Category Archives: Personal Injuries

Juergen Backhaus, ‘Lawyers’ economics versus economic analysis of law: a critique of professor Posner’s “economic” approach to law by reference to a case concerning damages for loss of earning capacity’

Abstract: A methodological critique of the Chicago School of legal economic analysis, in particular Posner’s approach, is illustrated by an example characterizing Chicago-type ‘analysis of law’. Although the discussion of the example referred to may be interesting in its own right, its purpose here is to suggest a more general framework of criticism in order […]

Sabrina Safrin, ‘The C-Section Epidemic: What’s Tort Reform Got to Do with It?’

Abstract: Today one in three babies in the United States comes into the world by cesarean section. The cesarean section has become the most commonly performed operating room procedure in the United States. Conventional wisdom holds that malpractice liability bears primary responsibility for the cesarean section epidemic and that tort reform, which caps physician liability, […]

‘Is a dog a product?’

“The Abnormal Use blog is reporting on an interesting story about a lawsuit against a Humane Society pet shelter based on the fact that a dog adopted from the agency bit a 15-month old child. What is interesting is that the cause of action is based on product liability principles. The case apparently argues that […]

Richard Lewis, ‘Industrial Injuries Compensation: Tort and Social Security Compared’

Abstract: This article highlights aspects of the tort system of compensation for personal injury in the UK by comparing the provision made for workers under the state’s industrial injury scheme. The relative significance of the two schemes has rarely been considered and has not been dealt with in any UK law journal. Although lawyers are […]

Richard Lewis, ‘Tort Tactics: An Empirical Study of Personal Injury Litigation Strategies’

Abstract: This article reveals some of the tactics which lawyers may use when conducting personal injury litigation. The research is empirically based by being drawn from structured interviews with a cross section of practitioners. This qualitative evidence helps to place the rules of tort in a wider context and suggests that tactical considerations may affect […]

‘The Case Against National Medical Malpractice Reform’

“Nobody wants medical tort reform more than me. As a surgeon in private practice for over 30 years, I feel the sting of exorbitant malpractice insurance premiums. I hear tales in the hospital doctors’ lounge of frivolous lawsuits, of suits brought by ungrateful and misinformed patients, of doctors torn between feelings of compassion and fear […]

de Costa and Tam, ‘Liability for providing a prognosis in surgical practice’

Abstract: The common law’s development of the doctrine of informed consent has progressively imposed broader obligations on surgeons to provide patients with information about the surgical and alternative treatment choices available. Prognosis is critical because the patient cannot provide informed consent without information about the likely evolution of the physiological or pathological processes involved in […]

‘Liability v. Innovation: Unpacking key connections’: Keele University, 4 May 2017

The fifth seminar in the series, ‘Thinking outside the box: Strict liability and offsetting risk’, will take place at Keele University on 4 May 2017. This seminar will question the received wisdom that shapes the Medical Innovation Bill, namely: (a) fault-based liability, (b) full compensation and (c) the patient’s best interest as a governing principle […]

Marc Ginsberg, ‘Does Evidence of Common Insurance Demonstrate Relevant Expert Witness Bias in Medical Negligence Litigation’

Abstract: Does ‘common insurance’ shared by the defendant-physician and the medical expert-witness establish an expert bias? In the past ten to fifteen years, the common insurance question has received attention by the state courts. It has been well understood that ‘evidence’ of the presence or absence of liability insurance is simply inadmissible to prove fault […]

‘Still up in the air – is it a Bolam case or a Penney case?’

“In 2012 Mr Muller was diagnosed with a malignant melanoma on the sole of his left foot. The cancer had spread, despite a quick biopsy, and all secondary metastases were then removed. Fortunately, Mr Muller proceeded to receive positive six-month scans, is now clear of cancer and has maintained a normal life expectancy. All perfectly […]