Category Archives: Negligence

Jonathan Montgomery, ‘Patient No Longer? What Next in Healthcare Law?’

Abstract A series of Supreme Court decisions since 2013 have revisited the fundamental principles of healthcare and medical law established during the 1980s in which the Bolam test became pre-eminent. These decisions represent a watershed and suggest that a reorientation is underway, in which the law is reducing the significance of the status of patients […]

‘A Bank’s Duty of Care and the Anglo-American/European Divide’

“This summer, Hart Publishing published the book A Bank’s Duty of Care I edited with my colleague Professor Danny Busch from the Radboud University in Nijmegen. In recent years, an increasing number of customers and investors have filed claims against banks, such as for mis-selling financial products, poor financial advice, and insufficient disclosure of and […]

Bell and Jocic, ‘Negligence Claims by Subsequent Building Owners: Did the Life of Bryan End Too Soon?’

Abstract: The 2014 High Court of Australia case Brookfield Multiplex Ltd v Owners Corporation Strata Plan No 61288 gave insights into the narrowed field within which a duty of care in negligence to prevent pure economic loss will be found. As recent cases and commentary have recognised, however, the Court’s approach is by no means […]

Nadia Sawicki, ‘Choosing Malpractice: A New Narrative for Limiting Physician Liability’

Abstract: Modern principles of patient autonomy and health care consumerism are at odds with medical malpractice law’s traditional skepticism towards the defenses of waiver and assumption of risk. Many American courts follow a patient-protective view, exemplified by the reasoning in the seminal Tunkl case, rejecting any attempts by physicians to relieve themselves of liability on […]

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 […]