Medical Jurisprudence Commons^™

Torts And Innovation, Alex Stein, Gideon Parchomovsky

Faculty Scholarship

No abstract provided.

Medical Malpractice Law, Kathleen M. Mccauley, William F. Demarest Iii

University of Richmond Law Review

No abstract provided.

Calling It A Leg Doesn't Make It A Leg: Doctors, Lawyers And Tort Reform, Ellen Wertheimer

Working Paper Series

It has long been a truism that doctors hate lawyers. This article explores some of the reasons for this phenomenon, as well as some areas for reform that might help to promote a better relationship between the professions.

The Use Of Litigation Screenings In Mass Torts: A Formula For Fraud?, Lester Brickman

Articles

The article critically examines the pervasive abuse of litigation screenings in mass tort cases, revealing a system driven by financial exploitation where medical evaluations are manipulated to generate lawsuits. These screenings, often designed to produce false positives, undermine the integrity of the legal system by creating a flood of specious claims. The analysis highlights how lawyers, doctors, and screening companies exploit legal loopholes and financial incentives, leading to billions of dollars in settlements and eroding public trust in the civil justice system.

Dances With Elephants: Administrative Resolution Of Medical Injury Claims By Medicare Beneficiaries, Eleanor D. Kinney, William M. Sage

Faculty Scholarship

In our judgment, Hoffmann and Rowthorn's research clearly demonstrates that the QIO-based complaint review process does not provide genuine relief to beneficiaries. People who complain typically want an explanation of their bad experience, compensation for harm they may have suffered, and assurance that future experiences will be better for themselves and for others. Medicare beneficiaries, however, receive minimal information about the resolution of their complaints and no substantive relief whatsoever.

As Hoffmann and Rowthorn point out, several reform proposals are now before Congress, including moving the beneficiary complaint function from QIOs to new "Medicare Provider Review Organizations." It is not …

Amicus Brief, Lebron V. Gottlieb Memorial Hospital, Neil Vidmar, Tom Baker, Ralph L. Brill, Martha Chamallas, Stephen Daniels, Thomas A. Eaton, Theodore Eisenberg, Neal R. Feigenson, Lucinda M. Finley, Marc Galanter, Valerie P. Hans, Michael Heise, Edward J. Kionka, Thomas H. Koenig, Herbert M. Kritzer, David I. Levine, Nancy S. Marder, Joanne Martin, Frank M. Mcclellan, Deborah Jones Merritt, Philip G. Peters, Jr., James T. Richardson, Charles Silver, Richard W. Wright

Scholarly Works

Illinois Public Act 82-280, § 2-1706.5, as amended by P.A. 94-677, § 330 (eff. Aug. 25, 2005), and as codified as 735 ILCS 5/2-1706.5(a), imposes a $500,000 “cap” on the noneconomic damages that may be awarded in a medical malpractice suit against a physician or other health care professional, and a $1 million “cap” on the noneconomic damages that may be awarded against a hospital, its affiliates, or their employees.

This brief will address two of the questions presented for review by the parties:

1. Does the cap violate the Illinois Constitution’s prohibition on “special legislation,” Art. IV, § 3, …

Blurring The Boundary Lines Between Amateur And Professional Sports, Kenneth D. Ferguson

Faculty Works

The NCAA expends substantial resources to insure that the distinction between amateur and professional sports is maintained in collegiate athletics. Preserving the boundary lines between amateur and professional sports is more than an attempt to ensure philosophical purity or a nostalgic quest for historic preservation. The boundaries between amateur and professional sports are maintained by legal doctrines in several areas.

Application of tort law to coaches' liability for conduct leading to injuries to athletes reflects and preserves the boundary lines between professional and amateur sports. Although the implied assumption of risk doctrine should preserve that distinction, some courts have applied …

Not For The Faint Of Heart: Does A Hospital Owe A Duty To Warn A Squeamish Visitor?, 41 J. Marshall L. Rev. 473 (2008), Marc D. Ginsberg, Tricia E. Mcvicker

UIC Law Review

No abstract provided.

The Standard Of Care For Health Providers In Idaho, Monique C. Lillard

Articles

No abstract provided.

Patients Without Borders: The Emerging Global Market For Patients And The Evolution Of Modern Health Care, Nathan Cortez

Faculty Journal Articles and Book Chapters

This article addresses the unique legal, policy, and ethical questions that arise when patients travel to foreign jurisdictions for medical care. A growing number of patients are leaving the United States, and employers, insurers, and even government payors are beginning to explore whether they can reduce spending by utilizing hospitals and physicians in developing countries. Because this is a dramatic leap, it has generated countless media stories, and has drawn attention from the WHO, WTO, World Bank, and U.S. Senate - many of which believe so-called medical tourism may transform health care here and abroad.

Despite this attention, the market …

Incidental Findings: A Common Law Approach, Stacey A. Tovino

Scholarly Works

Federal regulations governing human subjects research do not address key questions raised by incidental neuroimaging findings, including the scope of a researcher’s disclosure with respect to the possibility of incidental findings and the question whether a researcher has an affirmative legal duty to seek, detect, and report incidental findings. The scope of researcher duties may, however, be mapped with reference to common law doctrine, including fiduciary, tort, contract, and bailment theories of liability.

Disparities Between Asbestosis And Silicosis Claims Generated By Litigation Screenings And Clinical Studies, Lester Brickman

Cardozo Law Review

No abstract provided.

Do Defendants Pay What Juries Award - Post-Verdict Haircuts In Texas Medical Malpractice Cases, 1988-2003, David A. Hyman, Bernard S. Black, Kathryn Zeiler, Charles Silver, William M. Sage

Faculty Scholarship

Legal scholars, legislators, policy advocates, and the news media frequently use jury verdicts to draw conclusions about the performance of the tort system. However actual payouts can differ greatly from verdicts. We report evidence on post-verdict payouts from the most comprehensive longitudinal study of matched jury verdicts and payouts. Using data on all insured medical malpractice claims in Texas from 1988-2003 in which the plaintiff received at least $25,000 (in 1988 dollars) following a jury trial, we find that most jury awards received "haircuts." Seventy-five percent of plaintiffs received a payout less than the adjusted verdict (jury verdict plus pre-judgment …

Do Defendants Pay What Juries Award? Post-Verdict Haircuts In Texas Medical Malpractice Cases, 1988–2003, David A. Hyman, Bernard Black, Kathryn Zeiler, Charles Silver, William M. Sage

Faculty Scholarship

Legal scholars, legislators, policy advocates, and the news media frequently use jury verdicts to draw conclusions about the performance of the tort system. However, actual payouts can differ greatly from verdicts. We report evidence on post-verdict payouts from the most comprehensive longitudinal study of matched jury verdicts and payouts. Using data on all insured medical malpractice claims in Texas from 1988–2003 in which the plaintiff received at least $25,000 (in 1988 dollars) following a jury trial, we find that most jury awards received “haircuts.” Seventy-five percent of plaintiffs received a payout less than the adjusted verdict (jury verdict plus prejudgment …

The Fda Preamble: A Backdoor To Federalization Of Prescription Warning Labels?, 41 J. Marshall L. Rev. 161 (2007), Cristina Rodríguez

UIC Law Review

No abstract provided.

Guiding Patrons To Online Health Information: Can Librarians Be Found Liable?, Elaine Gibson

Articles, Book Chapters, & Popular Press

The amount of health information available on the Internet is growing rapidly and information intermediaries are increasingly being asked to help information seekers find and make sense of this information. This activity is for the most part benign from a legal perspective. However, there is a small possibility that, should the intermediary steer an information seeker to information that proves harmful to the seeker, the intermediary may be found liable for injuries incurred. In this paper, we examine the theoretical underpinnings of the relevant laws, clarify the risks, and recommend ways to minimize risk.

New Differences Between Negligence And Strict Liability And Their Implications On Medical Malpractice Reform, Noam Sher

ExpressO

The present article seeks to explore previously undiscussed differences between the negligence and strict liability rules and thereby examine the required medical liability reform, if such reform is indeed required. Our main thesis is that negligence as a basis for liability entails a unique mechanism, which is essentially different than the strict liability mechanism, and is more efficient for several reasons, related to the legal function of resolving partial information problems which cause partial failure in the healthcare market. Among other things, the negligence mechanism (1) motivates the parties to a potential damages claim to invest in information gathering; (2) …

Of Apples And Trees: Adoption And Informed Consent, Ellen Wertheimer

Working Paper Series

This article argues that the doctrine of informed consent should apply to the process of adopting a child. There is substantial evidence that all adopted children are at higher risk of learning disabilities and mental health problems than nonadopted children. The article first summarizes the social science evidence demonstrating these risks and discusses some of the reasons why more extensive studies have not yet been done. The article then turns to the law of informed consent as created and applied in the contexts of medicine and law, and concludes that informed consent doctrine should apply to the process of adoption. …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Hedonic Damages, Hedonic Adaptation, And Disability, Samuel R. Bagenstos, Margo Schlanger

ExpressO

This article contributes to the broad debate over “adaptive preferences” in law, economics, and political philosophy by addressing an important ongoing controversy in tort law. Hedonic damages compensate for the lost enjoyment of life that results from a tortious injury. Lawyers seeking hedonic damages in personal injury cases emphasize their clients’ new status as compromised and damaged persons, and courts frequently uphold jury verdicts awarding hedonic damages to individuals who experienced disabling injuries based on a view that disability necessarily limits one’s enjoyment of life. This view is consonant with a general societal understanding of disability as a tragedy and …

The Final Battle For Preemption: The Fda And Prescription Drug Labeling Product Liability Actions, Mary J. Davis

ExpressO

The Food and Drug Administration (FDA) has promulgated a new regulation which revises the format for prescription drug labeling, and, in the process, has taken the position that the regulation displaces, or preempts, state products liability laws that seek to assess liability on the manufacturer for a label’s warning adequacy. In the FDA’s 100 year history, it has not taken the position that federal prescription drug labeling regulations preempt common law tort claims until the last few years, beginning with Motus v. Pfizer in 2002. This position, radical to many and rational to others, places federal preemption of prescription drug …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

Bridging The Relational-Regulatory Gap: A Pragmatic Information Policy For Patient Safety And Medical Malpractice, William M. Sage, Joshua Graff Zivin, Nathaniel B. Chase

Faculty Scholarship

The Article distinguishes and explores three categories of information use: Helping patients understand and participate in their care; Improving patient safety, including analyzing medical errors and identifying unsafe health care providers and practices; and Assessing the performance of the medical liability system in its many dimensions including deterrence, compensation, justice, administrative efficiency, and stability.

For each category, the Article comments on existing laws or programs for information reporting or disclosure, points out major tensions or ambiguities, and suggests pragmatic improvements.

“It’S The [Tort System], Stupid:” Consumer Deductibles; How To More Equitably Distribute The Risks Of Medical Malpractice And Adequately Compensate Victims Without Statutory Damage Caps., Bradford Luke Ledbetter

ExpressO

No abstract provided.

"For It's One, Two, Three Strikes, You're Out . . .", 39 J. Marshall L. Rev. 493 (2006), Kaycee Hopwood

UIC Law Review

No abstract provided.

Mandatory Mediation: The Extra Dose Needed To Cure The Medical Malpractice Crisis, Florence Yee

Cardozo Journal of Conflict Resolution

This Note discusses the advantages and drawbacks of mandating participation in mediation in medical malpractice disputes. Part II of this Note reviews the extent of the current medical malpractice crisis. Part III examines litigation as the traditional means of resolving medical malpractice disputes and suggests that litigation's weaknesses eclipse any of its strengths. Part IV evaluates the lingering challenges to arbitration, accounting for its ineffectiveness in resolving medical malpractice disputes. Part V analyzes why mediation may be the better alternative to both litigation and arbitration in resolving such disputes, and how its hurdles can be best surmounted by mandatory mediation. …

Redefining Physicians' Duties: An Argument For Eliminating The Physician-Patient Relationship Requirement In Actions For Medical Malpractice, Patrick D. Blake

Georgia Law Review

Nearly every state requires a patient to prove the existence of a formal physician-patient relationship in order to proceed with a claim for medical malpractice. In the absence of such a relationship, a physician's actions are measured by an ordinary negligence standard instead of the professional standard of care. Because courts have traditionally held that independent medical examinations, such as pre-employment health screenings, do not give rise to formal physician-patient relationships, individuals undergoing these examinations have been prevented from bringing malpractice claims against physicians who fail to disclose important health information detected during the examination. Recently, a small number of …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Note: A Painful Catch-22: Why Tort Liability For Inadequate Pain Management Will Make For Bad Medicine, James R. Blaufuss

William Mitchell Law Review

Part I of this note reviews current issues relating to pain treatment. Part II examines theoretical justifications of proposed tort liability for inadequate pain management. Part III examines how pain mismanagement does not fit within traditional notions of medical malpractice. Part IV studies the issues relating to a physician’s role as “gate-keeper” for opioids and suggests why tort liability could compromise this legislatively imposed role. Part V examines the issue of pain management in the context of end-of-life care. Part VI discusses current shifts in pain management philosophies and explains how these movements will effectuate the changes suggested by advocates …

Patients Beware: Preemption Of Common Law Claims Under The Medical Device Amendments, 39 J. Marshall L. Rev. 75 (2005), Michael P. Dinatale

UIC Law Review

No abstract provided.