Category Archives: Negligence

Hyman, Rahmati and Black, ‘Medical Malpractice and Physician Discipline: The Good, The Bad and The Ugly’

ABSTRACT We study the overlap between the medical malpractice (med mal) and medical disciplinary systems using the records of almost 90,000 Illinois physicians who held an active license at any point from 1990-2016. We quantify the specialty-specific risk of having a paid med mal claim or a disciplinary action; how many physicians have both; and […]

Thaddeus Pope, ‘Patient Decision Aids Improve Patient Safety and Reduce Medical Liability Risk’

ABSTRACT Tort-based doctrines of informed consent have utterly failed to assure that patients understand the risks, benefits, and alternatives to the healthcare they receive. Fifty years of experience with the doctrine of informed consent have shown it to be an abject catastrophe. Most patients lack an even minimal understanding of their treatment options. But there […]

Michelle Richards, ‘Going Viral?: Discouraging the Premature Use of Civil Liability Strategies as a Response to COVID-19’

ABSTRACT In addition to the myriad of issues caused by the COVID-19 pandemic in the United States, the virus has also placed our legal system in a position of creating problems that can contribute to the spread of this pandemic. Despite the fact that the United States has been mired in the COVID-19 pandemic and […]

‘Clinical Negligence Cases: When the Bolam Test Does Not Apply’

“The law requires medical practitioners to use diligence, care, knowledge, skill and caution in administering treatment to a patient. The question of whether a medical practitioner has met the requisite standard of care is often considered by reference to the test laid down in the case of Bolam v Friern Hospital Management Committee [1957] WLR […]

‘Strict Liability is Dead, Long Live Strict Liability?’

“Anyone practising in employer’s liability personal injury litigation will be familiar with the strict approach to liability for work equipment imposed by the Provision and Use of Work Equipment Regulations 1998 (‘PUWER’). Regulation 5 of PUWER imposed strict liability in relation to defective equipment, arising from the extremely well-known decision in Stark v Post Office […]

Maytal Gilboa, ‘Multiple Reasonable Behaviors Cases: The Problem of Causal Underdetermination in Tort Law’

ABSTRACT This article introduces a significant yet largely overlooked problem in the law of torts: causal underdetermination. This problem occurs when the causal inquiry of a but-for test produces not one but two results, which are contradictory. According to the first the negligent defendant is the likely cause of the plaintiff’s injury, whereas according to […]

‘The Legal Infrastructure of Childbirth’

“Law endorses the ‘right of every individual to the possession and control of his own person’ including a ‘liberty interest [under the Due Process Clause] in refusing unwanted medical treatment’. However, in childbirth, the state controls the bodily choices of pregnant and birthing people through a patchwork of tort law standards and the regulation of […]

‘Contributory Negligence in Road Traffic Accidents: Seatbelts and Drunk Drivers’

“Findings of contributory negligence against passengers who fail to wear a seatbelt and those who voluntarily get into a car with a driver under the influence of alcohol or drugs are commonplace. This blog aims to set out the underlying principles for quantifying the appropriate deduction to make in either case and to consider the […]

Alexandra Foulkes de la Parra, ‘Genetic Villains’

ABSTRACT When a little boy’s doctors relied on his genetic test results to guide their treatment, they opted for medicines that eventually killed him. The lab that generated the genetic test results knew, at the time of the report, that these results might have meant something other than what was communicated to the doctors. Had […]

Kate Denning, ‘Public Liability Case Review 2021’

ABSTRACT This paper provides a concise summary of 10 key Australian public liability decisions handed down in 2019-2021. Denning, Kate, Public Liability Case Review 2021 (March 11, 2021).