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Federalization Snowballs: The Need For National Action In Medical Malpractice Reform, Abigail R. Moncrieff

Law Faculty Articles and Essays

Because tort law and healthcare regulation are traditional state functions and because medical, legal, and insurance practices are localized, legal scholars have long believed that medical malpractice falls within the states' exclusive jurisdiction and sovereignty. This conventional view fails to consider the impact that federal healthcare programs have on the states' incentives to regulate. As a result of federal financing, each state externalizes some of the costs of its malpractice policy onto the federal government. The federal government therefore needs to take charge of medical malpractice in order to fix the spillover problem created by existing federal healthcare programs.

Importantly, …

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 …

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 …

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 …

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 …

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 …

Resolving The Medical Malpractice Crisis: Alternatives To Litigation, Allen K. Hutkin

Journal of Law and Health

This article will review the societal and individual costs of the present medical malpractice system, analyze current efforts to reform the system, and propose several alternatives for consideration. These alternatives include expanding the use of alternative dispute resolution, reformulating the doctor/patient relationship, expanding the scope of conventional hospital risk management and modifying the manner in which medical malpractice insurance is presently provided.

Periodic Payment Awards: The Prescription For The Medical Malpractice Crisis In Ohio, Laurie G. Steiner

Journal of Law and Health

The focus of this article is the use of periodic payment plans generally as a remedy to the medical malpractice crisis. A complete understanding of the periodic payment judgment, however, is impossible without an exploration of the general common law treatment of personal injury and medical malpractice awards. Once the historical background is established, this article will examine Ohio's new statute in light of the Model Periodic Payment of Judgments Act and the law existing in other jurisdictions. This article will also analyze the advantages of the periodic payment and its viability as a solution for the medical malpractice crisis.

Malicious Prosecution Suits As Counterbalance To Medical Malpractice Suits, Allen P. Adler

Cleveland State Law Review

A few years ago medical malpractice suits were something of a rarity in the United States. They now appear to be a major national problem. The magnitude of this ever increasing problem can be illustrated by the fact that a Senate subcommittee, chaired by Sen. Abraham Ribicoff, has investigated the increase in malpractice litigation and that President Nixon has ordered the establishment of a Commission on Medical Malpractice, under the Department of Health, Education and Welfare, to research the problem and report a possible solution by March 1, 1972.

Contributory Negligence In Medical Malpractice, Diane Shelby

Cleveland State Law Review

The best and most complete defense to a charge of malpractice is the allegation and proof of the absence of negligence. It is also the most often used defense. Of the less popular defenses, contributory negligence on the part of the patient is probably the least attractive and the most difficult to maintain, even though it has been held to be a complete bar to recovery in several cases difficult to categorize.

Hospital Nurses And Tort Liability, Gabrielle G. Kinkela, Robert V. Kinkela

Cleveland State Law Review

What factors have influenced the courts in the development of their current attitude toward hospitals? Are the emerging concepts reasonable, or are they indicia of a pendulum swinging too far in the direction of the patient? What are the consequences for the nurse? These are the questions to which the ensuing treatment of one aspect of tort liability is addressed.

Statutes Of Limitations In Legal Malpractice, Norman T. Baxter

Cleveland State Law Review

It becomes apparent from an analysis of cases and law that many jurisdictions, when using the term malpractice, limit the term strictly to physicians and surgeons. It is not so much the fact that legal malpractice is excluded from the term malpractice but rather that it is never even mentioned. Since legal malpractice appears to be a matter of state definition it would seem that perhaps the best approach to understanding legal malpractice would be to examine (as typical) the statutes of three of our leading states, to see what is the present status of their laws on the subject.

Physician's Liability For Torts Of Hospital Employees, Irene E. Svete

Cleveland State Law Review

Why should a treating physician be held liable for any lack of treatment on the part of the hospital employees? On what basis can such a conclusion be reached? An agency relationship was considered as existing between the parties, making the physician liable for the actions of the hospital employees. He was the "Captain of the Ship," the one in control of the patient's treatment and care. Only he was answerable for resulting injury and death from lack of said treatment. The "Captain" will be held liable for others' negligence where the acts performed by them are under conditions where …

Res Ipsa Loquitur In Medical Malpractice, Rudolf F. Binder

Cleveland State Law Review

The "Cloak of Protection encompassing the physician in the practice of his profession" is no longer to be taken for granted. Recent decisions in Alaska, California, Louisiana, Oregon, and Wisconsin have swept aside the traditional limitations in the use of the res ipsa loquitur doctrine. They impose all but strict liability upon the medical profession for mistakes occurring during treatment or surgery.

How To Handle An Anesthesia Injury Case, Albert Averbach

Cleveland State Law Review

The criteria of competence of the trial lawyer handling a medical malpractice case is, does he have at least as much if not more knowledge of the practice and procedure involved in the case than the defendant physician. In no place is this more true than in the field of anesthesiology. This is not, of course, to suggest that the attorney can compete with the physician in practical experience. But, it is to propose that many valid anesthesia malpractice cases result in nonsuits and that plaintiff's verdicts which are overturned on appeal are almost invariably lost due to insufficient evidence, …

Defense Against Res Ipsa In Medical Malpractice, Howard M. Rossen

Cleveland State Law Review

In a res ipsa loquitur case the injured party is deemed in no position to explain the cause, while the party charged may begin a position to show himself free from negligence. If the plaintiff has equal or superior means of information, the doctrine does not apply. The question is really one of duty on the part of the defendant. Res ipsa loquitur leads only to a possible (not mandatory) inference that the defendant has not complied with his duty to use skill and care, and is not in itself proof that he was under a specific duty. This question …

Statute Of Limitations In Malpractice Actions, Ernest A. Cieslinski

Cleveland State Law Review

The ill-treated patient has sought redress for medical malpractice by actions that sound in tort, in contract, or in fraud. As with other actions, the underlying policy of "peace and repose" of all statutes of limitations dictates that these actions be timely. In Ohio, for example, the time limit for an action for malpractice is one year.

Malpractice Used As A Hospital Defense, Carl H. Miller

Cleveland State Law Review

Hospital immunity in negligence and other torts of agents and employees is disappearing steadily. The course of decisions in many states has been consistently in the direction of elimination of "charitable" immunity of hospitals. Seeking another line of defense, hospital administrators have re-examined the parties generally involved in a medical negligence action-patient, physician and hospital. Hospital administrators realized quickly that in order to remain free from general negligence liability, the main onus of tort responsibility would have to be shifted to the physician (or even the nurse) whenever and wherever possible.