Category Archives: Negligence

Ian Gallacher, ‘My Grandmother Was Mrs Palsgraf: Ways to Rethink Legal Education to Help Students Become Lawyers, Rather Than Just Thinking Like Them’

Abstract: This article uses my family history, and its striking similarities to the Palsgraf case, as a starting point for a consideration of the ways law schools teach the law to their students, the problems that approach appears to cause, and some possible alternative, and potentially healthier, approaches to legal education. My grandmother, grandfather, mother, […]

Stephen Sugarman, ‘Torts and Guns’

Abstract: When Hillary Clinton and Bernie Sanders squabbled during their 2015-16 election campaigns over the federal Protection of Lawful Commerce in Arms Act (PLCCA), they were talking past each other, misleading their listeners, and failing to understand what this statute pre-empting some state tort claims against the gun industry was actually about. Many critics of […]

Mark Geistfeld, ‘Protecting Confidential Information Entrusted to Others in Business Transactions: Data Breaches, Identity Theft, and Tort Liability’

Abstract: Tort litigation over data breaches – defined here as the theft of one’s confidential information entrusted to another in a business transaction – most commonly involves the negligence cause of action. These claims turn on a number of issues that require searching analysis, including the manner in which the economic loss rule affects the […]

Christine Beuermann, ‘Do Hospitals Owe a So-Called ‘Non-Delegable’ Duty of Care to their Patients?’

Abstract: It is not uncommon for the duty of care owed by a hospital to its patients to be described as ‘non-delegable’. Use of this label suggests that a hospital may be held strictly liable to a patient for the wrongdoing of a third party beyond the circumstances in which vicarious liability might be imposed. […]

R Blake Brown, ‘Canada’s First Malpractice Crisis: Medical Negligence in the Late Nineteenth Century’

Abstract: This article describes and explains the first Canadian medical malpractice crisis. While malpractice had emerged as a prominent legal issue in the United States by the mid nineteenth century, Canadian doctors first began to express concerns with a growth in malpractice litigation in the late nineteenth century. Physicians claimed that lawsuits damaged reputations and […]

‘Duty of care in genomic medicine: who is liable?’

“Clinical Genetics is a field of medicine concerned with the probability of an indvidual’s condition having an hereditary basis. The journal Medical Law International has just published an article about the scope of potential duties of care owed by specialists in this field to people with heritable diseases. The authors draw out the features of […]

Nicholas Hooper, ‘The Phenomenology of Medico-Legal Causation’

Abstract: The language of counterfactual causation employed from the bench obscures the analytical vacuity of the ‘but for’ test. This paper takes issue with the consistent recourse to ‘common sense’ as a methodological tool for determining the deeply complex issue of causality. Despite manifestly empty gestures to, eg, robust pragmatism, the current approach imposes the […]

George Buttigieg, ‘Re-visiting Bolam and Bolitho in the light of Montgomery v Lanarkshire Health Board

Abstract: This article considers the potentially untapped significance of the Bolitho test, while the Bolam test looks to be facing a challenging twilight. It re-examines the landmark House of Lords case of Nadyne Montgomery v Lanarkshire Health Board, having regard for Bolam as modified by Bolitho. Although further jurisprudential Bolam challenge is likely in the […]

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 […]

Catherine Sharkey, ‘Can Data Breach Claims Survive the Economic Loss Rule?’

Abstract: Data security breach cases are fertile ground to explore the impact of the economic loss rule and to challenge the conceptual underpinnings of this judge-made doctrine. The extent to which the economic loss rule serves as a formidable barrier to credit card data security breach cases depends upon the underlying state law; in particular, […]