Category Archives: Negligence
Barbara von Tigerstrom, ‘Informed Consent, Causation, and the “Reasonable Patient”’
ABSTRACT In medical negligence claims involving ‘informed consent’, claimants must prove that a physician failed in their duty to provide adequate information, and that this failure caused the patient’s injury. In Canada, unlike in Australia or the UK, the common law has adopted a ‘modified objective’ test to analyze the decision component of causation in […]
‘Litigating Human Rights of the Mind: US Social Media Litigation as a Wake-Up Call for Human Rights’
Last week, two US courts for the first time found Meta and Google (YouTube) liable for inflicting harm on users and for violating consumer protection law. These judgments come at a time when European digital policy is under geopolitical pressure and, at the same time, social media bans for children and adolescents are being discussed […]
Michael Palmieri, ‘Malpractice without a Baseline: Tort Liability and the Structural Paradoxes of Psychedelic-assisted Therapy’
ABSTRACT Psychedelic-assisted therapy is advancing rapidly toward clinical legitimacy in the United States. The Food and Drug Administration has granted Breakthrough Therapy designations to psilocybin and MDMA, several states have established regulated access frameworks, and major research institutions have invested hundreds of millions of dollars in psychedelic science. Yet the legal infrastructure governing malpractice liability […]
Faure and Visscher, ‘Medical liability Under Limited Resources: A Law and Economics Perspective’
ABSTRACT This paper presents an analysis of how limited resources in healthcare should affect medical liability. This has become a significant intellectual question in the debate on how to construct an efficient medical liability system. The question has, moreover, received a lot of attention where healthcare systems face increasing pressure from budget constraints. This was […]
Amelie Berz, ‘Medical negligence in the age of statistically superior AI’
ABSTRACT As artificial intelligence (AI) systems increasingly outperform human clinicians in specific diagnostic tasks, legal debates have turned to whether such statistical superiority should create new obligations in medical practice. This article proposes a two-stage transparency framework, distinguishing ‘pre-deployment transparency’ from ‘post-deployment interpretability’, to clarify when clinicians may, must, or must not use or rely […]
Lauren Hund, ‘Moving from Medical Risk to Medicolegal Causation: An Exemplar from Stroke tPA Litigation’
ABSTRACT While medical experts often opine about causation in medical malpractice lawsuits, mapping the medical literature onto the probabilistic ‘more likely than not’ legal causation standard sometimes goes beyond medical expertise. In many medical malpractice applications, experts cannot utilize the logic of differential etiology and general and specific causation that are common in toxic tort […]
Yonathan Arbel, ‘The Generative Reasonable Person’
ABSTRACT This Article introduces the generative reasonable person, a new tool for estimating how ordinary people judge reasonableness. As claims about AI capabilities often outpace evidence, the Article proceeds empirically: adapting randomized controlled trials to large language models, it replicates three published studies of lay judgment across negligence, consent, and contract interpretation, drawing on nearly […]
Dylan Mobley, ‘The Six Harms Doctrine: Legal Framework for Cognizable Injuries from Emotional Artificial Intelligence’
ABSTRACT The Six Harms Doctrine establishes a taxonomy of legally cognizable injuries arising from emotional artificial intelligence interaction. As AI systems increasingly simulate emotional understanding, companionship, and therapeutic support, documented casualties – including multiple deaths now in litigation – demonstrate urgent need for legal frameworks enabling accountability. Existing tort categories inadequately capture harms arising from […]
Bryan Choi, ‘Open Source AI, Open Liability AI’
ABSTRACT The release of open-source AI foundation models has been advertised as ‘good for the world’. But free public access comes with significant risks of harm. The tacit assumption has been that the ‘open source’ label carries with it automatic immunity from legal liability. Accordingly, critics and skeptics of open-source AI have focused their attacks […]
William Flenley, ‘Artificial intelligence and lawyers’ negligence’
It is said that lawyers, like university students, are greatly increasing their use of artificial intelligence, or AI. This may, of course, lead to errors which cause clients loss. Those would normally be the subject of claims in the tort of negligence. But, as Dr Philip Morgan points out in a highly illuminating chapter in […]