Law Commons^™

Choosing Medical Malpractice, Nadia N. Sawicki

Nadia N. Sawicki

Modern principles of patient autonomy and health care consumerism are at odds with medical malpractice law's traditional skepticism towards the defenses of contractual waiver and assumption of risk. Many American courts follow a patient-protective view, exemplified by the reasoning in the seminal Tunkl case, rejecting any attempts by physicians to relieve themselves of liability on the grounds of a patient's agreement to assume the risk of malpractice. However, where patients pursue unconventional treatments that satisfy their personal preferences but that arguably fall outside the standard of care, courts have good reason to be more receptive to such defenses. This Article …

Loss Of Chance, Probabilistic Cause, And Damage Calculations: The Error In Matsuyama V. Birnbaum And The Majority Rule Of Damages In Many Jurisdictions More Generally, Robert J. Rhee

Robert Rhee

This short commentary corrects an erroneous understanding of probabilistic causation in the loss-of-chance doctrine and the damage calculation method adopted in Matsuyama v. Birnbaum. The Supreme Judicial Court of Massachusetts is not alone. Many other common law courts have made the same error, including Indiana, Nevada, New Mexico, Ohio, and Oklahoma. The consistency in the mistake suggests that the error is the majority rule of damages. I demonstrate here that this majority rule is based on erroneous mathematical reasoning and the fallacy of probabilistic logic.

Universal Health Care And The Continued Reliance On Custom In Determining Medical Malpractice, James A. Henderson Jr., John A. Siliciano

John A. Siliciano

No abstract provided.

Wealth, Equity, And The Unitary Medical Malpractice Standard, John A. Siliciano

John A. Siliciano

No abstract provided.

Trial By Jury Or Judge: Transcending Empiricism, Kevin M. Clermont, Theodore Eisenberg

Kevin M. Clermont

Pity the civil jury, seen by some as the sickest organ of a sick system. Yet the jury has always been controversial. One might suppose that, with so much at stake for so long, we would all know a lot about the ways juries differ from judges in their behavior. In fact, we know remarkably little. This Article provides the first large-scale comparison of plaintiff win rates and recoveries in civil cases tried before juries and judges. In two of the most controversial areas of modern tort law--product liability and medical malpractice--the win rates substantially differ from other cases' win …

Lapses Of Attention In Medical Malpractice And Road Accidents, Robert D. Cooter, Ariel Porat

Robert Cooter

A doctor who lapses and injures her patient, and a driver who lapses and causes an accident, are liable under negligence law for the harm done. But lapse is not necessarily negligence, since reasonable people lapse from time to time. We show that tort liability for “reasonable” lapses distorts doctors’, drivers’, and manufacturers’ incentives to take care. Furthermore, such liability provides potential injurers with incentives to substitute activities which are less prone to lapses with activities which are more prone to lapses, even if such substitution is inefficient. We propose several solutions to the inefficiencies that result from liability for …

Medical Malpractice Reform Measures And Their Effects, Robert Leflar

Robert B Leflar

New rules and methods for medical injury dispute resolution have been launched in New Hampshire and New York, and demonstration projects are underway elsewhere. This article describes major medical malpractice reforms undertaken and proposed in recent years. Reforms are classified as (1) liability-limiting initiatives favoring health-care providers; (2) procedural innovations promoted as improving dispute resolution processes, such as patient compensation funds, “sorry” laws, disclosure and early offer laws, health courts, and safe harbor laws; and (3) major conceptual reforms to move liability away from physicians to hospitals or administrative no-fault compensation systems. Empirical evidence about the practical effects of already-implemented …

Medical Malpractice Screening Panels: An Update And Assessment, Jean Eggen

Jean M. Eggen

No abstract provided.

Loss Of Chance, Probabilistic Cause, And Damage Calculations: The Error In Matsuyama V. Birnbaum And The Majority Rule Of Damages In Many Jurisdictions More Generally, Robert J. Rhee

Robert Rhee

This short commentary corrects an erroneous understanding of probabilistic causation in the loss-of-chance doctrine and the damage calculation method adopted in Matsuyama v. Birnbaum. The Supreme Judicial Court of Massachusetts is not alone. Many other common law courts have made the same error, including Indiana, Nevada, New Mexico, Ohio, and Oklahoma. The consistency in the mistake suggests that the error is the majority rule of damages. I demonstrate here that this majority rule is based on erroneous mathematical reasoning and the fallacy of probabilistic logic.

In Defense Of The Professional Standard Of Care: A Response To Carter Williams On "Evidence-Based Medicine", Ann Maclean Massie

Ann MacLean Massie

No abstract provided.

Toward A Theory Of Medical Malpractice, Alex Stein

Alex Stein

This Article introduces a novel methodology for understanding medical malpractice law and guiding its reform. I divide the legal rules that apply in medical malpractice cases into four basic categories: “entry rules,” “exit rules,” “treatment rules,” and “setup rules.” The first two of these categories of rules intersect with the other two categories. Our medical malpractice system thus consists of treatment-related and setup-related entry and exit rules.

Based on this taxonomy, I demonstrate how our medical malpractice system responds to two major concerns about legal rules: form and institutional competence. As far as form is concerned, our system systematically prefers …

The More Things Change, The More They Stay The Same: A Comparison Of Medical Mal;Practice Trials In Virginia And North Carolina, Ralph Peeples

Ralph Peeples

This paper examines ten years (2000-2010) of medical malpractice trials conducted in Virginia and North Carolina. The primary source of our data are closed insurance records made available by an insurance company that provides malpractice coverage for physicians in both states. We are thus able to report on these trials in detail. We identify a number of the attributes of these trials, including demographic data, injury severity, outcomes at trial, physician specialty, medical allegations and insurer assessment of the cases. Plaintiffs were consistently more successful at trial in Virginia than in North Carolina. We discuss possible explanations for this difference, …

One Hundred Years Of Harmful Error: The Historical Jurisprudence Of Medical Malpractice, Theodore Silver

Theodore Silver

In this Article, Professor Silver examines the origins of present-day malpractice law. He begins by noting that negligence and medical malpractice as the common law now knows them made their debut in the nineteenth century although their roots lie deep in the turf of trespass and assumpsit. He argues, however, that toward the turn of the century several episodes of linguistic laziness purported to produce a separation between negligence and medical malpractice so that the two fields are conventionally thought to rest on separate doctrinal foundations. According to Professor Silver, historically based scrutiny of medical malpractice and its ties to …

From A Whimper To A Bang: The Trend Toward Finding Occurrence Based Statutes Of Limitations Governing Negligent Misdiagnosis Of Diseases With Long Latency Periods Unconstitutional, Peter Zablotsky

Peter Zablotsky

No abstract provided.

Public And Private Justice: Redressing Health Care Harm In Japan, Robert B. Leflar

Robert B Leflar

Japanese legal structures addressing health care-related deaths and injuries rely more on public law institutions and rules than do the common-law North American jurisdictions, where private law adjudication is predominant. This article explores four developments in 21st-century Japanese health care law. The first two are in the public law sphere: criminal prosecutions of health care personnel accused of medical errors, and a health ministry-sponsored “Model Project” to analyze medical-practice-associated deaths. The article addresses a private law innovation: health care divisions of trial courts in several metropolitan areas. Finally, the article introduces Japan’s new no-fault program for compensating birth-related obstetrical injuries. …

The Causes Of The Medical Malpractice Crisis: An Analysis Of Claims Data And Insurance Company Finances, David J. Nye, Donald G. Gifford, Bernard L. Webb, Marvin A. Dewar

Donald G Gifford

No abstract provided.

My Doctor Made Me Crazy: Can A Medical Malpractice Plaintiff Allege Psychological Damages Without Making Credibility The Issue?, Brendan T. Beery

Brendan T Beery

This article explores the issue of psychological damages and challenges the pervasive notion among defense lawyers in medical malpractice cases that medical and psychological evidence obtained in discovery can be used to embarrass a medical malpractice plaintiff in front of a jury.

Myth And Reality: The Threat Of Medical Malpractice Claims By Low Income Women, Karen H. Rothenberg

Karen H. Rothenberg

No abstract provided.

The Regulation Of Medical Malpractice In Japan, Robert Leflar

Robert B Leflar

How Japanese legal and social institutions handle medical errors is little known outside Japan. For almost all of the 20th century, a paternalistic paradigm prevailed. Characteristics of the legal environment affecting Japanese medicine included few attorneys handling medical cases, low litigation rates, long delays, predictable damage awards, and low-cost malpractice insurance. However, transparency principles have gained traction and public concern over medical errors has intensified. Recent legal developments include courts' adoption of a less deferential standard of informed consent; increases in the numbers of malpractice claims and of practicing attorneys; more efficient claims handling by specialist judges and speedier trials; …

The Synergy Of Early Offers And Medical Explanations/Apologies, Christopher J. Robinette

Christopher J Robinette

In Search Of An Enforceable Medical Malpractice Exculpatory Agreement: Introducing Confidential Contracts As A Solution To The Doctor-Patient Relationship Problem, Matthew Lawrence

Matthew B. Lawrence

Healthcare Intermediaries, Alex Stein

Alex Stein

This article identifies various factors — legal and economic — that reduce the quality of medical care under the MCO framework. Specifically, it identifies MCOs’ functioning as platforms in a two-sided economy and the virtual absence of incentives on the part of MCOs and their doctors to compete with each other over the quality of medical care. The article also develops a law reform proposal that would unlock that competition.

It's The Economy (And Combined Ratio) Stupid: Examining The Medical Malpractice Litigation "Crisis" Myth And The Factors Critical To Reform, Mitchell J. Nathanson

Mitchell J Nathanson

This article examines the recurring medical malpractice litigation crisis with an eye toward pinpointing the elusive source of the problem. My thesis is that these crises have recurred every decade or so and will continue to recur indefinitely because the root cause has never been specifically identified. As a result, it is no surprise that reform attempts have proven to be universally ineffective. It is my conclusion that malpractice litigation reform has repeatedly failed because, contrary to the widely held view, there has never been a medical malpractice litigation crisis, per se. Rather, there have been cyclical insurance crises through …

Medical Malpractice Screening Panels: Proposed Model Legislation To Cure Judicial Ills, Jean M. Eggen

Jean M. Eggen

No abstract provided.