Torts Commons^™

Medical Malpractice And Compensation In France, Part Ii: Compensation Based On National Solidarity, Geneviève Helleringer

Chicago-Kent Law Review

In France, distinctively from the compensation process by insurers of liable professionals, compensation of the victim will in certain cases such as medical hazards, hospital-acquired infections, blood-transfusion infections, result from a compensation scheme similar to that available for victims of terrorism and crimes. It is based on national solidarity and dispensed by the National Fund for Compensation of Medical Accidents (ONIAM). The growing importance of such a compensation scheme may appear to be a double-edged evolution. On one hand, it has improved the status of victims of medical harms; they are increasingly integrally compensated more quickly and under more flexible …

Canadian Medical Malpractice Law In 2011: Missing The Mark On Patient Safety, Colleen M. Flood, Bryan Thomas

Chicago-Kent Law Review

This paper surveys the current state of medical malpractice law in Canada, along with current evidence on adverse events in Canadian hospitals, medical clinics, and long-term care facilities. Though there is currently no "burning platform" to reform Canadian medical malpractice law, the authors raise concerns about the law's failure to deter medical malpractice, as well as concerns about access to justice issues facing victims of medical malpractice. Federal and provincial governments have tried to promote patient safety through various prevention strategies—for example, through the creation of Health Quality Councils, the dissemination of information on best practices, and tighter regulation of …

Medical Malpractice And Compensation In France, Part I: The French Rules Of Medical Liability Since The Patients' Rights Law Of March 4, 2002, Florence G'Sell-Macrez

Chicago-Kent Law Review

While the French Law of medical malpractice had been mainly based on the Civil Code provisions related to contract law, the Patients Rights' Law of March 4, 2002 set forth general principles regarding the responsibility of health professionals and health institutions which are now in the Code of Public Health. The relatively new Law has modified the legal basis for medical liability, which is now regarded as a "legal regime" that is neither contractual nor tortious. The Patients' Rights Law of March 4, 2002 not only has reaffirmed the principle of fault-based liability in medical malpractice cases, but also allows …

Medical Malpractice And Compensation In South Africa, L. C. Coetzee, Pieter Carstens

Chicago-Kent Law Review

This article gives an overview of current medical malpractice law in South Africa. The following aspects are covered: The overall scheme for preventing and redressing medical errors and adverse events, including regulation, criminal and civil liability, and social and private insurance, and the relationships among these various systems; the details of the applicable liability and compensation systems, including criteria defining qualification for compensation, causation and "loss of chance," liability for failure to obtain informed consent, as well as matters of proof and gathering of evidence. The authors note the difficulty they had in obtaining empirical data on medical errors and …

Medical Malpractice In Austria, Bernhard A. Koch

Chicago-Kent Law Review

This article presents the Austrian law governing compensation for medical malpractice in an overview. After a glimpse at the healthcare and social insurance system, the regulatory framework is outlined, with an obvious particular focus on tort and contract law. Apart from the special case where informed consent is lacking, the various elements of a claim that patients may have mirror the general requirements of tort and contract liability in Austria, which is why the brief sketch may also serve to give at least some basic insight into that part of the legal system in general. Furthermore, peculiar approaches in handling …

Medical Malpractice And Compensation In Germany, Marc S. Stauch

Chicago-Kent Law Review

This paper offers an overview of the rules under German law for securing accountability and redress in cases of medical injury. It is divided into three main parts. Part I looks at the various legal consequences that may apply in such circumstances, including criminal and professional liability of the doctor, the bases for a private law claim by the patient, and the existence of pockets of non-fault based liability for injury from medical products. Part II then considers in greater detail the elements to be satisfied in respect to the two key forms of private law malpractice claim, namely faulty …

Medical Malpractice And Compensation In Poland, Kinga Bączyk-Rozwadowska

Chicago-Kent Law Review

Civil liability for medical malpractice in Poland can be either contractual or tortious. In practice, provisions of ex delicto liability are applied. Since June 2010, liability insurance is obligatory for all health care providers that render medical services in Poland. Tortious liability may be attributed to a doctor or a hospital when either's faulty acts or omissions result in the damage. A hospital may also have vicarious liability for injuries caused by its doctors and other medical staff. Fault usually consists of negligence, which is defined as failure to work with due care and diligence while treating a patient. Burden …

Treatment Injury In New Zealand, Stephen Todd

Chicago-Kent Law Review

The New Zealand accident compensation scheme makes provision for the payment of compensation to the victims of personal injury that is caused by medical treatment, but at the same time it bars actions for damages based upon such injury. This article gives a brief overview of the scheme as a whole and its relation- ship with the common law, and then focuses on the particular provisions governing medical injury. It includes discussion of the extent of the statutory cover, problems of causation, the operation of the medical scheme in practice, costs and funding, and issues of accountability. It ends with …

Measurement Of Restitution: Coordinating Restitution With Compensatory Damages And Punitive Damages, Doug Rendleman

Washington and Lee Law Review

No abstract provided.

Fear-Based Standing: Cognizing An Injury-In-Fact, Brian Calabrese

Washington and Lee Law Review

No abstract provided.

Tort Law, Kumaralingam Amirthalingam, Gary Kok Yew Chan

Research Collection Yong Pung How School Of Law

The Court of Appeal decision in Chan Cheng Wah v Koh Sin Chong Freddie and another appeal [2012] 1 SLR 506 ("Chan Cheng Wah (CA)") concerned the nature of defamatory meaning and the defences of justification and qualified privilege. The dispute arose from two allegedly defamatory statements published in the minutes of meeting of a management committee of a club ("current MC") concerning the actions of the previous management committee ("previous MC"). Four members of the previous MC sued the defendant, the president of the current MC, in respect of the statements.

Eastwood'S Answer To Alejandre'S Open Question: The Economic Loss Rule Should Not Bar Fraud Claims, Katherine Heaton

Washington Law Review

The economic loss rule is a judicially created doctrine that bars plaintiffs from suing in tort for purely economic losses when the entitlement to recovery arises only from a contract. In Alejandre v. Bull, the Washington State Supreme Court acknowledged that there are exceptions to the rule but explicitly declined to say whether it would recognize an exception for fraud. Washington’s appellate courts answered Alejandre’s open question, holding that the economic loss rule barred all fraud claims except for the narrow tort of fraudulent concealment. The appellate courts interpreted Alejandre broadly to apply the economic loss rule whenever the …

Has The Time (Of Laches) Come? Recent Nazi-Era Art Litigation In The New York Forum, Bert Demarsin

Buffalo Law Review

No abstract provided.

Did The Sixth Circuit Get It Right In Stadnyk?: What To Do About The § 104(A)(2) Personal Injury Damages Exclusion, Genny Barrett

BYU Law Review

No abstract provided.

Clearing The Air: Ordinary Negligence In Take-Home Asbestos Exposure Litigation, Rebecca Leah Levine

Washington Law Review

Since 2005, take-home asbestos exposure claims have constituted a new wave of asbestos litigation. In contrast to employees exposed to asbestos at a worksite, take-home exposure occurred among those affected by employees who inadvertently carried asbestos home on their clothing or their tools. While some jurisdictions have rejected these claims on the basis that the defendant did not owe a legal duty to the plaintiff, the Washington Court of Appeals recently recognized the potential validity of a household member’s claim for relief for the harm he or she suffered as a result of asbestos exposure. In doing so, the court …

Optimal Lead Plaintiffs, Elizabeth Chamblee Burch

Scholarly Works

Adequate representation in securities class actions is, at best, an afterthought and, at worst, usurped and subsumed by the Private Securities Litigation Reform Act’s lead-plaintiff appointment process. Once appointed, the lead plaintiff bears a crushing burden: Congress expects her to monitor the attorney, thwart strike suits, and deter fraud, while judges expect her appointment as the “most adequate plaintiff” to resolve intra-class conflicts and adequate-representation problems. But even if she could be all things to all people, the lead plaintiff has little authority to do much aside from appointing lead counsel. Plus, class members in securities-fraud cases have diverse preferences …

Re-Mapping Privacy Law: How The Google Maps Scandal Requires Tort Law Reform, Lindsey A. Strachan

Law Student Publications

This Comment explores how the law should handle such privacy claims. In analyzing both the photographic privacy claims as well as the Wi-Fi data privacy claims, this paper argues that current tort law is inadequate for such technologically advanced legal issues. Section II explores the background of Google Maps Street View and current privacy law, while Section III looks at the holes in current privacy torts in the context of the images displayed on Street View. Section IV examines the privacy implications surrounding the Wi-Fi scandal, and finally, Section V reviews the solution and provides a conclusion.

Ifit's Reusable Why Not Reuse It? The Reuse Of Single Use Medical Devices, Brian Wilson

Dalhousie Law Journal

The reprocessing and subsequent reuse of medical devices labelled by the manufacturer as 'single-use only' is a cost cutting strategy employed by many healthcare centres. However, attempting to extend the life of a device labelled as 'single-use only' raises a number of unique concerns surrounding the issue of legal liability specifically who should bear responsibility if someone suffers harm as a result of a reprocessed single-use device. Following an overview of the current regulatory environment, the potential tortious liability attaching to those who may be implicated in the reprocessing chain is discussed. Specifically, this paper examines the duty and standard …

Rethinking The Sovereign Status Of The Holy See: Towards A Greater Equality Of States And Greater Protection Of Citizens In United States Courts, James Fantau

Cardozo Journal of International and Comparative Law

The note advocates for the reclassification of the Holy See from a sovereign state to an instrumentality under the Foreign Sovereign Immunities Act (FSIA). This change would enhance legal accountability, particularly in cases involving sexual abuse scandals, by allowing plaintiffs to sue the Holy See more effectively. The argument is based on legal tests, including the core functions test and the legal characteristics test, which suggest that the Holy See functions more as an instrumentality of the Vatican City State rather than a sovereign entity.

When The Restatement Is Not A Restatement: The Curious Case Of The "Flagrant Trespasser", David Logan

Law Faculty Scholarship

No abstract provided.

Tort Law—Hedonic Damages—Arkansas's Application Of Hedonic Damages To Wrongful-Death Suits: Is Arkansas's Method Misconceived?, Joshua Michael Robles

University of Arkansas at Little Rock Law Review

No abstract provided.

Legal Positivism As An Idea About Morality, Martin J. Stone

Articles

I ask what a proper critical target for 'legal positivism' might be. I argue that utilitarian moral theory, and more generally fully directive moral theories, are unacknowledged motivations for legal positivism. Contemporary debate about 'the nature of law' is, historically speaking, much more of a footnote to utilitarianism than has been recognized.

A Comparative Legal And Economic Approach To Third-Party Litigation Funding, Marco De Morpurgo

Cardozo Journal of International and Comparative Law

This article represents the first attempt to apply a comparative legal and economic approach to the study of third-party litigation funding (TPLF) - one of the most innovative trends in civil litigation financing today. TPLF consists of the practice where a third party offers financial support to a claimant in order to cover his litigation expenses, in return for a share of damages if the claim is successful. The third party receives no compensation if the claimant loses the suit. While such practice has been rapidly developing in the common law world (Australia, United States, and United Kingdom), in the …

Overcoming Under-Compensation And Under-Deterrence In Intentional Tort Cases: Are Statutory Multiple Damages The Best Remedy?, Stephen J. Shapiro

Mercer Law Review

There is a general agreement that the primary purpose of tort law is to compensate parties injured by the wrongful conduct of another. Typically, a prevailing plaintiff is awarded compensatory damages. The main purpose of tort law is to make the plaintiff whole, to the extent possible, in order to put the plaintiff in the same financial situation the plaintiff would have been in absent the defendant's actions. A prevailing plaintiff, however, will not normally be made whole by the award of a reasonable amount of compensatory damages. The primary reason for this insufficiency is that the plaintiff will have …

Summary Of Tuxedo International Inc. V. Rosenberg, 127 Nev. Adv. Op. No. 2, Nechole Garcia

Nevada Supreme Court Summaries

Appeal from the Eighth Judicial District Court’s dismissal of a complaint that alleged tort claims arising out of a contract containing a forum selection clause.

Group Consensus, Individual Consent, Elizabeth Chamblee Burch

Scholarly Works

Despite a rise in the number of personal-injury and product-liability cases consolidated through multi-district litigation, a decline in class-certification motions, and several newsworthy nonclass settlements such as the $4.85 billion Vioxx settlement and estimated $700 million Zyprexa settlements, little ink has been spilled on nonclass aggregation’s unique issues. Sections 3.17 and 3.18 of the American Law Institute’s Principles of the Law of Aggregate Litigation are a noteworthy exception. This Article uses those principles as a lens for exploring thematic questions about the value of pluralism, group cohesion, governance, procedural justice, and legitimacy in nonclass aggregation.

Sections 3.17 and 3.18 make …

The Absence Of Legal Ethics In The Ali's Principles Of Aggregate Litigation: A Missed Opportunity - And More, Nancy J. Moore

Faculty Scholarship

There is little discussion of legal ethics in the American Law Institute’s recently adopted Principles of Aggregate Litigation, either in the black-letter rules or the comments. The primary exception is that the Principles devote several sections to the so-called aggregate settlement rule (Rule 1.8(g) of the ABA Model Rules of Professional Conduct), although the purpose of these sections appears to be a proposed modification of that rule to permit claimants to agree in advance to be bound by majority approval of a particular settlement. The purpose of this essay is not to discuss the controversial aggregate settlement proposal (which the …

The Two-Trillion Dollar Carve-Out: Foreign Manufacturers Of Defective Goods And The Death Of H.R. 4678 In The 111th Congress, Andrew F. Popper

Scholarly Articles in Law Reviews & Journals

Whatever happened to H.R. 4678, The Foreign Manufacturers Legal Accountability Act? While at first the bill looked like it would sail through, vocal and well-funded opposition from foreign manufacturers and their U.S. representatives placed its future in doubt – and ultimately killed the bill. Gross sales of foreign manufactured goods in the U.S. exceed two trillion dollars annually. Conservatively, there are tens of millions of defective, dangerous, and in some instances deadly goods produced abroad for sale in U.S. markets (e.g., Chinese dry-wall, toxic levels of lead paint on toys, contaminated pet food, allegedly lurching cars, infant cribs that to …

Swanson V. Brewster: Are The Minnesota Courts Reforming The Tort System?, Stephen P. Laitinen, Hilary J. Loynes

Journal of Law and Practice

No abstract provided.

Private Nuisance Law: A Window On Substantive Justice, Richard W. Wright

All Faculty Scholarship

No abstract provided.