Medical Jurisprudence Commons^™

Distorted And Diminished Tort Claims For Women, Jamie R. Abrams

Cardozo Law Review

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 …

Infant Pain And Suffering: The Valuation Dilemma, Peter N. Kalionzes

Pepperdine Law Review

No abstract provided.

Remedy For The Intentional Torts Of A Workmen's Compensation Carrier, Everett E. Demler

Pepperdine Law Review

No abstract provided.

Fixing The Vaccine Act's Structural Moral Hazard, Brandon L. Boxler

Pepperdine Dispute Resolution Law Journal

The article presents information on the Vaccine Injury Compensation Program. It discusses the U.S. Federal circuit case Hazlehurst v. Sec'y of Health & Human Servs., in which lawsuit against the defendant was filed by the plaintiff who sought claims against the liability of product to recover damages for alleged injuries which his son had received from vaccines. It also provides information on the structural moral hazard of the program which devolves it into a litigious adjudicatory process.

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.

The Locality Rule Lives! Why? Using Modern Medicine To Eradicate An “Unhealthy” Law, 61 Drake L. Rev. 321 (2013), Marc Ginsberg

UIC Law Open Access Faculty Scholarship

The "locality rule" places a geographical dimension on the professional standard of care in medical negligence litigation. It requires the measurement of a physician's conduct by a standard focusing on the geographical location of the treatment provided. This Article traces the origin of the locality rule, discusses its related practical problems, focuses on the states in which it exists, suggests that the rule is archaic, and explains how modern medicine (undergraduate medical education, graduate medical education, state medical licensure, board certification, continuing medical education and practice guidelines) is well positioned to eradicate it.

Loss Of Chance, Probabilistic Cause, And Damage Calculations: The Error In Matsuyama V. Birnbaum And The Majority Rule Of Damages In Many Jurisdictions More Generally, Robert J. Rhee

UF Law Faculty Publications

This short commentary corrects an erroneous understanding of probabilistic causation in the loss-of-chance doctrine and the damage calculation method adopted in Matsuyama v. Birnbaum. The Supreme Judicial Court of Massachusetts is not alone. Many other common law courts have made the same error, including Indiana, Nevada, New Mexico, Ohio, and Oklahoma. The consistency in the mistake suggests that the error is the majority rule of damages. I demonstrate here that this majority rule is based on erroneous mathematical reasoning and the fallacy of probabilistic logic.

What's Law Got To Do With It?: Why We Should Mediate, Rather Than Litigate, Cases Of Wrongful Life, Shawna Benston

Cardozo Journal of Conflict Resolution

In light of the legal and societal disfavor toward wrongful life suits, this Note examines the cultural, (bio)ethical, legal, and philosophical background of the wrongful life tort. While the disability rights movement and the pro-life strains of the abortion debate hope to silence proponents of wrongful life suits, the evolution of a legal right to die underscores the importance of autonomy and privacy for the individual. Philosophical exploration of prospective children-including the nonidentity problem, claim-rights and corresponding duties, and the subjunctive-threshold notion of harmhelps explain the confusion and moral conundrum that pervade the very notion of "wrongful life" and that …

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 …

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.

Pliva Shields Big Pharma From Billions, Cuts Consumers' Rights, Dana Taschner

San Diego Law Review

This Article explores the emergence of the LRA test, as well as its dangers, and explains how an equivalent norm underlies recent monopolization cases. The Author concludes that the law should not require business practices to maximize social welfare to pass muster under the antitrust laws. As tools of public policy directed at unilateral market behavior, antitrust and regulation have long played distinct, though complementary, roles. Natural-monopoly regulation has as its immodest goal the maximization of consumer welfare by simultaneously imposing universal service obligations and spurring the efficiencies associated with competition through the imposition of various behavioral constraints. That such …

The Ftca, Veterans, And Future Medical Expenses, R. J. Pinto

San Diego Law Review

In this comment the author aims to expose the jurisprudential flaws in a particular area of the law and advocate, as his prescription a refocused jurisprudence. Part II describes how courts have historically come to the conclusion that veterans suing under the FTCA should be awarded future medical expenses despite their entitlement to VA medical care. Part III address a threshold issue: the extent to which courts using this framework have overcompensated veterans. Part IV addresses why overcompensating veterans under the FTCA matters on a policy level. Part V exposes the problems with the court's jurisprudence and provides a solution …

Mold Is Gold: But, Will It Be The Next Asbestos?, Thelma Jarman-Felstiner

Pepperdine Law Review

No abstract provided.

On The Theory Class's Theories Of Asbestos Litigation: The Disconnect Between Scholarship And Reality?, Lester Brickman

Pepperdine Law Review

More than 100,000 new asbestos claims were filed in 2003, the most ever in one year. Asbestos litigation thus continues to thrive even though 80-90% of claimants have no illness recognized by medical science, let alone suffer any lung impairment. To explain how this disconnect between medical science and tort litigation has come about, I cover the following subjects: 1) medical consequences of exposure to asbestos-containing materials; 2) the phenomenon of the unimpaired claimant; 3) medical evidence with regard to the incidence of asbestosis; 4) the effect on asbestos litigation of the failure of the Manville Trust audit to be …

Keeping Junk Science Out Of Asbestos Litigation, David E. Bernstein

Pepperdine Law Review

No abstract provided.

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 …

Mediation In The Health Care System: Creative Problem Solving , Sheea Sybblis

Pepperdine Dispute Resolution Law Journal

Part I of this paper provides a comparison of the use of litigation and mediation in the health care context. Part II explores how mediation can be used to improve many of the often criticized aspects of adjudication systems and alleviate tension between parties in health care disputes. Part III provides an evaluation of current mediation programs and studies in health care, as well as the expanding role of mediators. Part IV incorporates assessments of the potential success of mediation to resolve health care disputes in the future and provides suggestions to strengthen the process.

Gambling On Goldilocks: Illinois Medical Malpractice Damage Caps And The Quest For "Just Right" Reform, 45 J. Marshall L. Rev. 917 (2012), Kristen Zaharski

UIC Law Review

No abstract provided.

Brief Of Professors Of Law As Amici Curiae In Support Of Appellants, Neil Vidmar, David Zevan

Faculty Scholarship

No abstract provided.

Defensive Medicine And Obstetric Practices, Michael D. Frakes

Faculty Scholarship

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 non-economic 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 …

Hela Cells And Unjust Enrichment In The Human Body, Deleso A. Alford

Journal Publications

Henrietta Lacks achieved fame and immortality in the world of science. In 1951, Johns Hopkins Hospital harvested the tissue of Ms. Lacks, a 31-year-old African American woman diagnosed with cervical cancer to mass produce "HeLa cells."' The money derived from her cell line produced wonders and scientific breakthroughs in technology, biology and medicine which "far exceeds that reflected in the published literature, because it is the reference cell in so many research laboratories.”

In this essay, I place Ms. Lacks' parts (tissue cells) back into her body to raise a claim of unjust enrichment. I discuss the ongoing debate as …