Medical Jurisprudence Commons^™

Non-Physician Vs. Physician: Cross-Disciplinary Expert Testimony In Medical Negligence Litigation, Marc D. Ginsberg

Georgia State University Law Review

The source of the applicable standard of care in a specific medical negligence claim is multifaceted. The testifying expert witness, when explaining the applicable standard of care, “would draw upon his own education and practical frame of reference as well as upon relevant medical thinking, as manifested by literature, educational resources and information available to practitioners, and experiences of similarly situated members of the profession.” Accordingly, in typical medical negligence litigation, the plaintiff’s expert witness testifying regarding the existence of and the defendant-physician’s deviation from the standard of care would be a physician. Why, then, have courts permitted non-physicians to …

The Opioid Crisis: The States' And Local Governments' Response To Bigpharma's Deception And Why The Supremacy Clause May Provide A Cloak For Opioid Manufacturers To Hide Behind, Tracie Childers

Barry Law Review

No abstract provided.

Health Care Referrals Out Of The Shadows: Recognizing The Looming Threat Of The Texas Patient Solicitation Act And Other Illegal Remuneration Statutes, Trenton Brown

St. Mary's Law Journal

Abstract forthcoming

Termination Of Hospital Medical Staff Privileges For Economic Reasons: An Appeal For Consistency, June D. Zellers, Michael R. Poulin

Maine Law Review

The relationship between physicians and hospitals is undergoing significant change. Historically, a physician maintained a private practice in the community and looked to the local hospital for ancillary support when his or her patients were too ill to remain at home. This community-based physician gained access to the hospital by obtaining medical staff privileges. These privileges allowed the physician to admit patients to the hospital, treat patients while they were there, and use the hospital's staff and equipment. The physician generally enjoyed the use of the privileges throughout his or her active career, losing them only if found incompetent. Today, …

Learning Outcomes And Performance In Medical School: Programmatic Assessment At Nyu School Of Medicine, Colleen Gillespie Phd, Sondra Zabar Md, Adina Kalet Md, Mph

NYLS Law Review

No abstract provided.

The Intersection Of Contract Law, Reproductive Technology, And The Market: Families In The Age Of Art, Deborah Zalesne

University of Richmond Law Review

No abstract provided.

Use Of Facial Recognition Technology For Medical Purposes: Balancing Privacy With Innovation, Seema Mohapatra

Faculty Scholarship

No abstract provided.

Remodeling Federal Medical Malpractice Act: A Possible Improvement To The Affordable Care Act, Nancy Kubasek, Tiffany Durham

Loyola of Los Angeles Law Review

During the debates about healthcare reform, the Congressional Budget Office found that federal medical liability reform could drastically reduce federal budget deficits, yet political and legal scholars could not reach agreement about the best way for the Patient Protection and Affordable Care Act (PPACA) to provide such reform. Instead, provisions were made to fund state level demonstration projects. The law that is considered one of the most successful models to date of conventional tort reform is the Medical Injury Compensation Reform Act of California. This Article exams that legislation and discusses how we might use what can be learned from …

Who's Swallowing The "Bitter Pill"?: Reforming Write-Offs In The State Of Washington, Lauren M. Martin

Seattle University Law Review

Washington’s application of the collateral source rule permits recovery for medical expenses that were never incurred and have no relationship to their market value. This application is set forth in Hayes v. Wieber Enterprises, Inc., where the plaintiff sued a restaurant for injuries she sustained from falling down the restaurant’s basement stairs. Why should the collateral source rule compel the defendant in Hayes to pay the original amount billed, $5,800, when the physician accepted $3,300 as payment in full? Is not $3,300 the reasonable or market value of the medical services provided to the plaintiff? This Comment discusses whether Washington …

Beinor V. Industrial Claims Appeals Office, Emma S. Blumer

NYLS Law Review

No abstract provided.

Medical Evidence In Cases Of Intrauterine Drug And Alcohol Exposure , Judith Larsen, Robert M. Horowitz, Ira J. Chasnoff

Pepperdine Law Review

No abstract provided.

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.

The Disappearing Provision: Medical Liability Reform Vanishes From The Patient Protection And Affordable Care Act Despite State Court Split, Rafael Andre Roberti

Legislation and Policy Brief

The legal and medical communities have debated the impact and necessity of medical liability reform for over twenty years. At the heart of the debate is the question of how to strike a balance between compensating patients and their families for the thousands of deaths and injuries resulting from medical errors that occur annually, and encouraging physicians to continue to care for patients across America. While several states have passed medical liability reform laws previously, on March 23, 2010, President Obama signed the Patient Protection and Affordable Care Act (ACA)—colloquially known as the “health care bill”—that contains provisions on medical …

Health Care Law, Kathleen M. Mccauley, Kristi L. Vanderlaan

University of Richmond Law Review

No abstract provided.

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

University of Richmond Law Review

No abstract provided.

Resuscitating Hospital Enterprise Liability, Philip G. Peters Jr.

Faculty Publications

No tort reform has more potential to improve the quality of medical care and to reduce the frequency of patient injuries than exclusive hospital enterprise liability. Hospital enterprise liability would make hospitals liable for all patient injuries occurring in the hospital that are the product of provider negligence, regardless of the independent contractor status of the providers. In its "exclusive" form, enterprise liability would also eliminate the personal liability of individual physicians and nurses. Exclusive hospital enterprise liability has the potential to revive the dormant deterrent power of tort law. The reasons are simple. Unlike individual physicians, hospitals are experience-rated …

What We Know About Malpractice Settlements, Philip G. Peters Jr.

Faculty Publications

The enclosed article is the first comprehensive synthesis of two decades of empirical research on medical malpractice settlement. The portrait that emerges from this synthesis is both more reassuring and more complex than popular portrayals. Although the fit is not perfect, the merits generally drive the settlement process. Weak claims consistently fare the worst, toss-ups cases do better, and strong cases have the most success.Prior scholarship on malpractice outcomes has understated the strength of this correlation because it has focused principally on the impact of negligence on the settlement rates and has largely ignored the importance of settlement amount. The …

Stealing What's Free: Exploring Compensation To Body Parts Sources For Their Contribution To Profitable Biomedical Research, Jo-Anne Yau

ExpressO

It is undisputed in the biotechnology industry that human body parts play a vital role in research. The body parts donors, referred to as "Sources" in this article, are subjected to physical and financial exploitation. Forbidding the explosion of profits from trickling down to the Source presents an irrational inequity. Despite established law, it is evident from case analysis, prevailing social practices, and constitutional interpretation that Source compensation is a plausible solution.

This article proposes a model of compensation for Sources, whereby Sources are compensated based on a proportionate share of the research profits set aside for the Source as …

Empirical Evidence And Malpractice Litigation, Philip G. Peters Jr.

Faculty Publications

Critics of medical malpractice litigation believe that expert testimony is often anecdotal and biased. To remedy this problem, several have recently suggested that attorneys should provide and courts should seek reliable empirical evidence of actual clinical norms. Their suggestion should be welcomed. If our expectations are realistic and the design pitfalls are avoided, greater use of use of empirical research will improve the fairness of malpractice adjudication. At least in theory, it could be useful in both the "easy" cases (where it reveals that a consensus standard of care exists) and also some of the harder cases (where clinical practices …

Health Care Law: Breaking Down The Boundaries Of Malpractice Law, Philip G. Peters Jr.

Faculty Publications

Historically, courts have treated professional malpractice cases as unique. When disputes that would otherwise have been governed by tort rules of general application have arisen in the context of medical treatment, courts have routinely constructed special rules for the resolution of those disputes. Recent evidence suggests that this penchant for special rules may be weakening and that malpractice law may be slowly melting back into the sea of tort doctrine.The three Missouri health care law cases noted in this issue are the latest evidence that courts today are more willing to resolve medical negligence actions using tort rules of general …

The Illusion Of Autonomy At The End Of Life: Unconsented Life Support And The Wrongful Life Analogy, Philip G. Peters Jr.

Faculty Publications

Overwhelming evidence indicates that physicians routinely ignore patient preferences about life-sustaining care. Yet, the ability of wrongfully treated patients to recover compensatory damages has recently been placed in doubt. Both courts and commentators have suggested that actions for unconsented life support are analogous to actions for wrongful life and should, for that reason, be rejected. In this article, Professor Philip Peters argues that the obvious similarity between the two kinds of claims is overshadowed by many factors that distinguish the two settings. As a result, Professor Peters concludes that a physician who wrongfully administers life-sustaining care over the objections of …

"In The Twinkling Of An Eye": A Proporsal For The Standard Of Legality To Be Applied In Hospital Staff Privileges Cases, Sarah Bartholomew Ellerbee

LLM Theses and Essays

This paper addresses one of the most troublesome aspects of antitrust jurisprudence. What standard of legality governs cases dealing with medical staff privileges decisions? Heretofore, it was generally thought that only two options existed. The most frequently used standard of legality for this type of case is the rule of reason. In using this analysis, the court looks at the restraint of trade of the reasonableness of its nature, and its purpose and effect. The pro-competitive aspects of the conduct are weighed against the restraints that the conduct imposes on the competition. In health care cases, courts have looked at …

Contracting For No-Fault Liability Insurance Covering Doctors And Hospitals, Jeffrey O'Connell

Maryland Law Review

No abstract provided.

Book Reviews, Richard A. Falk, Hans A. Linde, Leonard S. Powers, S. A. Bayitch, Fritz R. Kahn

Journal of Legal Education

No abstract provided.

Film Reviews, Ben F. Small, Kate Wallach

Journal of Legal Education

No abstract provided.

Medical And Social Factors In Crime, A. Warren Stearns

Indiana Law Journal

No abstract provided.