Law Commons^™

Harmonizing The Affordable Care Act (Obama Care) With The Three Main National Systems For Healthcare Quality Improvement: The Tort, Licensure And Hospital Peer Review Systems, K Van Tassel

Katharine A. Van Tassel

According to an estimate by the Institute of Medicine made over a decade ago, treatment errors in hospitals alone caused 98,000 deaths yearly. This IOM report is proving to be very conservative. A recent Consumer Reports investigation came to the conclusion that “[m]ore than 2.25 million Americans will probably die from medical harm this decade…. That’s like wiping out the entire populations of North Dakota, Rhode Island, and Vermont. It’s a manmade disaster.”

One of the reasons for this astonishing mortality rate is the normative practice of custom-based medicine in the United States. A large and rapidly growing group of …

Shaping The Disclosure Tort: Scholars' Early Importance And Modern Impotence, Jared A. Wilkerson

Jared A. Wilkerson

Legal scholars guided the creation and development of the disclosure tort for about seventy-five years (1890–1965), a period in which most states recognized a common law or statutory right to privacy. Since then, however, scholarly attempts to curb or modify the tort have yielded nothing. This article—beginning with the formalism-realism debate won by such sages as Brandeis, Pound, and Prosser and ending with modern experts like Chemerinsky, Posner, and Solove—shows that notwithstanding enormous efforts by some of America’s most respected contemporary academics, would-be reformers of the disclosure tort have not budged it since Prosser’s definition in the Restatement (Second). This …

Unmasking A Pretext For Res Ipsa Loquitur: A Proposal To Let Employment Discrimination Speak For Itself, Bill Corbett

William R. Corbett

Unmasking a Pretext for Res Ipsa Loquitur: A Proposal to Let Employment Discrimination Speak for Itself

William R. Corbett*

Has too much tort law been incorporated into the case law under the federal employment discrimination statutes? The debate on this issue has been reinvigorated by the Supreme Court’s decision in Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011). In Staub the Court referred to the Uniformed Services Employment and Reemployment Rights Act, a federal employment discrimination statute, as a “federal tort.” The Court then adopted the tort doctrine of proximate cause as the standard for evaluating subordinate bias (or …

Patient Protection And Decision Aid Quality: Regulatory And Tort Law Approaches, Nadia N. Sawicki

Nadia N. Sawicki

One of the most enduring debates at the intersection of administrative and tort law focuses on the challenge of identifying the most effective means of ensuring consumer safety. In some circumstances, standard-setting administrative regulations may be sufficient to protect consumers from harm while at the same supporting the growth of valuable industries. In other circumstances, regulation may need to be supplemented by a complementary tort regime that fills the compensation gap when consumers suffer injury. The discussion among policymakers and legal scholars about which system to favor is continually playing out in a variety of arenas, most notably in the …

Where’S The Outrage? “Outrageous” Conduct In Analyzing The Tort Of Intentional Infliction Of Emotional Distress In The Wake Of Snyder V. Phelps, Constance A. Anastopoulo, Daniel J. Crooks Iii

Constance A. Anastopoulo

This Article presents the historical evolution of the tort of Outrage focusing on a discussion of recovery for mental distress prior to the tort’s status as an independent cause of action including the culmination of the tort as announced in the Restatement (Second) Section 46. After presenting this evolution, this Article argues that the key inquiry of the tort of Outrage has been the nature of the defendant’s conduct rather than the severity of the plaintiff’s alleged injury, but now state courts have begun to redefine and reform the tort away from this central element. This Article concludes with the …