Health Law and Policy Commons^™

Uncovering The Silent Victims Of The American Medical Liability System, Joanna Shepherd

Faculty Articles

A frequently overlooked problem with the current medical liability system is the vast number of medical errors that go uncompensated. Although studies indicate that 1% of hospital patients are victims of medical negligence, fewer than 2% of these injured patients file claims. In this Article, I explain that many victims of medical malpractice do not file claims because they are unable to find attorneys willing to take their cases.

I conducted the first national survey of attorneys to explore medical malpractice victims' access to the civil justice system. The results from the survey indicate that the economic reality of litigation …

Asbestos Lawsuits In Russia: Bring One If You Can, Anna Linetskaya

Cardozo Journal of International and Comparative Law

The note examines the challenges faced by asbestos victims in Russia in seeking legal redress, highlighting the barriers posed by the country's legal system, lack of regulatory oversight, and the dominance of the asbestos industry. It argues that despite the existence of tort law as a potential avenue for relief, numerous structural and procedural obstacles deter victims from pursuing claims, underscoring the need for legal reforms to improve access to justice.

An Analysis Of New York State’S Flawed Recovery Scheme In Prenatal Malpractice Actions: Why A Claim Of Nied Should Be Available To Plaintiffs, Amanda Campo

Pace Law Review

Prior to 2006 mothers could not bring a wrongful death action on behalf of their stillborn child, nor could they bring any personal cause of action, absent a physical injury independent from the unsuccessful birth itself. In 2006, the New York Court of Appeals attempted to fill this gap in the case of Broadnax v. Gonzalez. This Note will analyze whether Broadnax successfully filled this recovery gap. Parts II, III, and IV will discuss the history of a mother’s failed attempts to gain recovery for the death of her stillborn child. Part V will discuss Broadnax. I will argue that …

Distorted And Diminished Tort Claims For Women, Jamie Abrams

Scholarly Articles in Law Reviews & Journals

Childbirth is distinctly characterized in tort law by the literal emergence of a potential putative plaintiff. This Article seeks to position the birthing woman — distinct from the pregnant woman or the parent — squarely within the negligence framework and, in doing so, to challenge prevailing assumptions dominating obstetric medical decision-making. The existence of two patients and two putative plaintiffs is unique to childbirth, yet largely unexamined in tort. This Article examines how the dominant focus on fetal harms in modern childbirth overshadows the birthing woman in tort and distorts the normative dualities of childbirth.

While theoretically childbirth falls within …

Mining, Uranium, Bert Chapman

Libraries Faculty and Staff Scholarship and Research

Provides an overview of uranium mining's role and influence in the American West with comparative information on uranium mining in foreign countries.

Administrative Remedies In The Field Of Toxic Torts, Janet L. Heller

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Managed Care Grievance Procedures: The Dilemma And The Cure , Joyce Krutick Craig

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Is The Doctor In? The Contemptible Condition Of Immigrant Detainee Healthcare In The U.S. And The Need For A Constitutional Remedy, Kate Bowles

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Truman V. Thomas: The Rise Of Informed Refusal, Thomas M. O'Neil

Pepperdine Law Review

Truman v. Thomas addresses the issue of whether or not a physician must inform a patient of the possible consequences of her refusal to submit to a diagnostic test. The California Supreme Court has determined that a physician has such a duty, and the author provides an examination of this decision and a view of previous case law in the area of informed consent. Although increasing the physician's burden of disclosure, the decision can be seen as a continuation of the trend of cases allowing patients more control over the care of their own bodies.

The Impact Of Medical Liability Standards On Regional Variations In Physician Behavior: Evidence From The Adoption Of National-Standard Rules, Michael Frakes

Cornell Law Faculty Publications

I explore the association between regional variations in physician behavior and the geographical scope of malpractice standards of care. I estimate a 30-50 percent reduction in the gap between state and national utilization rates of various treatments and diagnostic procedures following the adoption of a rule requiring physicians to follow national, as opposed to local, standards. These findings suggest that standardization in malpractice law may lead to greater standardization in practices and, more generally, that physicians may indeed adhere to specific liability standards. In connection with the estimated convergence in practices, I observe no associated changes in patient health. (JEL …

Liability Cure-All For Insidious Disease Claims, Susan Frankewich

Pepperdine Law Review

Recent decisions handed down in various circuits have created virtual chaos in predicting the liability and damage amounts of insidious disease claims. At least three substantially divergent theories have been adopted to impute liability to the manufacturers of the disease catalysts. Additionally, a new trust fund concept has been used on a limited basis to reconcile differences in court decisions. The trust fund approach is relatively flexible and simple to apply in apportioning damages for insidious disease claims. The author examines and analyzes these three liability theories. In conclusion, the adoption of the trust fund concept is recommended.

Medical Malpractice: The Right To Recover For The Loss Of A Chance Of Survival, Patricia L. Andel

Pepperdine Law Review

Traditionally, a plaintiff suffering from misdiagnosis has been precluded from recovery unless he could show that "but for" the misdiagnosis he would have had a better-than-even chance of recovery. While many courts have attempted to avoid this doctrine by reducing the standard of causation, this has led to inconsistent results. The better approach is to recognize that a "chance" of recovery has a compensable value in and of itself This comment will explore the concept of loss of a chance and trace its development as it relates to medical malpractice actions.

No Duty To Warn Of Drug Interactions: A Dangerous Prescription, 46 J. Marshall L. Rev. 533 (2013), Ryanne Bush Dent

UIC Law Review

No abstract provided.

Sacrificial Lambs: Compensating First Subscribers To Fda-Approved Medications For Postmarketing Injuries Resulting From Unlabeled Adverse Events, Rodney K. Miller

Catholic University Law Review

No abstract provided.

The Dark Side Of The Boom: The Peculiar Dilemma Of Modern False Claims Act Litigation, David S. Torborg

Journal of Law and Health

Spurred by treble damages, substantial penalties, and lucrative relator awards, litigation under federal and state False Claims Act (“FCA”) statutes has exploded in recent years. Much of that explosion stems from aggressive and creative legal theories that challenge controversial industry practices or even well-known loopholes or waste in government policy. Evidence from governmental entities can be critically important in litigating these FCA claims. Unique aspects of False Claims Act actions, however, can aggravate the risk of losing this important evidence, leaving the parties, judges, and juries without the evidentiary record necessary to equitably adjudicate these disputes. Defendants can face the …

The Impact Of Medical Liability Standards On Regional Variations In Physician Behavior: Evidence From The Adoption Of National-Standard Rules, Michael D. Frakes

Faculty Scholarship

I explore the association between regional variations in physician behavior and the geographical scope of malpractice standards of care. I estimate a 30–50 percent reduction in the gap between state and national utilization rates of various treatments and diagnostic procedures following the adoption of a rule requiring physicians to follow national, as opposed to local, standards. These findings suggest that standardization in malpractice law may lead to greater standardization in practices and, more generally, that physicians may indeed adhere to specific liability standards. In connection with the estimated convergence in practices, I observe no associated changes in patient health.

Malpractice Mobs: Medical Dispute Resolution In China, Benjamin L. Liebman

Faculty Scholarship

China has experienced a surge in medical disputes in recent years, on the streets and in the courts. Many disputes result in violence. Quantitative and qualitative empirical evidence of medical malpractice litigation and medical disputes in China reveals a dynamic in which the formal legal system operates in the shadow of protest and violence. The threat of violence leads hospitals to settle claims for more money than would be available in court and also influences how judges handle cases that do wind up in court. The detailed evidence regarding medical disputes presented in this Essay adds depth to existing understanding …

'No Body Left Behind': Re-Orienting School-Based Childhood Obesity Interventions, Lindsay Wiley

Scholarly Articles in Law Reviews & Journals

Although there are now laws on the books in virtually every jurisdiction aimed at addressing childhood obesity in K-12 schools, these efforts are inadequate and may even be misguided in important ways. Efforts aimed at health promotion - through healthier eating and increased physical activity - remain woefully underfunded even as they proliferate at every level of government. It is one thing to enact a requirement that all schools offer a minimum number of minutes of physical education each week or that school lunches include more fruits and vegetables. But it is quite another to make the budgetary commitment to …

How Do The Elderly Fare In Medical Malpractice Litigation, Before And After Tort Reform? Evidence From Texas, Myungho Paik, Bernard S. Black, David A. Hyman, William M. Sage, Charles M. Silver

Faculty Scholarship

The elderly account for a disproportionate share of medical spending, but little is known about how they are treated by the medical malpractice system, or how tort reform affects elderly claimants. We compare paid medical malpractice claims brought by elderly plaintiffs in Texas during 1988–2009 to those brought by adult non-elderly plaintiffs. Controlling for healthcare utilization (based on inpatient days), elderly paid claims rose from about 20% to about 40% of the adult non-elderly rate by the early 2000s. Mean and median payouts per claim also converged, although the elderly were far less likely to receive large payouts. Tort reform …

Vaccines And The Law, Michael Sanzo Ph.D.

Pepperdine Law Review

The last twenty years have seen a sea-change in the area of proving causation in the toxic tort setting, with courts demanding stronger, scientifically tested evidence. At the same time, a closely related debate has been raging about separating cause from coincidence under the National Childhood Vaccine Injury Act compensation program for injuries that might have been the result of vaccinations. The Vaccine Act created a no-fault compensation fund financed by a tax on childhood vaccines to address harms resulting from those vaccines. Unfortunately, Congress gave little direction with regard to the level of causal certainty that would be required …

Assisted Suicide: A Tough Pill To Swallow, Mary Margaret Penrose

Pepperdine Law Review

No abstract provided.

Medtronic, Inc. V. Lohr: Is Federal Pre-Emption A Heartbeat Away From Death Under The Medical Device Amendments?, Mark E. Gelsinger

Pepperdine Law Review

No abstract provided.

The Fda Sends Smoke Signals To Big Tobacco: Will The Fda Suffer Backlash, Will Alcohol Be Regulated Next, And Will The Health Of Americans Prevail?, Angela Turriciano

Pepperdine Law Review

No abstract provided.

Irreconcilable Differences: Why The Doctor-Patient Relationship Is Disintegrating At The Hands Of Health Maintenance Organizations And Wall Street, Mark O. Hiepler, Brian C. Dunn

Pepperdine Law Review

No abstract provided.

State Medical Reimbursement Lawsuits After Tobacco: Is The Domino Effect For Lead Paint Manufacturers And Others Fair Game? , Richard L. Cupp Jr.

Pepperdine Law Review

In 1998 the tobacco industry reached a settlement with the government for $246 billion. The massive size and scope of the states' tobacco settlement will inevitably exert a powerful influence on tort litigation for decades. The proliferation of copycat lawsuits, such as lead paint claims, seeking to emulate the spectacular success of the tobacco lawsuits will be one of the first aftershocks. The appropriate legislative response to this copycat litigation is to enact legislation limiting mass tort claims by states and other government entities. Because politics and economics may be influencing the filing of these lawsuits, rather than a purer …

Defensive Medicine And Obstetric Practices, Michael Frakes

Cornell Law Faculty Publications

Using data on physician behavior from the 1979–2005 National Hospital Discharge Surveys (NHDS), I estimate the relationship between malpractice pressure, as identified by the adoption of noneconomic damage caps and related tort reforms, and certain decisions faced by obstetricians during the delivery of a child. The NHDS data, supplemented with restricted geographic identifiers, provides inpatient discharge records from a broad enough span of states and covering a long enough period of time to allow for a defensive medicine analysis that draws on an extensive set of variations in relevant tort laws. Contrary to the conventional wisdom, I find no evidence …

Science On Law's Terms: Implications Of Procedural Legitimacy On Scientific Evidence, Nayha Acharya

LLM Theses

Scientific evidence is relied on more and more in litigation. Discussions and debates aimed at enabling courts to make the best use scientific evidence are increasingly critical. This thesis adds the perspective of procedural legitimacy to the science and law discussion. Procedural Legitimacy is the concept that consistent adherence to legal procedure maintains the overall legitimacy of the legal system, and the validity of its outcomes. I argue that the integrity of legal procedures must be maintained where scientific evidence is presented, so that judicial decisions that rely on scientific evidence are legitimate.

'How's My Doctoring?' Patient Feedback's Role In Assessing Physician Quality, Ann Marie Marciarille

Faculty Works

A society-wide consumer revolution is underway with the rise of online user-generated review websites such as Yelp, Angie’s List, and Zagat. Service provider reviews are now available with an intensity and scope that attracts increasing numbers of reviewers and readers. Health care providers are not exempt from this new consumer generated scrutiny though they have arrived relatively late to the party and as somewhat unwilling guests.

The thesis of this article is that online patient feedback on physicians is relevant and valuable even though it is also uncomfortable for health care providers. This is because the modern physician-patient relationship is …

Medical Apology Programs & The Unauthorized Practice Of Law, Gabriel H. Teninbaum

Suffolk University Law School Faculty Works

This Essay was created to accompany a presentation at the New England Law Review/American Health Lawyers Association symposium “On the Table: An Examination of Medical Malpractice, Litigation, and Methods of Reform.” In the last decade, many American medical facilities have instituted medical apology programs. These programs call on doctors who have committed an error to meet with their injured patient, explain what happened and, typically, apologize. Some programs have also adopted policies to accompany these communications with offers of compensation. As part of this process, doctors are typically accompanied to meetings by risk managers who represent the interests of the …

Forgive And Forget: Recognition Of Error And Use Of Apology As Preemptive Steps To Adr Or Litigation In Medical Malpractice Cases , Ashley A. Davenport

Pepperdine Dispute Resolution Law Journal

Medical malpractice cases are a special breed within the field of tort jurisprudence as mistakes in the medical field are regrettably inevitable. Medical universities use some of the greatest hospitals in this country as interactive classrooms to teach future physicians. A vast number of people are treated in hospitals throughout the United States every day, and of those treated, a number are neglected under the confines of the law. The American public expects infallible care from our health care system and any deviation from perfection may result in legal action. Those wronged seek litigation primarily as a means to punish …