Journal of law and health最新文献

The steps taken thus far to protect children in public areas, custody cases, and in vehicles show the legislature's awareness of the chemical harms of secondhand smoke for children. This article will analyze those steps and discuss what they mean for both parents' and children's constitutional rights. This article proposes that the legislature take a vital fourth step by including secondhand smoke exposure in child abuse laws. Section II of this article provides the history of smoking tobacco and its transition from a trendy social status to an unpopular, harmful habit. Section II also introduces the steps that have been taken so far to protect children from secondhand smoke. Section III, Part A discusses how and why there has never been a successful constitutional argument against smoking bans. Section III, Part B looks further into the three steps that courts and legislators have already taken to protect children from secondhand smoke and how those steps are constitutionally permissible. Section III, Part C discusses whether courts and legislators can apply the same constitutional basis of existing statutes to take the next step and interpret child abuse statutes to include secondhand smoke exposure.

Say what you want about the tort-reform debate, but it has staying power. Over the last half-century, legislators and commentators have extensively debated every aspect of tort reform and the litigation "crisis" arguably giving rise to it, without resolving much of anything. Despite this ideological stalemate, tort-reform proponents have managed to push measures through every state legislature. With fifty tries come fifty results, and for the most part, fifty failures. But have all these efforts been in vain? As of yet, no. Although the healthcare system does not appear to be improving, the numerous tort-reform measures states have adopted provide valuable insight into the litigation crisis, even (perhaps especially) when those measures have no effect. But Congress is impatient, one of its many child-like qualities. In June 2017, the United States House of Representatives passed H.R. 1215--The Protecting Access to Care Act of 2017 (PACA). If enacted, PACA would impose comprehensive tort reform on states and, in many cases, preempt similar state laws currently in effect. For many legislators, regardless of political affiliation, this understandably raises federalism concerns. To appease these concerns, PACA's drafters included provisions that appear deferential to similar state laws. However, when considered in context with the rest of the bill, PACA would likely preempt many state tort-reform provisions. This Article focuses on two PACA sections--the affidavit-of-merit section and the expert-witness-qualifications section. PACA adopts both sections from existing state statutes that have proven controversial and resulted in arguably absurd results. By analyzing state approaches in both areas, this Article concludes that these sections of PACA would preempt all similar state laws, setting a uniform federal standard. This uniformity, however, would come at a high price--an unprecedented encroachment on states' rights in an area of traditional state regulation. Further, the inequitable and absurd results occurring in these states would occur nationwide if PACA is enacted.

Chronic Traumatic Encephalopathy (CTE) is a neurodegenerative brain injury that has become prevalent among high-contact professional sports, especially American football. More and more retired players are exhibiting symptoms of CTE and being diagnosed with CTE post-mortem. While the neuroscience community constantly releases studies showing a causal connection between brain trauma and CTE, the National Football League (NFL) continues to deny that any brain injury can arise from playing football. The NFL must implement provisions in their contracts to fully inform and protect players from this lethal brain injury. This article examines the repercussions of CTE, how players' contracts do and do not provide protections, and the possible provisions the NFL can implement in its contracts to adequately protect players of repeated brain trauma.

The following Article discusses the extent to which the constitutional right to informational privacy protects medical data from improper acquisition or dissemination by state agents. Part I provides background on Whalen v. Roe, the Supreme Court case that has been understood to establish the right to informational privacy. Part I also discusses the variations across the circuit courts as to what medical information is afforded protection by the right. Part II analyzes the well-established approaches adopted by the Second and Third Circuits as they present opposing interpretations of Whalen, one wholly protecting medical information and the other protecting scarcely any. Finally, Part III explains why the Supreme Court and courts that have yet to adopt a uniform approach should follow the Third Circuit and constitutionally protect all medical information from improper government acquisition or dissemination. Part III also argues for an amendment to the Privacy Act to provide individuals whose medical conditions are not afforded protection under the Constitution an alternative remedy.

Alfie Evans was a terminally ill British child whose parents, clinging to hope, were desperately trying to save his life. Hospital authorities disagreed and petitioned the court to enjoin the parents from removing him and taking him elsewhere for treatment. The court stepped in and compelled the hospital to discontinue life support and claimed that further treatment was not in the child's best interest. This note discusses the heartbreaking stories of Alfie and two other children whose parents' medical decisions on their behalf were overridden by the court. It argues that courts should never decide that death is in a child's best interest and compel parents to withdraw life support from their children. Such a decision is outside the scope of the judiciary. Furthermore, it argues that even in those instances when the court may or must intervene, a new framework is necessary because the current framework used by the court to determine the best interest of the child ignores fundamental realities of child psychology. Too often, as a result of the court's mistaken framework, the court illegitimately trespasses into the parental domain. By adopting a new framework, the court will intervene only when actual abuse or neglect is suspected. In all other cases, judicial restraint will be practiced and the court will show greater deference to the parents' wishes.

People are often looking for that quick fix when it comes to their health. With dietary supplements so readily available on the market, the public assume that they have been through rigorous testing. Dietary supplements are not tested as much as consumers believe. The Food and Drug Administration (FDA) does not initiate the same type of testing and analysis for supplements as it does for food, drink and medication. Given that people are now choosing supplemental meal replacements and the like, as opposed to whole foods, regulations drastically need to be stepped up in an effort to emphasise public safety. An authoritative body needs to stop manufacturers from taking advantage of an already vulnerable marketplace. I suggest a new form of regulation that takes the pressure away from the FDA and into the hands of someone who wholly focuses on the supplement market. Dietary supplements have revolutionised the "health" world; however, the only way that the market can keep growing is through enacting more stringent rules and regulations--at the same time allowing consumers to maintain their autonomy and freedom when purchasing.

Insanity is a legal term of art that changes definitions depending on the legal standard in American jurisprudence, which explains why a man who mental health professionals described as having an uncontrollable obsession with killing people can be found not insane and guilty. This Note addresses the current state of the Insanity Defense Reform Act of 1984 and its widespread implementation at the state level. Part II supplies background information on the history of the insanity defense and how it has transformed over the years in American jurisprudence. Part III provides an analysis of the of the insanity defense. Part IV suggests a new standard of for the insanity defense with a more accommodating application to a wider degree of mental diseases.

An ethical advancement of scientific knowledge demands a delicate equilibrium between benefits and harms, in particular in health-related research. When applying and advancing scientific knowledge or technologies, Article 4 of UNESCO's Universal Declaration on Bioethics and Human Rights, ethically justifiable research requires maximizing direct and indirect benefits and minimizing possible harms. The National Institution of Health [NIH] Data Sharing Policy and Implementation Guidance similarly states that data necessary for drawing valid conclusions and advancing medical research should be made as widely and freely available as possible (in order to share the benefits) while safeguarding the privacy of participants from potentially harmful disclosure of sensitive information. This paper discusses the challenges in the maximization of research benefit and the minimization of potential harms in the unique context of health-related research in Big Data from multiple sources, which are differently protected by the law. Part I frames the ethical dilemma by discussing potential benefits and harms, showing the constant misalignment in health-related research in Big Data from multiple sources, between the benefits in the use of confidential information for scientific purposes and the value in keeping confidentiality. Part II addresses existing regulations, including their nature and legal coverage. It highlights the prevailing challenges when combining data from multiple sources that are differently protected by the law. Part III compares different requirements for consent or authorization to use persons' health information for research. It focuses on the difficulty of existing regulation to ensure those requirements when using multiple sources of data. Part IV investigates whether exemptions from the authorization requirement could prevail in the context of information that exceeds the protection of HIPAA and the Protection of Human Subjects Regulations. In Part V the paper proposes a solution of a statistical nature, using the method of synthetic data to balance conflicting considerations. Part VI shows how the use of synthetic data can overcome some of the ethical challenges.

This Note analyzes the flaws in the NCAA's current accidental injury health coverage policies for student-athletes and suggests ways to remedy the issues that plague student-athletes incurring serious injuries that may not be covered under current policies. Part I of this Note outlines the history of the NCAA and the policies relevant to the issues with accidental injury coverage currently in place. Part II looks at the significance of these coverage gaps in today's world of modern medicine and technology as well as the impact they have on the everyday life of college athletes. Part III suggests solutions to bridge the gaps in accidental injury coverage for the physical and financial futures of these student-athletes.

This article evaluates two proposals that the Organs Directive along with the commission's Action Plan 2009-2015 can be viewed as a form of hybrid governance. The Organs Directive is the first legally-binding supranational risk regulation devised in the field of organ donation and transplantation. The Directive is modelled on the earlier Directive dealing with blood, tissue, and cells. The Action Plan, which is soft law, will complement the Directive. The Directive and Action Plan requires additional administration procedures from the Member States with the EU Commission regularly monitoring the implementation of the work programme to ensure it is manageable for them. Before probing the Directive, the Impact Assessment (IA) undertaken by the EU Commission on organ donations, which is used to determine the rationale behind the adoption of the stringent Directive with the Action Plan, will be examined. The social, economic, and health impacts of the four regulatory options available to the Commission will be considered. The Directive and the Action Plan, which are finally adopted, will be discussed in detail, before the arguments are placed highlighting the fact that the Directive and Action Plan display a mode of hybrid governance. Next, the advantages and disadvantages of hybrid governance are laid out and conclusions are drawn as to whether the hybrid model was the best form of action in EU healthcare. In the conclusion, the article proposes the emergence of an "integrated model" within the Organs Directive, which is based on the fusion of the three governance structures: the OMC, comitology, and agencies.