Medical Jurisprudence Commons^™

Piroozi V. Eighth Jud. Dict. Ct., 131 Nev. Adv. Op. 100 (Dec. 31, 2015), Jessie Folkestad

Nevada Supreme Court Summaries

Real parties in interest, Hurst and Abbington sought and obtained a pretrial order from the district court barring petitioners, Dr. Piroozi and Dr. Blahnik, from arguing comparative fault of settled defendants at trial and including those defendants’ names on the verdict forms. In granting the Writ of Mandamus filed by the petitioners, the Supreme Court of Nevada resolved a conflict between NRS 41.141(3) and NRS 41A.045, holding that NRS 41A.045 preempts NRS 41.141(3) and entitles a defendant to argue the percentage of fault of settled defendants at trial and to include the settled defendant’s names on the jury verdict form.

Admissibility Of Scientific Evidence Under Daubert: The Fatal Flaws Of ‘Falsifiability’ And ‘Falsification’, Barbara P. Billauer Esq

barbara p billauer esq

Abstract: The Daubert mantra demands that judges, acting as gatekeepers, prevent para, pseudo or ‘bad’ science from infiltrating the courtroom. To do so, the Judges must first determine what “science” is? And then, what ‘good science’ is? It is submitted that Daubert is seriously polluted with the notions of Karl Popper who sets ‘falsifiability’ and ‘falsification’ as the demarcation line for that determination. This inapt philosophy has intractably infected case law, leading to bad decisions immortalized as stare decisis. Among other problems, is the intolerance of Popper’s system for multiple causation, a key component of toxic- torts. Thus, the primary …

Gandhi’S Prophecy: Corporate Violence And A Mindful Law For Bhopal, Nehal A. Patel

Nehal A. Patel

AbstractOver thirty years have passed since the Bhopal chemical disaster began,and in that time scholars of corporate social responsibility (CSR) havediscussed and debated several frameworks for improving corporate responseto social and environmental problems. However, CSR discourse rarelydelves into the fundamental architecture of legal thought that oftenbuttresses corporate dominance in the global economy. Moreover, CSRdiscourse does little to challenge the ontological and epistemologicalassumptions that form the foundation for modern economics and the role ofcorporations in the world.I explore methods of transforming CSR by employing the thought ofMohandas Gandhi. I pay particular attention to Gandhi’s critique ofindustrialization and principle of swadeshi (self-sufficiency) …

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.

Responsabilidad Civil Médica: ¿Laboratorio De La Responsabilidad Civil? Breves Comentario De Derecho Extranjero A Una Sentencia De Derecho Nacional, Jose L. Gabriel Rivera

Jose L. Gabriel Rivera

El autor, desde una optica del derecho comparado, nos da a conocer como se regulan estos los casos de responsabilidad médica en el sistema juridico europeo, por lo que partiendo por la explicacion evolutiva de la responsabilidad médica a partir de dos casos jurisprudenciales célebres (francés e italiano), aconseja que en el Perú podría esbozarse un sistema de inspiracion francesa,esto es, un sistema único y especial de indemnizacion dirigido a tutelar de la mejor manera a las víctimas.

Medical Malpractice - Statute Of Limitations - Foreign Objects - The Adoption Of The Discovery Rule - Legislative Or Judicial Prerogative? Melnyk V. Cleveland Clinic, Alan J. Sobol

Akron Law Review

The rationale of the Court was that Melnyk could be distinguished with the recent case of Wyler v. Tripi, which held that a cause of action for medical malpractice accrues at the latest when the physician-patient relationship terminates, and which also recognized the legislature's authority to act in this area, on the basis that Wyler was not a foreign object case. Therefore, the Court felt it need not disturb the Wyler holding and could nevertheless hold the failure to remove the foreign objects in Melnyk was negligence as a matter of law and that equity and public policy require …

The Treatment For Malpractice – Physician, Enhance Thyself: The Impact Of Neuroenhancements For Medical Malpractice, Harvey L. Fiser

Harvey L. Fiser

Coming to a hospital near you, the medically enhanced doctor - a doctor who thinks faster, is better with short and long term memory, is calmer during surgery, can work double shifts with little cognitive fatigue, and one day may have the memories of years of experience without actually having had them. With the expanded use of cognitive enhancing pharmaceuticals such as Adderall, Provigil, and more on the way, we are already seeing changes in education and the corporate world. From reaching a “normal” status for a person with an ADHD diagnosis to creating the “supernormal” employee with cognitive enhancers, …

Issues Complicating Rights Of Spouses, Parents, And Children To Sue For Wrongful Death, Dale Katzenmeyer

Akron Law Review

There are two types of wrongful death statutes, the personal representative type, and the beneficiary type. With the personal representative type, the action is brought by the personal representative of the deceased on behalf of all persons statutorily eligible to benefit from the action. In the beneficiary type of statute, the statutorily authorized beneficiaries are joined together and bring the action in their own names.

Irrespective of the type of statute, the statutes seem to name clearly the persons who are acceptable beneficiaries. These beneficiaries, at a minimum, include spouses, parents and children. The difficult issues arise when the plaintiff …

Is Medical Thermography A Reliable Tool In Diagnosing Soft Tissue Injuries In Personal Injury Cases?, Gary L. Evans

Akron Law Review

Behind the mundane, albeit pressing and important questions as to whether and to what extent a thermographic exam changes the value of a case, there lurks a more basic issue; is thermography a legally and medically reliable tool in diagnosing soft tissue injuries? This article will examine that issue as it pertains to personal injury litigation and reach some qualified conclusions.

Part I discusses thermography in general and describes electronic and liquid crystal thermography in particular. Part II divides reliability into two categories in an attempt to distinguish between medical and legal reliability. Part III discusses possible impacts caused by …

Aids: Testing Democracy - Irrational Responses To The Public Health Crisis And The Need For Privacy In Serologic Testing, 19 J. Marshall L. Rev. 835 (1986), Michael L. Closen, Susan Marie Connor, Howard L. Kaufman, Mark E. Wojcik

Mark E. Wojcik

No abstract provided.

Welsh V. United States, The Sixth Circuit Gives A Physics Lesson - For Every Action There Is An Equal And Opposite Reaction, Daniel L. Bell

Akron Law Review

This casenote will review the facts of Welsh v. United States and present the current judicial approaches to spoliation of evidence in civil litigation. Second, the note will analyze the Welsh court's proposed solution to the spoliation problem. Finally, the note will discuss the use of the Welsh approach in litigation and management implications for health care facilities.

The Struggle Over Tort Reform And The Overlooked Legacy Of The Progressives, Rachel M. Janutis

Akron Law Review

In attempting to distinguish the 1950s and 1960s tort expansion from the current tort retraction, the scholarly account depicts the tort expansion as primarily a judicial movement led by legal academics devoid of any self-interest. In contrast, this account holds out the current tort retraction as a mainly political movement driven by the economic self-interest of its proponents...First, contemporary tort reform, rather than solely being a reaction to tort expansion in the 1950s and 1960s, is part of a continuing debate between corporate, professional and insurance interests on one side and consumer interests and the trial bar on the other …

Can't Settle, Can't Sue: How Congress Stole Tort Remedies From Medicare Beneficiaries, Rick Swedloff

Akron Law Review

In this article, I show that, as amended, the MSP will likely have unforeseen consequences to the tort system. I start by reviewing the history of Medicare and the forces that led Congress to enact and amend the MSP. With illustration from the classic economic model of litigation, I then show that, not surprisingly, the MSP – as written – makes it more difficult for Medicare beneficiaries to bring and settle individual tort claims. What may be less obvious is that this amendment may have a profound impact in the area of mass tort litigation. If individual parties to a …

Using It For All It's Wuerth: A Critical Analysis Of National Union Fire Insurance Company Of Pittsburgh V. Wuerth As Applied To Medical Malpractice In Ohio, Christy L. Wesig

Akron Law Review

This essay discusses the application of this new limitation to the field of medical malpractice, the divergent results reached by Ohio’s appellate courts in the medical negligence and malpractice context since Wuerth, and the various treatments by other jurisdictions. This essay argues that the holding in Wuerth narrowly applies only to law firms, and that applying it to medical malpractice results in a reversal of the settled Ohio law and injustice for those injured by the negligence of medical professionals. Part II examines the history of hospital liability and traces the changes in vicarious liability up to the Wuerth decision. …

Good Medicine/Bad Medicine And The Law Of Evidence: Is There A Role For Proof Of Character, Propensity, Or Prior Bad Conduct In Medical Negligence Litigation?, 63 S.C. L. Rev. 367 (2011), Marc Ginsberg

Marc D. Ginsberg

No abstract provided.

Informed Consent: No Longer Just What The Doctor Ordered - The Contributions Of Medical Associations And Courts To A More Patient Friendly Doctrine, 15 Mich. St. U. J. Med. & L. 17 (2010), Marc Ginsberg

Marc D. Ginsberg

No abstract provided.

How Much Anguish Is Enough - Baby Switching And Negligent Infliction Of Emotional Distress, 13 Depaul J. Health Care L. 255 (2010), Marc Ginsberg

Marc D. Ginsberg

No abstract provided.

Not For The Faint Of Heart: Does A Hospital Owe A Duty To Warn A Squeamish Visitor?, 41 J. Marshall L. Rev. 473 (2008), Marc D. Ginsberg, Tricia E. Mcvicker

Marc D. Ginsberg

No abstract provided.

The Locality Rule Lives! Why? Using Modern Medicine To Eradicate An “Unhealthy” Law, 61 Drake L. Rev. 321 (2013), Marc Ginsberg

Marc D. Ginsberg

The "locality rule" places a geographical dimension on the professional standard of care in medical negligence litigation. It requires the measurement of a physician's conduct by a standard focusing on the geographical location of the treatment provided. This Article traces the origin of the locality rule, discusses its related practical problems, focuses on the states in which it exists, suggests that the rule is archaic, and explains how modern medicine (undergraduate medical education, graduate medical education, state medical licensure, board certification, continuing medical education and practice guidelines) is well positioned to eradicate it.

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.

Amicus Brief, Lebron V. Gottlieb Memorial Hospital, Neil Vidmar, Tom Baker, Ralph L. Brill, Martha Chamallas, Stephen Daniels, Thomas A. Eaton, Theodore Eisenberg, Neal R. Feigenson, Lucinda M. Finley, Marc Galanter, Valerie P. Hans, Michael Heise, Edward J. Kionka, Thomas H. Koenig, Herbert M. Kritzer, David I. Levine, Nancy S. Marder, Joanne Martin, Frank M. Mcclellan, Deborah Jones Merritt, Philip G. Peters, Jr., James T. Richardson, Charles Silver, Richard W. Wright

Michael Heise

Illinois Public Act 82-280, § 2-1706.5, as amended by P.A. 94-677, § 330 (eff. Aug. 25, 2005), and as codified as 735 ILCS 5/2-1706.5(a), imposes a $500,000 “cap” on the noneconomic damages that may be awarded in a medical malpractice suit against a physician or other health care professional, and a $1 million “cap” on the noneconomic damages that may be awarded against a hospital, its affiliates, or their employees. This brief will address two of the questions presented for review by the parties: 1. Does the cap violate the Illinois Constitution’s prohibition on “special legislation,” Art. IV, § 3, …

Dumping Daubert, Popping Popper And Falsifying Falsifiability: A Re-Assessment Of First Principles, Barbara P. Billauer Esq

barbara p billauer esq

Abstract: The Daubert mantra demands that judges, acting as gatekeepers, prevent para, pseudo or bad science from infiltrating the courtroom. To do so, the Judges must first determine what is ‘science’ and what is ‘good science.’ It is submitted that Daubert is deeply polluted with the notions of Karl Popper who sets ‘falsifiability’ and ‘falsification’ as the demarcation line for that determination. This philosophy has intractably infected case law, leading to bad decisions immortalized as stare decisis, and an unworkable system of decision-making, which negatively impacts litigant expectations. Among other problems is the intolerance of Popper’s system for multiple causation, …

Preemption Of State Law Claims Involving Medical Devices: Why Increasing Liability For Manufacturers Is A Perilous But Pivotal Proposition, Neil M. Issar

Vanderbilt Journal of Entertainment & Technology Law

A circuit split regarding the preemptive scope of the Medical Device Amendments of 1976 (MDA) has widened over the past several years. The split encompasses both the circumstances under which the MDA implicitly preempts state law claims and the scope of the MDA's express preemption provision. Manufacturers of medical devices regulated by the Food and Drug Administration (FDA) enjoyed many years of favorable rulings on the issue of federal preemption and deference to the primacy of FDA jurisdiction on monitoring or enforcement actions. However, the circuit split is reshaping the litigation landscape, and injured plaintiffs may rely on certain Circuit …

Remodeling Federal Medical Malpractice Act: A Possible Improvement To The Affordable Care Act, Nancy Kubasek, Tiffany Durham

Loyola of Los Angeles Law Review

During the debates about healthcare reform, the Congressional Budget Office found that federal medical liability reform could drastically reduce federal budget deficits, yet political and legal scholars could not reach agreement about the best way for the Patient Protection and Affordable Care Act (PPACA) to provide such reform. Instead, provisions were made to fund state level demonstration projects. The law that is considered one of the most successful models to date of conventional tort reform is the Medical Injury Compensation Reform Act of California. This Article exams that legislation and discusses how we might use what can be learned from …

Do Physicians Respond To Liability Standards?, Michael D. Frakes, Matthew Frank, Seth Seabury

Faculty Scholarship

In this paper, we explore the sensitivity in the clinical decisions of physicians to the standards of care expected of them under the law, drawing on the abandonment by states over time of rules holding physicians to standards determined by local customs and the contemporaneous adoption of national-standard rules. Using data on broad rates of surgical interventions at the county-by-year level from the Area Resource File, we find that local surgery rates converge towards national surgery rates upon the adoption of national-standard rules. Moreover, we find that these effects are more pronounced among rural counties.