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18 Annals Health L. [i] (2009)

handle is hein.journals/anohl18 and id is 1 raw text is: ANNALS OF HEALTH LAW
VOLUME 18, ISSUE 1                                         WINTER 2009
Forew ord  .........................................................    i
Re-shaping the Common Good in Times
of Public Health Emergencies:
Validating Medical Triage .................. GEORGE P. SMITH, II        1
This article discusses the utilitarian principle of triage in the context of governmental
response to national disasters, while analyzing the delicate balance between individual
liberties and the government actions necessary to promote the common good. The
author examines competing conceptions of the common good, and posits that a new
philosophy is required for public health emergencies in order to promote balanced and
normative standards of conduct necessary for consensus-based decision-making in
times of national emergency. The author then demonstrates that the principal of
medical triage is a valid construct for the distribution of scarce resources during
national emergencies, tests this construct by applying it to model legislative proposals,
and finds that distributive justice can be achieved during national emergencies by
incorporating the triage principle into federal policy-making instruments and state
legislative proposals.
Public Health Law & Military Medical Assets:
Legal Issues in Federalizing
National Guard Personnel ........................ JAMES BALCIUS        35
This article examines the role of the National Guard in enforcing public health
mandates in emergency situations. The authors analyze the activation of the National
Guard through Title 10 of the U.S. Code, which prohibits the National Guard from
engaging in law enforcement activities under the Posse Comitatus Act (PCA). The
authors then discuss the potential role of the National Guard in emergency and disaster
response such as quarantine and compulsory vaccination as well as legal liability issues.
The authors conclude by proposing revisions to the PCA to clarify the law and to allow
for the effective use of military medical assets in emergency and disaster response
EMR Metadata
Uses and E-Discovery . THOMAS R. McLEAN, MD, JD, FACS, ESQ.            75
In this article, the author discusses how the metadata found in an Electronic Medical
Record (EMR) can be used as evidence in litigation under the 2006 amended Rules of
Civil Procedure and the Federal Rules of Evidence. The article first reviews how EMR
metadata can profile the actions a physician takes when caring for a patient. The
author then looks at the relevant changes to the Rules and analyzes case law concerning
both electronic discovery (e-discovery) and metadata. Finally, the author examines how
EMR metadata specifically impacts physicians who are involved in litigation, as

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