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Medical Jurisprudence Commons

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Full-Text Articles in Medical Jurisprudence

Non-Physician Vs. Physician: Cross-Disciplinary Expert Testimony In Medical Negligence Litigation, Marc D. Ginsberg May 2019

Non-Physician Vs. Physician: Cross-Disciplinary Expert Testimony In Medical Negligence Litigation, Marc D. Ginsberg

Marc D. Ginsberg

The source of the applicable standard of care in a specific medical negligence claim is multifaceted. The testifying expert witness, when explaining the applicable standard of care, “would draw upon his own education and practical frame of reference as well as upon relevant medical thinking, as manifested by literature, educational resources and information available to practitioners, and experiences of similarly situated members of the profession.” Accordingly, in typical medical negligence litigation, the plaintiff’s expert witness testifying regarding the existence of and the defendant-physician’s deviation from the standard of care would be a physician. Why, then, have courts permitted non-physicians to …


Hospital Peer Review Standards And Due Process: Moving From Tort Doctrine Toward Contract Principles Based On Clinical Practice Guidelines, Katharine A. Van Tassel Mar 2018

Hospital Peer Review Standards And Due Process: Moving From Tort Doctrine Toward Contract Principles Based On Clinical Practice Guidelines, Katharine A. Van Tassel

Katharine Van Tassel

This Article proposes a solution to the problems associated with the current use of vague standards in peer review. This Article will examine the proposal that medical staffs switch from ad hoc judicial decision-making to rule-making. This switch will allow medical staffs to abandon the troublesome practice of applying vague 'standard of care' measures ex post facto. In its stead, express contractual terminology could be adopted, such as 'expectations of performance,' which incorporates specifically chosen and uniquely tailored clinical practice guidelines ('CPGs') directly into the medical staff by-laws. Describing the expectations of physician performance in express contractual terms enables physicians …


A Guide To The Independent Medical Examination, Samuel D. Hodge Jr. Jan 2015

A Guide To The Independent Medical Examination, Samuel D. Hodge Jr.

Samuel D. Hodge Jr.

Independent medical examinations (IMEs) are physicals conducted at the request of a third party. An example is the physical examination of a workers’ compensation claimant or life insurance applicant, but IMEs are common in bodily injury claims. These examinations are very important since they can help decide whether a claimant is entitled to compensation or qualifies for life insurance or a job. Most defense attorneys have relied on medical reports and expert testimony from an independent medical examiner but little is known about the limitations or parameters of this assessment. In fact, there are a multitude of legal issues surrounding …


Medical Malpractice Reform Measures And Their Effects, Robert Leflar Jun 2013

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 …


Health Courts And Malpractice Claims Adjudication Through Medicare: Some Questions, Timothy Stoltzfus Jost Jan 2013

Health Courts And Malpractice Claims Adjudication Through Medicare: Some Questions, Timothy Stoltzfus Jost

Timothy S. Jost

No abstract provided.


Concerns Regarding The Relationship Between Electronic Health Records And Malpractice Claims, Frederick J. White Iii, William P. Coleman Iii Oct 2012

Concerns Regarding The Relationship Between Electronic Health Records And Malpractice Claims, Frederick J. White Iii, William P. Coleman Iii

Frederick J White III

No abstract provided.


The Law Of Medical Misadventure In Japan, Robert B. Leflar Dec 2011

The Law Of Medical Misadventure In Japan, Robert B. Leflar

Robert B Leflar

This paper offers a comprehensive overview of Japanese law and practice relating to iatrogenic (medically-caused) injury, with comparisons to other nations’ medical law systems. The paper addresses criminal sanctions for Japanese physicians’ negligent and illegal acts; civil law principles of substantive law and related issues of procedure, practice, and liability insurance; and administrative measures including health ministry programs aimed at expanding and improving the quality of peer review within Japanese medicine, and a recently implemented no-fault compensation system for birth-related injuries. Among the paper’s findings are these. Criminal and civil actions increased rapidly after highly publicized medical error events at …


Medical Error As Reportable Event, As Tort, As Crime: A Transpacific Comparison, Robert B. Leflar, Futoshi Iwata Dec 2004

Medical Error As Reportable Event, As Tort, As Crime: A Transpacific Comparison, Robert B. Leflar, Futoshi Iwata

Robert B Leflar

All nations seek to reduce the human toll from medical error, but variations in legal and institutional structures guide those efforts into different trajectories. This article compares legal and institutional responses to patient safety problems in the United States and Japan, addressing developments in civil malpractice law (including discoverability of internal hospital documents), administrative practice (including medical accident reporting systems), and - of particular significance in Japan - criminal law. In the U.S., battles over rules of malpractice litigation are fierce; tort law occupies center stage. The hospital accreditation process plays a critical role in medical quality control, and peer …