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Cutting Through The Confusion Of The Loss-Of-Chance Doctrine Under Ohio Law: A New Cause Of Action Or A New Standard Of Causation, George J. Zilich
Cutting Through The Confusion Of The Loss-Of-Chance Doctrine Under Ohio Law: A New Cause Of Action Or A New Standard Of Causation, George J. Zilich
Cleveland State Law Review
The central argument advanced in this Note is that a loss of chance should be recognized as an independent injury. This approach best serves the policy of the new loss of chance doctrine, and it avoids the very significant doctrinal problems that arise if the alternative approach is taken, which is to treat the compensability of lost chances as merely a relaxation of traditional tort law causation requirements. The primary focus of this Note is on the loss of a less-than-even chance of recovery or survival, wherein a victim will be entitled to damages resulting from the negligent reduction of …
Malicious Prosecution Suits As Counterbalance To Medical Malpractice Suits, Allen P. Adler
Malicious Prosecution Suits As Counterbalance To Medical Malpractice Suits, Allen P. Adler
Cleveland State Law Review
A few years ago medical malpractice suits were something of a rarity in the United States. They now appear to be a major national problem. The magnitude of this ever increasing problem can be illustrated by the fact that a Senate subcommittee, chaired by Sen. Abraham Ribicoff, has investigated the increase in malpractice litigation and that President Nixon has ordered the establishment of a Commission on Medical Malpractice, under the Department of Health, Education and Welfare, to research the problem and report a possible solution by March 1, 1972.
Contributory Negligence In Medical Malpractice, Diane Shelby
Contributory Negligence In Medical Malpractice, Diane Shelby
Cleveland State Law Review
The best and most complete defense to a charge of malpractice is the allegation and proof of the absence of negligence. It is also the most often used defense. Of the less popular defenses, contributory negligence on the part of the patient is probably the least attractive and the most difficult to maintain, even though it has been held to be a complete bar to recovery in several cases difficult to categorize.
Varying Standards Of Care In Medicine, Charles J. Frankel
Varying Standards Of Care In Medicine, Charles J. Frankel
Cleveland State Law Review
There are many roads to Mecca. Some are more direct and less dangerous, others are fraught with hazards which must be overcome to enable the seasoned traveler to reach his destination. The unwary person may be fortunate and successful; yet he may easily lose his way. So it is in medicine and surgery. In the field of orthopedic surgery I have noted many different approaches to a particular problem. In many instances it is generally agreed that one method is as good as another, depending on individual familiarity with the technique. In other instances there is wide disagreement.
Hospital Nurses And Tort Liability, Gabrielle G. Kinkela, Robert V. Kinkela
Hospital Nurses And Tort Liability, Gabrielle G. Kinkela, Robert V. Kinkela
Cleveland State Law Review
What factors have influenced the courts in the development of their current attitude toward hospitals? Are the emerging concepts reasonable, or are they indicia of a pendulum swinging too far in the direction of the patient? What are the consequences for the nurse? These are the questions to which the ensuing treatment of one aspect of tort liability is addressed.
Statutes Of Limitations In Legal Malpractice, Norman T. Baxter
Statutes Of Limitations In Legal Malpractice, Norman T. Baxter
Cleveland State Law Review
It becomes apparent from an analysis of cases and law that many jurisdictions, when using the term malpractice, limit the term strictly to physicians and surgeons. It is not so much the fact that legal malpractice is excluded from the term malpractice but rather that it is never even mentioned. Since legal malpractice appears to be a matter of state definition it would seem that perhaps the best approach to understanding legal malpractice would be to examine (as typical) the statutes of three of our leading states, to see what is the present status of their laws on the subject.
Physician's Liability For Torts Of Hospital Employees, Irene E. Svete
Physician's Liability For Torts Of Hospital Employees, Irene E. Svete
Cleveland State Law Review
Why should a treating physician be held liable for any lack of treatment on the part of the hospital employees? On what basis can such a conclusion be reached? An agency relationship was considered as existing between the parties, making the physician liable for the actions of the hospital employees. He was the "Captain of the Ship," the one in control of the patient's treatment and care. Only he was answerable for resulting injury and death from lack of said treatment. The "Captain" will be held liable for others' negligence where the acts performed by them are under conditions where …
Medical Witness' Treatment By Courts, Monroe E. Trout
Medical Witness' Treatment By Courts, Monroe E. Trout
Cleveland State Law Review
An attempt has been made to review what the courts have recently said about medical witnesses and their testimony. Many questions can be asked about particular decisions, and indeed, an entire article could be written about individual cited cases. The only purpose of this paper is to review the recent decisions in order to give you a panoramic view of the type of questions which the courts are being asked to answer about the medical witness and his testimony.
Res Ipsa Loquitur In Medical Malpractice, Rudolf F. Binder
Res Ipsa Loquitur In Medical Malpractice, Rudolf F. Binder
Cleveland State Law Review
The "Cloak of Protection encompassing the physician in the practice of his profession" is no longer to be taken for granted. Recent decisions in Alaska, California, Louisiana, Oregon, and Wisconsin have swept aside the traditional limitations in the use of the res ipsa loquitur doctrine. They impose all but strict liability upon the medical profession for mistakes occurring during treatment or surgery.
Statutes Of Limitations And Undiscovered Malpractice, Stanley Sacks
Statutes Of Limitations And Undiscovered Malpractice, Stanley Sacks
Cleveland State Law Review
A number of general legal problems have arisen out of malpractice actions and applicable statutes of limitations. Thus, the fact that there is a choice as to which event starts limitations running against the malpractice actions, either the physician's wrongful act or omission, or when such act or omission resulted in injury, is as naturally susceptible of varying judicial interpretation as the myriad of other legal situations. The situation that too often fosters injustice and thereby demands immediate and appropriate action, whether legislative or judicial, is that predicament where the wrongful act of a medical practitioner results in injury, but …
How To Handle An Anesthesia Injury Case, Albert Averbach
How To Handle An Anesthesia Injury Case, Albert Averbach
Cleveland State Law Review
The criteria of competence of the trial lawyer handling a medical malpractice case is, does he have at least as much if not more knowledge of the practice and procedure involved in the case than the defendant physician. In no place is this more true than in the field of anesthesiology. This is not, of course, to suggest that the attorney can compete with the physician in practical experience. But, it is to propose that many valid anesthesia malpractice cases result in nonsuits and that plaintiff's verdicts which are overturned on appeal are almost invariably lost due to insufficient evidence, …
The Conspiracy Of Silence: Physician's View, Carl E. Wasmuth
The Conspiracy Of Silence: Physician's View, Carl E. Wasmuth
Cleveland State Law Review
To many a physican, law suits, courts, and occasionally law- yers themselves are anathema. Schooled in the sciences, his life is dedicated to the practice of medicine. He is a man of conviction and of purpose. He is articulate and even at times loqua- cious. These qualities would lead one to believe that the physician would be well equipped, quite willing, and capable of appearing as an expert witness in a court of law. Quite to the contrary, the physician most generally is unwilling to be a legal witness. In fact, the entire subject of law suits often is repugnant …
Is It Error To Discuss Conspiracy Of Silence In A Malpractice Trial, Robert L. Starks
Is It Error To Discuss Conspiracy Of Silence In A Malpractice Trial, Robert L. Starks
Cleveland State Law Review
There is a need in most malpractice suits to impress the jury with the operation and effect of the conspiracy of silence,and in most jurisdictions, to do so would apparently not, and certainly should not, result in reversible error if done in a reasonable and temperate manner.
Conspiracy Of Silence, Richard M. Markus
Conspiracy Of Silence, Richard M. Markus
Cleveland State Law Review
The requirement that independent expert medical testimony establish the proper standard of care and the defendant's failure to meet that standard imposes an almost insurmountable obstacle in many cases. The so-called conspiracy of silence has been recognized, as a matter of judicial notice, by courts in New Jersey, California, and elsewhere. The use of that phrase to describe the unavailability of medical witnesses has particularly dramatic force which impresses a court and jury. However, no apt phrase could detract from the reality of this practical problem which faces an attorney representing a client seeking damages from a physician for professional …
Defense Against Res Ipsa In Medical Malpractice, Howard M. Rossen
Defense Against Res Ipsa In Medical Malpractice, Howard M. Rossen
Cleveland State Law Review
In a res ipsa loquitur case the injured party is deemed in no position to explain the cause, while the party charged may begin a position to show himself free from negligence. If the plaintiff has equal or superior means of information, the doctrine does not apply. The question is really one of duty on the part of the defendant. Res ipsa loquitur leads only to a possible (not mandatory) inference that the defendant has not complied with his duty to use skill and care, and is not in itself proof that he was under a specific duty. This question …
Statute Of Limitations In Malpractice Actions, Ernest A. Cieslinski
Statute Of Limitations In Malpractice Actions, Ernest A. Cieslinski
Cleveland State Law Review
The ill-treated patient has sought redress for medical malpractice by actions that sound in tort, in contract, or in fraud. As with other actions, the underlying policy of "peace and repose" of all statutes of limitations dictates that these actions be timely. In Ohio, for example, the time limit for an action for malpractice is one year.
Malpractice Used As A Hospital Defense, Carl H. Miller
Malpractice Used As A Hospital Defense, Carl H. Miller
Cleveland State Law Review
Hospital immunity in negligence and other torts of agents and employees is disappearing steadily. The course of decisions in many states has been consistently in the direction of elimination of "charitable" immunity of hospitals. Seeking another line of defense, hospital administrators have re-examined the parties generally involved in a medical negligence action-patient, physician and hospital. Hospital administrators realized quickly that in order to remain free from general negligence liability, the main onus of tort responsibility would have to be shifted to the physician (or even the nurse) whenever and wherever possible.
Res Ipsa Loquitur In Malpractice Cases In Canada, John H. Harland
Res Ipsa Loquitur In Malpractice Cases In Canada, John H. Harland
Cleveland State Law Review
We do not intend here to advocate or condemn application of the doctrine of res ipsa loquitur in malpractice cases, but simply to indicate the cases where it was or was not applied, relying where possible on direct quotation from the judgments.
Doctor, Lawyer, And Hosptial Administrator: A New Triangle, Howard L. Oleck
Doctor, Lawyer, And Hosptial Administrator: A New Triangle, Howard L. Oleck
Cleveland State Law Review
Hospitals are deeply invovled in the great majority of medicolegal case problems. Yet surprisingly little attention has been given to the relation of the hospital to doctor lawyer-patient situations as a factor in itself. Most discussions of hospitals and law deal generally with hospital liability for negligence of hospital agents-as though the hospital were a monolithic entity in itself. Lawyers seldom look further into the relation of the doctor to the hospital administration and vice versa; deeming this to be a matter of small concern to them. Doctors, of course, know well the importance of hospital politics and procedures to …
Medical Evidence And Testimony, Robert V. Lamppert
Medical Evidence And Testimony, Robert V. Lamppert
Cleveland State Law Review
It is the purpose of this article to explain the various ways in which medicine becomes involved in the law and to point out the problems and difficulties involved. Since this article is written for both medical doctors and attorneys, the detailed explanations and terminology of each profession will necessarily be kept at a basic level. It is hoped that a forthright demonstration of the basic factors involved, along with an attempt to explain the problems complicating the points of controversy and misunderstanding, will help somewhat in creating a better understanding between the two professions and enable them to better …
A Cure For Doctor-Lawyer Frictions, Howard L. Oleck
A Cure For Doctor-Lawyer Frictions, Howard L. Oleck
Cleveland State Law Review
A committee of bar association "elder statesmen," from NACCA, cooperating with a like committee from the major insurance lawyers association, should approach the American Medical Association and suggest appointment of a national committee of doctors and lawyers, to establish mutually approved policies and procedures. Failing action by the most affected personal-injury bar associations, the American Bar Association might be the logical moving force. It already has recommended (in1957) the adoption of the impartial medical expert system used in New York City and Baltimore; but has not managed to effectuate the idea. Either way, the plans for establishing principles of participation …
Court Dictation Of Choice Of Anesthesia, Carl E. Wasmuth
Court Dictation Of Choice Of Anesthesia, Carl E. Wasmuth
Cleveland State Law Review
The Supreme Court of California has extended the interpretation of the doctrine of res ipsa loquitur in malpractice cases so that the physician must now be nearly a guarantor of results. And a review of a few recent, specific cases involving anesthesia makes it increasingly evident that they may have far-reaching influence on the practice of anesthesiology.