Category Archives: Personal Injuries

Stephen Sugarman, ‘Restating the Tort of Battery’

Abstract: This article offers a bold proposal: eliminate the intentional tort of battery and merge cases of both the negligent and intentional imposition of physical harm into a single new tort. The advantages of a single tort of wrongfully causing physical harm to persons are many. It would (a) do away with complex and unneeded […]

Erik Knutsen, ‘The Medical Malpractice Landscape in Ontario: Facts, Trends and Analysis of Trials and Appeals’

Abstract: This study presents comprehensive analyzed data about medical malpractice trials and appeals in the Ontario civil court system over a 24-year period, from 1992 to 2016. The study looks at the trends in this population of cases with the hopes that there is, for medical malpractice litigants, some predictive value in at least knowing […]

Benjamin McMichael, ‘The Failure of “Sorry”: An Empirical Evaluation of Apology Laws, Health Care, and Medical Malpractice’

Abstract: As part of the effort to contain the size and frequency of medical malpractice claims, many states have adopted apology laws. These laws make apologies from physicians to patients inadmissible in any subsequent court proceedings. The basic rationale behind apology laws is that meritless malpractice claims are less likely to be filed when a […]

Victor Goldberg, ‘The MacPhersonHenningsen Puzzle’

Abstract: In the landmark case of MacPherson v Buick, an automobile company was held liable for negligence notwithstanding a lack of privity with the injured driver. Four decades later, in Henningsen v Bloomfield Motors, the court held unconscionable the standard automobile company warranty which limited its responsibility to repair and replacement, even in a case […]

‘Research, Innovative treatments and Barriers for innovation including liability’: Keele University, 14 September 2017

This seminar is part of an ESRC funded series which will examine the relationship between the regulation of research, and of innovative treatments and the effects on innovation. Issues to be addressed include the distinction between innovative treatment and research; the responsibilities of the scientist versus the clinician in translation of innovative therapies; the relative […]

Joanna Manning, ‘Does the Law on Compensation for Research-Related Injury in the UK, Australia, and New Zealand Meet Ethical Requirements?’

Abstract: Despite a consensus that society owes an ethical obligation to compensate for research-related injury, and that no-fault is the best ethical response, an assessment of the compensation arrangements in place in the UK, Australia and New Zealand shows that in general compensation arrangements fall below this ethical expectation. Most subjects rely on ex gratia […]

Colin Mitchell and others, ‘Exploring the potential duty of care in clinical genomics under UK law’

Abstract: Genome-wide sequencing technologies are beginning to be used in projects that have both clinical diagnostic and research components. The clinical application of this technology, which generates a huge amount of information of varying diagnostic certainty, involves addressing a number of challenges to establish appropriate standards. In this article, we explore the way that UK […]

Bertoli and Grembi, ‘Medical Malpractice: How Legal Liability Affects Medical Decisions’

Abstract: In health care, overuse and underuse of medical treatments represent equally dangerous deviations from an optimal use equilibrium and arouses concerns about possible implications for patients’ health, and for the healthcare system in terms of both costs and access to medical care. Medical liability plays a dominant role among the elements that can affect […]

Watson and Kottenhagen, ‘Patients’ Rights, Medical Error and Harmonisation of Compensation Mechanisms in Europe’

Abstract: In 1999 the Institute of Medicine reported that most medical injuries relate to unavoidable human error in a context of system failure. Patient safety improves when healthcare providers facilitate blame-free reporting and organisational learning. This is at odds with fault-based civil liability law, which discourages a more open (doctor-patient) communication on medical injuries. The […]

Emma Cave, ‘The ill-informed Consent to medical treatment and the therapeutic exception’

Abstract: Affirming the doctrine of informed consent, the UK Supreme Court in Montgomery v Lanarkshire HB belatedly followed the Australian decision of Rogers v Whitaker, decoupling the duty to inform patients about the material risks of medical treatment from Bolam. The underlying commitment to patient autonomy coincides with a wider body of medical law that […]