Category Archives: Negligence

Luke Haqq, ‘Reconsidering Wrongful Birth’

ABSTRACT The tort action for ‘wrongful birth’ has a history dating back at least to the 1960s, when it emerged along with the claims for ‘wrongful life’ and ‘wrongful conception’. Since their incipience, this trio of lawsuits has generated an expansive commentary, reaching into thousands of articles in the legal literature alone. With a divide […]

Lucas Brandão Borges Caiado, ‘Understanding State Liability for Damages Caused by Negligent Investigations and Lawsuits – An Analysis of the Brazilian Case in the Light of British and French Experiences’

ABSTRACT General investigations and lawsuits held under Brazilian jurisdiction are considered public records and negligent actions triggered by misuse of power can lead to right violations and cause losses to individuals and companies. In the last decade, the country has been experiencing changes when it comes to corruption. For the first time in history powerful […]

‘Daughters’ psychiatric claims restored over witnessing of father’s death’

“The High Court has ruled it was wrong to strike out secondary victim claims from daughters who witnessed their father die after he was allegedly victim of clinical negligence. The girls, aged 12 and nine at the time, claim for a psychiatric injury suffered as a result of witnessing the event for a type of […]

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 […]

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 […]

Ashley Votruba, ‘Dividing Responsibility: The Role Of The Psychology Of Attribution’

ABSTRACT The United States has a rich legal history addressing how to apportion responsibility between multiple negligent actors, generating legal doctrine including contributory negligence and comparative negligence. Under these doctrine, the trier-of-fact – most often a jury – is responsible for apportioning responsibility for the harm. This Article examines how jurors approach complex negligent tort […]

Karan Venter, ‘A Moment’s Inadvertence Should Not Bring Down the Heavens: Rethinking Proportionality in Negligence Law in New Zealand’

ABSTRACT True proportionality between the degree of a tortfeasor’s fault and the extent of a plaintiff’s loss is unachievable in negligence law in New Zealand. As Mallon J’s judgment in Strathboss Kiwifruit Ltd v Attorney-General highlighted, the concept of proportionality can only be used to negate an alleged tortfeasor’s duty of care, thereby eliminating the […]