Adderall bottle on shelf.

Losing Control of Controlled Substances? The Case of Telehealth Prescriptions 

By Minsoo Kwon

Telehealth services that specialize in the treatment of mental health concerns, such as Cerebral Inc., highlight the ongoing challenge of appropriately balancing accessibility of care with patient safety.

While increased accessibility of mental health care services through telehealth is a valuable goal, if our aim is the well-being of patients, safety must be paramount.

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UN United Nations general assembly building with world flags flying in front - First Avenue, New York City, NY, USA

The UN Must Take Steps To Be an Accountable Player in Public Health

By Bailey Kennedy

If a government commits a tort, it can be sued — but the United Nations cannot be. That’s because it is generally understood that the UN has absolute immunity, meaning that no national court has jurisdiction over the UN. This immunity is justified on the basis that the UN cannot effectively fulfill its role in the world if it is constantly at risk of being hauled into court around the globe. Moreover, at the time the UN was founded, it was understood to be an organization that would promote peace, security, and health across the globe — and why would such an organization need to be sued? 

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Green parking meter reads "expired."

How the Unpredictable Long-Term Effects of COVID-19 Infection Pose a Challenge That Tort Law Cannot Meet

By Jennifer S. Bard

The longer the pandemic continues, the more obvious it is how effective the sweeping federal and state laws shielding medical providers from malpractice associated with COVID-19 have been. Few cases have been brought, and so far there is no record of successful judgements or settlements.

Even without these statutes, proving negligence in COVID-related cases would be exceptionally difficult, given the ever-evolving virus and treatment options. Still today it would be hard to prove that any good faith attempt at care was unreasonable and that there was a causal link to greater harm — both necessary to demonstrate negligence.

But, at some time in the relatively near future, this will change. The declared public health emergency will end, and with it the federal and remaining state blanket liability protections. A standard of care will develop and issues involving the prevention, diagnosis, and treatment of COVID-19 will become the subject of tort litigation.

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Surgeon at work in the operating room.

Litigation and Patient Safety: The Importance of Good Communication Strategies

By John Tingle

Good record keeping and communication practices are essential prerequisites for safe and proper patient care. Serious patient injury, including death, can result from poor record keeping and other communication failures.

A fundamental issue in England’s National Health Service (NHS) patient safety culture development, however, is whether health care staff implement the necessary communication changes in light of  adverse health care events. In fact, failure to learn from errors is a persistent patient safety theme that has featured strongly in various health regulatory, patient safety, and crisis inquiry reports going back over 20 years.

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Lawyer and client in courtroom.

Liability for COVID-19 Vaccine Harms: We Need to Do Better

By Dorit Reiss

COVID-19 vaccines are extremely safe, and serious harms are rare. But rare does not mean the risk is zero; thus, we need a way to determine which people have plausible claims of harm from the vaccines, and we must then compensate them quickly and generously. However, the regular torts system is not a good option for adjudicating these claims. Fortunately, we already have a better system — no-fault compensation — available to address the problem.

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Airplane taking off from the airport.

In-Flight COVID Transmission: Surveying the Liability Landscape

By Christopher Robertson

Do airlines have legal obligations to manage the risk of in-flight infections?

In the pre-COVID era, I answered this question affirmatively. In a 2016 paper, I reviewed the scientific literature showing that airline travel is a key vector for spreading infectious disease, both because airports and airplanes tend to mix people in such close quarters that they are likely to infect each other, and because it efficiently distributes infected people around the world to then infect more people.

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Bill of Health - Gavel on mask during pandemic, class action lawsuits during pandemic

Relying on the Unreliable? COVID-19 Claims Can’t Proceed Without a Proper Standard of Care

By Michelle Richards

In the United States, the imposition of tort liability for the transmission of an infectious disease goes back more than a century. It is no surprise, therefore, that similar claims have been filed for damages arising from the transmission of the COVID-19 virus.

However, in order for these claims to be adjudicated fairly, they must be judged against a standard of care. A standard of care provides a benchmark for the level of caution a reasonable party would take in particular circumstances. If the standard of care is not met, liability may be imposed.

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