Law Commons^™

Tort Law Implications Of Compelled Physician Speech, Nadia N. Sawicki

Faculty Publications & Other Works

Abortion-specific informed consent laws in many states compel physicians to communicate state-mandated information that is arguably inaccurate, immaterial, and inconsistent with their professional obligations. These laws face ongoing First Amendment challenges as violations of the constitutional right against compelled speech. This Article argues that laws compelling physician speech also pose significant problems that should concern scholars of tort law.

State laws that impose tort liability on physicians who refuse to communicate a state-mandated message often do so by deviating from foundational principles of tort law. Not only do they change the substantive disclosure duties of physicians under informed consent law, …

Ethical Malpractice, Nadia N. Sawicki

Faculty Publications & Other Works

Traditional claims of medical malpractice arise from deviations from medical standards of care regarding knowledge, professional decision-making, or technical skill. While many standards of ethical behavior are just as firmly rooted in medical custom as these more technical standards, U.S. courts have typically been unwilling to acknowledge ethical violations as compensable breaches of legal duty. This Article poses a question that should be at the forefront of discussions about medical liability in the 21st century – whether malpractice law should evolve to recognize violations of professional ethical norms as a basis for tort liability. In evaluating this question, it draws …

A Malpractice-Based Duty To Disclose The Risk Of Stillbirth: A Response To Lens, Nadia N. Sawicki

Faculty Publications & Other Works

In Medical Paternalism, Stillbirth, & Blindsided Mothers, Lens argues that physicians who fail to disclose the risk of stillbirth to pregnant patients should be liable under the doctrine of informed consent. In this Response, I suggest that courts might be hesitant to expand informed consent in the way Lens proposes. Instead, I offer an alternative avenue for imposing liability, via traditional theories of medical malpractice.

Medical Device Artificial Intelligence: The New Tort Frontier, Charlotte A. Tschider

Faculty Publications & Other Works

The medical device industry and new technology start-ups have dramatically increased investment in artificial intelligence (AI) applications, including diagnostic tools and AI-enabled devices. These technologies have been positioned to reduce climbing health costs while simultaneously improving health outcomes. Technologies like AI-enabled surgical robots, AI-enabled insulin pumps, and cancer detection applications hold tremendous promise, yet without appropriate oversight, they will likely pose major safety issues. While preventative safety measures may reduce risk to patients using these technologies, effective regulatory-tort regimes also permit recovery when preventative solutions are insufficient.

The Food and Drug Administration (FDA), the administrative agency responsible for overseeing the …

The Conscience Defense To Malpractice, Nadia N. Sawicki

Faculty Publications & Other Works

This Article presents the first empirical study of state conscience laws that establish explicit procedural protections for medical providers who refuse to participate in providing reproductive health services, including abortion, sterilization, contraception, and emergency contraception.

Scholarship and public debate about law's role in protecting health care providers' conscience rights typically focus on who should be protected, what actions should be protected, and whether there should be any limitations on the exercise of conscience rights. This study, conducted in accordance with best methodological practices from the social sciences for policy surveillance and legal mapping, is the first to provide concrete data …

Choosing Medical Malpractice, Nadia N. Sawicki

Faculty Publications & Other Works

Modern principles of patient autonomy and health care consumerism are at odds with medical malpractice law's traditional skepticism towards the defenses of contractual waiver and assumption of risk. Many American courts follow a patient-protective view, exemplified by the reasoning in the seminal Tunkl case, rejecting any attempts by physicians to relieve themselves of liability on the grounds of a patient's agreement to assume the risk of malpractice. However, where patients pursue unconventional treatments that satisfy their personal preferences but that arguably fall outside the standard of care, courts have good reason to be more receptive to such defenses. This Article …

Modernizing Informed Consent: Expanding The Boundaries Of Materiality, Nadia N. Sawicki

Faculty Publications & Other Works

Informed consent law’s emphasis on the disclosure of purely medical information – such as diagnosis, prognosis, and the risks and benefits of various treatment alternatives – does not accurately reflect modern understandings of how patients make medical decisions. Existing common law disclosure duties fail to capture a variety of non-medical factors relevant to patients, including information about the physician’s personal characteristics; the cost of treatment; the social implications of various health care interventions; and the legal consequences associated with diagnosis and treatment. Although there is a wealth of literature analyzing the merits of such disclosures in a few narrow contexts, …

A Test By Any Other Name: The Influence Of Justice Breyer's Concurrence In Kiobel V. Royal Dutch Petroleum Co., Alex S. Moe

Loyola University Chicago Law Journal

In Kiobel v. Royal Dutch Petroleum Co., the Supreme Court applied the presumption against extraterritorial application to the Alien Tort Statute (“ATS”). In doing so, the Court undermined the generally accepted view of the ATS: that it could apply to actions abroad. Applying this presumption severely limited the factual circumstances that could produce a viable ATS claim. The majority opinion carved an exception, permitting extraterritorial ATS claims that “touch and concern” the United States, but declined to set more specific guidelines. In the absence of such guidelines, lower courts have applied the presumption in an overbroad fashion, barring claims that …

Corporate Liability Under The Alien Tort Statute: Can Corporations Have Their Cake And Eat It Too?, Alison Bensimon

Loyola University Chicago International Law Review

No abstract provided.

Nfl: National Football League Or No Free Logos?, Kathryn Kokoczka

Public Interest Law Reporter

No abstract provided.

Vindicating The Rights Of People Living With Aids Under The Alien Tort Claims Act, Margaret B. Kwoka

Loyola University Chicago Law Journal

No abstract provided.

Tort Law And Journalism Ethics, Richard T. Karcher

Loyola University Chicago Law Journal

No abstract provided.

Understanding And Problematizing Contractual Tort Subrogation, Brendan S. Maher, Radha A. Pathak

Loyola University Chicago Law Journal

No abstract provided.

Getting To The Bottom Of Tort Reform, Suzanne Blaz

Public Interest Law Reporter

No abstract provided.

A Familiar Tort That May Not Exist In Illinois: The Unreasonable Intrusion On Another's Seclusion, James W. Hilliard

Loyola University Chicago Law Journal

No abstract provided.

Spoliation Of Evidence In Illinois: The Law After Boyd V. Traveler's Insurance Co., Margaret O'Mara Frossard Hon., Neal S. Gainsberg

Loyola University Chicago Law Journal

No abstract provided.

Illinois Tort Law: A Rich History Of Cooperation And Respect Between The Courts And The Legislature, Victor E. Schwartz, Mark A. Behrens, Mark D. Taylor

Loyola University Chicago Law Journal

No abstract provided.

Illinois' Landmark Tort Reform: The Sponsor's Policy Explanation, Kirk W. Dillard

Loyola University Chicago Law Journal

No abstract provided.

Social Interests Versus Plaintiffs' Rights: The Constitutional Battle Over Statutory Limitations On Punitive Damages, Janet V. Hallahan

Loyola University Chicago Law Journal

No abstract provided.

The Denial Of Future Tort Claims In Re Piper Aircraft: Will The Court's Quick-Fix Solution Keep The Debtor Flying High Or Bring It Crashing Down?, Michelle M. Morgan

Loyola University Chicago Law Journal

No abstract provided.

Cates V. Cates: Illinois' "Solution" To Tort Litigation Between Parents And Children, Colleen M. Danaher

Loyola University Chicago Law Journal

No abstract provided.

New Developments In The Illinois Law Of Contribution Among Joint Tortfeasors, Kenneth Kandasar, Patrick J. Kelley

Loyola University Chicago Law Journal

No abstract provided.

Lost Chance Of Survival In Illinois: The Need For Guidance From The Illinois Supreme Court, Shelly E. Smith

Loyola University Chicago Law Journal

No abstract provided.

Legal Malpractice: Is It Tort Or Contract?, Blanche M. Manning Honorable

Loyola University Chicago Law Journal

No abstract provided.

Torts, Robert J. Bingle, William E. Meyer Jr.

Loyola University Chicago Law Journal

No abstract provided.

Compulsory Contribution Claims: Promoting Judicial Efficiency While Sacrificing Standards Of Justice, Brigitte M. Von Weiss

Loyola University Chicago Law Journal

No abstract provided.

Good Faith Settlement Under The Contribution Act: Do Trial Courts Have Too Much Discretion?, Louis J. Perona Honorable, Claire Perona Murphy

Loyola University Chicago Law Journal

No abstract provided.

Torts, Eric S. Palles, Ann L. Gibson

Loyola University Chicago Law Journal

No abstract provided.

Torts, Todd A. Smith, Claire Perona Murphy

Loyola University Chicago Law Journal

No abstract provided.

Tort Reform Act, Michael A. Pope, Jamie S. Freveletti

Loyola University Chicago Law Journal

No abstract provided.