Category Archives: Personal Injuries

Niels Philipsen, ‘The Role of Private Actors in Preventing Work-Related Risks: A Law and Economics Perspective’

ABSTRACT This contribution considers the regulation of work-related risks such as industrial accidents and occupational diseases, and more specifically the role of employers and employees in the regulation and prevention of such risks. First, a law and economics perspective will be provided on the delegation of regulatory design and enforcement tasks to private actors. Thereby […]

Adam Weitzman, ‘No fault liabilities and private health providers’

INTRODUCTION While clinical negligence provides a number of challenges to those acting on behalf of claimants, historically, the question of who is legally responsible for the treatment was not usually one of them. Claims were brought against NHS making concerns as to whether the hospital or treating physician was responsible academic; the NHS delivered medical […]

‘Letting Some Light In: Resolving a Key Question Regarding Communication-and-Resolution Programs’

Allen Kachalia, Kenneth Sands, Melinda Van Niel, Suzanne Dodson, Stephanie Roche, Victor Novack, Maayan Yitshak-Sade, Patricia Folcarelli, Evan M Benjamin, Alan C Woodward and Michelle M Mello, Effects of A Communication-And-Resolution Program on Hospitals’ Malpractice Claims and Costs, 37 Health Affairs 1836 (2018). Allen Kachalia and ten co-authors’ new piece, entitled Effects of a Communication-and-Resolution […]

Gilboa and Pelled, ‘The Costs of Having (Too) Many Choices: Reshaping the Doctrine of Informed Consent’

ABSTRACT This article suggests a reshaping of the doctrine of informed consent to accommodate the potential costs of choices vis-à-vis patients’ well-being. Applying insights from psychology and behavioral economics, it makes four main claims. First, the current doctrine imposes a broad duty of disclosure on physicians toward their patients, based on the premise that patients […]

‘High Court considers causation in clinical negligence’

Pomphrey v Secretary of State for Health and Anor [2019] 4 WLUK 483 – decision not yet on Bailii but available on Lawtel. This case concerned an alleged failure to diagnose compression of nerve roots leading to cauda equina and alleged delay in operating urgently. It raises an important issue in relation to causation and […]

Simon Connell, ‘Community insurance versus compulsory insurance: competing paradigms of no-fault accident compensation in New Zealand’

ABSTRACT This paper presents a history of New Zealand’s accident compensation scheme as a struggle between two competing normative paradigms that justify the core reform of the replacement of civil actions for victims of personal injury with a comprehensive no-fault scheme. Under ‘community insurance’, the scheme represents the community taking moral and practical responsibility for […]

W Kip Viscusi, ‘Medical Malpractice Reform: What Works and What Doesn’t’

ABSTRACT 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 […]

‘Fatal Accidents Act – MoJ moves to rectify the eligibility of cohabitants for bereavement damages’

“This proposal from the Ministry of Justice last week looks to rectify the Fatal Accidents Act 1976 following the Court of Appeal’s 2017 decision in Smith v Lancashire. It seems to have been released in a slightly low-key manner by the MoJ, perhaps because at the heart of it is a need to amend English […]

Mary Davis, ‘Time For a Fresh Look at Strict Liability for Pharmaceuticals’

ABSTRACT Over the ensuing 50 years from the promulgation of §402A, products liability in general has seen a retrenchment from strict liability. The Restatement (Third) of Torts: Products Liability openly adopted negligence principles for design and warning claims, and created an entirely new provision to protect pharmaceutical manufacturers even more robust than 402A’s comment k. […]

Tom Baker and Charles Silver, ‘How Liability Insurers Protect Patients and Improve Safety’

INTRODUCTION “… As we discuss, medical malpractice insurers promote patient safety in at least six ways: (1) Insurers identify subpar providers in ways that provide the opportunity for other institutions to act. (2) Insurers provide incentives for providers by charging premiums that are based on risk and by refusing to insure providers who are too […]