Category Archives: Negligence

‘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, […]

Twerski and Shane, ‘Bringing the Science of Policing to Liability for Third-Party Crime at Shopping Malls’

Abstract: Unlike state and municipal police forces that can generally not be sued by victims of crime on the grounds that they provided inadequate policing, shopping malls are regularly the targets by crime victims in tort actions for failing to provide adequate security. Courts have struggled with the question of how to set the standard […]

Phillip Buckley, ‘Barriers to Justice, Limits to Deterrence: Tort Law Theory and State Approaches to Shielding School Districts and Their Employees from Liability for Negligent Supervision’

Abstract: Despite its importance, the law of tort and negligence in the context of American public schools is poorly understood and relatively understudied. Through the lens of tort law theory, this Article examines the various legal frameworks that govern the tort of negligent supervision in four states: Arkansas, Illinois, Colorado, and Maine. In these four […]

Nicholas McBride, ‘Michael and the Future of Tort Law’

Abstract: This paper – published in (2016) 32 PN 14 – discusses the significance of the UK Supreme Court’s decision in Michael v Chief Constable of South Wales Police [2015] AC 1732. McBride, Nicholas, Michael and the Future of Tort Law (February 1, 2016). (2016) 32 Journal of Professional Negligence 14.

Bruce Feldthusen, ‘10 Reasons to Reject Unique Public Duties of Care in Negligence’

Abstract: In Michael v The South Wales Police the UKSC struck out a fatal accidents claim brought by the family of a victim of domestic abuse. Two different police forces bungled Ms Michael’s calls to the emergency line immediately before she was murdered. The claim failed because the court held that the law ought not […]

Ashley Sundquist, ‘The Economic Loss Doctrine in Alaska and the Design Professional Exception’

Abstract: The economic loss doctrine has prevented countless plaintiffs from recovering their economic losses in tort. However, over the last several decades, numerous courts have found exceptions to this doctrine. Alaska currently provides two important exceptions: the independent duty exception and the design professional exception. These two exceptions as applied provide for inconsistent results which […]