Social security bars claim in AIDS job-bias lawsuit

A Federal judge, Clarence C. Newcomer, has ruled that people who seek Social Security benefits cannot at the same time assert that they are qualified to work under the Americans with Disabilities Act (ADA). The Philadelphia-based judge based his ruling on the case of Leonard McNemar. Mr. McNemar, a Disney store employee, alleged his firing occurred one week after a manager questioned his HIV status. Disney countered that McNemar was fired for taking two dollars from the cash register to purchase cigarettes. However, the judge focused on McNemar's application for Social Security and granted Disney's motion for summary judgment. If Newcomer's ruling becomes settled law, people with AIDS will have to choose between seeking legal redress or seeking government assistance.     

Court rebukes lawyer who shunned HIV-positive client

The Texas Court of Appeals affirmed disciplinary sanctions against attorney Allen R. Hawkins, who refused to represent an HIV-infected person. Court filings said that Hawkins was afraid to represent Daniel Wayne Sundy out of fear of exposure to HIV. Defendant Sundy was arrested for possession of 2 ounces of marijuana, which he said he needed to alleviate HIV-related problems. Hawkins took the case, but 3 weeks later filed a motion claiming he was not competent to practice criminal law. The judge found Hawkins competent to represent the defendant. Hawkins wrote Sundy that the judge decided "you are not entitled to a lawyer" and failed to inform Sundy when the case was scheduled for the docket. Hawkins was suspended from law practice for a year and placed on supervised probation for 3 years after disregarding a judge's directive that he would provide legal counsel to an indigent. Once Hawkins regains his license, he must provide 15 hours of pro bono services each month for 3 years to indigent people in need of legal services.     

Einwilligungsunfähige Personen – Rechtskonzept der Einwilligungsfähigkeit und Teilhaberecht

Legal problems related to the capacity to consent and decision-making have recently become increasingly important. This concerns the prerequisites and limitations of legal participation as a basis of social participation. Among the relevant social spheres and fields of action, this particulary concerns medicine and health care as well as disability and care. At the normative level, with a view to those concerned, this leads to fundamental questions resulting from the tension between self-determination and care as basic legal and ethical standards. At the empirical level, there are debates between the law and the sciences with regard to the relevant knowledge base for the assessment of (in)capacity to consent. The traditional controversies about the relevant legal criteria determining the existence or absence of capacity to consent are intensified by some recent legal developments, two of which must be highlighted. One of these is the postulate, increasingly emphasized by courts and legislator, of an at least communicative involvement of persons incapable to give consent in the decision-making process. The other is the fundamental discussion of medical ethics on concepts of assisted self-determination and supported decision-making, the consequences of which will also be of relevance at the legal level. Insofar, the development of guardianship law and the legal requirements of the UN Disability Rights Convention are of particular importance.     

Lawyer must pay ex-client for filing misdiagnosis suit late

A New York attorney must pay $400,000 for a legal malpractice claim in an HIV misdiagnosis lawsuit. The attorney failed to file either a misdiagnosis claim, or a late notice of claim, in the case of a man mistakenly told he was HIV-positive in a hospital error. The plaintiff was unable to sue the hospital because the suit was brought too late. The judge granted the plaintiff summary judgement for malpractice liability, and allowed a jury to decide the fraud claim. The attorney had embellished his credentials to the plaintiff by claiming he had extensive trial and appellate experience, taught at two law schools, and had created a specialized graduate program in law. The jury awarded the plaintiff $385,000 in damages, with $285,000 for emotional distress. The judge stated that the plaintiff provided overwhelming evidence of fraud, and should be compensated for awards he could not recover from the city, despite a valid medical malpractice claim. The judge also awarded the plaintiff an additional $18,490 for legal fees.     

The current judicial interpretation of the 1969 abortion law

The author, D. Dehler, is seeking to get the Canadian Courts to recognize that an unborn child is a fully legal person. A lower court judge refused to hear the case brought by Dehler. The judge claimed that Dehler failed to cite case laws to demonstrate that an unborn child was a legal person. Dehler argues that judges must recognize that they are law-makers. Courts historically have assumed law-making powers when basic human values were at stake. If laws, passed by politicians in legislative bodies, are contrary to the ethics and values of the society, these laws must be struck done by the courts. Society places its highest trust in judges, not in politicians. Society expects its judges to uphold the values of society. If the Supreme Court judges do not understand that they have law-making powers, they should reexamine the Bill of Rights. Dehler expects to take his case to the Court of Appeals.     

Health care decision-making capacity: a legal perspective for long-term care providers

While federal law establishes guidelines that designated facilities must follow in providing information about a patient's rights regarding self-determination in the health care decision-making process, state law determines the decision-making process and the legal requirements pertaining thereto. A person's capacity to make health care decisions or to have the authority and capacity to delegate the right to make such decisions is a legal conclusion based on statutory and common law principles. This article discusses the legal perspective of capacity in health care decision making and the legal framework of the question of whether or not a person has the capacity to make health care decisions. Western civilization's concepts of personal autonomy and self-determination are at the core of health care decision making, but health care providers must be aware that other cultures do not always share that value system. Sensitivity to multicultural diversity in this context is imperative to maintain individual self-esteem and respect, both for the patient and the patient's family.     

Medical ethics: four principles, two decisions, two roles and no reasons

The 'four principle' view of medical ethics has a strong international pedigree. Despite wide acceptance, there is controversy about the meaning and use of the principles in clinical practice as a checklist for moral behaviour. Recent attempts by medical regulatory authorities to use the four principles to judge medical practitioner behaviour have not met with success in clarifying how these principles can be incorporated into a legal framework. This may reflect the philosophical debate about the relationship between law and morals. In this paper, legal decisions from two cases in which general practitioners have been charged with professional shortcomings are discussed. Difficulties with the application of the four principles (autonomy, beneficence, nonmaleficence and justice) to judge medical practitioner behaviour are highlighted. The four principles are relevant to medical practitioner behaviour, but if applied as justifications for disciplinary decisions without explanation, perverse results may ensue. Solutions are suggested to minimise ambiguities in the application of the four principles: adjudicators should acknowledge the difference between professional and common morality and the statutory requirement to give decisions with reasons.     

5th Circuit endorses withholding of HIV test results by insurers

The 5th U.S. Circuit Court of Appeals ruled that insurance companies have no duty to inform an applicant that (s)he has tested positive for HIV antibodies during routine screening. This decision affirms a Federal judge's ruling based on Mississippi State law. The case stems from a lawsuit brought by Jody Deramus, who contends that Jackson National Life Insurance Company should have informed her husband that he tested positive for HIV antibodies during a medical screening for an increase in his life insurance policy. A U.S. District judge and the Circuit Court ruled that the insurance firm had no legal duty to inform Deramus of the test results. Eighteen months after receiving a rejection notice from Jackson National, Mr. Deramus was diagnosed as having HIV disease. Mrs. Deramus stated her late husband and his insurance agent wrote to the Jackson National on several occasions asking for specific results of his medical exam; each time the request was ignored. The judge said that Jackson National owed no duty to Mr. Deramus because of its contractual relationship with him under the life insurance policy he previously obtained. Since 1993, however, the insurance company has been voluntarily reporting positive results to applicants' physicians. Mrs. Deramus has asked her attorneys to petition for a rehearing of the case, and intends to go the Supreme Court if this rehearing is denied.     

Doctors are increasingly held liable for missed diagnosis of cancer in mass screening]

Radiologists and pathologists are increasingly subjected to litigation for alleged faults in diagnosing cancer. An important cause of this appears to be the introduction of mass screening for cancer. According to liability law, the judge must assess whether the person making the diagnosis effected his/her duty with due care. The distinction between error and incompetence cannot be judged solely on the basis of the individual case, but requires an estimation of the accuracy of the diagnosis on a population level. The traditional role of the expert witness, who is asked to judge the individual cases, needs to be reconsidered. A re-examination of slides or radiograms with prior knowledge of the outcome obtained does no justice to the original situation and an alternative procedure is therefore needed. Since the government initiates and controls population screening and the professional organisations involved in screening have committed themselves to monitoring the process and the results obtained, the general public must be better informed about the limitations of screening. Unrealistic expectations as to the benefits of screening appear to be an important motive for legal actions. It is questionable whether screening quality can be enhanced by means of the preventive effect of professional liability. Doctors and lawyers should analyse and solve this problem together.     

Court says insurer needn't pay for town's illegal discrimination

Reliance Insurance Company is not legally obligated to indemnify the town of Waterford, NY, under its errors and omissions policy. Waterford officials tried unsuccessfully to block the Support Ministries for Persons with AIDS from converting a structure into a 15-bed group home for people with AIDS. A Federal judge ruled that Waterford officials violated the Fair Housing Act. In 1990, village officials amended the zoning law to prohibit group homes, making it impossible for Support Ministries to pursue its plans. Support Ministries alleged that Waterford violated the Federal Fair Housing Act by discriminating against people with disabilities; a Federal judge found Waterford guilty. The village must pay more than $108,000 in legal bills and compensatory damages. The insurance policy states that village officials would not be indemnified for willful violation of the law.     

Health care law

Conclusion As is so often the case in a common law system, the legal protection conferred by one strand of law is undermined by other legal provisions. There is no blanket legal duty which compels health care professionals to undergo HIV/AIDS tests; on the other hand, appropriately drafted contracts of employment, duties imposed by courts on employees and the risk of litigation by patients with pressurise individual workers to submit to testing. Whereas in Italy the law clearly condemned any compulsory testing of health care workeers, but must now be interpreted to support it, in England and Wales each individual worker's case must be examined in order to determine whether testing must be submitted to.     

杭州市医务人员法律需求现况调查分析

目的 了解目前医务人员法律知识需求的现状和影响医务人员依法执业行为的思维因素，探讨满足医务人员法律需求及促进其依法执业的途径。方法 采用自行设计的问卷调查表，对杭州地区各级医院的299名医务人员进行调查与分析。并采用Excel数据处理软件对数据进行录入和统计，采用SPSS16.0统计软件进行组间 检验。结果 299名医务人员在法律知识调查内容的5个项目中，知晓率为27.8%。应用 检验不同执业类别的医务人员的法律知识掌握情况，差异具有显著性（p＜0.05）.在依法执业状况调查内容的项目中，100%的医务人员对依法执业思维的重要性表示赞同,但三种执业类别医务人员对自身的依法执业状况评价略有差异。结论 医疗机构应加大有针对性的法律知识教育和培训，借鉴情景训练法,开展各项监督及技术竞赛，使医务人员尽快掌握医疗法律知识，养成依法执业的职业习惯，真正维护好病人和医务人员自身的利益。     

The Conflation of Competence and Capacity in English Medical Law: A Philosophical Critique

Ethical and legal discourse pertaining to the ability to consent to treatment and research in England operates within a dualist framework of “competence” and “capacity”. This is confusing, as while there exists in England two possible senses of legal capacity – “first person” legal capacity and “delegable” legal capacity, currently neither is formulated to bear a necessary relationship with decision-making competence. Notwithstanding this, judges and academic commentators frequently invoke competence to consent in discussions involving the validity of offering or withholding consent as a synonym for legal capacity to consent. I argue that this gives rise to a conflation, jeopardising clarity and consistency in law. This is somewhat less problematic in instances of “first-person” legal capacity that are heavily informed by criteria for decision-making competence than in the second sense of legal capacity, which is qualitatively different from decision-making competence, or with first-person legal capacity when defined in different terms from competence. The paper concludes by proposing that the soundest resolution to this problem is by making decision-making competence a necessary and sufficient condition of first-person legal capacity, affording a more scrupulous distinction between the two different forms of legal capacity that exist.     

Towards effective outcomes in teaching, learning and assessment of law in medical education

Medical Education 2011: 45 : 339–346 Context Law is slowly emerging as a core subject area in medical education, alongside content on the ethical responsibilities of doctors to protect and promote patient health and well‐being. Curriculum statements have begun to advise on core content and methods for organising teaching and assessment. However, no comprehensive overview of approaches to the delivery of this law curriculum has been undertaken. Objectives This paper reports an assessment of the nature and strength of the published evidence base for the teaching, learning and assessment of law in medical education. It also provides a thematic content overview from the best available literature on the teaching of law to medical students and on the assessment of their legal knowledge and skills. Methods A systematic review of the evidence base was completed. Detailed scrutiny resulted in the inclusion of 31 empirical sources and 11 conceptual papers. The quality of the included material was assessed. Results Significant gaps exist in the evidence base. Empirical studies of the teaching of law are characterised by insufficient sample sizes and a focus on individual study programmes. They rely on measures of student satisfaction and on evaluating short‐term outcomes rather than assessing whether knowledge is retained and whether learning impacts on patient outcomes. Studies reveal a lack of coordination between pre‐ or non‐clinical and clinical medico‐legal education. Although evidence on the development of students’ knowledge is available, much learning is distant from the practice in which its application would be tested. Law learning in clinical placements appears to be opportunistic rather than structured. Conclusions The place of law in the curriculum remains uncertain and should be more clearly identified. A more robust knowledge base is needed to realise the aspirations behind curriculum statements on law and to enable medical students to develop sufficient legal literacy to manage challenging practice encounters. Further research is needed into effective methods of teaching, learning and assessing legal knowledge and skills during and following initial medical education.     

Counseling for women requesting sterilization: a comprehensive program designed to insure informed consent

This paper describes the counseling program implemented by a social worker and a family planning counselor for female clinic patients requesting sterilization. Rather than limiting counseling to the guidelines for informed consent established by New York City law, a comprehensive approach is utilized. The program combines the provision of information regarding the procedure and contraceptive alternatives, with an opportunity for individuals to examine the psychosocial components of their request for sterilization. It is the authors' assessment that such comprehensive counseling is essential to provide individuals with the full assistance they need in making the decision to eliminate reproductive capacity, and that legal guidelines should be expanded accordingly.     

Funeral home settles

Michael's Funeral Home in Schaumburg, ILL settled an AIDS discrimination claim after a judge and a county human rights agency both determined that the survivor in a gay relationship has the legal standing to file an AIDS discrimination complaint. Brian Rabe filed complaints with the Cook County Human Rights Commission, the Illinois Department of Human Rights, and the Cook County Circuit Court, charging that the funeral home refused to conduct a service or burial for his life partner who died of AIDS-related causes in 1993. The funeral home argued that Rabe lacked standing because Illinois common law held that only relatives could bring such an action. The judge ruled that because Rabe was the executor of his significant other's estate, he had standing to represent the deceased's legal interests.     

Science and persuasion: environmental disease in U.S. courts

The U.S. system for determining liability for environmental disease requires plaintiffs to demonstrate that the defendant was the legal cause of their illnesses. The determination of cause takes place in an adversary setting. Both sides in the dispute present evidence about causation to a lay judge or jury, who is responsible for deciding whether the defendant is legally responsible. In injury cases this generally means providing evidence of a specific, concrete event or condition that gave rise to the plaintiff's harm. Environmental disease usually presents a very different picture, one in which there is considerable uncertainty about the relationship between exposure to toxic substances and the plaintiff's disease. Scientific evidence about this uncertain link is often an essential part of the case. The reliance on scientific evidence appears to present almost insurmountable problems of proof of causation to the plaintiff. The law requires the plaintiff to demonstrate that, without the defendant's action, the harm would not have occurred. This strict requirement appears incompatible with the substantial scientific uncertainty about the cause of many environmental diseases. A second attribute of legal causation is that it is based on common experience, and is easily understood by lay citizens who are likely to be the final arbiters of causation. Scientific explanations of environmental disease causation, on the other hand, may not draw on common experience and may not have the intuitive appeal necessary to convince a lay decision-maker. Because scientific evidence of causation is difficult for a lay judge or jury to understand, and because of the adversary use of experts with very different opinions about causation, it might be expected that plaintiffs would have a great deal of difficulty demonstrating causation in environmental liability cases. However, the U.S. legal system appears to have accommodated to the plaintiff's difficulty in meeting the formal burden of persuasion. The courts allow juries considerable leeway in using their own experience and beliefs to determine causation, as long as there is some scientific evidence to support the plaintiff's contention. The U.S. environmental disease liability system has been criticized by some for plaintiffs' difficulty in proving causation and by others because plaintiffs can win cases without evidence that would be convincing to a scientist.(ABSTRACT TRUNCATED AT 400 WORDS)     

Nevada teacher with HIV gets life in prison for sex with teens

An HIV-positive Nevada teacher was given life in prison by a Nye County judge for having sexual relations with two teenage males. In Nevada, State law treats exposure to HIV as successful transmission of HIV. The adolescents have tested negative for HIV. The prosecution successfully argued that in one case the sexual contact was not entirely consensual, and in the other case the teacher exhibited irresponsible behavior by not using a condom.     

Ageing and fitness to work

Ageing workers can be found in almost all occupations. Assessment of fitness to work in these workers is important, as it aims to match their functional capacity (which is reduced compared to younger workers), to the demands of their work (which may remain the same as that for younger workers). This outcome of assessment is influenced by the interaction between functional capacity, state of health, the nature of work, and possibilities for work accommodation. The assessment of functional capacity should include physical, mental and social capacity, as well as assessment of any disability. In addition to clinical or laboratory measurements, several authors have suggested the use of a 'work ability index' for specific occupations as a practical means of selecting the appropriate worker for the job. This index can also be used for monitoring functional capacity. In addition, as for any fitness to work assessment, a good understanding of the nature of the work and the work environment is required, and possibilities for work accommodations considered. While changes in the work environment and working conditions can be made to suit the functional capacity of the ageing worker, the maintenance of functional capacity is another important issue. There is a place for a greater role for disease screening and health promotion for such workers.