Author: Samantha Burton

In 2000, the National Institute of Justice (NIJ) came together with the Center for Disease Control and Prevention (CDC) to perform a study to better understand the breadth of abuse, stalking, and other violent behaviors on women in the US. Previously, other studies showed that arrests of abusers upon report tended to have a positive effect in reducing future violence. However, research hadn’t yet captured the sheer extent and magnitude of abuse directed against women in the United States. 

In the study performed by the CDC and the NIJ, researchers surveyed 8,000 women and 8,005 men through a process of randomly selecting phone numbers of households across the US. Of the women that responded to the survey questions, 17.6% had been victims of rape, 8.1% had been victims of stalking, and 22.1% had been assaulted by an intimate partner. But while these statistics were significant in and of themselves, the most surprising finding of the study was the primary source of violence against women: intimate partner violence. “64.0% of the women who reported being raped, physically assaulted, and/or stalked since age 18 were victimized by a current or former husband, cohabiting partner, boyfriend, or date” compared to only 16.2% of men.” 

Additional studies have been conducted that also demonstrate the endemic nature of intimate partner violence and the need to classify it as a major public health crisis. In the wake of this kind of research, various lawmakers in Congress, including then Senator Joe Biden, pioneered the passage of the “Violence Against Women Act” (VAWA) in 1994 and since renewed and strengthened in 2000, 2005, and 2013. On Wednesday, March 16 2022, President Joe Biden signed the fourth reauthorization of the law, which provides a variety of further enhancements to the bill: increased resources and support for survivors of underserved and marginalized communities, establishing a federal cause of action for individuals whose intimate images are disclosed without their consent, increasing support for the Rape Prevention and Education Program, implementing trauma-informed policies for law enforcement responding to domestic violence reports, among others.

Of these various updates, the bill also specifically provides for strengthening the healthcare system’s response to domestic violence and sexual assault. Title V of the bill provides various grants to states for conducting surveys of healthcare systems with the intent to gauge the effectiveness and availability of medical forensic examination. Medical forensic examination is the process whereby a health care provider examines a victim of sexual assault to address any of the victim’s immediate injuries but mainly to collect any bodily evidence that may assist in a future prosecution of an abuser. The bill’s prompting of further research about the effectiveness of these tests is purposed to result in states forming specific action items to improve the process in their jurisdictions. 

Studies have demonstrated that victims receiving these examinations feel roughly handled. Other studies, often conducted on a somewhat small scale, have demonstrated that victim-blaming mentalities actually pervade many forensic examiners’ approaches to conducting examinations. In an article titled, “‘Silly Girls’ and ‘Nice Young Lads’: Vilification and Vindication in the Perceptions of Medico-Legal Practitioners in Rape Cases,” authors Lesley McMillan and Deborah White discuss the findings of surveys they performed of various practitioners. Strikingly, of the various responses recorded to questions about the different rape cases practitioners had dealt with, many repeatedly echoed the idea that they had dealt with some “real” rape cases, often referencing rapes by a stranger, and other less real cases of “silly girls getting drunk and getting caught by their boyfriends” (285). As the authors highlight, these ideas about rape stand in violent contrast to the reality of how most rapes of women occur—at the hands of intimate partners. Hopefully, the funding provided in the reauthorization of the VAWA will result in meaningful changes to the process of conducting forensic medical examinations so that victims are better dealt with and just convictions are more common.

From developments in data cloud software that enable hospital systems to improve internal efficiency to developments in nanotechnology that enable the targeting of individual cancer cells, the healthcare field benefits significantly from increased intersection and collaboration between tech and medicine. However, despite the huge potential for good that comes with this intersection, sometimes what works in a tech setting doesn’t work when applied to the development of a medical device. This is very apparent in the trial of Elizabeth Holmes, the founder of medical startup Theranos. Holmes claimed to have developed a device that could perform over 240 blood tests on a single drop of blood and have the results back to the patient within hours. This medical advancement was hailed as on par with the development of penicillin. The only problem: it was all a hoax. 

The devices simply did not work. Even when the devices succeeded in testing blood samples, the results were so wrong most of the time that they endangered patients. Imagine getting a false positive for cancer, herpes, or diabetes. Or worse: a false negative. What makes this case one that has garnered so much attention is the fact that Holmes was well aware of the devices’ inaccuracies and inadequacies: when the prototype was far from full development, she told investors that the devices were ready to be rolled out to storefronts; when employees told her the devices’ results were wildly inaccurate, she told investors they could be relied upon by doctors and patients. Many have been left asking: how could a company get so far—valued at 10 billion dollars in July 2015—when both the technology and the company were so inherently flawed?

While the answer is not simple, the ‘fake-it-till-you-make-it’ attitude widely celebrated in Silicon Valley seems to be a convincing culprit. Budding tech CEOs idolize figures like Steve Jobs, and Uber founder, Travis Kalanickfor their entrepreneurial spirit in (sometimes questionably) maneuvering their way around the rules. However, problems occur when this approach is applied to medical tech. While not having all the bugs worked out of a new ride-share app before launching might have some adverse consequences that can usually be curtailed, doing the same thing with a medical device could seriously and negatively affect hundreds of thousands of patients.

Yet, because of the cutthroat nature of Silicon Valley competition for venture capital, many tech startups, including Theranos, have relied heavily on nondisclosure agreements to ensure trade secrets are kept secret. John Carreyrou, investigative journalist largely responsible for unmasking Theranos’ fraud, describes in his book ‘Bad Blood’ how Theranos was able to silence many of its ex-employees by wrongfully leveraging nondisclosure agreements. While there are many potential legal remedies to encourage more transparency and hopefully prevent fraud like that of Theranos, better-adapting whistleblower protections to the medical tech setting seems like a promising option. 

Currently, whistleblower protections vary significantly across states. Despite wide variation, most states have some form of statute forbidding employers from discharging employees because of whistleblowing. However, employers can still easily file claims against whistleblowers for breach of nondisclosure agreements or for misappropriation of trade secrets. Though the 2016 Defend Trade Secrets Act (DTSA) endeavors to give whistleblowers immunity from claims of misappropriating trade secrets, courts have held that the statute’s immunity provision only gives the whistleblower an affirmative defense rather than sovereign immunity. Additionally, though the DTSA requires that employers inform employees of their whistleblowing immunity rights, this requirement can be satisfied simply by cross-referencing to a company policy that sets forth the provision. Lauren Rogal, legal scholar, posits that employees need to be more effectively notified of their whistleblower protections—had Theranos been required to adhere to a higher standard of notice, it’s possible that employees would have come forward sooner (page 1697). Ultimately, creating stronger requirements for notice of whistleblower protections, among other reforms, can help ensure that employees understand their rights and are empowered in keeping companies accountable. Enacting legislative reform to focus on the specific field of healthcare tech as it relates to whistleblower protections will prove incredibly important as advancements in healthcare tech continue to define the medical field.