Law Commons^™

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 …

Health Law—Negligent Credentialing And You: What Happens When Hospitals Fail To Monitor Physicians, Whitney Foster

University of Arkansas at Little Rock Law Review

No abstract provided.

The Many Faces Of Fault In Contract Law: Or How To Do Economics Right, Without Really Trying, Richard A. Epstein

Michigan Law Review

Modern law often rests on the assumption that a uniform cost-benefit formula is the proper way to determine fault in ordinary contract disputes. This Article disputes that vision by defending the view that different standards of fault are appropriate in different contexts. The central distinction is one that holds parties in gratuitous transactions only to the standard of care that they bring to their own affairs, while insisting on the higher objective standard of ordinary care in commercial transactions. That bifurcation leads to efficient searches. Persons who hold themselves out in particular lines of business in effect warrant their ability …

Harnessing The Hired Guns: The Substantive Nature Of Ohio Revised Code 2743.43 Under Article Iv, Section 5(B) Of The Ohio Constitution, Patrick Vrobel

Journal of Law and Health

Under Article IV, Section 5(B), rules of procedure that impact the substantive rights of Ohio citizens are considered far too important to be encroached upon by the judiciary. Rules affecting substantive rights, therefore, have been expressly delegated to the legislature. Because rules that regulate the competency of medical experts inevitably encroach upon the ability of a tort victim to seek redress in a court of law, such rules impact substantive rights in very real and tangible ways. As a result, the medical expert statute must control. To find otherwise would permit the judiciary to encroach upon the substantive rights of …

Offsetting Risks, Ariel Porat

Michigan Law Review

Under prevailing tort law, an injurer who must choose between Course of Action A, which creates a risk of 500 (there is a probability of .1 that a harm of 5000 will result), and Course of Action B, which creates a risk of 400 (there is a probability of.] that a harm of 4000 will result), and who negligently opts for the former will be held liable for the entire harm of 5000 that materializes. This full liability forces the injurer to pay damages that are five times higher than would be necessary to internalize the risk of 100 that …

Federal Malpractice In Indian Country And The "Law Of The Place": A Re-Examination Of Williams V. United States Under Existing Law Of The Eastern Band Of Cherokee Indians, J. Matthew Martin

Campbell Law Review

This paper analyzes the law applicable in malpractice cases occurring within Indian Country and brought under the Federal Tort Claims Act, applying the "Law of the Place." In particular, this paper argues that the law of the Eastern Band of Cherokee Indians, including the customs and traditions of the Tribe, should have been applied by the Federal Courts in lieu of the law of North Carolina in Williams v. United States. The paper concludes by suggesting that a complete "laboratory" of Federalism should include the application of the laws of the respective Tribes where Federal medical negligence occurs.

What Are We Reforming? Tort Theory's Place In Debates Over Malpractice Reform, John C.P. Goldberg

Vanderbilt Law Review

Those who are reforming medical malpractice law, or studying its reform, ought to attend to tort theory. This is not because theory will settle difficult policy debates. But it does enable reformers and scholars to be more aware of how under-appreciated and possibly dubious assumptions or inferences might be skewing their analyses. In this Essay, I aim to make this point with two examples.

My first example concerns under-litigation-the apparent fact that a substantial percentage of persons with injuries plausibly traceable to malpractice never sue their doctors.' Assume this is a real phenomenon. What are we to make of it? …

Theobald V. University Of Cincinnati - Reforming Medical Malpractice In Ohio: A Survey Of State Laws And Policy Impacts , Brian Dunne

Journal of Law and Health

In its recent decision of Theobald v. University of Cincinnati, Ohio's Tenth District Court of Appeals declared that medical practitioners shall have state employee immunity, based on section 9.86 of the Ohio Revised Code, anytime they treat a patient as long as they act in a dual role to "teach" an "involved" student or resident. This immunity takes away the patient's right to sue the practitioner personally for his medical malpractice. As required by this holding, the doctor must have an employment relationship with state medical college. However, the employment relationship could encompass anything from a faculty position to something …

Uncertainty And Informed Choice: Unmasking Daubert, Margaret A. Berger, Aaron D. Twerski

Michigan Law Review

This Article will first examine why it is that plaintiffs have been unable to prove causation under the Daubert guidelines in toxic tort litigation. Second, it will look at the two existing models for informed choice litigation medical malpractice and products liability-and demonstrate why neither of these models gives toxic tort plaintiffs a fair opportunity to recover for the deprivation of patient autonomy against drug manufacturers who have breached their duty to warn of known or knowable risks. Finally, this Article will explore the elements of a causation-free informed choice cause of action. It will suggest the appropriate standard for …

The Current State Of Advance Directive Law In Ohio: More Protective Of Provider Liability Than Patients Rights, Marie Ortman

Journal of Law and Health

Ohio has adopted the Modified Uniform Rights of the Terminally Ill Act which governs the use and execution of written advance directives as expressions of a patient's desire to consent to or refuse future medical treatment. However, the Act also includes a provision that grants both civil and criminal immunity to health care providers who do not comply with a person's written advance directive. Unfortunately, because of the grant of civil and criminal immunity encompassed within the adopted written advance directive statutes, Ohio law today does not afford any greater protection of a patient's right to refuse medical treatment at …

Civil Procedure: Medical Malpractice Gets Eerie: The Erie Implications Of A Heightened Pleading Burden In Oklahoma, Dace A. Caldwell

Oklahoma Law Review

No abstract provided.

A Review Of Oklahoma's 2003 And 2004 Tort Reform, Beth Reynolds

Oklahoma Law Review

No abstract provided.

True Risk Management: Physicians' Liability Risk And The Practice Of Patient-Centered Medicine, Anand Das, Jack Schwartz, Evan G. Derenzo

Journal of Law and Health

While most physicians understand that a serious deficiency in technical care increases their risk of liability, too often their risk management behavior indicates that they do not fully appreciate the impact that poor interpersonal skills have on patients' motivations to sue. Ironically, many of these physicians have taken risk management steps that have increased, rather than reduced, their exposure to lawsuits. In this paper, we argue that a strong legal and factual claim does not invariably explain patients' decisions to sue. Dissatisfaction with the physician's interpersonal care as well as with the clinical outcome is often a factor. Conversely, patients …

Cutting Through The Confusion Of The Loss-Of-Chance Doctrine Under Ohio Law: A New Cause Of Action Or A New Standard Of Causation, George J. Zilich

Cleveland State Law Review

The central argument advanced in this Note is that a loss of chance should be recognized as an independent injury. This approach best serves the policy of the new loss of chance doctrine, and it avoids the very significant doctrinal problems that arise if the alternative approach is taken, which is to treat the compensability of lost chances as merely a relaxation of traditional tort law causation requirements. The primary focus of this Note is on the loss of a less-than-even chance of recovery or survival, wherein a victim will be entitled to damages resulting from the negligent reduction of …

Medical Errors: Causes, Cures, And Capitalism, Keith Myers

Journal of Law and Health

This article explores the causes of medical error, the medical profession's responses to errors, and how the legal system responds to medical error through litigation and legislation. Part II discusses the definition of "medical error," the frequency and pervasiveness of the problem, and the causes at the individual and system level. Part III considers how the culture of medicine has largely failed to address medical errors as a systems-based problem, and how the legal culture discourages admitting errors due to the threat of litigation. Focusing on systems, data must be collected and analyzed, and legal guidelines developed to encourage error …

Hellingv. Carey Revisited: Physician Liability In The Age Of Managed Care, Leonard J. Nelson Iii

Seattle University Law Review

In this article, the author proposes that the traditional custom-based standard applicable in medical malpractice cases be replaced with a reasonable, prudent physician standard that will more adequately take into account the role of the physician in rationing care. Part I of this article focuses on the heightened tension between tort and contract in managed health care. Part II of this article examines managed care cost containment techniques and their possible impact on physician decision making. Part III focuses on the widely acknowledged shortcomings of the customary standard. Part IV provides an outline of the doctrinal regime for my proposed …

Playing Doctor: Corporate Medical Practice And Medical Malpractice, E. Haavi Morreim

University of Michigan Journal of Law Reform

Although health plans once existed mainly to ensure that patients could pay for care, in recent years managed care organizations (MCOs) have attempted to limit expenditures by exercising significant influence over the kinds and levels of care provided. Some commentators argue that such influence constitutes the practice of medicine, and should subject MCOs to the same medical malpractice torts traditionally brought against physicians. Others hold that MCOs engage only in contract interpretation, and do not literally practice medicine.

This Article begins by arguing that traditional common law doctrines governing corporate practice of medicine do not precisely apply to the current …

Erisa Preemption Of Medical Malpractice Claims: Can Managed Care Organizations Avoid Vicarious Liability?, J. Bradley Buckhalter

Seattle University Law Review

This Comment begins by briefly discussing the theory of respondeat superior and the vicarious liability of MCOs for the negligence of affiliated physicians.' Next, the section presents an overview of ERISA, focusing on ERISA's preemption of laws that impact employee benefit plans, particularly medical malpractice claims brought against MCOs seeking to hold them vicariously liable for an affiliated physician's negligence. Section III applies current ERISA preemption doctrine to a situation such as Peterson's, in which a plaintiff attempts to hold an MCO vicariously liable for an affiliated physician's negligence. Section IV concludes that, given the current state of ERISA preemption …

Reconciling The Exercise Of Judgment And The Objective Standards Of Care In Medical Malpractice, Joseph H. King Jr.

Oklahoma Law Review

No abstract provided.

Tis Better To Give Than To Receive: Charitable Donations Of Medical Malpractice Punitive Damages, Nicholas M. Miller

Journal of Law and Health

The purpose of this Note is not to answer the question of how excessive medical malpractice and punitive damage awards are. Many highly respected scholars on different sides of the issue have spent large portions of their careers trying to resolve that issue without finding a common ground. This author does not boldly claim to provide an answer in this limited forum. This Note does, however, address a possible source of public frustration with the state of medical malpractice and punitive damages: the lack of a principled basis for the awards that juries give to the victims. The perception among …

Torts: Anderson V. Eichner--Although Faculty Physicians, Resident Physicians, And Interns Face Private Tort Liability For Medical Malpractice, The State Is Immune, Christa L. Britton

Oklahoma Law Review

No abstract provided.