Law Commons^™

Medical Malpractice As Murder? Using Root Cause Analysis As A Guiding Framework For Criminal Medical Malpractice, Kinsey Novak Booth

West Virginia Law Review

Unprecedented criminal prosecutions for medical errors have increased throughout the nation: A Tennessee nurse was charged with reckless homicide for an isolated medication error; two South Carolina nurses were charged with criminal neglect for failing to change a wound dressing for just two days; and an Ohio pharmacist was charged with involuntary manslaughter for failing to detect that a solution contained too much sodium. Introducing criminal charges for cases of typical medical malpractice, which are most often the result of system failures, will dismantle hospitals’ error-reporting systems and lead to long-term catastrophic results for patient safety. This Note applies system …

Systemic Failures In Health Care Oversight, Julie L. Campbell

Georgia Law Review

Hospitals are intentionally shirking their duty to identify and report incompetent medical practitioners, and it is causing catastrophic injuries to patients. Why are hospitals doing this? Two decades of health care reforms have changed the way physicians and hospitals interact in the U.S. health care system, and as a result, the traditional health care oversight tools no longer work to ensure physician competence. With three out of four physicians now employees of hospitals or health care systems, hospitals have become the guardians of both the internal and external warning systems designed to flag incompetent practitioners. As the guardians, hospitals are …

Why Medical Error Is Killing You (And Everyone Else), Phoebe Jean-Pierre

University of Michigan Journal of Law Reform

In 2000, the infamous report To Err is Human rocked society with its focus on the pervasive danger of medical error. More than two decades later, medical error rates remain high and pose a consistent danger to patients. Today, medical error ranks as the fourth leading cause of death behind heart disease, cancer, and COVID-19. Medical error reflects the vulnerabilities of the healthcare process and may be diagnostic in nature. A large concern in responding to medical error is an overemphasis on blame and the idea that good physicians do not make mistakes. Our perspective on how to address medical …

Taiwan's Medical Injury Law In Action, Chih-Ming Liang, Robert B Leflar, Chih-Cheng Wu

Emory International Law Review

Taiwan’s healthcare system, lauded internationally for its universal insurance coverage, moderate costs, and high quality of care, has one significant group of detractors: its physicians. Overworked, squeezed financially by the nation’s global budgeting system’s annual payment restrictions, and oppressed by both criminal prosecutions and civil malpractice actions, doctors and hospitals raised criticisms that culminated in legislative reforms enacted in 2017 and 2022. Are the reforms making any difference?

This Article offers the first comprehensive examination in English of how Taiwan’s medical injury law works. The Article is based on interviews with judges, attorneys, physicians, scholars, and other citizens, literature reviews, …

Noonan V. Sambandam, 296 A.3d 670 (R.I. 2023)., Grant E. Mooney

Roger Williams University Law Review

No abstract provided.

Vecchio V. Women & Infants Hosp., 293 A.3d 842 (R.I. 2023)., Kailey Chalmers

Roger Williams University Law Review

No abstract provided.

Apparent Authority: Minnesota Finally Rejects Categorical Exemption For Independent Contractors In Hospital Emergency Rooms And Signifies Potential For Nondelegable Duty Doctrine—Popovich V. Allina Health Sys., 946 N.W.2d 885 (Minn. 2020)., Dana Ohman

Mitchell Hamline Law Review

No abstract provided.

How Covid-19 Put The Spotlight On The Emtala, Ikra Kafayat

Touro Law Review

There was a time when those that were unable to afford medical care risked being denied treatment in emergency situations. Before Congress passed Emergency Medical Treatment & Labor Act (EMTALA), patients were being transferred to different hospitals, without being screened, because they did not have insurance and could not afford the treatment. Hospitals are no longer allowed to transport patients without properly screening and stabilizing them. Patients can bring a suit against a hospital if they believe the hospital violated EMTALA, however, in certain circuits the patient will need to prove that hospital had an “improper motive” for failing to …

Fighting The Ftca: Medical Malpractice, Veterans, And The Va, Taylor C. Spillers

Arkansas Law Review

Dr. Levy, who served as the Chief of Pathology at the Fayetteville Veterans Health Care System of the Ozarks (“Fayetteville VA”) from 2005 to 2018, diagnosed veterans with an error rate of 10%. The “pathology practice average is 0.7%.” Of the more than 3,000 cases Dr. Levy misdiagnosed, 589 were classified as “Level 3 (major) errors” which should always “trigger an [internal] investigation.” Unfortunately, no investigations ensued until Dr. Levy’s ultimate arrest, although the Fayetteville VA addressed Dr. Levy’s behavior repeatedly throughout his employment.

Let It All In? Expert Witness Qualification In Medical Malpractice Lawsuits, Benjamin M. Parks

Louisiana Law Review

The article discusses expert witness qualification under Louisiana Revised Statutes Section 9:2794, and proposes that state legislature should revise statute to promote clarity and consistency for medical malpractice litigants.

Properly Limiting The Lost Chance Doctrine In Medical Malpractice Cases: A Practitioners’ Rejoinder, Michael C. Mims, Richard S. Crisler

Louisiana Law Review

The article discusses the basic fairness issues over the lost chance doctrine in medical malpractice lawsuits, and why the Louisiana Second Circuit Court of Appeal is wrong and the Louisiana Supreme Court is right in the case Burchfield v. Wright.

Feres: The “Double-Edged Sword”, Kaitlan Price

Dickinson Law Review (2017-Present)

In Feres v. United States, the Supreme Court barred service members from suing the Government under the Federal Tort Claims Act if the injuries occurred “incident to military service.” In establishing this doctrine, the Court discussed the necessity of protecting the military from lawsuits to ensure effective decision-making by military leaders.

Scholars have harshly criticized Feres in the modern era, arguing Feres must be overturned to provide service members with a greater opportunity for recovery. Specifically, many scholars admonish Feres because the Supreme Court failed to provide a clear definition of “incident to military service.” Lacking a clear definition …

Perspective Of Islamic Law (Sharia) Towards The Liability Of Medical Malpractice, Mohammed Abdul Rahim Al Olama

UAEU Law Journal

In this brief study, I have addressed the view of Islamic Law (Sharia) towards liability in medical malpractice. I have cited the views of early scholars from the four schools of Islamic jurisprudence as well as contemporary ones and quoted decisions issued by the jurisprudential academies in reference to this important subject. Moreover, the study sheds light on the position of Sharia especially with the introduction of multidisciplinary modern medicine treatments and the increased likelihood of consequent medical malpractice.

It is noteworthy that the doctor's commitment to the rules and principles of the medical profession without negligence absolves him/her of …

Jewish Law And The Concept Of Negligence, Steven F. Friedell

Touro Law Review

No abstract provided.

I Am Woman, Hear Me Roar: Denial Of Sexual Reassignment Surgery For Transgender Inmates And The Eighth Amendment’S Ban On Cruel And Unusual Punishment, Chiara Haueter

Touro Law Review

No abstract provided.

Medical Civil Liability Without Deterrence: Preliminary Remarks For Future Research, Emiliano Marchisio

Journal of Civil Law Studies

The traditional deterrence-based paradigm of civil liability may be understood as indirect market regulation, as the risk of incurring liability for damages provides an incentive to invest in safety. Such an approach, however, has proven to be inappropriate in medical civil liability. Extensive literature shows that the increase in the asymmetric protection of patients by extending medical civil liability beyond a certain limit does not improve safety; instead, that strategy determines the adoption of “defensive” techniques (the so-called “defensive medicine”). Paradoxically, this approach leads to a reduction in market efficiency and overall patient safety. The traditional paradigm of medical civil …

Strategic Apologies In Medical Malpractice Mediation, Brittany Norman

Pepperdine Dispute Resolution Law Journal

Mistakes happen, even in a field as serious and careful as medicine. As a result, some patients are left with unexpected results from their medical procedures. Once hospitals inform patients of medical mistakes or the patients inform the hospital, the patients' cases are moved to the legal realm, where they are viewed as a liability. This shift causes the patient to feel as though the hospital does not recognize him or her and prevents doctors from apologizing to their patients, despite their desire to do so. In an attempt to apologize without vulnerability to liability, medical professionals are sometimes instructed …

Revitalizing Louisiana's Lost Chance Doctrine: Burchfield V. Wright Sheds Light On The Need For Medical Expenses, Madeleine K. Morgan

Louisiana Law Review

The article discusses the Louisiana Supreme Court case "Burchfield v. Wright" to examine the use of the 'lost chance doctrine' in medical malpractice lawsuits under the Louisiana Medical Malpractice Act (MMA).

Telemedicine And Malpractice: Creating Uniformity At The National Level, Tyler D. Wolf

William & Mary Law Review

Picture this: an elderly gentleman living alone, isolated in a rural, midwestern locale. One day, this elderly gentleman awakes to find a distinct rash forming on his chest. The nearest doctor capable of performing an examination is located over a hundred miles away, and this man has not driven more than ten miles in twenty years. Shambling into his living room, the elderly man logs onto his computer and begins typing. Within twenty minutes he is videoconferencing with a doctor who examines the rash remotely and makes a diagnosis.

Through advances in telemedicine, the scenario described above is becoming an …

The Importance Of Doctor Liability In Medical Malpractice Law: China Versus The United States, Vincent R. Johnson

St. Mary's Journal on Legal Malpractice & Ethics

Medical malpractice law in China does not work. Disappointed patients and their families, or the gangs they hire, frequently resort to physical violence, beating up doctors and disrupting hospital activities in order to extort settlements. This happens because Chinese law has failed to provide viable remedies to many victims of medical malpractice.

This dysfunctional situation (medical chaos or yinao) has persisted for more than two decades. Today, parents in China discourage their children from attending medical school because practicing medicine is too dangerous.

Reforming Chinese medical malpractice law will be difficult. Many factors contribute to the public’s lack of confidence …

Torts: Just Walk Away: How An Overbroad Foreseeability Of Harm Standard Could Kill “Curbside Consultations” — Warren V. Dinter, 926 N.W.2d 370 (Minn. 2019), Erika Miller

Mitchell Hamline Law Review

No abstract provided.

The Paradoxes Of Defensive Medicine, Michael J. Saks, Stephan Landsman

Health Matrix: The Journal of Law-Medicine

For decades, “defensive medicine” has been the leading argument driving reforms of medical malpractice laws throughout the United States. Defensive medicine is the presumed practice of administering excessive tests and treatments as a stratagem for reducing healthcare providers’ risk of malpractice liability, despite the absence of any expected benefit for the patient. The practice is widely believed to exist throughout American healthcare as a response to fears of malpractice litigation, and thought to be enormously wasteful of healthcare dollars. In consequence, it has become a justification for law reforms insulating the healthcare industry from tort liability. These claims are promoted …

Guffey V. Lexington House, Adam Laliberte

Journal of Civil Law Studies

No abstract provided.

The Question Of The Constitutionality Of Non-Economic Damage Caps In Personal Injury Cases In Canada, Rachael Kratz

University of Miami Inter-American Law Review

No abstract provided.

Telehealth, Children, And Pediatrics: Should The Doctor Make House Calls Again, Digitally?, Laura C. Hoffman

Nova Law Review

No abstract provided.

2018 Survey Of Rhode Island Case Law

Roger Williams University Law Review

No abstract provided.

Italy - The New Italian Regime For Healthcare Liability And The Role Of Clinical Practice Guidelines: A Dialogue Among Legal Formants, Laura Maria Franciosi

Journal of Civil Law Studies

No abstract provided.

Informing Consent: Medical Malpractice And The Criminalization Of Pregnancy, Laura Beth Cohen

Michigan Law Review

Since the early 1990s, jurisdictions around the country have been using civil child abuse laws to penalize women for using illicit drugs during their pregnancies. Using civil child abuse laws in this way infringes on pregnant women’s civil rights and deters them from seeking prenatal care. Child Protective Services agencies are key players in this system. Women often become entangled with the Child Protective Services system through their health care providers. Providers will drug test pregnant women without first alerting them to the potential negative consequences stemming from a positive drug test. Doing so is a breach of these providers’ …

Maine Physician Practice Guidelines: Implications For Medical Malpractice Litigation, Jennifer S. Begel

Maine Law Review

This Article assesses the use of physician practice guidelines as a vehicle for medical malpractice tort reform and focuses upon the State of Maine's legislation incorporating physician practice parameters into the defense of medical malpractice litigation. The Maine Medical Liability Demonstration Project (the “Demonstration Project”) legislatively adopts practice guidelines in four different medical specialties and allows physicians in those specialties to assert compliance with the applicable guideline as an affirmative defense. The affirmative defense of compliance with such guidelines has been touted as a means of protecting physicians from, and decreasing the costs associated with, medical malpractice litigation. While the …

A Taste Of Their Own Medicine: Examining The Admissibility Of Experts' Prior Malpractice Under The Federal Rules Of Evidence, Neil Henson

Vanderbilt Law Review

Medical malpractice litigation is challenging for both plaintiffs and defendants. The intersection of legal issues with complex medical theories creates a dispute focused on expert witnesses, which leads to greater litigation expenses and cumbersome legal proceedings.' As one scholar observed, "medical malpractice has proven to be ... an unpleasant quagmire of unending skirmishes and full-scale engagements spread across a shifting battlefield." That analogy is fitting considering the stakes of a medical malpractice case-the injured patient's emotional, physical, and financial well-being may be contingent on a successful outcome, while the doctor may perceive even the threat of litigation as detrimental to …