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 …

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 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 …

Medical Malpractice And Compensation In Global Perspective: How Does The U.S. Do It?, David A. Hyman, Charles Silver

Chicago-Kent Law Review

This article describes the problem of health care error in the United States of America and the various regulatory, liability, and compensation systems that deal with medical mistakes. In terms of frequency, direct costs, and aggregate social costs, the problem of medical errors is staggering. Millions of patients are killed or injured every year. A large percentage of adverse events could be avoided by the use of reasonable care. Regulators have not dealt with these problems effectively. Regulators specifically appointed to police the medical profession are often lax, whether because of capture, or from a sense of "there but for …

The Other Side Of Health Care Reform: An Analysis Of The Missed Opportunity Regarding Infertility Treatments., Nizan Geslevich Packin

The Scholar: St. Mary's Law Review on Race and Social Justice

Recent studies show that one in eight American couples suffered from infertility. Infertility treatments are riddled with accessibility barriers including high costs, marital status, and sexual orientation. Despite President Obama’s promise of universal health care, his health care reform acts missed the opportunity to squarely address this widespread problem. In fact, the recent health care reform did not include any provisions specific to fertility. Despite this glaring oversight, this article argues that regulators interpreting the acts can still provide the desired relief. The minimum coverage requirements beginning in 2014 can be interpreted to include fertility care if infertility is treated …

Programmers And Forensic Analyses: Accusers Under The Confrontation Clause, Karen Neville

Duke Law & Technology Review

Recent Supreme Court cases involving the Confrontation Clause have strengthened defendants’ right to face their accusers. Bullcoming v. New Mexico explored the question of whether the testimony of the technician who performs a forensic analysis may be substituted by that of another analyst, and the Court held that producing a surrogate witness who was not sufficiently involved in the analysis violates the confrontation right.

The presumption of infallible technology is fading, and courts may soon realize programmers have greater influence over the ultimate outcome of forensic tests than do the technicians who rely on such analytical tools. The confrontation right, …

Realizing The Human Right To Water In Tanzania, Leticia K. Nkonya

Human Rights Brief

No abstract provided.

Off-Label Promotion Reform: A Legislative Proposal Addressing Vulnerable Patient Drug Access And Limiting Inappropriate Pharmaceutical Marketing, Tim Mackey, Bryan A. Liang

University of Michigan Journal of Law Reform

Off-label promotion occurs when pharmaceutical manufacturers engage in promotion of unapproved or "off-label" uses of their drugs. These off label uses may lack adequate clinical data to substantiate marketing claims, have led to corporate investigations and penalties, and can endanger public health. However there is adequate evidence to suggest that off-label uses are entirely appropriate for some vulnerable patient populations, and that physicians have accepted such uses as standard. Historically, U.S. law has prohibited direct off-label promotion to physicians and patients. However, failed government guidance, industry-based litigation, and the diminished capacity of regulators to police illegal practices have had dire …

When Push Comes To Shove: Mandatory Immunization In Times Of Pandemic-Type Emergencies, Philip P. Houle, Suzanne R. Houle

Buffalo Public Interest Law Journal

No abstract provided.

Litigating Against An Epidemic: Hiv/Aids And The Promise Of Socioeconomic Rights In South Africa, Nathaniel Bruhn

Michigan Journal of Race and Law

With one of the highest incidence rates in the world, the HIV/AIDS epidemic has taken a large toll on South Africa. Despite medical advances that have made the disease more manageable, many South Africans still do not have access to the medicines needed to control the disease. At the same time, the Constitution of South Africa grants individuals far-reaching socioeconomic rights, including the right to access health care. This Comment explores the intersection of the socioeconomic rights and the HIV/AIDS crisis. Although the Constitutional Court has developed a deferential approach to enforcing socioeconomic rights, substantial room remains to litigate on …

Band-Aid Solutions: New York’S Piecemeal Attempt To Address Legal Issues Created By Doma In Conjunction With Advances In Surrogacy, James Healy

Pace Law Review

No abstract provided.

Apologies In The Healthcare System: From Clinical Medicine To Public Health, Michal Alberstein, Nadav Davidovitch

Law and Contemporary Problems

Alberstein and Davidovitch explore the role of apologies in healthcare systems from a broader perspective. The significance of apology in terms of social solidarity is addressed and the ways in which each apology situation entails a clash between cultural identities are demonstrated. The debate on apology is explored by presenting a public health perspective of apologies following collective traumatic events such as the application of sterilization laws or flawed human experimentations in various settings.

A “Principled Resolution”: The Fulcrum For Bioethics Mediation, Nancy Neveloff Dubler

Law and Contemporary Problems

The concept of a "principled resolution" is the foundation for bioethics mediation. Dubler presents the core bioethical principles that support the creation of principled resolutions as fulcrums for resolving disagreements in the healthcare setting. These disputes may arise among medical providers, between medical providers and patients, or among members of a patient's family and can be managed or resolved by bioethics mediation using the conceptual tool of a principled resolution.

Augmenting Advocacy: Giving Voice To The Medical-Legal Partnership Model In Medicaid Proceedings And Beyond, Marybeth Musumeci

University of Michigan Journal of Law Reform

The denial of Medicaid coverage for augmentative communication devices, despite an existing legal framework that mandates the opposite result, raises fundamental questions about what independence means for people with disabilities. This situation, compounded by the barriers in the Medicaid administrative appeal process encountered by such beneficiaries, invites new approaches to the delivery of civil legal services, such as medical-legal partnerships (MLPs). MLPs are formalized arrangements that bring lawyers into a healthcare setting to provide specialist consultations when patients experience legal problems that affect health. While there is an emerging scholarship on MLPs, this Article offers the first in-depth analysis of …

Forced Administration Of Antipsychotic Drugs To Civilly Committed Mental Patients In Nevada: A Remedy Without A Clear Statutory Authorization, Chuck Weller

Nevada Law Journal

No abstract provided.

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 …

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 …

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 …

Conflict Management Education In Medicine: Considerations For Curriculum Designers, Jeffery Kaufman

Online Journal for Workforce Education and Development

It is important to address conflict in the medical field for a variety of reasons ranging from reducing turnover to increasing the quality of care received by patients. One way to assist with the management of medical conflict is by teaching resolution techniques to medical personnel. There is an opportunity for conflict management curriculum to address many of the issues facing physicians, administrators, staff and patients, however, it is also necessary for those developing that curriculum to understand the nature of the environment and appropriate conflict management tools to be used in that environment as part of the design process. …

Redefining Child Under The State Children's Health Insurance Program: Capable Of Repetition, Yet Evading Results, Elisabeth H. Sperow

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Implementing American Health Care Reform: The Fiduciary Imperative, Dayna Bowen Matthew

Buffalo Law Review

No abstract provided.

Charitable Fsas: A Proposal To Combine Healthcare And Charitable Giving Tax Provisions, Adam Chodorow

BYU Law Review

No abstract provided.