Category Archives: Personal Injuries

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 […]

W Nicholson Price II, ‘Medical Malpractice and Black-Box Medicine’

Abstract: The explosive proliferation of health data has combined with the rapid development of machine-learning algorithms to enable a new form of medicine: black-box medicine. In this phenomenon, algorithms troll through tremendous databases of health data to find patterns that can be used to guide care, whether by predicting unknown patient risks, selecting the right […]

‘New Challenges in Medical Negligence Law’: University of Liverpool, 20 April 2017

It is a long-standing principle of tort law that patients injured by a doctor’s carelessness are entitled to compensation. Yet, with the NHS facing unparalleled financial challenges, the issue of compensating medical accidents is becoming increasingly controversial. The clash between concern for patient rights and an apprehension about a spiralling compensation culture is leading to […]

McMichael, Van Horn and Viscusi, ‘Sorry is Never Enough: The Effect of State Apology Laws on Medical Malpractice Liability Risk’

Abstract: State apology laws offer a separate avenue from traditional damages-centric tort reforms to promote communication between physicians and patients and to address potential medical malpractice liability. These laws facilitate apologies from physicians by excluding statements of apology from malpractice trials. Using a unique dataset that includes all malpractice claims for 90% of physicians practicing […]

Born and Karl, ‘The Effect of Tort Reform on Medical Malpractice Insurance Market Trends’

Abstract: In this article, we examine the extent to which the timing of reforms to the tort liability system coincides with changes in medical malpractice insurance market conditions. Our research is motivated by the fact that, while policy discussions and academic research pertaining to the merits of tort reform often center on ex post effects, […]

Hyman, Rahmati, Black and Silver, ‘Medical Malpractice Litigation and the Market for Plaintiff‐Side Representation: Evidence from Illinois’

Abstract: How concentrated is the market for medical malpractice (med mal) legal representation? Do successful plaintiffs’ lawyers start off with better cases to begin with, do they add more value to the cases they handle, or both? How do top plaintiffs’ lawyers market their services, and where did they go to school? How large are […]

Elsabe Schoeman, ‘Transnational Tort Litigation: Splitting Issues or Splitting Hairs?’

Abstract: This essay examines a trilogy of transnational personal injury cases with similar fact patterns, all decided by the highest court in the UK. Each case involved a foreign locus delicti and each case focused on a specific aspect of damages. Yet, in each of these cases the issue in dispute was decided differently in […]