American Journal of Law & Medicine最新文献

The new American Law Institute Medical Malpractice Restatement posits a novel rule in § 6(b) that would authorize the use of medical-practice guidelines as a standard of care for medical-malpractice litigation. However, it would only be a "safe harbor" shield; guidelines could not be similarly used by plaintiffs as a sword. For defendants, the rule would transform what heretofore has been indisputably hearsay evidence into prima facie proof that would serve as a substitute for expert testimony, and which would be sufficient to defeat a malpractice claim. Plaintiffs wishing to use practice guidelines would be relegated to the "learned treatise" exception of the hearsay rule.

The United States is one of the largest consumers of meat globally. The traditional production of meat contributes substantially to climate change due to the levels of greenhouse gases emitted and the amount of land, water, feed, and other natural resources required to raise animals used for meat. Conventional meat production is also a major source for the emergence of zoonotic diseases and antimicrobial-resistant pathogens. Nevertheless, Americans consume more meat now than at any time in the nation's history.Advocates for policy change aimed at addressing the risks currently associated with meat production have typically focused on reducing meat consumption, alternatives to meat, or improving the standards of conventional meat production. These are laudable goals, but an emerging technology now promises meat production that may avoid these risks entirely. Enter "lab-grown meat" - meat cultivated in an efficient and controlled laboratory environment without the need for fields, feed, or even animals.The technology has been in development for over 100 years but has seen exponential growth in the past five years. What was previously considered a science fiction fantasy became a reality in the United States in 2023, when UPSIDE Foods and GOOD Meat received approval from USDA for sale of their cultivated chicken to U.S. consumers.This article highlights the benefits and drawbacks associated with lab-grown meat, assesses the existing regulatory framework, and offers considerations for policy reform as regulators address the emergence and scale-up of this important technology.

Nathan Witkin, in his article The Cost of Closed Doors…, attempts to reframe the question of whether child dependency proceedings should be open or closed to the public and press by positing a balancing test between "dependent families seeking privacy…and the macro-level benefits of a more transparent system." Witkin's hypothesis is that opening dependency proceedings educates the public that child welfare spending must be increased, that transparency leads to "greater per capita" spending in open versus closed dependency systems, and finally, that more child welfare spending will result in fewer per capita child welfare fatalities in open court states. This article will examine both sides of Witkin's proposed balancing test to demonstrate that his approach fails to prove his hypotheses. First, it will discuss how Witkin's almost total reliance on twenty-five to thirty-year-old psychological studies rather than on contemporary mental health research substantially understates the potential dangers to child abuse victims, especially LGBTQ+ and polyvictimized children, from opening child dependency proceedings. Second, it will present evidence that the welfare budgets did not constantly increase in some closed court states that were later opened to the public, but rather fluctuated through sporadic ups and downs which over time resulted in almost no net longitudinal budgetary increases. Second, those originally closed courts that were later opened had their child fatality rates actually increase which is the opposite of Witkin's predictions.

When someone gets in legal trouble in America, their case is almost invariably decided by a lawyer (a judge), lay people (a jury), or a combination of the two. Professional discipline, however, is a giant unexplained exception. In professional discipline matters, accusations of dangerous or incompetent practice are decided, usually in the first instance but always in the last, by state licensing boards composed of other members of the accused's profession. These licensing boards wield immense power as labor regulatory institutions, covering ten times as many American workers as the minimum wage and more workers than private and public sector unions combined.Given how unusual this setup is, there has been surprisingly little study of professional discipline within any academic field-and virtually none within law. This inattention is troubling not only because of professional discipline's immense footprint, but also because of the potential for widespread social harm. That potential is most obvious in health care, which accounts for approximately two-thirds of licensed professionals. But even in professions outside of health care, like engineering and accountancy, unethical or incompetent practice can cause wide-spread social harm. The decision-makers controlling whether bad actors can continue to practice have no experience in policy, regulation, or adjudication. They are playing lawyers without really knowing how.This article is the first comprehensive assessment of professional discipline's regulatory design. It argues that the busy volunteer professionals who handle disciplinary matters lack the regulatory expertise, training, and standards necessary to ensure public safety and provider competence. Fortunately, other jurisdictions offer promising models for reform. We compare the American system to that in the United Kingdom, which demands more legal expertise, decision guidance, and non-professional perspectives. To add rigor to the comparison, we provide two new hand-coded datasets-one from a US state and one for the UK, showing that disciplinary outcomes are more appropriately harsh in the UK. We argue, in conclusion, that a similar model in the United States would be promising step forward.

This commentary analyzes the recent attacks on adolescents' access to contraception by religious and parental rights activists and the conservative legal movement. Specifically, we focus on Deanda v. Becerra, a 2024 case in which the Fifth Circuit Court of Appeals held that a Texas state law requiring parental consent for minors to access contraception is not preempted by a longstanding policy under Title X of the federal Public Health Service Act that prohibits clinics receiving federal funding from requiring parental consent or notification. We first describe existing laws governing minors' confidential access to reproductive health care, including the federal constitutional framework for parental rights, state parental notification and consent laws, and Title X, the federal law that provides federal funds to reproductive health care clinics for low-income people. We then examine and critique the Federal District Court ruling in Deanda, which elevated individual religious and parental rights over public health concerns, and the Fifth Circuit Court of Appeals decision in that case, which undermined federal public health authority and jeopardized access to reproductive health care for low-income adolescents. Finally, we assess the public health and reproductive rights implications of restricted access to reproductive health care for minors and consider possible future directions and advocacy opportunities for reproductive, public health and legal advocates to promote continued access to contraception for adolescents despite mounting legal challenges.

There is a seemingly intractable disagreement about whether nonprofit hospitals can be meaningfully differentiated from their for-profit counterparts and are therefore still deserving of exemption from federal income tax. Nonprofit, tax-exempt hospitals are intended to be organized and operated for charitable purposes. What this means and requires has evolved from providing relief for the sick and poor to promoting community health and more. At the same time, these institutions have evolved into complex, highly regulated business organizations, some of which struggle to differentiate themselves from their for-profit competitors. The history of American hospitals from almshouses to today's complex health care systems includes, and is better understood in the context of, the stories of how women's hospital auxiliary organizations built, supported, and evolved with hospitals.While acknowledging the enduring debate regarding exemption, this article attempts to address the question of how to fill the charitable gap if exempt hospitals were to lose or voluntarily relinquish their preferred tax status. The article recommends preserving the ability to address community and individual health needs through charitable hospital auxiliaries. Auxiliaries are uniquely situated in an increasingly commercial healthcare market, due both to their history and community connections, to hold and direct the use of charitable assets, to accept tax-deductible charitable contributions, and to address unmet community needs.

This piece takes as a given that we are stuck with our fragmented, inefficient, multi-payor health care system for at least the short run. It then analyzes the deficiencies of three payment mechanisms whereby regulators (including Congress) have invited private sector providers to help ameliorate perceived problems. The first concerns an inadequate supply of nursing home beds in the early '70s, the next focuses on Medicare Advantage as a supposedly superior cost containment alternative to traditional Medicare, and the final one involves the 'devil's bargain' struck with the pharmaceutical industry to get prescription drug coverage added to Medicare. All three teach the same lesson: the government needs to be more vigilant not to give away the store when it invites the private sector in.

In 2023, Henrietta Lacks' family won a settlement from Thermo Fisher Scientific on the grounds that the company had been "unjustly enriched" by the sale of products developed with Henrietta's cells. Given that hundreds of thousands of people have tissue stored in the United States, this article explores how today's patients might fare if they similarly sued professionals and companies that undertake unauthorized research on or commercialization of their tissue on the grounds of conversion, unjust enrichment, lack of informed consent, breach of fiduciary duty and, where government entities are involved, Fourteenth Amendment claims. The article notes that the practices that were subsequently seen as unethical in Henrietta Lacks' care continue in some health care institutions today. It also analyzes how research and commercialization without consent can lead to a lack of trust in the research enterprise and the unwillingness of people to participate in research.

Fifty years ago, George J. Annas and Joseph Healey introduced the concept of a "patient rights advocate" in their seminal 1974 article published in the Vanderbilt Law Review. Annas expanded this vision in the ACLU Handbook, The Rights of Hospitalized Patients, later broadening its scope to all medical settings. This essay traces the evolution of patient advocacy, highlighting pivotal milestones: the advent of cancer navigators, the rise of the patient safety movement, the establishment of patient advocacy organizations, the development of Patient Advocate Offices in hospitals, and the emergence of independent advocates with board certification. It also examines the impact of advocacy on healthcare outcomes, costs, and patient-provider satisfaction, and explores future directions for this vital and growing profession.

Current political divisions are destabilizing existing laws affecting the health field. Major changes in the field of health law have one thing in common: changes in who holds political power ‒ Congress and state legislatures, governors, presidents, judges, and agency officials. The laws that structure financial, economic, educational, and health care systems, environmental conditions, and civil society are primarily the product of elections that populate our political institutions. These structural determinants of health in turn create laws that influence how ‒ and how well ‒ we live and whether our society functions fairly under the rule of law. Thus, who gets elected matters a great deal to the health and safety of Americans. At the same time, changes in health laws resulting from elections may reveal shifts in the structures underlying our legal and economic systems and whether those shifts support or weaken principles of justice and the rule of law.