Law Commons^™

Malpractice In Scandinavia, Vibe Ulfbeck, Mette Hartlev, Mårten Schultz

Chicago-Kent Law Review

The article describes the special Scandinavian patient insurance system which secures compensation for patients in malpractice cases. For all practical purposes, the insurance based systems have replaced ordinary tort law rules in malpractice cases in Scandinavia. Thus, the basic feature of these systems is that proof of fault is not a requirement for obtaining compensation. Other criteria which are more favourable to the patient are applicable. The article concludes that in general the compensations systems have been successful in making it easier for the patients to obtain compensation. However, the systems also face challenges, some of which stem from the …

A Bridge Over Troubled Waters: The Development Of Medical Malpractice Litigation In Brazil, Eduardo Dantas

Chicago-Kent Law Review

This paper aims to demonstrate how medical malpractice litigation is developing in Brazil, and how the Brazilian legal system is dealing with the increase of demands against health care professionals. A brief overlook on the legal structure is provided, highlighting the most important issues being discussed today in Brazilian courts, regarding autonomy, consent, choice, the definition of moral damages, and the influence of the Consumer's Defense Code in litigation regarding health law.

Yangge Dance: The Rhythm Of Liability For Medical Malpractice In The People's Republic Of China, Zhu Wang, Ken Oliphant

Chicago-Kent Law Review

This paper summarises the development of liability for medical malpractice in the People's Republic of China, beginning with the establishment of a formal system of administrative liability in 1987, its refinement in 2002, and the broadly contemporaneous judicial recognition of a concurrent tortious liability under general civil law. All these developments may be said to have furthered the interests of patients. The incorporation of liability for medical malpractice into the Tort Liability Law of 2009, however, arguably marks a step backwards, subordinating the interests of patients in favor of the interests of the medical community, and further reforms in the …

Medical Malpractice: The Italian Experience, Claudia Dimarzo

Chicago-Kent Law Review

Beginning with an investigation into the problematic nature of medical liability, the Article overviews the most significant approaches taken by courts and scholars in order to establish whether the physician's position before the patient is comparable with that of either a tortfeasor or a contractor.

Having explained that the most recent approaches in this regard tend toward the recognition of the contractual nature of medical liability, the Author discusses the implications of such a solution, making specific reference to the following issues: 1) the assignment of the burden of proof (along with the distinction between obligations of means and obligations …

Medical Malpractice And Compensation In The Uk, Richard Goldberg

Chicago-Kent Law Review

In the first part of this paper, Dr. Goldberg examines the context in which medical malpractice liability is operating in the UK. The fact that the state-run National Health Service (NHS) is the major healthcare provider in the UK has several implications, since funding for medical malpractice compensation in the NHS comes from the taxpayer. The most recent empirical evidence on the incidence and funding of claims in England and Scotland is assessed, to show a trend of expenditure on clinical negligence increasing, particularly in England. This is followed by an examination of the statutory framework for the empowerment of …

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

Chicago-Kent Law Review

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 Malpractice And Compensation In France, Part Ii: Compensation Based On National Solidarity, Geneviève Helleringer

Chicago-Kent Law Review

In France, distinctively from the compensation process by insurers of liable professionals, compensation of the victim will in certain cases such as medical hazards, hospital-acquired infections, blood-transfusion infections, result from a compensation scheme similar to that available for victims of terrorism and crimes. It is based on national solidarity and dispensed by the National Fund for Compensation of Medical Accidents (ONIAM). The growing importance of such a compensation scheme may appear to be a double-edged evolution. On one hand, it has improved the status of victims of medical harms; they are increasingly integrally compensated more quickly and under more flexible …

Medical Malpractice And Compensation In South Africa, L. C. Coetzee, Pieter Carstens

Chicago-Kent Law Review

This article gives an overview of current medical malpractice law in South Africa. The following aspects are covered: The overall scheme for preventing and redressing medical errors and adverse events, including regulation, criminal and civil liability, and social and private insurance, and the relationships among these various systems; the details of the applicable liability and compensation systems, including criteria defining qualification for compensation, causation and "loss of chance," liability for failure to obtain informed consent, as well as matters of proof and gathering of evidence. The authors note the difficulty they had in obtaining empirical data on medical errors and …

Canadian Medical Malpractice Law In 2011: Missing The Mark On Patient Safety, Colleen M. Flood, Bryan Thomas

Chicago-Kent Law Review

This paper surveys the current state of medical malpractice law in Canada, along with current evidence on adverse events in Canadian hospitals, medical clinics, and long-term care facilities. Though there is currently no "burning platform" to reform Canadian medical malpractice law, the authors raise concerns about the law's failure to deter medical malpractice, as well as concerns about access to justice issues facing victims of medical malpractice. Federal and provincial governments have tried to promote patient safety through various prevention strategies—for example, through the creation of Health Quality Councils, the dissemination of information on best practices, and tighter regulation of …

Medical Malpractice And Compensation In France, Part I: The French Rules Of Medical Liability Since The Patients' Rights Law Of March 4, 2002, Florence G'Sell-Macrez

Chicago-Kent Law Review

While the French Law of medical malpractice had been mainly based on the Civil Code provisions related to contract law, the Patients Rights' Law of March 4, 2002 set forth general principles regarding the responsibility of health professionals and health institutions which are now in the Code of Public Health. The relatively new Law has modified the legal basis for medical liability, which is now regarded as a "legal regime" that is neither contractual nor tortious. The Patients' Rights Law of March 4, 2002 not only has reaffirmed the principle of fault-based liability in medical malpractice cases, but also allows …

Medical Malpractice And Compensation In Germany, Marc S. Stauch

Chicago-Kent Law Review

This paper offers an overview of the rules under German law for securing accountability and redress in cases of medical injury. It is divided into three main parts. Part I looks at the various legal consequences that may apply in such circumstances, including criminal and professional liability of the doctor, the bases for a private law claim by the patient, and the existence of pockets of non-fault based liability for injury from medical products. Part II then considers in greater detail the elements to be satisfied in respect to the two key forms of private law malpractice claim, namely faulty …

Treatment Injury In New Zealand, Stephen Todd

Chicago-Kent Law Review

The New Zealand accident compensation scheme makes provision for the payment of compensation to the victims of personal injury that is caused by medical treatment, but at the same time it bars actions for damages based upon such injury. This article gives a brief overview of the scheme as a whole and its relation- ship with the common law, and then focuses on the particular provisions governing medical injury. It includes discussion of the extent of the statutory cover, problems of causation, the operation of the medical scheme in practice, costs and funding, and issues of accountability. It ends with …

Medical Malpractice And Compensation In Poland, Kinga Bączyk-Rozwadowska

Chicago-Kent Law Review

Civil liability for medical malpractice in Poland can be either contractual or tortious. In practice, provisions of ex delicto liability are applied. Since June 2010, liability insurance is obligatory for all health care providers that render medical services in Poland. Tortious liability may be attributed to a doctor or a hospital when either's faulty acts or omissions result in the damage. A hospital may also have vicarious liability for injuries caused by its doctors and other medical staff. Fault usually consists of negligence, which is defined as failure to work with due care and diligence while treating a patient. Burden …

Medical Malpractice In Austria, Bernhard A. Koch

Chicago-Kent Law Review

This article presents the Austrian law governing compensation for medical malpractice in an overview. After a glimpse at the healthcare and social insurance system, the regulatory framework is outlined, with an obvious particular focus on tort and contract law. Apart from the special case where informed consent is lacking, the various elements of a claim that patients may have mirror the general requirements of tort and contract liability in Austria, which is why the brief sketch may also serve to give at least some basic insight into that part of the legal system in general. Furthermore, peculiar approaches in handling …

Metropolitan And Town Juries: The Influence Of Social Context On Lay Participation, María Inés Bergoglio

Chicago-Kent Law Review

Lay participation in Argentinean criminal trials, even if prescribed by the 1853 Argentine Constitution, was not established in the country until 2004, when the province of Cordoba created a mixed court to deal with cases of aberrant crimes and corruption.

This article describes the initial experience with mixed courts in the metropolitan area of Great Cordoba, and in small cities of the province, to depict the impact of different social contexts on lay participation. The support for citizen participation in legal decision making, the responses to the introduction of the new mixed courts, and jury-judge agreement rates are some of …

Foreword – Communication And Investigation In 2011: Can Our Jury System Cope?, Brian Barker

Chicago-Kent Law Review

No abstract provided.

The Canadian Criminal Jury, Regina Schuller, Neil Vidmar

Chicago-Kent Law Review

The Canadian criminal jury system has some unique characteristics. In contrast to American law, that gives precedent to free speech over fair trial, and English law, that favors fair trial over free speech, Canadian law occupies a middle ground balancing these competing values. Jury selection procedure in most trials is similar to that of England: jurors are assumed to be "impartial between the Queen and the accused" and are selected without voir dire. However, in cases involving exceptional pretrial publicity or involving accused persons from racial or ethnic minority groups, jurors are vetted by a "challenge for cause" process in …

Two Weeks At The Old Bailey: Jury Lessons From England, Nancy S. Marder

Chicago-Kent Law Review

I spent two weeks observing jury trials and interviewing judges and barristers at the Old Bailey in London. There were several jury practices at the Old Bailey that would benefit American jurors, such as providing them with a "jury bundle," and we should introduce such practices in the United States. There are other practices, such as eliminating peremptory challenges, which are worth adopting over time because there would be some initial resistance. There are many practices that the two systems share in common, such as allowing jurors to take notes, to ask questions of witnesses, and to have a written …

Jury Selection And Jury Trial In Spain: Between Theory And Practice, Mar Jimeno-Bulnes

Chicago-Kent Law Review

Even though Spain has traditionally followed a civil law system, it is at present the only European country to have introduced the common law model of jury trials into its criminal proceedings through the Spanish Jury Law of 1995. Despite counterproposals for mixed courts composed of professional judges consulting with lay assessors (escabinado), the Spanish jury system is now fully functional and diligently applies its sometimes extremely complex content. The rules on jury selection mean that the selection process is tong and somewhat tedious in both theory and practice. However, theory and practice can differ in jury trials, as a …

Should Criminal Juries Give Reasons For Their Verdicts?: The Spanish Experience And The Implications Of The European Court Of Human Rights Decision In Taxquet V. Belgium, Stephen C. Thaman

Chicago-Kent Law Review

This article uses the European Court of Human Rights judgment of Taxquet v. Belgium, decided by the Grand Chamber in 2010, which held that in some cases the trial jury's failure to give reasons for its verdict of guilt could constitute a violation of the right to a fair trial under Article 6 of the European Convention of Human Rights, as a springboard for discussing whether or not criminal trial juries in Europe and the United States should be more accountable for their verdicts. The article explains the special jury verdicts traditionally used in Europe and the new Spanish requirement …

Jury Trials For Violent Hate Crimes In Russia: Is Russian Justice Only For Ethnic Russians?, Nikolai Kovalev

Chicago-Kent Law Review

The article examines issues of potential anti-victim jury bias in hate crime trials of skinheads in Russia. The study is based on the analysis of court transcripts and interviews with judges, prosecutors, defense attorneys, and victims' lawyers who participated in four high profile criminal cases. The cases selected for analysis resulted in scandalous acquittals, which raised many questions within the Russian society as to whether lay citizens can and should adjudicate hate crimes committed against members of ethnic and racial minority groups. The results of the study have revealed that the juries in these cases did not demonstrate any bias …

The French Jury At A Crossroads, Valerie P. Hans, Claire M. Germain

Chicago-Kent Law Review

Since its inception, the French jury system has generated controversy and passionate argument. The jury originated at the time of the French Revolution as a potent symbol of democratic self-governance. Alternately praised and attacked by successive governments over two centuries, the jury became entrenched in the French justice system and in the French mind. Yet, in recent years, the French jury's future has become the subject of intense political debate. This article provides an overview of historical changes to the French jury system, describing how it was transformed from an independent body of lay citizens into a mixed decisionmaking body …

An Introduction To Comparative Jury Systems, Nancy S. Marder

Chicago-Kent Law Review

No abstract provided.

Glass Cages In The Dock?: Presenting The Defendant To The Jury, David Tait

Chicago-Kent Law Review

The architecture of the courtroom provides insights into the philosophy of justice espoused by the community—it embodies particular perspectives about the presumption of innocence, the dignity of the person, the right to effective representation, and more generally, the right to a fair trial. The physical position of the accused in a criminal trial, the subject of this Article, varies considerably between jurisdictions, from a privileged place at the defense table to a dock isolated from other courtroom participants. The legal issues associated with the place of the accused are particularly evident when the dock is enclosed in glass. This Article …

Silent Lay Judges—Why Their Influence In The Community Falls Short Of Expectations, Stefan Machura

Chicago-Kent Law Review

Lay judges in Germany serving at mixed courts are ascribed an "education function," and they should communicate their experience. Data from surveys of German lay assessors are used to investigate this claim. The results are likely to apply to other countries which employ mixed courts. While many lay judges talk about their experience with their families—partly to ease their minds—they are more reluctant to tell colleagues and friends. For a start, many lay judges are no longer part of the work force because they are older in age, and therefore, have a limited number of contacts. Lay judges serving at …

Japan's Quasi-Jury And Grand Jury Systems As Deliberative Agents Of Social Change: De-Colonial Strategies And Deliberative Participatory Democracy, Hiroshi Fukurai

Chicago-Kent Law Review

Direct participatory democracy touches Japan anew in its current attempt to reform and reconstruct the criminal justice system through the introduction of two tiered systems of quasi-jury (saiban-in) and grand jury (kensatsu shinsakai) institutions. Not only did the twin systems of lay deliberation help create an effective and investigative mechanism against the corporate predation and governmental abuse of power, they also allowed the prosecution of military crimes committed by U.S. Armed Forces personnel and their families stationed in Japan. My paper then examines the historical evolution of these newly established lay justice institutions, exploring the increasing adoption of lay forms …