Medical Jurisprudence Commons^™

Torts: Just Walk Away: How An Overbroad Foreseeability Of Harm Standard Could Kill “Curbside Consultations” — Warren V. Dinter, 926 N.W.2d 370 (Minn. 2019), Erika Miller

Mitchell Hamline Law Review

No abstract provided.

The Paradoxes Of Defensive Medicine, Michael J. Saks, Stephan Landsman

Health Matrix: The Journal of Law-Medicine

For decades, “defensive medicine” has been the leading argument driving reforms of medical malpractice laws throughout the United States. Defensive medicine is the presumed practice of administering excessive tests and treatments as a stratagem for reducing healthcare providers’ risk of malpractice liability, despite the absence of any expected benefit for the patient. The practice is widely believed to exist throughout American healthcare as a response to fears of malpractice litigation, and thought to be enormously wasteful of healthcare dollars. In consequence, it has become a justification for law reforms insulating the healthcare industry from tort liability. These claims are promoted …

The Importance Of Doctor Liability In Medical Malpractice Law: China Versus The United States, Vincent R. Johnson

St. Mary's Journal on Legal Malpractice & Ethics

Medical malpractice law in China does not work. Disappointed patients and their families, or the gangs they hire, frequently resort to physical violence, beating up doctors and disrupting hospital activities in order to extort settlements. This happens because Chinese law has failed to provide viable remedies to many victims of medical malpractice.

This dysfunctional situation (medical chaos or yinao) has persisted for more than two decades. Today, parents in China discourage their children from attending medical school because practicing medicine is too dangerous.

Reforming Chinese medical malpractice law will be difficult. Many factors contribute to the public’s lack of confidence …

Medical Malpractice Reform: What Works And What Doesn't, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Concerns with medical malpractice liability costs have been a principal factor leading states to adopt a series of tort liability reforms. Medical malpractice premiums have been declining, creating less of a cost-based impetus for additional reforms. The most consistent empirical evidence indicating statistically significant effects of medical malpractice reforms has been for caps on non-economic damages. Damages caps reduce insurance losses and foster insurer profitability, consistent with the objective of caps. The impacts of caps are greatest for insurance companies that otherwise would have experienced the greatest losses in the state. However, caps may reduce payouts to plaintiffs, potentially reducing …

"Sorry" Is Never Enough: How State Apology Laws Fail To Reduce Medical Malpractice Liability Risk, W. Kip Viscusi, Benjamin J. Mcmichael, R. Lawrence Van Horn

Vanderbilt Law School Faculty Publications

Based on case studies indicating that apologies from physicians to patients can promote healing, understanding, and dispute resolution, 38 states have sought to reduce litigation and medical malpractice liability by enacting apology laws. Apology laws facilitate apologies by making them inadmissible in subsequent malpractice trials.

The underlying assumption regarding the potential efficacy of these laws is that, after receiving an apology, patients will be less likely to pursue a malpractice claim and will be more likely to settle those claims that are filed. However, once a patient has been made aware that the physician has committed a medical error, the …

When Ais Outperform Doctors: Confronting The Challenges Of A Tort-Induced Over-Reliance On Machine Learning, A. Michael Froomkin, Ian Kerr, Joelle Pineau

Articles

Someday, perhaps soon, diagnostics generated by machine learning (ML) will have demonstrably better success rates than those generated by human doctors. What will the dominance of ML diagnostics mean for medical malpractice law, for the future of medical service provision, for the demand for certain kinds of doctors, and in the long run for the quality of medical diagnostics itself?

This Article argues that once ML diagnosticians, such as those based on neural networks, are shown to be superior, existing medical malpractice law will require superior ML-generated medical diagnostics as the standard of care in clinical settings. Further, unless implemented …

Uncommon Misconceptions: Holding Physicians Accountable For Insemination Fraud, Jody L. Madeira

Articles by Maurer Faculty

No abstract provided.

Medical Negligence Proceedings In Singapore: Instilling A Gentler Touch, Dorcas Quek Anderson

Research Collection Yong Pung How School Of Law

Medical malpractice is an area that traverses a wide range of issues in any society – the qualityand cost of healthcare, the insurance industry, the cost of litigation, the impact on medicalpractice and the heightened emotions arising from injuries or even loss of lives. Evidently, thequestion of compensation for medical malpractice impinges on each of these challenges. Likemany countries, Singapore has been grappling with these issues through implementing variousreforms in the legal and healthcare sectors. Although compensation has historically beenobtained through legal proceedings in the Singapore courts, there is a growing shift towardsadopting a much gentler touch to deal with …

Informing Consent: Medical Malpractice And The Criminalization Of Pregnancy, Laura Beth Cohen

Michigan Law Review

Since the early 1990s, jurisdictions around the country have been using civil child abuse laws to penalize women for using illicit drugs during their pregnancies. Using civil child abuse laws in this way infringes on pregnant women’s civil rights and deters them from seeking prenatal care. Child Protective Services agencies are key players in this system. Women often become entangled with the Child Protective Services system through their health care providers. Providers will drug test pregnant women without first alerting them to the potential negative consequences stemming from a positive drug test. Doing so is a breach of these providers’ …

Maine Physician Practice Guidelines: Implications For Medical Malpractice Litigation, Jennifer S. Begel

Maine Law Review

This Article assesses the use of physician practice guidelines as a vehicle for medical malpractice tort reform and focuses upon the State of Maine's legislation incorporating physician practice parameters into the defense of medical malpractice litigation. The Maine Medical Liability Demonstration Project (the “Demonstration Project”) legislatively adopts practice guidelines in four different medical specialties and allows physicians in those specialties to assert compliance with the applicable guideline as an affirmative defense. The affirmative defense of compliance with such guidelines has been touted as a means of protecting physicians from, and decreasing the costs associated with, medical malpractice litigation. While the …

A Taste Of Their Own Medicine: Examining The Admissibility Of Experts' Prior Malpractice Under The Federal Rules Of Evidence, Neil Henson

Vanderbilt Law Review

Medical malpractice litigation is challenging for both plaintiffs and defendants. The intersection of legal issues with complex medical theories creates a dispute focused on expert witnesses, which leads to greater litigation expenses and cumbersome legal proceedings.' As one scholar observed, "medical malpractice has proven to be ... an unpleasant quagmire of unending skirmishes and full-scale engagements spread across a shifting battlefield." That analogy is fitting considering the stakes of a medical malpractice case-the injured patient's emotional, physical, and financial well-being may be contingent on a successful outcome, while the doctor may perceive even the threat of litigation as detrimental to …

Latent Medical Errors And Maine's Statute Of Limitations For Medical Malpractice: A Discussion Of The Issues, Kathryn M. Kendall

Maine Law Review

Each year in the United States, between 44,000 and 98,000 hospitalized patients die as a result of medical errors. Nearly a third of such errors are caused by negligence. Although most of these negligent mistakes become apparent to patients or their families shortly after they occur, a few remain undiscoverable for an extended length of time. When medical errors lead to the misdiagnosis of diseases with long latency periods, patients may be delayed in obtaining appropriate treatment. Nonetheless, in Maine, because medical malpractice actions are governed by a strict occurrence-based statute of limitations as opposed to a limitations period that …

The Failure Of “Sorry”: An Empirical Evaluation Of Apology Laws, Health Care, And Medical Malpractice, Benjamin J. Mcmichael

Lewis & Clark Law Review

As part of the effort to contain the size and frequency of medical malpractice claims, many states have adopted apology laws. These laws make apologies from physicians to patients inadmissible in any subsequent court proceedings. The basic rationale behind apology laws is that meritless malpractice claims are less likely to be filed when a physician can apologize to his or her patient without risking those statements being used in court. Through the use of a unique dataset, this Article corrects several misunderstandings concerning this new generation of tort reform.

First, it shows that while apology laws may reduce the frequency …

Choosing Medical Malpractice, Nadia N. Sawicki

Faculty Publications & Other Works

Modern principles of patient autonomy and health care consumerism are at odds with medical malpractice law's traditional skepticism towards the defenses of contractual waiver and assumption of risk. Many American courts follow a patient-protective view, exemplified by the reasoning in the seminal Tunkl case, rejecting any attempts by physicians to relieve themselves of liability on the grounds of a patient's agreement to assume the risk of malpractice. However, where patients pursue unconventional treatments that satisfy their personal preferences but that arguably fall outside the standard of care, courts have good reason to be more receptive to such defenses. This Article …

Managing Judges Mathematically: An Empirical Study Of The Medical Malpractice Litigations In Shanghai, Wei Zhang

Research Collection Yong Pung How School Of Law

The post-Mao China has been increasingly managed mathematically, not the least in its judicial system. In this paper, I looked into some of the mathematical indicators used to judge the performance of judges in this nation, and ascertained their effects on the judicial decisions on medical malpractices in Shanghai. The findings of this paper support the previous study that qualitatively identified the judicial responses to such a quantified evaluation system. Underlying the effect of performance indicators is the Chinese judiciary’s bending toward populist pressure. Essentially, therefore, this paper serves to place in perspective the judicial populism well documented in the …

Negligence Per Se Theories In Pharmaceutical & Medical Device Litigation, Andrew E. Costa

Maine Law Review

The notion of addressing the vagaries of negligence per se theories in the context of pharmaceutical and medical device litigation seems to promise little more than a monograph anesthetized by a body of obscure pharmaceutical and medical device provisions viewed through the lenses of various states' negligence law. Maybe little more than that can be assured. However, the issue of how courts should address negligence per se theories in this context implicates a variety of “larger” (or, possibly, more interesting) legal issues in general and pharmaceutical and medical device litigation in particular. Perhaps foremost among these issues is the interaction …

Unconstitutional Asymmetry Or A Rational Basis For Inconsistency? The Admissibility Of Medical Malpractice Prelitigation Screening Panel Findings Before And After Smith V. Hawthorne I And Ii, Matthew Asnault Morris

Maine Law Review

Pre-litigation screening panels have been instrumental in streamlining medical malpractice litigation in the State of Maine by culling claims from superior court dockets, encouraging settlements, and providing findings of fact that could prove useful for a jury if the case proceeds to trial. In enacting one particular provision governing the confidentiality and the admissibility of the screening panel process, however, the legislature may have sacrificed the constitutional rights of medical malpractice claimants in favor of a lighter docket. Two recent cases before the Law Court, Smith I and II, have challenged the constitutionality of Maine’s unique statutory approach to the …

Trial And Error: Legislating Adr For Medical Malpractice Reform, Lydia Nussbaum

Maryland Law Review

The U.S. healthcare system has a problem: hundreds of thousands of people die each year, and over a million are injured, by medical mistakes that could have been avoided. Furthermore, over ninety percent of these patients and their families never learn of the errors or receive redress. This problem persists, despite myriad reforms to the medical malpractice system, because of lawmakers’ dominant focus on reducing providers’ liability insurance costs. Reform objectives are beginning to change, however, and the vehicle for implementing these changes is alternative dispute resolution (“ADR”). Historically, legislatures deployed ADR to curb malpractice litigation and restrict patients’ access …

Toward An International Constitution Of Patient Rights, Alison Poklaski

Indiana Journal of Global Legal Studies

In the past decade, medical tourism-the travel of patients across borders to receive medical treatment-has undergone unprecedented growth, fueled by the globalization of health care and related industries. While medical tourism can benefit patients through increased access to treatment and cost-savings, medical travel also raises concerns about ensuring quality of care and legal redress in medical malpractice. Moreover, existing regulations fail to address these unprecedented issues. The multilateral adoption of an International Constitution of Patient Rights (ICPR) is necessary in order to more effectively preserve medical tourism's benefits and guard against its risks.

The Treatment For Malpractice – Physician, Enhance Thyself: The Impact Of Neuroenhancements For Medical Malpractice, Harvey L. Fiser

Pace Law Review

This article will introduce some of the issues and offer some possible guidelines which may eventually guide cases of medical malpractice and medical care in the face of neurointerventions. First, I will briefly address the standard of care in medical malpractice cases in general. Second, I will discuss some of the existing and potential physical and neurological enhancements available for physicians. Finally, I will explore how these neurointerventions could alter the standards for medical malpractice for both the enhanced doctors and the entire medical profession.

Abortion, Informed Consent, And Regulatory Spillover, Katherine A. Shaw, Alex Stein

Indiana Law Journal

The constitutional law of abortion stands on the untenable assumption that any state’s abortion regulations impact citizens of that state alone. On this understand-ing, the state’s boundaries demarcate the terrain on which women’s right to abortion clashes with state power to regulate that right.

This Article uncovers a previously unnoticed horizontal dimension of abortion regulation: the medical-malpractice penalties imposed upon doctors for failing to inform patients about abortion risks; the states’ power to define those risks, along with doctors’ informed-consent obligations and penalties; and, critically, the possi-bility that such standards might cross state lines. Planned Parenthood v. Casey and other …

William Nathan Baxter V. Dignity Health, Et Al, 131 Nev. Adv. Op. 76 (September 24, 2015), Andrea Orwoll

Nevada Supreme Court Summaries

The Court considered an appeal from a district court order dismissing a medical malpractice complaint. The Court held that because NRS § 41A.071 creates threshold requirements for bringing medical malpractice suits, it must be construed consistently with the liberal pleading requirements. The Court reversed and remanded.

Medical Malpractice - Statute Of Limitations - Foreign Objects - The Adoption Of The Discovery Rule - Legislative Or Judicial Prerogative? Melnyk V. Cleveland Clinic, Alan J. Sobol

Akron Law Review

The rationale of the Court was that Melnyk could be distinguished with the recent case of Wyler v. Tripi, which held that a cause of action for medical malpractice accrues at the latest when the physician-patient relationship terminates, and which also recognized the legislature's authority to act in this area, on the basis that Wyler was not a foreign object case. Therefore, the Court felt it need not disturb the Wyler holding and could nevertheless hold the failure to remove the foreign objects in Melnyk was negligence as a matter of law and that equity and public policy require …

Congress Takes A Look At A No-Fault Proposal For Medical Malpractice: Some Observations, David E. Beitzel

Akron Law Review

EVEN A CURSORY GLANCE at the news media in the recent past indicates that problems in the area of medical malpractice are rising to turbulent heights. For example, newspapers are increasingly printing long and passionate letters-to-the-editor dispraising numerous circumstances and individual types, which are allegedly the cause of the problem. The primary development, which caused the initiation of this storm, is the rising premium rate for medical malpractice insurance.' The pinch on the physician's pocketbook has resulted in outcries of frustration and anger from the medical community. Objects of these attacks have included the insurance industry, the legal profession, and …

Wrongful Life, Turpin V. Sortini, Janet A. Laufer

Akron Law Review

In the past fifteen years, several state appellate courts have considered wrongful birth and wrongful life causes of action. While the modern trend is to allow wrongful birth causes of action, few courts have permitted wrongful life actions to be maintained. On May 3, 1982, the California Supreme Court, in Turpin v. Sortini became the first state high court to allow a wrongful life cause of action. This casenote will examine the reasoning of the Turpin court in allowing the wrongful life claim. While Turpin appears to signal a new trend in this area of tort law, there is little …

Ohio's Statute Of Limitations, Baird V. Loeffler, Amy L. O'Neil

Akron Law Review

The decision in Baird v. Loeffler is another victory for physicians and medical malpractice insurers. It will not be well accepted by plaintiff's attorneys or by others who advocate the rights of patients, especially minors, to be compensated for injuries sustained by them due to a physician's negligence. The case focuses on an amendment to the Ohio Medical Malpractice Statute which became effective July 28, 1975. The issue in Baird is the proper statutory construction that should be given to the statute where a minor's cause of action arose prior to the effective date of the statute. In effect, the …

The Unconstitutionality Of Ohio's Medical Malpractice Statute Of Limitations: Minors And Equal Protection, Eric A. Brandt

Akron Law Review

As with all laws, statutes of limitations must apply equally to all persons unless reasonable grounds permit the legislating body to make distinctions between classes of persons affected by the law. Laws that operate unequally, unfairly and unreasonably when applied to the public are unconstitutional. The Ohio Supreme Court addressed was the constitutionality of an Ohio medical malpractice statute of limitations in Schwan v. Riverside Methodist Hospital.

Welsh V. United States, The Sixth Circuit Gives A Physics Lesson - For Every Action There Is An Equal And Opposite Reaction, Daniel L. Bell

Akron Law Review

This casenote will review the facts of Welsh v. United States and present the current judicial approaches to spoliation of evidence in civil litigation. Second, the note will analyze the Welsh court's proposed solution to the spoliation problem. Finally, the note will discuss the use of the Welsh approach in litigation and management implications for health care facilities.

Statute Of Limitations In Ohio Medical Malpractice An Old Trend Returns And A New Trend Evolves, Sharon L. Dieringer

Akron Law Review

In Gaines v. Preterm Cleveland, Inc. the Ohio Supreme Court reversed prior law in two significant areas of medical malpractice.

First, the court held that, "a plaintiff in a medical malpractice action who reasonably did not discover the cause of their injuries until more than three years after the act constituting the alleged malpractice may not be constitutionally deprived of a full year to pursue a medical claim by virtue of the four-year statute of repose contained in R.C. 2305. II(B)."

Secondly, the court held that, "a positive misrepresentation of a patient's condition, upon which the patient reasonably relies …

The Struggle Over Tort Reform And The Overlooked Legacy Of The Progressives, Rachel M. Janutis

Akron Law Review

In attempting to distinguish the 1950s and 1960s tort expansion from the current tort retraction, the scholarly account depicts the tort expansion as primarily a judicial movement led by legal academics devoid of any self-interest. In contrast, this account holds out the current tort retraction as a mainly political movement driven by the economic self-interest of its proponents...First, contemporary tort reform, rather than solely being a reaction to tort expansion in the 1950s and 1960s, is part of a continuing debate between corporate, professional and insurance interests on one side and consumer interests and the trial bar on the other …