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Medical Jurisprudence

Medical malpractice

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Full-Text Articles in Health Law and Policy

Informing Consent: Medical Malpractice And The Criminalization Of Pregnancy, Laura Beth Cohen May 2018

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 ...


Toward An International Constitution Of Patient Rights, Alison Poklaski Jul 2016

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 Apr 2016

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 Jan 2016

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 ...


The Treatment For Malpractice – Physician, Enhance Thyself: The Impact Of Neuroenhancements For Medical Malpractice, Harvey L. Fiser Aug 2015

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

Harvey L. Fiser

Coming to a hospital near you, the medically enhanced doctor - a doctor who thinks faster, is better with short and long term memory, is calmer during surgery, can work double shifts with little cognitive fatigue, and one day may have the memories of years of experience without actually having had them. With the expanded use of cognitive enhancing pharmaceuticals such as Adderall, Provigil, and more on the way, we are already seeing changes in education and the corporate world. From reaching a “normal” status for a person with an ADHD diagnosis to creating the “supernormal” employee with cognitive enhancers, neurointerventions ...


The Treatment For Malpractice – Physician, Enhance Thyself: The Impact Of Neuroenhancements For Medical Malpractice, Harvey L. Fiser Aug 2015

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

Harvey L. Fiser

No abstract provided.


Congress Takes A Look At A No-Fault Proposal For Medical Malpractice: Some Observations, David E. Beitzel Aug 2015

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 ...


Wrongful Life, Turpin V. Sortini, Janet A. Laufer Jul 2015

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 Jul 2015

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 ...


The Unconstitutionality Of Ohio's Medical Malpractice Statute Of Limitations: Minors And Equal Protection, Eric A. Brandt Jul 2015

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.


Universal Health Care And The Continued Reliance On Custom In Determining Medical Malpractice, James A. Henderson Jr., John A. Siliciano Feb 2015

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

John A. Siliciano

No abstract provided.


Wealth, Equity, And The Unitary Medical Malpractice Standard, John A. Siliciano Feb 2015

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

John A. Siliciano

No abstract provided.


Medical Malpractice Reform Measures And Their Effects, Robert Leflar Jun 2013

Medical Malpractice Reform Measures And Their Effects, Robert Leflar

Robert B Leflar

New rules and methods for medical injury dispute resolution have been launched in New Hampshire and New York, and demonstration projects are underway elsewhere. This article describes major medical malpractice reforms undertaken and proposed in recent years. Reforms are classified as (1) liability-limiting initiatives favoring health-care providers; (2) procedural innovations promoted as improving dispute resolution processes, such as patient compensation funds, “sorry” laws, disclosure and early offer laws, health courts, and safe harbor laws; and (3) major conceptual reforms to move liability away from physicians to hospitals or administrative no-fault compensation systems. Empirical evidence about the practical effects of already-implemented ...


Using Clinical Practice Guidelines And Knowledge Translation Theory To Cure The Negative Impact Of The National Hospital Peer Review Hearing System On Healthcare Quality, Cost, And Access, Katharine Van Tassel May 2013

Using Clinical Practice Guidelines And Knowledge Translation Theory To Cure The Negative Impact Of The National Hospital Peer Review Hearing System On Healthcare Quality, Cost, And Access, Katharine Van Tassel

Pepperdine Law Review

According to an estimate by the Institute of Medicine made over a decade ago, treatment errors in hospitals alone caused 98,000 deaths yearly. This Institute of Medicine report is proving to be conservative. A recent Consumer Reports investigation came to the conclusion that “[m]ore than 2.25 million Americans will probably die from medical harm this decade…. That’s like wiping out the entire populations of North Dakota, Rhode Island, and Vermont. It’s a manmade disaster.” Thus, it appears that the three major systems in the United States that are designed to improve the quality of patient ...


Medical Malpractice: The Right To Recover For The Loss Of A Chance Of Survival, Patricia L. Andel Jan 2013

Medical Malpractice: The Right To Recover For The Loss Of A Chance Of Survival, Patricia L. Andel

Pepperdine Law Review

Traditionally, a plaintiff suffering from misdiagnosis has been precluded from recovery unless he could show that "but for" the misdiagnosis he would have had a better-than-even chance of recovery. While many courts have attempted to avoid this doctrine by reducing the standard of causation, this has led to inconsistent results. The better approach is to recognize that a "chance" of recovery has a compensable value in and of itself This comment will explore the concept of loss of a chance and trace its development as it relates to medical malpractice actions.


In Defense Of The Professional Standard Of Care: A Response To Carter Williams On "Evidence-Based Medicine", Ann Maclean Massie Jan 2013

In Defense Of The Professional Standard Of Care: A Response To Carter Williams On "Evidence-Based Medicine", Ann Maclean Massie

Ann MacLean Massie

No abstract provided.


Malpractice Mobs: Medical Dispute Resolution In China, Benjamin L. Liebman Jan 2013

Malpractice Mobs: Medical Dispute Resolution In China, Benjamin L. Liebman

Faculty Scholarship

China has experienced a surge in medical disputes in recent years, on the streets and in the courts. Many disputes result in violence. Quantitative and qualitative empirical evidence of medical malpractice litigation and medical disputes in China reveals a dynamic in which the formal legal system operates in the shadow of protest and violence. The threat of violence leads hospitals to settle claims for more money than would be available in court and also influences how judges handle cases that do wind up in court. The detailed evidence regarding medical disputes presented in this Essay adds depth to existing understanding ...


Defensive Medicine And Obstetric Practices, Michael Frakes Sep 2012

Defensive Medicine And Obstetric Practices, Michael Frakes

Cornell Law Faculty Publications

Using data on physician behavior from the 1979–2005 National Hospital Discharge Surveys (NHDS), I estimate the relationship between malpractice pressure, as identified by the adoption of noneconomic damage caps and related tort reforms, and certain decisions faced by obstetricians during the delivery of a child. The NHDS data, supplemented with restricted geographic identifiers, provides inpatient discharge records from a broad enough span of states and covering a long enough period of time to allow for a defensive medicine analysis that draws on an extensive set of variations in relevant tort laws. Contrary to the conventional wisdom, I find no ...


Medical Malpractice Arbitration In The New Millennium: Much Ado About Nothing ?, Ann H. Nevers Apr 2012

Medical Malpractice Arbitration In The New Millennium: Much Ado About Nothing ?, Ann H. Nevers

Pepperdine Dispute Resolution Law Journal

This paper reviews the constitutional issues surrounding medical malpractice arbitration clauses and the implementation of arbitration contracts, and the existing medical malpractice process. Federal preemption issues under the Federal Arbitration Act, enterprise liability and ERISA preemption, and cybermalpractice will be discussed. Finally, dispute resolution industry standards implemented by the American Arbitration Association and American Health Lawyers Association will be reviewed as well as current medical malpractice mediation practices in industry. While the past has shown that arbitration has not been used a great deal future trends may increase use. Emerging medical malpractice arbitration issues arising in the new millennium include ...


The Future Of Adr, Edward A. Dauer Apr 2012

The Future Of Adr, Edward A. Dauer

Pepperdine Dispute Resolution Law Journal

This article addresses the use of alternative dispute resolution in health care.The article provides a historical analysis of medical malpractice and traces the development of ADR in healthcare. The article discusses the benefits that ADR can and will bring to health care in the future.


Forgive And Forget: Recognition Of Error And Use Of Apology As Preemptive Steps To Adr Or Litigation In Medical Malpractice Cases , Ashley A. Davenport Mar 2012

Forgive And Forget: Recognition Of Error And Use Of Apology As Preemptive Steps To Adr Or Litigation In Medical Malpractice Cases , Ashley A. Davenport

Pepperdine Dispute Resolution Law Journal

Medical malpractice cases are a special breed within the field of tort jurisprudence as mistakes in the medical field are regrettably inevitable. Medical universities use some of the greatest hospitals in this country as interactive classrooms to teach future physicians. A vast number of people are treated in hospitals throughout the United States every day, and of those treated, a number are neglected under the confines of the law. The American public expects infallible care from our health care system and any deviation from perfection may result in legal action. Those wronged seek litigation primarily as a means to punish ...


Mediation In The Health Care System: Creative Problem Solving , Sheea Sybblis Mar 2012

Mediation In The Health Care System: Creative Problem Solving , Sheea Sybblis

Pepperdine Dispute Resolution Law Journal

Part I of this paper provides a comparison of the use of litigation and mediation in the health care context. Part II explores how mediation can be used to improve many of the often criticized aspects of adjudication systems and alleviate tension between parties in health care disputes. Part III provides an evaluation of current mediation programs and studies in health care, as well as the expanding role of mediators. Part IV incorporates assessments of the potential success of mediation to resolve health care disputes in the future and provides suggestions to strengthen the process.


Malpractice In Scandinavia, Vibe Ulfbeck, Mette Hartlev, Mårten Schultz Dec 2011

Malpractice In Scandinavia, Vibe Ulfbeck, Mette Hartlev, Mårten Schultz

Chicago-Kent Law Review

The article describes the special Scandinavian patient insurance system which secures compensation for patients in malpractice cases. For all practical purposes, the insurance based systems have replaced ordinary tort law rules in malpractice cases in Scandinavia. Thus, the basic feature of these systems is that proof of fault is not a requirement for obtaining compensation. Other criteria which are more favourable to the patient are applicable. The article concludes that in general the compensations systems have been successful in making it easier for the patients to obtain compensation. However, the systems also face challenges, some of which stem from the ...


Medical Malpractice And Compensation In The Uk, Richard Goldberg Dec 2011

Medical Malpractice And Compensation In The Uk, Richard Goldberg

Chicago-Kent Law Review

In the first part of this paper, Dr. Goldberg examines the context in which medical malpractice liability is operating in the UK. The fact that the state-run National Health Service (NHS) is the major healthcare provider in the UK has several implications, since funding for medical malpractice compensation in the NHS comes from the taxpayer. The most recent empirical evidence on the incidence and funding of claims in England and Scotland is assessed, to show a trend of expenditure on clinical negligence increasing, particularly in England. This is followed by an examination of the statutory framework for the empowerment of ...


The Law Of Medical Misadventure In Japan, Robert B. Leflar Dec 2011

The Law Of Medical Misadventure In Japan, Robert B. Leflar

Chicago-Kent Law Review

This paper offers a comprehensive overview of Japanese law and practice relating to iatrogenic (medically-caused) injury, with comparisons to other nations' medical law systems. The paper addresses criminal sanctions for Japanese physicians' negligent and illegal acts; civil law principles of substantive law and related issues of procedure, practice, and liability insurance; and administrative measures including health ministry programs aimed at expanding and improving the quality of peer review within Japanese medicine, and a recently implemented no-fault compensation system for birth-related injuries.

Among the paper's findings are these. Criminal and civil actions increased rapidly after highly publicized medical error events ...


A Bridge Over Troubled Waters: The Development Of Medical Malpractice Litigation In Brazil, Eduardo Dantas Dec 2011

A Bridge Over Troubled Waters: The Development Of Medical Malpractice Litigation In Brazil, Eduardo Dantas

Chicago-Kent Law Review

This paper aims to demonstrate how medical malpractice litigation is developing in Brazil, and how the Brazilian legal system is dealing with the increase of demands against health care professionals. A brief overlook on the legal structure is provided, highlighting the most important issues being discussed today in Brazilian courts, regarding autonomy, consent, choice, the definition of moral damages, and the influence of the Consumer's Defense Code in litigation regarding health law.


Medical Malpractice: The Italian Experience, Claudia Dimarzo Dec 2011

Medical Malpractice: The Italian Experience, Claudia Dimarzo

Chicago-Kent Law Review

Beginning with an investigation into the problematic nature of medical liability, the Article overviews the most significant approaches taken by courts and scholars in order to establish whether the physician's position before the patient is comparable with that of either a tortfeasor or a contractor.

Having explained that the most recent approaches in this regard tend toward the recognition of the contractual nature of medical liability, the Author discusses the implications of such a solution, making specific reference to the following issues: 1) the assignment of the burden of proof (along with the distinction between obligations of means and ...


Yangge Dance: The Rhythm Of Liability For Medical Malpractice In The People's Republic Of China, Zhu Wang, Ken Oliphant Dec 2011

Yangge Dance: The Rhythm Of Liability For Medical Malpractice In The People's Republic Of China, Zhu Wang, Ken Oliphant

Chicago-Kent Law Review

This paper summarises the development of liability for medical malpractice in the People's Republic of China, beginning with the establishment of a formal system of administrative liability in 1987, its refinement in 2002, and the broadly contemporaneous judicial recognition of a concurrent tortious liability under general civil law. All these developments may be said to have furthered the interests of patients. The incorporation of liability for medical malpractice into the Tort Liability Law of 2009, however, arguably marks a step backwards, subordinating the interests of patients in favor of the interests of the medical community, and further reforms in ...


Medical Malpractice In Austria, Bernhard A. Koch Jun 2011

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 France, Part Ii: Compensation Based On National Solidarity, Geneviève Helleringer Jun 2011

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 ...