Medical Jurisprudence Commons^™

Betting On The Body: Private Equity Portfolio Funding Of Medical Malpractice Litigation And The Financialization Of Patient Justice, Barry J. Cohen

Journal of Law and Health

Portfolio-level third-party litigation funding in medical malpractice creates conflicts of interest that existing professional responsibility doctrine under Model Rule 1.7 was not designed to address. Unlike single-case consumer funding, which may improve access to justice, portfolio funding aggregates dozens or hundreds of malpractice claims into diversified investment vehicles, optimizing for internal rates of return on the portfolio instead of outcomes for individual plaintiffs. What follows, is the first sustained analysis of this gap.

Drawing on clinical and legal perspectives, the analysis distinguishes a single-case from portfolio funding and identifies four portfolio-specific conflicts under MRPC 1.7: the swing-for-the-fences problem, cross-subsidization, information …

Unwanted Medical Treatment Harms Patients: Taxonomy Of Healthcare Consent Infractions, Thaddeus Pope

Faculty Scholarship

Patients in the United States are subject to an ever-growing “avalanche” of unwanted medical treatment (UMT).  This is ethically, economically, and legally wrong. First, UMT constitutes a serious violation of patient autonomy and self-determination.  Second, it is waste (and often fraud or abuse) of scarce healthcare resources.  Third, but for rare exceptions, administering UMT contravenes settled legal rules and principles around consent and battery.

This article describe four types of unwanted medical treatment and how the law addresses (or fails to address) them.  The four types of UMT are (1) treatment over patient objections, (2) treatment with zero consent, (3) …

Striving To Thrive: Balancing Digital Health Innovation And Patient Protection Under Thailand’S Legal Framework, Thidarat Liamsomboon

Theses and Dissertations

The digitalization of health care has fundamentally transformed how health care services are accessed, delivered, and experienced worldwide. Telemedicine, artificial intelligence–assisted diagnostics, electronic health records, wearables, and mobile health applications are no longer novelties, but have become a substantial part of a modern clinical practice. Although these technologies offer great prospects for making health care more accessible, reducing administrative burden, and improving the quality of care, they also pose significant legal and regulatory challenges. The rate of technological development has far outpaced Thailand’s existing legal frameworks for regulating medical practice, professional accountability, and patient protection. This regulatory “lag” has generated …

Challenging Race-Based Health Care Discrimination: A New Private Right Of Action, Aaron Pinkett

Northwestern University Law Review

The Hippocratic Oath calls on doctors to “do no harm.” Yet we know from extensive public health research that clinicians repeatedly cause harm to Black patients by dismissing their medical concerns, misdiagnosing them, and undertreating their pain. These practices of differential treatment for Black patients have led to steadily increasing racial disparities in health care outcomes throughout the United States. Title VI of the Civil Rights Act of 1964 prohibits this type of disparate impact, but modern Supreme Court jurisprudence forecloses opportunities for affected parties to seek legal relief—despite the clearly established legislative intent of Title VI. However, another legal …

Characterization Of Litigation After Tympanoplasty And Mastoidectomy In The United States, Alyssa D. Reese, Lauren A. Dinardo, Soumya Gupta, Kristina F. Powers, Samuel Colca, Michele M. Carr

Department of Otolaryngology (ENT) Faculty Publications

Introduction

Tympanoplasty and mastoidectomy are common procedures performed by otolaryngologists that can result in complications for which patients may seek compensation. Medical malpractice case analyses may offer insight into how clinicians can avoid risk and improve patient satisfaction. We aimed to comprehensively characterize litigation after mastoidectomies and tympanoplasties in the United States.

Methods

The Westlaw Campus Research legal database was searched for all available court decisions associated with claims of medical malpractice after tympanoplasty and/or mastoidectomy in the United States between 1975 and 2022. Information on the plaintiffs' relationships to the patients, patient characteristics, states where the procedures took place, …

Customary Corruption, Ani B. Satz, Liza Vertinsky

Faculty Articles

For over a hundred years, it has been well-accepted among tort scholars that physicians—as one of the legally recognized professions— determine their own customary practices. Within tort law, and medical malpractice more specifically, customary practice establishes whether physicians breach or uphold the required standard of care toward their patients. The results of our hand-coded examination of decided cases and statutes show a more complex picture. While some states have endeavored to shift the standard away from professional custom, it continues to play a critical, and in many cases a determinative, role in establishing physician liability in most states.

Using illustrative …

Burns V. Smith: Assessing The Sufficiency Of Affidavits Supporting Prejudgment Attachments In Medical Malpractice Actions, Margaret Christie Kenney

Maine Law Review

The process of attachment allows a plaintiff to request that the court bring a defendant's property into the court's custody for the purpose of satisfying any subsequent judgment that the plaintiff may obtain. In Maine, a plaintiff may proceed either with notice to the defendant or ex parte. In order to proceed ex parte, by which only the plaintiff appears before the court without notice to the defendant, the plaintiff must satisfy the requirements of Rule 4A of the Maine Rules of Civil Procedure. Rule 4A embodies two distinct safeguards for defendants whose property a plaintiff seeks to attach ex …

Ending The Never-Ending Medical Malpractice Crisis, Allen Redlich

Maine Law Review

Another nationwide outbreak of what is commonly called the medical malpractice "crisis" is spreading. Once again, as during prior episodes, the public hears of dramatic increases in the cost of malpractice insurance, of growing numbers of multimillion dollar awards, and of increases in the number of suits filed. Already several states have passed statutes in attempts to resolve the crisis. This crisis atmosphere resembles the crisis of the mid-seventies when every state enacted so-called "remedial" statutes, which failed to solve the crisis. A physician would define a "crisis" as a turning point in the course of a disease; nonmedical definitions …

Joy V. Eastern Maine Medical Center: Extension Of A Physician's Duty To Third Parties, Timothy H. Norton

Maine Law Review

In Joy v. Eastern Maine Medical Center, the Maine Supreme Judicial Court, sitting as the Law Court, held that a claimant may sue a physician to recover damages for injuries that were caused by a negligently treated patient. The Law Court focused its analysis on the concept of duty and reasoned that a physician's duty to his patient extends to third parties whose injuries are a foreseeable result of negligent treatment. The Joy case sets forth a broad rule that provides a new and untested means of recovery against physicians and hospitals. This Note examines the new rule against the …

Milton V. Cary Medical Center: A Viable Fetus Is Not A Person Under Maine's Wrongful Death Statute, Stan Piecuch

Maine Law Review

In Milton v. Cary Medical Center, a sharply divided Maine Supreme Judicial Court, sitting as the Law Court, refused to recognize a right of action for the wrongful death of a viable fetus. The court held that a viable fetus is not a person for purposes of applying Maine's wrongful death statute and that, consequently, the mother of a stillborn child could not maintain an action for the child's death. The court determined that the legislative history of the statute indicated that the Legislature did not intend the remedy to apply in the case of a child not born alive. …

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 …

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.

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 …

Navigating The Frontiers Of Medtech, Benjamin Sundholm

Faculty Publications

The medical community is increasingly focused on the rise of adaptive and opaque artificial intelligence tools. These systems improve over time but produce results through complex calculations that are difficult for humans to fully understand. Although promising, these features challenge existing legal doctrines. To date, efforts to overcome these challenges have been too fragmented and limited in scope. As a result, the full promise of adaptive and opaque artificial intelligence systems remains untapped.

This Article proposes a framework for unleashing the potential of these systems through a blend of forward- and backward-looking reforms. The ex ante feature of my framework …

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, …

No-Fault Compensation Plans In Negligence Cases: Is The Exclusive Remedy Constitutional?, Elizabeth A. Wyman

Honors Undergraduate Theses

The Florida Birth-Related Neurological Injury Compensation Act has been the subject of intense scrutiny regarding its efficacy, constitutionality, and ethical implications, specifically as it relates to the widespread practice of patients agreeing to its terms prior to providing them with prenatal care. This research investigates the potential unconstitutionality of the Neurological Injury Compensation Association (NICA) as an exclusive remedy, questioning the legality of the bill under the Fourteenth Amendment due to potential violations of patient rights to litigation. Through a comprehensive analysis of relevant case and statutory laws as well as secondary sources, this paper addresses the ethical and legal …

Patient Decision Aids Improve Patient Safety And Reduce Medical Liability Risk, Thaddeus Pope

Faculty Scholarship

Tort-based doctrines of informed consent have utterly failed to assure that patients understand the risks, benefits, and alternatives to the healthcare they receive. Fifty years of experience with the doctrine of informed consent have shown it to be an abject catastrophe. Most patients lack an even minimal understanding of their treatment options. But there is hope. Substantial evidence shows that patient decision aids (PDAs) and shared decision making can bridge the gap between the theory and practice of informed consent. These evidence-based educational tools empower patients to make decisions with significantly more knowledge and less decisional conflict than clinician-patient discussions …

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.

Unlimited Medical Liability?, Jessica L. Roberts, Leah R. Fowler, Paul S. Appelbaum

Emory Law Journal Online

No abstract provided.

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.

On The Cusp Of The Next Medical Malpractice Insurance Crisis, Philip G. Peters Jr.

Faculty Publications

Medical malpractice claims are dwindling. Total payouts are far lower than during the 2002 crisis. Yet, insurance industry profits have been sinking for a decade and are nearly in the red. After a dozen years with a “soft” insurance market, we are now on the cusp of yet another malpractice insurance crisis.

How can profits be in peril if claims have dwindled and payouts are historically low?
Answering that question requires an understanding of the insurance cycle. The cycle periodically transforms gradual increases in costs and gradual decreases in revenue into explosive increases in premiums.

The industry’s financial statistics today …

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 …

A Malpractice-Based Duty To Disclose The Risk Of Stillbirth: A Response To Lens, Nadia N. Sawicki

Faculty Publications & Other Works

In Medical Paternalism, Stillbirth, & Blindsided Mothers, Lens argues that physicians who fail to disclose the risk of stillbirth to pregnant patients should be liable under the doctrine of informed consent. In this Response, I suggest that courts might be hesitant to expand informed consent in the way Lens proposes. Instead, I offer an alternative avenue for imposing liability, via traditional theories of medical malpractice.

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).

Cummings V. Barber, 136 Nev. Adv. Op. 18 (April 2, 2020), Alexis Taitel

Nevada Supreme Court Summaries

No abstract provided.