Torts Commons^™

Teaching Harbeson, David K. Dewolf

Journal of Legal Education

No abstract provided.

Using Tort Law To Secure Patient Dignity, Robin Fretwell Wilson

Faculty Scholarship

The practice of using anesthetized patients to teach pelvic exams on female patients in university hospitals has been well documented for years. A 1992 study showed that 37 percent of U.S. and Canadian medical schools allowed students to use anesthetized women without their consent to learn how to perform pelvic exams. Anecdotal accounts in the U.S. confirm that men are not immune from such indignities. Although patients have been unable, thus, far to enforce their own interests and protect their dignity, the tort system may yet succeed in securing the right of patients to decide who touches their bodies and …

Not So Peaceful Coexistence: Inherent Tensions In Addressing Tort Law Reform, Jeffrey W. Stempel

Scholarly Works

As Professor Michael Green's comments trenchantly remind us, all of this has a familiar ring: insurers and tort defendants claim unfairly escalating liability, plaintiffs' lawyers and consumer groups counterattack, and (for the most part), insurers and defendants obtain some of the relief they seek. The tort reform victories are not so overwhelming as to completely unravel the historical rights of victims or the power of courts generally, but some constriction of rights inevitably occurs. During periods of quiescence, plaintiffs and consumers take back some lost territory through common law victories expanding claimant rights, or through specific legislation. Statutes that permitted …

A Review Of Oklahoma's 2003 And 2004 Tort Reform, Beth Reynolds

Oklahoma Law Review

No abstract provided.

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.

The Hidden Victims Of Tort Reform: Women, Children, And The Elderly, Lucinda M. Finley

Journal Articles

I have conducted empirical research from several states on how juries in medical malpractice and other tort suits allocate their damage awards between economic loss damages and noneconomic loss damages. I then compared cases in which men are the victims and cases in which women are the victims. This research demonstrates that while overall men tend to recover greater total damages, juries consistently award women more in noneconomic loss damages than men, and that the noneconomic portion of women's total damage awards is significantly greater than the percentage of men's tort recoveries attributable to noneconomic damages. Consequently, any cap on …

Which Chance Was Lost?, Jonathan Koehler

Faculty Working Papers

The loss of chance doctrine in medical malpractice cases holds that when a doctor is responsible for reducing a patient's chance of survival by some percentage, the patient (or the patient's estate) should be compensated by the doctor for that percentage loss. Compensation is often determined by multiplying the value of a patient's life by the lost chance. This paper investigates psychological factors that my affect a legal decision maker's evaluation of damage awards in loss of chance cases. A paper and pencil experiment and a large-scale mock jury study (the latter using videotaped trials) are conducted to investigate the …

Cutting Through The Confusion Of The Loss-Of-Chance Doctrine Under Ohio Law: A New Cause Of Action Or A New Standard Of Causation, George J. Zilich

Cleveland State Law Review

The central argument advanced in this Note is that a loss of chance should be recognized as an independent injury. This approach best serves the policy of the new loss of chance doctrine, and it avoids the very significant doctrinal problems that arise if the alternative approach is taken, which is to treat the compensability of lost chances as merely a relaxation of traditional tort law causation requirements. The primary focus of this Note is on the loss of a less-than-even chance of recovery or survival, wherein a victim will be entitled to damages resulting from the negligent reduction of …

Symposium, Justice And Democracy Forum: The Law And Politics Of Tort Reform, Ann C. Mcginley

Scholarly Works

On April 25, 2003, the University of Nevada, Las Vegas (“UNLV”) Center for Democratic Culture (“CDC”) and the William S. Boyd School of Law sponsored a one-day symposium addressing issues of tort reform. In particular, the Forum addressed concerns regarding construction defect litigation and medical malpractice, two areas of current and substantial concern in Nevada. As reflected in the discussion at the Forum, both topics received considerable attention from the Nevada State Legislature during its 2003 Session. Ultimately, the legislature enacted amendments to state statutes governing claims for defective construction. Despite significant lobbying by physicians and insurers, the legislature did …

True Risk Management: Physicians' Liability Risk And The Practice Of Patient-Centered Medicine, Anand Das, Jack Schwartz, Evan G. Derenzo

Journal of Law and Health

While most physicians understand that a serious deficiency in technical care increases their risk of liability, too often their risk management behavior indicates that they do not fully appreciate the impact that poor interpersonal skills have on patients' motivations to sue. Ironically, many of these physicians have taken risk management steps that have increased, rather than reduced, their exposure to lawsuits. In this paper, we argue that a strong legal and factual claim does not invariably explain patients' decisions to sue. Dissatisfaction with the physician's interpersonal care as well as with the clinical outcome is often a factor. Conversely, patients …

Medical Errors: Causes, Cures, And Capitalism, Keith Myers

Journal of Law and Health

This article explores the causes of medical error, the medical profession's responses to errors, and how the legal system responds to medical error through litigation and legislation. Part II discusses the definition of "medical error," the frequency and pervasiveness of the problem, and the causes at the individual and system level. Part III considers how the culture of medicine has largely failed to address medical errors as a systems-based problem, and how the legal culture discourages admitting errors due to the threat of litigation. Focusing on systems, data must be collected and analyzed, and legal guidelines developed to encourage error …

Hellingv. Carey Revisited: Physician Liability In The Age Of Managed Care, Leonard J. Nelson Iii

Seattle University Law Review

In this article, the author proposes that the traditional custom-based standard applicable in medical malpractice cases be replaced with a reasonable, prudent physician standard that will more adequately take into account the role of the physician in rationing care. Part I of this article focuses on the heightened tension between tort and contract in managed health care. Part II of this article examines managed care cost containment techniques and their possible impact on physician decision making. Part III focuses on the widely acknowledged shortcomings of the customary standard. Part IV provides an outline of the doctrinal regime for my proposed …

Pulliam V. Coastal Emergency Services Of Richmond, Inc.: Reconsidering The Standard Of Review And Constitutionality Of Virginia's Medical Malpractice, Elizabeth Keith

Scholarly Articles in Law Reviews & Journals

Consider the following scenario. A plaintiff is injured in a devastating automobile accident and a jury finds the other driver negligent. As a result of that driver's negligence, the plaintiff is now a quadriplegic. The jury, after careful deliberation and calculation, awards $4.5 million to the plaintiff consisting of both economic damages for past and future medical expenses, as well as non-economic damages for pain and suffering and loss of enjoyment of life. Now consider a similar scenario. The plaintiff is a patient who is injured during a low-risk surgical procedure and a jury finds the surgeon negligent. As a …

Recent Case Developments, Jeffrey W. Stempel

Scholarly Works

Recent case developments in Insurance Law in the years 1999 and 2000.

Playing Doctor: Corporate Medical Practice And Medical Malpractice, E. Haavi Morreim

University of Michigan Journal of Law Reform

Although health plans once existed mainly to ensure that patients could pay for care, in recent years managed care organizations (MCOs) have attempted to limit expenditures by exercising significant influence over the kinds and levels of care provided. Some commentators argue that such influence constitutes the practice of medicine, and should subject MCOs to the same medical malpractice torts traditionally brought against physicians. Others hold that MCOs engage only in contract interpretation, and do not literally practice medicine.

This Article begins by arguing that traditional common law doctrines governing corporate practice of medicine do not precisely apply to the current …

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 …

Reconciling The Exercise Of Judgment And The Objective Standards Of Care In Medical Malpractice, Joseph H. King Jr.

Oklahoma Law Review

No abstract provided.

From A Whimper To A Bang: The Trend Toward Finding Occurrence Based Statutes Of Limitations Governing Negligent Misdiagnosis Of Diseases With Long Latency Periods Unconstitutional, Peter Zablotsky

Scholarly Works

No abstract provided.

"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 …

Toward A Tax-Based Explanation Of The Liability Insurance Crisis, Kyle D. Logue

Articles

The so-called liability insurance crisis of 1985 and 1986 transformed the way we think about tort law and about liability insurance markets. The crisis phenomena, which first appeared in late 1984 and lasted until mid-1986, consisted of enormous increases in liability insurance premiums and alarming reductions in the availability of certain types of liability coverage. In the two principal liability lines of insurance (Other Liability and Medical Malpractice), premiums increased by hundreds (in some cases thousands) of percentage points in a matter of months. At the same time, the availability of liability insurance contracted sharply. The liability policies that were …

Florida's Comprehensive Medical Malpractice Reform Act: Is It Time For A Change, Jessica Fonseca-Nader

St. Thomas Law Review

This Comment will focus on a review of the Act, its intended purposes and goals, and its effects on medical malpractice. I attempt to show that the benefits, if any, which have resulted from the Act are not worth the adverse effects the statute has had on seriously injured plaintiffs. Part II discusses the history of the Act, focusing on the constitutional challenges and modifications the Act has met and often overcome. Part III is an analysis regarding what a medical malpractice claimant must overcome to bring an action against the wrongdoer. In addition, I address pertinent sections of the …

Torts: Anderson V. Eichner--Although Faculty Physicians, Resident Physicians, And Interns Face Private Tort Liability For Medical Malpractice, The State Is Immune, Christa L. Britton

Oklahoma 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.

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

Cornell Law Faculty Publications

No abstract provided.

Getting To No: A Study Of Settlement Negotiations And The Selection Of Cases For Trial, Samuel R. Gross, Kent D. Syverud

Articles

A trial is a failure. Although we celebrate it as the centerpiece of our system of justice, we know that trial is not only an uncommon method of resolving disputes, but a disfavored one. With some notable exceptions, lawyers, judges, and commentators agree that pretrial settlement is almost always cheaper, faster, and better than trial. Much of our civil procedure is justified by the desire to promote settlement and avoid trial. More important, the nature of our civil process drives parties to settle so as to avoid the costs, delays, and uncertainties of trial, and, in many cases, to agree …

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 …

The Medical Malpractice Imbroglio: A Non-Adversarial Suggestion, Elliott M. Abramson

Kentucky Law Journal

No abstract provided.

Resolving The Medical Malpractice Crisis: Alternatives To Litigation, Allen K. Hutkin

Journal of Law and Health

This article will review the societal and individual costs of the present medical malpractice system, analyze current efforts to reform the system, and propose several alternatives for consideration. These alternatives include expanding the use of alternative dispute resolution, reformulating the doctor/patient relationship, expanding the scope of conventional hospital risk management and modifying the manner in which medical malpractice insurance is presently provided.

Periodic Payment Awards: The Prescription For The Medical Malpractice Crisis In Ohio, Laurie G. Steiner

Journal of Law and Health

The focus of this article is the use of periodic payment plans generally as a remedy to the medical malpractice crisis. A complete understanding of the periodic payment judgment, however, is impossible without an exploration of the general common law treatment of personal injury and medical malpractice awards. Once the historical background is established, this article will examine Ohio's new statute in light of the Model Periodic Payment of Judgments Act and the law existing in other jurisdictions. This article will also analyze the advantages of the periodic payment and its viability as a solution for the medical malpractice crisis.