Category Archives: Personal Injuries

Alessandra Suuberg, ‘Emotional Distress Claims, Dignitary Torts, and the Plaintiff-Friendly Fiction of Reasonable Sensitivity’

ABSTRACT In 2019, an article in the University of Memphis Law Review considered whether individuals with a highly sensitive temperament are able to recover for intentional infliction of emotional distress (IIED), given the tort’s ‘reasonable person’ standard. The author argued that this standard discriminates against plaintiffs who are more susceptible to emotional harm than average. […]

Michael Pressman, ‘Hedonic-Loss Damages that Optimally Deter: An Alternative to “Value of a Statistical Life” that Focuses on Both Decedent and Tortfeasor’

ABSTRACT Plaintiffs in wrongful-death suits typically are unable to recover for the decedent’s ‘hedonic loss’ – the loss of happiness (or wellbeing) incurred as a result of the lost life-years themselves. Although this omission might not be a mistake on a backward-looking account of tort law (because the decedent is dead and arguably cannot be […]

Shivansh Shukla, ‘Tort of Medical Negligence in India’

ABSTRACT Indians, of late, have risen to the challenge of healthcare and increased their efforts to provide healthcare facilities to their underprivileged compatriots. This is primarily being done through NGOs and other organizations many of which are funded by the Government. One of the most popular ways to do so have been establishment of health […]

‘Can a clinical negligence trial be heard remotely?’

“SC (a child, suing by her mother and litigation friend, AC) v University Hospital Southampton NHS Foundation Trust [2020] EWHC 1445 (QB). Since lockdown the courts (and legal representatives) have been striving to hold remote hearings where possible. This had led to a flurry of new guidance (see for example CPR section AA Guidance for […]

‘Fatal Accident Claims’

“… In essence, because provision following fatality is entirely a creature of statute the results are arbitrary, often based on hypothesis and an assessment of chance. The cases are fact sensitive and leaves a potential for a great deal of discretion within a range of awards the Court might make. What is more, as long […]

Chunyan Ding, ‘How Much Do Expert Opinions Matter: An Empirical Investigation of Selection Bias, Adversarial Bias and Judicial Deference in Chinese Medical Negligence Litigation’

ABSTRACT This article investigates the nature of the operation and the role of expert opinions in Chinese medical negligence litigation, drawing on content analysis of 3,619 medical negligence cases and an in-depth survey of judges with experience of adjudicating medical negligence cases. It offers three major findings: first, that both parties to medical negligence disputes […]

Black, Chung, Traczynski, Udalova and Vats, ‘Medical Liability Insurance Premia: 1990–2016 Dataset, with Literature Review and Summary Information’

ABSTRACT This document and the accompanying dataset provide six things: (1) a dataset covering 27 years (1990-2016) of medical malpractice (med mal) insurance premia, compiled with extensive data cleaning from the only available source for these rates, annual surveys conducted by Medical Liability Monitor (MLM); (2) an accompanying codebook; (3) the Stata code we use […]

Saks and Landsman, ‘The Paradoxes of Defensive Medicine’

ABSTRACT For decades, ‘defensive medicine’ has been the leading argument driving reforms of medical malpractice laws throughout the United States. Defensive medicine is the presumed practice of administering excessive tests and treatments as a stratagem for reducing healthcare providers’ risk of malpractice liability, despite the absence of any expected benefit for the patient. The practice […]

Ian Freckelton, ‘Internet Disruptions in The Doctor-Patient Relationship’

ABSTRACT The ubiquitous access by patients to online information about health issues is disrupting the traditional doctor–patient relationship in fundamental ways. The knowledge imbalance has shifted and the last nails are being hammered into the coffin of medical paternalism. Ready access to Dr Google has many positive aspects but the risk of undiscerning acceptance by […]

Anita Bernstein, ‘(Almost) No Bad Drugs: Near-Total Products Liability Immunity for Pharmaceuticals Explained’

ABSTRACT This Article explores four beliefs about supposed pharma-benevolence that appear to be shared by more than the industry, reaching the level almost of conventional wisdom. These figurative pillars help support one-sided results in court. However, each of the pillars on examination turns out at least a bit shaky. This Article puts them forward for […]