Past JLTP Abstracts - Volume 2007 Issue 2


Law, Information Technology, and Medical Errors: Toward a National Healthcare Information Network Approach to Improving Patient Care and Reducing Medical Malpractice Costs 
by John W. Hill, Arlen W. Langvardt, Anne P. Massey

The intersection of law and information technology holds profound implications for healthcare, one of the great social policy subjects of our time. As an unacceptably high rate of medical errors continues unabated, and double-digit increases in costs make healthcare affordability increasingly problematic, old and new forces are combining to create an imperative for a national-level system of medical information connectivity that would improve healthcare quality and reduce medical malpractice costs. These forces and the opportunities and obstacles they create have spawned a growing national debate, a key but insufficiently discussed facet of which pertains to the enormous potential of information technology (“IT”) to reduce medical errors and their attendant malpractice costs. This Article examines the potential just noted and considers the need to modify or eliminate legal barriers to the full realization of that potential.

Section II of this Article furnishes necessary background by addressing fundamental legal issues in medical malpractice cases—in particular, the reasonable care standard. As will be seen, use of EMRs and similar tools seems destined to become a factor that courts will consider in determining whether an HCP has met the reasonable care standard. Section III provides background on the current malpractice “crisis,” including the malpractice insurance dimension, and on the tort and medical malpractice reforms instituted by certain states in response to earlier crises of a similar nature. As will be seen, the insufficient effectiveness of these reforms—which, typically, have targeted certain legal rules discussed in Section II—serves as a reason for shifting to an error-reduction-focused response to the malpractice crisis. Because medical information privacy concerns may serve as an obstacle to more widespread adoption of EMRs, Section IV furnishes background on laws and regulations that affect the collection, dissemination, and use of medical information.

Section V adds another dimension to the Article’s medical error-reduction thesis by exploring the current state of IT in the healthcare industry. Emphasis is placed on various types of applications presently available or likely to be available in the near future, and on the potential of EMRs and related tools for reducing medical errors. Section VI follows suit by examining the need for a national healthcare information network (“NHIN”), its characteristics, and its potential benefits. Section VII addresses legal barriers to implementation of a NHIN and provides recommendations for a legal environment that would be necessary for the maximum success of a NHIN. Section VIII summarizes our arguments for achieving the broader goal of reduction of medical errors through the use of IT as the centerpiece of a new and more fruitful type of malpractice reform.

Recurring Dilemmas: The Law’s Race to Keep up with Technological Change 
by Lyria Bennett Moses

Although not every technology generates litigation and legal scholarship, technological change is often the occasion for legal problems. Metaphors of law’s struggle to keep up with technology reflect the law’s failure to cope with technological change. These metaphors have been used in contexts as diverse as railroads, in vitro fertilization, computers, and the Internet. This article seeks to understand why technological change poses such difficulties for the law. It describes four common types of legal problems that arise from technological change: (1) the potential need for laws to ban, restrict or, alternatively, encourage a new technology; (2) uncertainty in the application of existing legal rules to new practices; (3) the possible over-inclusiveness or under-inclusiveness of existing legal rules as applied to new practices; and (4) alleged obsolescence of existing legal rules.

Using this classification, the Article considers the problem of designing a legal system able to cope in a rapidly changing technological environment. It analyzes the idea of “technological neutrality" as a technique of statutory drafting designed to ensure that statutes are able to operate fairly and effectively in diverse technological contexts. It demonstrates that, while such techniques might ensure proper treatment of existing technologies, they are ineffective in a changing technological environment. Instead of focusing on drafting techniques, a broader institutional context is required. The goal should not be technology-neutral legislation, but rather a legal system that continues to treat different technologies fairly and effectively as technology evolves.

Against the Plague: Exemption of Pharmaceutical Patents Rights as a Biosecurity Strategy 
by Taiwo A. Oriola

This article argues for pharmaceutical patents exemption right on crucial drugs and vaccines for bioterrorism-induced diseases. The proposal is hinged on bioterrorism’s expected high casualties, and the concomitant extraordinary public health crises, in the context of the bureaucracy-prone, long-winded compulsory licensure, and access to medicine paradigms of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), as reflected in most national patent laws. While there is a plethora of literature on the interface between pharmaceutical patents and access to medicine for resource-poor countries, critical analyses of pharmaceutical patent as a potent obstacle to biodefense strategies is rather underdeveloped in the burgeoning bioterrorism legal preparedness literature.

Using plausible worse case scenarios of bioterrorism attacks, the paper argues that vast swathes of the population could become simultaneously vulnerable to deadly bioweapons, exposing millions of people to inevitable deaths, in a comparatively shorter time span than naturally occurring diseases like HIV/AIDS or tuberculosis. In the circumstance, time is of utmost essence in saving as many lives as possible. This makes it imperative for authorities to override crucial patented drugs or vaccines without prior patentees' consent, negotiations, or evidence of failed negotiations as envisaged by the contemporary patent regime. The article casts doubts on the propriety of the largely attenuated compulsory licensure and access to medicine paradigms, in international and domestic patent regimes, for the likely extraordinary public health crises that would result from large scale bioterrorism attacks. A fortiori, a case is made for the inclusion in the patent regime, a pharmaceutical patents appropriation clause for use in bioterrorism crises on ethical grounds, overriding public interest, and the tenets of fundamental human rights to health and life.


How I Learned to Stop Worrying and Love the Communications Decency Act 
by Ryan M. Hubbard

Sometimes, a trip down the information superhighway can be just as infuriating as a drive through downtown during rush hour. Spammers, phishers, pop-ups, spyware, people who believe "c u l8r" is acceptably spelled, and a plethora of computer viruses join forces to test the Internet user's mettle at every turn. These "contaminants" provide no useful information to the user and can negatively affect the value of a network as a whole, counter to the conventional wisdom that an information network's value increases in proportion to its population of users. This is not to say, however, that the Internet has completely degenerated into a wasteland devoid of useful content. In addition to remaining an avenue of commerce and a vast pool of research, the Internet has rapidly become a stage on which anyone can perform, and a rostrum open to every debate. Although the majority of this content can be politely described as amateur, a great deal of professional quality work is produced as well, especially in the arenas of political and legal commentary. The problem then becomes filtering out the contaminants that abuse the free flow of communication, while maintaining the valuable elements of a full and robust debate. Some commentators worry that the "solution" would threaten those who create annoying content over the Internet with significant criminal penalties, regardless of whether that content is legitimate speech.

The law distressing commentators is the 2006 Amendment to the Communications Decency Act. The relevant language is that "Whoever . . . utilizes a telecommunications device . . . without disclosing his identity and with intent to annoy . . . shall be fined under Title 18, or imprisoned not more than two years, or both." The most recent amendment expands the definition of telecommunications device to apply to "any device or software that can be used to originate telecommunications or other types of communications that are transmitted, in whole or in part, by the Internet." What makes this new law potentially troubling is that the Internet is a uniquely anonymous medium. Users are accustomed to communicating under assumed "screen names" or via e-mail addresses. While such a moniker identifies the user to others in cyberspace, it may or may not have any correlation to the user's actual identity, and thus it is no better than a completely fabricated name. Therefore, an Internet user, following accepted customs and identifying himself by screen name or e-mail address, could face disproportionate criminal charges and even imprisonment for sending a vexing message. The concern that many common Internet users could be labeled criminals quickly sparked considerable confusion and debate among legal scholars, both in terms of its constitutionality, and, at a more basic level, its interpretation. The intention of this Note is to analyze both past and present debates concerning the Communications Decency Act, and to determine what effect, if any, the recent amendment has on speech through e-mail, weblogs, and other Internet-based media. In the absence of an additional amendment, this Note recommends the use of sound prosecutorial discretion to prevent unconstitutional or unreasonable charges.

Can Peer-to-Peer Internet Broadcast Technology Give Fans Another Chance? Peer-to-Peer Streaming Technology and its Impact 
by Chia-heng Seetoo

The emergence of point-to-point television ("P2PTV") technology is a good example of "convergence" in telecommunication law, the phenomenon that various types of media services can now be delivered over a single platform?the Internet. Traditionally, telecommunication law differed depending on the type of media, creating different sets of regulations and subject matter jurisdictions, and even varying levels of First Amendment protection in terms of content regulation. As the Internet and digital technology continue to grow, different media like telephone services, music and video distribution, and real-time streaming of music or video, would "converge" and become available on the Internet. This phenomenon would pose significant challenges to current regulatory schemes of communication, as well as copyright law. If copyright law is the appropriate law governing the convergence of media on the Internet, what problems are exposed by the rise of P2PTV technology? First, what is the right balance between protecting creative expressions and fostering technological advances? Second, what should be the appropriate compensatory scheme--how should the authors of creative expressions be compensated? Finally, is there need for international collaboration to set a more universal standard?

The purpose of this Note is to sketch some viable ways of preserving the future prospect of technologies like P2PTV, while striking a balance between public interests and copyright holders. Part II of this Note will provide background information on the history of peer-to-peer file sharing technology, describe the current development of P2PTV services, and discuss the economics of broadcasting professional sports games. Part III will analyze the current United States law on the balance between different types of interests--namely, how to strike a proper balance among the protection of creative expressions, the advancement of new technology, and the public interest in wide dissemination of creative expressions. Part IV will discuss the application of United States copyright law on the legality of P2PTV. Because most P2PTV computer programs are developed in China and it is possible for future litigation regarding the legality of P2PTV to take place there, a brief glance on the current copyright law in China will be supplied in Part V. In Part VI, this Note will first argue that these P2PTV services have greater positive social and economic potential, and second, suggest some possible legal and business solutions of keeping P2PTV available to users.