Medical Jurisprudence Commons^™

Civil Procedure: Medical Malpractice Gets Eerie: The Erie Implications Of A Heightened Pleading Burden In Oklahoma, Dace A. Caldwell

Oklahoma Law Review

No abstract provided.

Between The Scalpel And The Lie: Comparing Theories Of Physician Accountability For Misrepresentations Of Experience And Competence, Heyward H. Bouknight, Iii

Washington and Lee Law Review

No abstract provided.

Medical Professional Liability In West Virginia, Thomas J. Hurney Jr., Rob J. Aliff Jackson Kelly Pllc

West Virginia Law Review

No abstract provided.

Identity Crisis: The Obsolescence Of Jasopersaud V. Rho And The Medical Malpractice Expert Exception, Mark D. Shifton

Fordham Urban Law Journal

This Comment discusses the provision of the New York Civil Practice Law and Rules ("CPLR") governing the disclosure of medical malpractice expert witnesses, and how medical malpractice litigants strive to protect the identities of their experts. The Comment discusses the initial judicial decisions dealing with the amended CPLR 3101, and how courts initially struggled to apply the medical malpractice expert exception. Special attention is paid to Jasopersaud v. Rho, which attempted to create a workable standard to further the competing goals of CPLR 3101(d)(1)(i) and Thomas v. Alleyne. The Comment further discusses whether the policy goals behind the medical malpractice …

Experts, Carl E. Schneider

Articles

George Bernard Shaw famously said that all professions are conspiracies against the laity. Less famously, less elegantly, but at least as accurately, Andrew Abbott argued that professions are conspiracies against each other. Professions compete for authority to do work and for authority over work. The umpire in these skirmishes and sieges is the government, for the state holds the gift of monopoly and the power to regulate it. In Abbott's terms, "bioethics" is contesting medicine's power to influence the way doctors treat patients. If it follows the classic pattern, bioethics will solicit work and authority by recruiting government's power. A …

Attitudes Of Risk Management Professionals Toward Disclosure Of Medical Mistakes, Kathleen Ruroede

RISK: Health, Safety & Environment (1990-2002)

The author reports on health care organization risk managers' attitudes toward disclosure of medical mistakes.

Medical Malpractice: Treating The Causes Instead Of The Symptoms, David Orentlicher

Scholarly Works

No abstract provided.

More Hippocrates, Less Hypocrisy: Early Offers As A Means Of Implementing The Institute Of Medicine's Recommendations On Malpractice Law, Jeffrey O'Connell, Patrick B. Bryan

Journal of Law and Health

To remove the fear of personal liability from individual health care workers and eliminate the incentive to hide errors rather than report them, the IOM acknowledges that tort reform of some sort is also needed. Since the IOM calls for shifting attention away from the faults of individual care providers to the defects of the system itself, the current tort system's "blame culture" is itself blamed by the IOM for providing an impediment to improving the safety of patients by deterring physicians from reporting their own errors in the first place. However, the IOM's To Err is Human does not …

Erisa Preemption Of Medical Malpractice Claims In Managed Care: Asserting A New Statutory Interpretation, Karla S. Bartholonew

Vanderbilt Law Review

Congress enacted the Employee Retirement Income Security Act of 1974 ("ERISA) to protect employee interests and ensure a uniform body of law for pension and benefit plans. The statute's expansive preemption clause and preclusion of extra-contractual damages have since been used to immunize Managed Care Organizations ("MCOs") from liability for patients injuries resulting from medical malpractice. Because plaintiffs with preempted claims may receive only the remedies provided for under ERISA-the right or benefit due under the plan-many injured patients have been left with no meaningful remedy.

"[N]ot a model of legislative drafting,"" the statute's broad preemption clause provides that state …

Erisa Preemption Of Medical Malpractice Claims In Managed Care: Asserting A New Statutory Interpretation, Karla S. Bartholomew

Vanderbilt Law Review

If Congress wants the American citizens to have access to adequate health care, then Congress must accept its responsibility to define the scope of ERISA preemption and to enact legislation that will ensure every patient has access to that care.' Congress enacted the Employee Retirement Income Security Act of 1974 ("ERISA) to protect employee interests and ensure a uniform body of law for pension and benefit plans. The statute's expansive preemption clause and preclusion of extra-contractual damages have since been used to immunize Managed Care Organizations ("MCOs") from liability for patients injuries resulting from medical malpractice. Because plaintiffs with preempted …

Erisa Preemption Of Medical Malpractice Claims: Can Managed Care Organizations Avoid Vicarious Liability?, J. Bradley Buckhalter

Seattle University Law Review

This Comment begins by briefly discussing the theory of respondeat superior and the vicarious liability of MCOs for the negligence of affiliated physicians.' Next, the section presents an overview of ERISA, focusing on ERISA's preemption of laws that impact employee benefit plans, particularly medical malpractice claims brought against MCOs seeking to hold them vicariously liable for an affiliated physician's negligence. Section III applies current ERISA preemption doctrine to a situation such as Peterson's, in which a plaintiff attempts to hold an MCO vicariously liable for an affiliated physician's negligence. Section IV concludes that, given the current state of ERISA preemption …

Mother Still Knows Best: Cancer-Related Gene Mutations, Familial Privacy, And A Physician's Duty To Warn, Alissa

Fordham Urban Law Journal

The vows of the Hippocratic Oath which include a vow to abstain from sharing a patient's personal information remains an important tenet of medical care today. Physician-patient confidentiality even abstains sharing information with patients' families. However, when medical information affects the health of the patient's relatives, many medical professionals assert that they have a duty to share the information, with or without the patient's consent, particularly in the context of children of patients with genetic diseases and disorders, where forewarning may significantly decrease the risks or increase prevention of the effects of the disease or disorder. Currently, while physicians respect …

Cyberdoctors: The Virtual Housecall--The Actual Practice Of Medicine On The Internet Is Here; Is It A Telemedical Accident Waiting To Happen?, Barbara Tyler

Law Faculty Articles and Essays

This Article explores some of the historical background and uses of the computer in the education and support of patients as well as some current World-Wide Web sites available to educate consumers and physicians. While professionals in the field of health are concerned about the sudden proliferation of over 10,000 Internet web sites devoted to health and medical information, the existence of these sites points out that people are intrigued by medical information. The very strength of the Internet lies in the ability of users to freely express their views on any topic, including health care. Also, this Article focuses …

"Countering Stereotypes." Review Of Medical Malpractice And The American Jury: Confronting The Myths About Jury Incompetence, Deep Pockets, And Outrageous Damage Awards, By N. Vidmar, Samuel R. Gross

Reviews

The story of The Medical Malpractice Trial has a place in popular American legal culture, somewhere on the shelf with Killers Who Got Off on Technicalities. The plot is simple and tragic. The protagonist is the Doctor, a good man with a flaw: He tries too hard. In the process, he makes an innocent mistake or believes he can prevent the unpreventable. In any event, he fails and the Patient dies or is permanently injured. For this unintentional error the Doctor is crucified, by the vengeful anger of the Patient or her survivors, the avarice of the plaintiffs' lawyer, the …

Tis Better To Give Than To Receive: Charitable Donations Of Medical Malpractice Punitive Damages, Nicholas M. Miller

Journal of Law and Health

The purpose of this Note is not to answer the question of how excessive medical malpractice and punitive damage awards are. Many highly respected scholars on different sides of the issue have spent large portions of their careers trying to resolve that issue without finding a common ground. This author does not boldly claim to provide an answer in this limited forum. This Note does, however, address a possible source of public frustration with the state of medical malpractice and punitive damages: the lack of a principled basis for the awards that juries give to the victims. The perception among …

Medical Malpractice Insurance In The Wake Of Liability Reform, W. Kip Viscusi, Patricia Born

Vanderbilt Law School Faculty Publications

This article examines the effect of the liability reforms on medical malpractice insurance over the 1984-91 period. This is the first study to use data by firm and by state for every firm writing medical malpractice insurance over that time period. The liability reforms increased insurance profitability (that is, decreased the loss ratios), where the main mechanism of influence was through decreasing losses. The quantile regression estimates imply that the greatest effects of liability reform are on the most unprofitable firms and that the effect is not uniform across the entire market. This pattern is consistent with the other principal …

Equal Protection

Touro Law Review

No abstract provided.

Simplifying The Law In Medical Malpractice: The Use Of Practice Guidelines As The Standard Of Care In Medical Malpractice Litigation, Sam A. Mcconkey Iv

West Virginia Law Review

No abstract provided.

Universal Health Care And The Continued Reliance On Custom In Determining Medical Malpractice, James A. Henderson Jr., John A. Siliciano

Cornell Law Faculty Publications

No abstract provided.

Hospital Liability In West Virginia, Thomas J. Hurney Jr.

West Virginia Law Review

No abstract provided.

Book Review, Thomas G. Field Jr.

RISK: Health, Safety & Environment (1990-2002)

Review of the following: lAIN HAY, MONEY, MEDICINE AND MALPRACTICE IN AMERICAN SOCIETY. (Praeger 1992) [244 pp.] Abbreviations, annotated list of personal communications, figures, glossary, index, full legal citations, notes, preface, references, tables. LC 91-38477, ISBN 0-674-13645-4. [Cloth $49.95. P.O. Box 5007, Westwood CT 06881-9990.]

Dimarco V. Lynch Homes-Chester County, Inc.: How Far Should West Virginia Go In Extension Of Physician Liability For Transmission Of Communicable Disease, Rebecca Coffield Moore

West Virginia Law Review

No abstract provided.

One Hundred Years Of Harmful Error: The Historical Jurisprudence Of Medical Malpractice, Theodore Silver

Scholarly Works

In this Article, Professor Silver examines the origins of present-day malpractice law. He begins by noting that negligence and medical malpractice as the common law now knows them made their debut in the nineteenth century although their roots lie deep in the turf of trespass and assumpsit. He argues, however, that toward the turn of the century several episodes of linguistic laziness purported to produce a separation between negligence and medical malpractice so that the two fields are conventionally thought to rest on separate doctrinal foundations. According to Professor Silver, historically based scrutiny of medical malpractice and its ties to …

A Free Market Analysis Of The Effects Of Medical Malpractice Damage Cap Statutes: Can We Afford To Live With Inefficient Doctors, Franklin D. Cleckley, Govind Hariharan

West Virginia Law Review

No abstract provided.

Wealth, Equity, And The Unitary Medical Malpractice Standard, John A. Siliciano

Cornell Law Faculty Publications

No abstract provided.

A Fault-Based Administrative Alternative For Resolving Medical Malpractice Claims, Kirk B. Johnson, Carter G. Phillips, David Orentlicher Orentlicher M.D., Martin S. Hatlie

Vanderbilt Law Review

The recurring crises in medical malpractice litigation have been widely discussed and documented over the past two decades.' In response to these crises, a growing consensus has emerged among legislatures, government agencies, and scholars in favor of tort reform. Indeed, virtually every state has passed some tort reform legislation.'Despite the reforms, several serious problems persist in medical malpractice. The current tort system does not compensate injured patients adequately or equitably, nor does it deter negligent practices sufficiently. These failings occur despite the increasingly high costs to society of the tort system. Particularly troublesome is the impact of these crises on …

An Interdisciplinary Seminar On Legal Issues In Medicine, Dale L. Moore

Journal of Legal Education

No abstract provided.

Nursing Malpractice--The Nurse's Duty To Follow Orders, Barbara R. Benninger

West Virginia Law Review

No abstract provided.

Wrongful Birth And Wrongful Life Actions Arising From Negligent Genetic Counseing: The Need For Legislation Supporting Reproductive Choice, Kathryn J. Jankowski

Fordham Urban Law Journal

The Note discusses wrongful birth and wrongful life actions arising from negligent genetic counseling and explains why they should be recognized statutorily. It details the technological advances in the field of genetics and their implications for the legal duty imposed upon the medical profession. The author traces the judicial developments that led to the gradual recognition of wrongful birth actions and the refusal to recognize wrongful life actions, as well as the recent legislation that has barred both wrongful birth and wrongful life actions. The author proposes a model statute based on the following policy considerations: (1) procreative choice is …

Motivation And Tort Law: Acting For Economic Gain As A Suspect Motive, Martin A. Kotler

Vanderbilt Law Review

The asserted unimportance of the defendant's motive underlying acts giving rise to tort liability is part of the conventional wisdom of most writers of basic tort texts.' Frequently, the irrelevance of the defendant's motivation is considered so obvious that many writers fail to discuss it at all, or discuss it only in the limited context of punitive damages. Virtually all of the literature that considers the significance of motive in tort law deals with either altruism, primarily in the rescue context, or spite, primarily in the punitive damages context. However,little, if any, of the literature considers the legal treatment of …