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Full-Text Articles in Medical Jurisprudence

Contract Remedies Need Not Undercompensate Aspiring Parents When Cryopreserved Reproductive Material Is Lost Or Destroyed: Recovery Of Consequential Damages For Emotional Disturbance When Breach Of Contract Results In The Lost Opportunity To Become Pregnant With One's Own Biological Child, Joseph M. Hnylka Dec 2021

Contract Remedies Need Not Undercompensate Aspiring Parents When Cryopreserved Reproductive Material Is Lost Or Destroyed: Recovery Of Consequential Damages For Emotional Disturbance When Breach Of Contract Results In The Lost Opportunity To Become Pregnant With One's Own Biological Child, Joseph M. Hnylka

Journal of Law and Health

The Center for Disease Control and Prevention (CDC) has reported that the use of assisted reproductive technology (ART) has doubled over the past decade. In vitro fertilization (IVF) is the most prevalent form of ART. During IVF, a woman’s eggs are extracted, fertilized in a laboratory setting, and then implanted in the uterus. Many IVF procedures use eggs or sperm that were stored using a process called cryopreservation. A recent survey reported that cryopreservation consultations increased exponentially during the coronavirus pandemic, rising as much as 60 percent. It is estimated that more than one million embryos are stored in cryopreservation …


Tis Better To Give Than To Receive: Charitable Donations Of Medical Malpractice Punitive Damages, Nicholas M. Miller Jan 1997

Tis Better To Give Than To Receive: Charitable Donations Of Medical Malpractice Punitive Damages, Nicholas M. Miller

Journal of Law and Health

The purpose of this Note is not to answer the question of how excessive medical malpractice and punitive damage awards are. Many highly respected scholars on different sides of the issue have spent large portions of their careers trying to resolve that issue without finding a common ground. This author does not boldly claim to provide an answer in this limited forum. This Note does, however, address a possible source of public frustration with the state of medical malpractice and punitive damages: the lack of a principled basis for the awards that juries give to the victims. The perception among …


What You Don't Know Will Hurt You: Physicians' Duty To Warn Patients About Newly Discovered Dangers In Previously Initiated Treatment, Barbara Eileen Calfee Jan 1982

What You Don't Know Will Hurt You: Physicians' Duty To Warn Patients About Newly Discovered Dangers In Previously Initiated Treatment, Barbara Eileen Calfee

Cleveland State Law Review

This Note will explore the newly recognized duty to warn a patient when the health care provider subsequently learns that previous non-negligent treatment is or may be harmful to him. The Note begins by discussing the need for a duty to follow up on medical treatment. The proposed duty is analogized to existing forms of liability involving obligations to inform, to correct and to continue acting within a special relationship. The Note then outlines the prima facie case for, and defenses to, an action for breach of the proposed duty to follow up. It then considers objections that may be …


Judicial Recognition Of Hospital Independent Duty Of Care To Patients: Hannola V. City Of Lakewood, David A. Beal Jan 1981

Judicial Recognition Of Hospital Independent Duty Of Care To Patients: Hannola V. City Of Lakewood, David A. Beal

Cleveland State Law Review

This Note will examine the court's rationale in Hannola v City of Lakewood and the previous leading Ohio case on emergency room care, Cooper v. Sisters of Charity. This Note will similarly examine "control" tests of employment, the concept of apparent authority and the series of cases on independent duty of care which have been decided in the eleven years between Cooper and Hannola. It is the conclusion of this Note that the Hannola decision is more consistent with the realities of employment and service in the health care industry, and that the public policy arguments presented by the court …


Non-Resident Expert Testimony On Local Hospital Standards, Kent E. Baldauf Jan 1969

Non-Resident Expert Testimony On Local Hospital Standards, Kent E. Baldauf

Cleveland State Law Review

This issue deals with the question of whether a medical expert witness need be a resident of the particular community in order to testify as to local hospital standards in that community. Generally, in cases involving medical malpractice, the courts have held that the expert witness must have practiced in the "same" or "similar" locality as the defendant doctor in order that his testimony be held admissible to establish the standard of medical care against which the defendant is to be held.


Pharmacy, Law, And The U.C.C., And Patent Medicines, John J. Kuchinski Jan 1969

Pharmacy, Law, And The U.C.C., And Patent Medicines, John J. Kuchinski

Cleveland State Law Review

The primary legal concern of the pharmacist has been and continues to be in the field of negligence. With the increasing legal awareness of society, however, it becomes imperative to examine what liabilities may arise under the U.C.C. The main objective of this paper is to explore the possible areas of liability that may arise under the Code in the sale of patent medicines by the pharmacist.


Hospital Nurses And Tort Liability, Gabrielle G. Kinkela, Robert V. Kinkela Jan 1969

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.


Book Review, Philip J. Bourne Jan 1969

Book Review, Philip J. Bourne

Cleveland State Law Review

Reviewing Charles Kramer, The Negligent Doctor, Crown Publishers Inc., 1968


Physician's Liability For Torts Of Hospital Employees, Irene E. Svete Jan 1969

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 …


Res Ipsa Loquitur In Medical Malpractice, Rudolf F. Binder Jan 1968

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.


The Hospital's New Responsibility, Arthur F. Southwick Jan 1968

The Hospital's New Responsibility, Arthur F. Southwick

Cleveland State Law Review

The focus for this discussion is the hospital as a corporate institution and its liability for injuries caused a patient or visitor. The fundamental question is: What legal duties does the hospital and its personnel owe the patient or the visitor? To attempt an answer to this question one must first have an understanding of the role and nature of a hospital in modern society.


Battery In Medical Torts, Don S. Smith Jan 1967

Battery In Medical Torts, Don S. Smith

Cleveland State Law Review

The purpose of this paper is not so much to explore when and under what circumstances a battery takes place but to deal with the problems which the classification itself creates. These include questions of the applicability of special malpractice statutes of limitation, whether an action can be maintained under the Federal Tort Claims Act, coverage under malpractice insurance policies, causation and damages, and the requirement of expert medical testimony to provide a standard against which the conduct of the defendant may be measured.


Malpractice By Veterinarians, Martin J. Strobel Jan 1966

Malpractice By Veterinarians, Martin J. Strobel

Cleveland State Law Review

The veterinarian's liability is measured by the same basic standards applicable to physicians and surgeons. In both fields the technical nature of the malpractice action creates special problems. To determine the issue of liability the jury must identify both the historical facts and the standard of care. Attempting to resolve issues of medical fact may be difficult for a lay jury; such resolution demanding as it does, not merely an appraisal of the witnesses' demeanor and character, but an evaluation of their stories in the context of the situation giving rise to the cause of action.


How To Handle An Anesthesia Injury Case, Albert Averbach Jan 1966

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, …


Defense Against Res Ipsa In Medical Malpractice, Howard M. Rossen Jan 1964

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 Jan 1964

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 In Dental Anesthesiology, Allen L. Perry Jan 1964

Malpractice In Dental Anesthesiology, Allen L. Perry

Cleveland State Law Review

Cases invovlving dental anesthesia reveal that breaches of the duty to use proper skill and care have occurred in selection of the type of anesthetic, method of administration, failure to examine the patient, use of unsterile instruments, failure to use safety devices, and failure to properly care for patients under the influence of anesthesia. Persons practicing dental anesthesiology, like those pracing medicine and surgery, must be duly able and careful. This rule is elementary and is founded on considerations of public policy. Whenever the behavior of a dentist or dental anesthesiologist has been of a nature such that a dereliction …


Medical Arsenal Of A Personal Injury Lawyer, Albert Averbach Jan 1963

Medical Arsenal Of A Personal Injury Lawyer, Albert Averbach

Cleveland State Law Review

It is amazing how little attention is paid by the trial lawyer to the enormous impact of traumatic injuries upon the human body. Generally, the trial lawyer is content with a woefully inadequate knowledge about the body, and the meaning of but a few medical terms. It is the purpose of this article to arouse the interest of those previously immune to the suggestions of the importance of a fuller knowledge of this subject and to point the way toward those wonderful repositories of information that should beknown by all. [Appended to these remarks is a bibliography of recommended books, …


Traumatic Neurosis As A Distinct Cause Of Action, David S. Lake Jan 1963

Traumatic Neurosis As A Distinct Cause Of Action, David S. Lake

Cleveland State Law Review

The purpose of this article is: (1) To define traumatic neurosis on a medico-legal basis. (2) To determine when damages may be recovered for traumatic neurosis through a review of recent cases.


Contibutory Negligence In Medical Malpractice, W. David Alderson Jan 1963

Contibutory Negligence In Medical Malpractice, W. David Alderson

Cleveland State Law Review

Three categories of cases have been noted out of the mass of factually individualistic ones concerning medical malpractice and contributory negligence. The first, where a breach of duty owed the patient by the physician is lacking, involves an injury produced by the patient's own negligence. In the second, the patient's negligence directly contributes to the severity of an injury already present because of the physician's negligence. The plaintiff-patient's damages are not mitigated but rather entirely precluded in light of his acts. Thus a plea of contributory negligence is a complete defense. The third category includes those cases where a time …


Book Review, Rudolf H. Heimanson Jan 1962

Book Review, Rudolf H. Heimanson

Cleveland State Law Review

Reviewing Albert Averbach and Melvin Belli, eds., Tort and Medical Yearbook, Vol. I, Bobbs-Merrill, 1961


Informed Consent To Medical Treatment, Milton Oppenheim Jan 1962

Informed Consent To Medical Treatment, Milton Oppenheim

Cleveland State Law Review

Medical malpractice is usually considered in terms of negligent conduct by the physician in the course of the physician-patient relation. Many of the actions are not predicated on the law of negligence, although this type of malpractice undoubtedly is the most common type of litigation. A substantial group of cases deal with unauthorized operations, which are characterized as battery, emerging from lack of informed consent.


X-Ray Malpractice, Lucien B. Karlovec Jan 1962

X-Ray Malpractice, Lucien B. Karlovec

Cleveland State Law Review

Doctors today are subjected to many malpractice suits involving non-surgical injuries. Common among these nonsurgical injuries are x-ray injuries. Most of the injuries produced by x-rays have been excessive skin reactions, i.e., burns, occurring during either diagnostic or therapeutic procedures. The improper use of x-rays can produce damage other than skin burns, i.e., fibrosis (in effect, shrinkage) of internal organs, sterility or prenatal injuries.


Consent To Surgery, Gerald M. Smith, R. Joseph Olinger Jan 1962

Consent To Surgery, Gerald M. Smith, R. Joseph Olinger

Cleveland State Law Review

The legal aspects of a patient's consent to operation, or the lack of such consent, are many and varied. The general rule is that consent of the patient, or of someone authorized to act for him, is necessary in order for a physician to legally operate. This rule is not altered by the fact that an unauthorized operation is slight and ordinarily is not accompanied by serious consequences. Where no consent is present, a surgical operation upon the body is a technical battery, and in the absence of exceptional circumstances, appropriate damages may be recovered from the physician. The question …


Book Review, Milton Oppenheim Jan 1961

Book Review, Milton Oppenheim

Cleveland State Law Review

Reviewing David W. Louisell and Harold Williams, Trial of Medical Malpractice Cases, Matthew Bender & Co., Inc., 1960


Malpractice Used As A Hospital Defense, Carl H. Miller Jan 1961

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.


Blood Transfusion Liability, James A. Thomas Jan 1961

Blood Transfusion Liability, James A. Thomas

Cleveland State Law Review

This paper is concerned with the causes of action available to the recipients of blood transfusions causing injury or death. Its scope is limited to cases where injury or death is caused by the blood itself, as where a transfusion is given with blood which is of the wrong type, or which is infected, or which is given to the wrong person.


Recent Developments In Ohio's Charitable Immunity Law, Crawford Morris Jan 1961

Recent Developments In Ohio's Charitable Immunity Law, Crawford Morris

Cleveland State Law Review

It is now almost five years since our Supreme Court announced its decision in the Avellone case. During these five years, the two problems created by the Avellone decision have ,like "Mother Carrie's chickens" "come home to roost." Our Supreme Court has resolved each in turn, one in favor of charitable immunity for all charitable institutions except those that have the misfortune to run hospitals, the other further against hospitals for all acts of all servants.


Res Ipsa Loquitur In Hospital And Malpractice Cases, Julien C. Renswick Jan 1960

Res Ipsa Loquitur In Hospital And Malpractice Cases, Julien C. Renswick

Cleveland State Law Review

Most legal texts state as a matter of law that in order to apply the doctrine of res ipsa loquitur it is required that plaintiff show that the instrumentality causing his injury was in the continuous and exclusive control of one defendant. This general proposition has been stated in Ohio on several occasions. However, in the last few years some exceptions to this general rule have been established in several jurisdictions.


Epilepsy - Post-Traumatic Or Not, Irwin N. Perr Jan 1960

Epilepsy - Post-Traumatic Or Not, Irwin N. Perr

Cleveland State Law Review

This article discusses the legal issues presented in Muscarello v. Peterson. The case presents clearly the medical aspects in ascertaining whether epilepsy is a result of injury or is a result of independent factors. As the court stated, the decision rests basically on medical evidence and its evaluation by the jury.