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Ke Huang, MJLST Lead Articles Editor
The Health Information Technology for Economic and Clinical Health Act of 2009 (HITECH Act) generally provides that, by 2015, healthcare providers must comply with the Act's electronic health record (EHR) benchmarks, or, the government would reduce these providers' Medicare payments by one percent.
These provisions of the HITECH Act are more than a health policy footnote. Especially for attorneys, the growing use of EHRs raises several legal issues. Indeed, in Volume 10, Issue 1 of the Minnesota Journal of Law, Science & Technology, published six years ago, Kari Bomash analyzes the consequence of EHRs in three legal-related aspects. In Privacy and Public Health in the Information Age, Bomash discusses how a Minnesota Health Records Act amendment relates to: (1) privacy, especially consent of patients, (2) data security (Bomash was almost prescient given the growing security concerns), and (3) data use regulations that affect medical doctors.
Bomash's discussion is not exhaustive. EHRs also raise legal issues running the gamut of intellectual property, e-discovery, to malpractice. Given that software runs EHRs, IP industry is very much implicated. So much so that some proponents of EHR even support open source. (Another MJLST Article explains the concept of open source.)
E-discovery may be more straightforward. Like other legal parties maintaining electronic stored information, health entities storing EHR must comply with court laws governing discovery.
And malpractice? One doctor suggested in a recent Wall Street Journal op-ed that EHR interferes with a doctor's quality of care. Since quality of care, or lack thereof, is correlated with malpractice actions, commentators raised the concern that EHR could raise malpractice actions. A 2010 New England Journal of Medicine study addressed this topic but could not provide a conclusive answer.
Even my personal experience with EHRs is one of the reasons that lead me to want to become an attorney. As a child growing up in an immigrant community, I often accompanied adult immigrants, to interpret in contract closings, small-business transactions, and even clinic visits. Helping in those matters sparked my interest in law. In one of the clinic visits, I noticed that an EHR print-out of my female cousin stated that she was male. I explained the error to her.
"I suppose you have to ask them to change it, then," she said.
I did. I learned from talking to the clinic administrator the EHR software was programmed to recognize female names, and, for names that were ambiguous, as was my cousin's, the software automatically categorized the patient as male. Even if my cousin's visit was for an ob-gyn check-up.
Ke M. Huang, MJLST Lead Articles Editor
As a second-year law student, I met an energy law attorney who told me that sometimes his job felt like mediating between two parents. Two parents butting heads.
The more recent legal developments in the cellulosic ethanol industry since the publication of my student note in the Volume 15, Issue 2 of the Minnesota Journal of Law, Science & Technology echo the words of the attorney I met. In the note--published in Spring 2014 and entitled A Spoonful of Sugarcane Ethanol--I argue that the U.S. should enact tax benefits to spur cellulosic ethanol based on existing Brazilian tax benefits for sugarcane ethanol. Ethanol, or ethyl alcohol, is a fuel fermented from renewable resources. In the case of cellulosic ethanol, the resource is vegetative and yard waste; in the case of sugarcane ethanol, the resource is sugarcane juice.
Unlike the note, which focuses on tax benefits, the recent developments in the cellulosic ethanol industry center on blending mandates, both in the U.S. and Brazil. Under these mandates, motor fuel--which contains mostly gasoline--must be blended with a certain amount of ethanol. The U.S. motor fuel mandate is the Renewable Fuel Standard (RFS). RFS, which generally requires the petroleum industry to blend in motor fuel specific amounts for cellulosic ethanol, was already subject to litigation in American Petroleum Institute v. EPA, 706 F.3d 474 (D.C. Cir. 2013). However, the concerned industries of that case, primarily the petroleum industry and the cellulosic ethanol industry, continue to disagree. Broadly speaking, as further elaborated in this Bloomberg BNA blog entry, the petroleum industry takes the position that the RFS is unworkable. To much the vexation of the cellulosic ethanol industry. What makes the recent development more interesting is that, since early 2014, the cellulosic ethanol production seemed to have increased. Extending the metaphor of fighting parents, it is as if the ethanol parent continues to grasp the motor fuel teen, a teen that has grown bulkier in size, when the petroleum parent is ready to send the teen off to college.
In Brazil, a similar "family tale" ensues. In late 2014, Brazilian President Dilma Rousseff signed the legislation to increase Brazil's blending percentage of ethanol from 25% to 27.5%. Still, the semi-public petroleum producer Petrobras expressed concern that, before the change in the mandate can be put in effect, more study is needed. These articles further explain these events (1)(2). As such, in this "family," the parents are at a deadlock.
On a more serious tone, as I reread my student note, I would like to make two corrections. I apologize for the misspelling of Ms. Ruilin Li's name on page 1117, and for the missing infra notations on page 11141 (notes 218 to 221).
Steven Groschen, MJLST Staff Member
Nearly 180 years ago Alexis de Tocqueville postulated that jury duty was beneficial to those who participated. In an often quoted passage of Democracy in America he stated that "I do not know whether the jury is useful to those who have lawsuits, but I am certain it is highly beneficial to those who judge them." Since that time many commentators, including the United States Supreme Court, have echoed this belief. Although this position possesses a strong intuitive appeal, it is necessary to ask whether there is any evidentiary basis to support it. Up until recently, the scientific evidence on the effects of serving on a jury was scant. Fortunately for proponents of the jury system, the research of John Gastil is building a scientific basis for the positive effects of jury duty.
One of Gastil's most extensive studies focused on finding a correlation between serving on a jury and subsequent voting patterns. For purposes of the study, Gastil and his colleagues compiled a large sample of jurors from various counties--8 total--across the United States. Next, the research team gathered voting records for jurors in the sample--examining each juror's voting patterns five years prior and subsequent to serving on a jury. Finally, regression analyses were performed on the data and some interesting effects were discovered. Individuals who were infrequent voters prior to serving as a juror on a criminal trial were 4-7% more likely to vote after serving. Interestingly, this effect held for the group of previously infrequent voters regardless of the verdict reached in the criminal trials they served on. Further, for hung juries the effect held and was even stronger.
Despite these findings, the jury is still out on whether the scientific evidence is substantial enough to support the historically asserted benefits of jury duty. More evidence is certainly needed, however, important policy questions regarding jury duty are already implicated. As researchers begin correlating jury participation with more aspects of civic life, there remains a possibility that negative effects of serving on a jury may be discovered. Would such findings serve as a rationale for modifying the jury selection process in order to preclude those who might be negatively affected? More importantly, do further findings of positive effects suggest more protections are needed during the voir dire process to ensure certain classes are not excluded from serving on a jury and thus receiving those benefits?
by Shishira Kothur, UMN Law Student, MJLST Staff
Social networking has become a prominent form of communication and expression for society. Many people continue to post and blog about their personal lives, believing that they are hidden by separate account names. This supposed anonymity gives a false sense of security, as members of society post and upload incriminating and even embarrassing information about themselves and others. This information, while generally viewed by an individual's 200 closest friends, is has also become a part of the courtroom.
This unique issue is further explained in Writings on the Wall: The Need for an Authorship-Centric Approach to the Authentication of Social-
Networking Evidence, Volume 13, Issue 1 of the Minnesota Journal of Law, Science and Technology. Professor Ira P. Robbins emphasizes that since social media provides an easy outlet for wrongful behavior, it will inevitably find its way as evidence in litigation. Her article focuses on the courts' efforts to authenticate the evidence that is produced from Facebook, Twitter and other social media. Very few people take care to set appropriate privacy settings. The result from this practice is an easy way for anyone to find important, personal information, which they can use to hack accounts, submit their own postings under a different name, and incriminate others. Similarly, the creation of fake accounts is a prominent tool to harass and bully individuals to the point of disastrous and suicidal effects. With results such as untimely deaths and inappropriate convictions, the method of proving the authorship of such postings becomes a critical step when collecting evidence.
Professor Robbins comments that currently a person can be connected to and subsequently lawfully responsible for a posting without appropriate proof that the posting is, in fact, theirs. The article critiques the current method the court applies to identifying these individuals, claiming that there is too much emphasis on testimonials of current access, potential outside access, and other various factors. It proposes a new method of assigning authorship to the specific item instead of the account holder. She suggests a specific focus on the type of evidence when applying Federal Rule of Evidence 901(b)(4), which will raise appropriate questions such as the account ownership, security, and the overall posting that is related to the suit. The analysis thoroughly explains how this new method will provide sufficient support between the claims and the actual author. As social media continues to grow, so do the opportunities to hack, mislead, and ultimately cause harm. This influx of information needs to be filtered well in order for the courts to find the truth and serve justice to the right person.
by Alison Key, UMN Law Student, MJLST Staff
In May 2013, the Minnesota Supreme Court recognized a new cause of action against healthcare providers for medical malpractice. In Dickhoff ex rel. Dickhoff v. Green, A11-0402, 2013 WL 2363550 (Minn. May 31, 2013), Minnesota joined a growing group of states that permit medical malpractice claims for "loss of chance."
Under traditional principles of tort law, the elements of a tort include existence of a duty, breach of the duty, causation, and injury, all of which a plaintiff must prove to the standard of "more likely than not." This standard of proof has posed problems for plaintiffs in medical malpractice suits where the patient had less than a 50% chance of survival before the alleged negligence occurred. If the patient is already "more likely than not" going to suffer the injury of death from a condition before the negligence of a physician, it is impossible to argue that any physician conduct, even if negligent, was the but-for cause of the patient's ultimate death.
Courts across the country have long grappled with this issue, but have struggled to find a solution. From a patients' rights perspective, states are uncomfortable with the notion that there is virtual immunity from malpractice liability for physicians who begin treating patients after they are already terminally ill. At the same time, courts have been unwilling to hastily depart from traditional principles of tort causation and standards of proof that require a physician to be the but-for cause of the patient's injury.
States have confronted this issue in a few ways. One is to adhere to traditional principles of tort causation and not recognize a cause of action for a patient who brings a claim of medical malpractice (generally failure to timely diagnose) after an illness was already "more likely than not" the cause of death. This would not necessarily preclude a patient from bringing an action if she had a greater than 50% chance of survival (whose condition will not "more likely than not" cause death) but due to a physician's negligence, her chance of survival was reduced to below 50%. In such a case, the physician can be said to have caused by his negligence the injury that is "more likely than not" going to cause the patient's death. This is the approach Minnesota took before Dickhoff.
Another "solution" is the relaxed causation/substantial factor approach. Similar to the way that tort law deals with concurrent causation, some jurisdictions have held that if the physician's negligence and the patient's condition are concurrent causes of death, a jury will determine whether the physician was a "substantial factor" in the injury, and award damages accordingly. This acknowledges, but "relaxes," the causation requirements in malpractice claims with terminally ill patients, permitting recovery for the whole injury.
A final approach is the doctrine of "loss of chance." Rather than address the causation problems when a patient is already "more likely than not" going to suffer death, the loss of chance doctrine changes the nature of the compensable injury. Instead of regarding the injury as death, the court acknowledges that any loss of chance of survival is a compensable injury itself for which the physician must be held accountable. Under this doctrine, a patient who sees a physician when her illness is already terminal, let's say 40% chance of survival, would be permitted to recover if the physician's negligent failure to timely diagnose her injury reduced her likelihood to 30% before treatment was administered. Under the traditional approach, there would be no way to prove that the physician "more likely than not" caused death, because the illness was always 60% likely to cause death. But under the "loss of chance" doctrine, her 10% loss of opportunity to recover is itself the injury for which the patient can recover. This is the position that the Minnesota Supreme Court took in Dickhoff, permitting patients to recover for a "loss of chance" at life.
While this doctrine has intuitive appeal, it is not without its criticisms. While the Anderson opinion rightly champions patients' rights, physicians in "loss of chance" jurisdictions raise legitimate concerns. Subjecting physicians to liability under this standard is an imposition that no other professional organization subject to malpractice faces, payment for a loss in the likelihood of success. Such a departure from professional malpractice norms should be seriously considered before imposed. Particularly as physicians are faced with limitless options for testing and treatment, all of which may be reasonable, and for all of which another physician is willing to testify that he would have taken a different course of action. Further, many raise concerns about how loss of chance can be measured, and whether juries will be able to evaluate "likelihood" claims from experts to arrive at reasonable conclusions. There is also the effect of rising healthcare costs that often comes with an increase in liability expenses for healthcare providers.
But the Minnesota Supreme Court assures that these concerns are outweighed by adopting the loss of chance doctrine, which "will advance, not undermine, the fundamental purposes of tort law: deterrence and compensation." There is an argument that these two justifications will not outweigh the concerns of the medical community. Aside from being offended at the notion that a physician needs a lawsuit as deterrence to responsibly treat a terminally ill patient, the issue with a deterrence justification is that most medical malpractice cases claim negligence in diagnosis. In such cases, the physician is unaware the patient is terminally ill and he has "immunity" to liability. Therefore, physicians argue that the deterrence mechanism is insufficient to warrant such an imposition and uncertainty on health law and the practice of medicine as a whole. Further, the "compensation" rationale does not sit well with many physicians who claim that compensating patients for injury and treatment that was likely to occur anyway will be a windfall for the patient at the expense of the healthcare system (the treatment and outcome for 40% likelihood of success is often the same as the treatment and outcome for 30% likelihood of success). The Dickhoff case was remanded back to the district court for further proceedings after determining that "loss of chance" was a legitimate cause of action. Further cases will show how the patients' rights issues and the physicians concerns with this system will play out.
For further discussion of the "loss of chance" doctrine, see Tory A. Weigand, Loss of Chance in Medical Malpractice: The Need for Caution, 87 Mass. L. Rev. 3 (2002), reprinted here.
by Thomas Manewitz, UMN Law Student, MJLST Managing Editor
In the past two years, two of the world's mobile technology leviathans, Apple and Samsung, have engaged in multibillion dollar patent infringement litigation. Specifically, Apple has been seeking damages and fighting for injunctions on several of Samsung's mobile products in markets across the globe. On August 24, 2012 in the United States, Apple won a 1.049 billion dollar damages award for Samsung's "willful patent infringement." In the same lawsuit, Samsung counter sued and won zero damages. In the wake of this trial, Apple is seeking an injunction for 20 Samsung products.
by Sabrina Ly
Evidence from social networking websites is increasingly involved in a litany of litigation. Although the widespread use of social media can lead to increased litigation, as well as increasing the cost of litigation, use of social media has assisted lawyers and police officers in proving cases and solving crimes. In New Jersey, for example, two teenage brothers were arrested and charged with murder of a twelve year-old girl. What led to the two teenagers' arrest was evidence left behind in their homes along with a Facebook post that made their mother suspicious enough to call the police. In another case, Antonio Frasion Jenkins Jr. had charges brought against him by an officer for making terroristic threats to benefit his gang. Jenkins posted a description of his tattoo on Facebook which stated: "My tattoo iz a pig get'n his brains blew out." Pig is considered a derogatory term for a police officer.The tattoo also had the officer's misspelled name and his badge number. The officer who is a part of the gang investigation team saw the Facebook post and immediately filed charges against Jenkins as he interpreted the tattoo as a direct threat against him and his family. These are two of the many situations in which social networking websites have been used as evidence to bring charges against or locate an individual.
by Benjamin Hamborg, UMN Law Student, MJLST Articles Editor
Later this month, the U.S. Supreme Court is scheduled to hear oral arguments in Kirtsaeng v. John Wiley & Sons, Inc., a case which should decide once and for all whether the first-sale doctrine applies to works manufactured outside of the United States. As I described last spring in volume 13 of the Minnesota Journal of Law, Science & Technology, the case arises from Supap Kirtsaeng's attempt to take advantage of the disparity in pricing between textbooks manufactured for sale in the United States and those manufactured and sold internationally. Kirtsaeng's plan involved purchasing textbooks published by John Wiley & Sons, Inc.'s wholly-owned subsidiary John Wiley & Sons (Asia) Pte Ltd., then reselling the textbooks online to consumers within the United States.
Once just the province of Generation Y and high tech culture, it is not breaking news that social media is now as mainstream as . . . well . . . the internet. What is new is that social media issues are no longer just an interesting specialty niche for tech savvy lawyers, but something that likely touches most attorneys' practices.
A look at the rapid rise of appellate level cases involving social media evidence gives a hint at just how common social media evidence is becoming in civil litigation and criminal prosecution. The chart accompanying this post, while not a definitive study, shows the results of a Westlaw search for the number of appellate cases that likely involved the admission of evidence related to the major social media outlets -- increasing 8-fold since 2008 and doubling in the past two years.