's 'reasonable person' standard discriminates against highly sensitive plaintiffs. Following up on that discussion, the present article considers how the law of IIED has historically treated plaintiffs with diagnosed psychiatric vulnerabilities that are either known or unknown to the defendant. The article also extends this discussion to the law's treatment of temperaments, such as high sensitivity, which are distinct from diagnosed psychiatric disorders; presents hypothetical scenarios with respect to undiagnosed but inferred or predicted vulnerabilities; and explores the history of the dignitary IIED tort and the origins of its reasonableness requirement. This discussion acknowledges that scientific advances can allow uniquely vulnerable plaintiffs to assert harm in new ways--while also (1) pointing out that scientific uncertainties regarding the mind and temperamental sensitivity persist today and (2) touching on clinical and criminal law approaches to intentionally inflicted harms, which can emphasize the defendant's conduct as opposed to the plaintiff's subjective traits or experience for victim-protecting reasons. The purpose of raising these considerations is not to suggest particular reforms or strategies but, rather, to encourage readers to consider the potential impact of focusing on the plaintiff's biology on the one hand, or the defendant's conduct on the other, when deciding how to remedy intentionally inflicted mental harms.

In Catalyst Pharms., Inc. v. Becerra, the court held that the scope of orphan drug exclusivity applies to the disease or conditions for which the drug is designated because the plain language of the 21 U.S.C. § 360cc(a) is clear. The decision is in contrast to the practice of the FDA to narrowly construe the exclusivity to apply only to the uses or indications for which the drug is approved. The court correctly reached its holding using a plain language approach and rejected the FDA's argument based on legislative history and purpose. The FDA has repeatedly ignored courts interpretations of the orphan drug exclusivity provision, persisting on an interpretation that is an overreach of its statutory authority. The FDA does not have the institutional competence to address complex issues such as orphan drug pricing and affordability. The FDA should not depend on a fractured Congress to codify its overreaching interpretations. Instead, the FDA should implement regulations within its statutory authority and limit the scope of the orphan drug designation based on preliminary evidence.

The Founders included the privilege against self-incrimination in the Constitution to protect individual privacy and ensure a fair judicial process. Courts have failed U.S. citizens by neglecting to protect them from compelled unlocking of biometrically encrypted devices. This inaction has created a loophole that contradicts the framework of the privilege against self-incrimination. To correct this mistake courts should reconsider the trend they have set for the Constitution and the Fifth Amendment and consider adopting a forward-thinking cybersecurity lens to conclude that biometric authentication is testimonial. Courts should consider that biometric encryption is akin to a compelled password entry for the purposes of the foregone conclusion doctrine. The foregone conclusion doctrine should be applied in limited circumstances with a specific and high burden of proof so that the "jealous protection of the privilege against self-incriminating testimony" can be preserved. Allowing law enforcement such easy access to smart devices narrows Fifth Amendment protections and the expansive foregone conclusion exception is contrary to both principles of cybersecurity and the spirit of the Fifth Amendment. Courts should move to remediate this at once. These liberties and values can only be guaranteed by courts that are willing to take on cases with issues revolving around biometric encryption, the Fifth Amendment, and the foregone conclusion doctrine.

Suffering through substance withdrawal is a major problem for the majority of individuals in custody, yet there are no guidelines or standards to ensure their safety. Instead, individuals in custody are having their Constitutional rights violated and many die at the hands of the justice system. When their families seek accountability for the lack of adequate care provided by correctional facilities and employees, families are faced with a lack of consistency from one circuit to the next for knowing as to the correct standard to have a successful claim. Strain v. Regalado was a chance for the Supreme Court to address this issue, but by denying cert in that case, the Court has signed off on the injustice these individuals face. This note proposed having the subjective prong for the deliberate indifference claim for inadequate medical care for withdrawal for individuals in custody presumed. Allowing the subjective prong to be presumed better aligns with the reality of this issue because correctional officers see many inmates suffering withdrawal and the symptoms which indicate the need for medical intervention are similar to those that would indicate a medical need in any other situation. Additionally, correctional officers are purportedly held to a higher standard. This note then proposed a federal standard for claims and medical care. These are both basic rights in the United States, unless and until a person is in custody.

Part I of this paper considers the historical foundations, motivations, and evolution of veterans' disability and employment legislation in the United States. Utilizing disability and employment as its framework, Part II then defines, describes, and critiques contemporary policies for disabled veterans in the areas of federal employment protections and uses of Alternative Dispute Resolution (ADR) within the VA's disability decision review process. Part III discusses the roles played by disabled veterans and the federal government in policy reform, finding that both sides act as catalysts and barriers to legislative change. This paper concludes in Part IV, recommending legislation that integrates elements of disability care--currently under the auspices of the VA--into Medicare. Through this newly created insurance component, which this paper will call "Medicare Part V," disabled veterans will be eligible to access all hospitals and clinics currently accepting Medicare. This is anticipated to increase access to care in local facilities. Second, it is essential that the federal government devotes sufficient resources to conduct more longitudinal data collection studies, enabling a more comprehensive assessment of the transitional and employment resource needs of disabled veterans over time. Achieving a greater understanding of these needs may induce greater veteran participation rates in the labor force, benefiting employers and veterans alike. Finally, this paper calls for modernizing and optimizing the VA's claim appeals process by creating a secure online method of Alternative Dispute Resolution for appeals, specifically in Higher-Level Reviews (HLR's) of disability and compensation requests.

Michael Johnson or "Tiger Mandingo" as he referred to himself on social media, engaged in sexual acts with six different men, all of whom claimed that Michael lied about living with human immunodeficiency virus (HIV). As a result, the State of Missouri charged him with recklessly infecting a partner with HIV exposing or attempting to expose another with HIV. With contradictory trial testimony, no genetic fingerprint testing, and little to no questioning of his sexual partners' credibility, the jury found Michael Johnson guilty of five felony counts which resulted in a 30-year prison sentence. Ultimately the Missouri Court of Appeals overturned Michael Johnson's conviction, but only on the function of a discovery violation; the court did not reach the question of whether Michael's 30-year sentence was cruel and unusual and thus constitutionally impermissible. However, Michael's conviction and sentencing sparked international attention towards how the United States continues to convict people living with HIV under archaic statutes that do not align with medical and scientific advancements or evolving moral standards. Today, HIV is a chronic disease, like diabetes, yet exposure to HIV is still treated as if it is a death sentence in both public opinion and American jurisprudence. These convictions and sentencing guidelines result in harsh sentences for punishments that do not match the crime, misplaces responsibility when two consenting adults choose to have sex, and raises the possibility of exposing people to wrongful convictions. While Missouri and other states have attempted to modernize these antiqued laws, the modernized laws require further analysis to determine whether they in step with the science and if people living with HIV are still vulnerable to harsh sentences and wrongful convictions. This article identifies major legal considerations of the modernized laws and provides guidance on reform.

This article looks at the nation's response to the COVID-19 pandemic since March 2020 and explores the commonalities and differences of states' actions to protect their citizens, especially the most vulnerable populations. The article discusses the government's obligations to jailees and prisoners during the COVID-19 pandemic and how incarcerated persons have been consistently failed by the institutions that are required to protect them. The article examines possible remedies for these governmental and institutional failings under the Eighth Amendment and §1983 civil rights claims. Ultimately the article proposes that monetary damages would provide relief to incarcerated individuals and their families where other remedies have often failed. Additionally, monetary damages will send the message that those under the protection of the state need tangible justice and that the government needs rigorous accountability during a public health emergency.

The False Claims Act (FCA) has a long-standing history of protecting the United States government from being defrauded by merchants and other parties submitting claims for repayment. Affording Americans who have enrolled in Medicaid and Medicare expansion plans the same protection afforded to the federal government will allow for action to be brought to prevent large hospital networks from engaging in price-fixing behaviors. Implementing this change will have the effect of reducing healthcare prices for all Americans. Applying the False Claims Act at the price-fixing level will have the largest affect; however, it is still important to iron out procedures for individual claims involving factual and legal falsity. Although the different requirements established for the two types of falsity at first glance appear to be contradictory to each other, it is clear there is no overlap or split between factual and legal falsity. However, if large scale litigation were brought under FCA liability, it is important for Congress or the Supreme Court to offer lower courts guidance in applying these distinct standards. Establishing requirements for FCA liability under factual and legal falsity will allow for healthcare providers to make plans to adhere to the guidance. This change will have the effect of reducing unnecessary healthcare treatments and spending, passing on financial and physical health benefits to the American people.