Category Archives: Negligence
Lindsey, Doyle and Wazynska-Finck, ‘Securing therapeutic justice through mediation: the challenge of medical treatment disputes’
ABSTRACT This paper explores the use of mediation in medical treatment disputes through the lens of therapeutic justice (TJ), a concept developed in the 1990s to consider the therapeutic and anti-therapeutic effects of justice systems. The paper argues that mediation may be a mechanism for achieving therapeutic effects for people involved in medical treatment disputes. […]
Gilat Juli Bachar, ‘Informed Bystanders’ Duty to Warn’
ABSTRACT Should bystanders with credible knowledge about prospective harm owe a duty of care to future victims? This urgent question comes up in various contexts, from former employers who withhold information about a serial harasser to data brokers who are silent about stalkers that track personal information. Under established common law, the ‘No Duty to […]
Clark Hobson, ‘Still No(,) More Bolam Please: McCulloch and others v Forth Valley Health Board’
ABSTRACT McCulloch v Forth Valley Health Board concerned an allegation of negligence, in failing to consider treating pericarditis with non-steroidal anti-inflammatory drugs as a reasonable alternative treatment and not discussing this option with the patient. Montgomery v Lanarkshire Health Board held that a medical professional must disclose to a patient material risks and any reasonable […]
Patrick Garon-Sayegh, ‘Analysis of medical malpractice claims to improve quality of care: Cautionary remarks’
ABSTRACT Medical malpractice claims can be analysed to gain insights aimed at improving quality of care. However, using medical malpractice claims in medical research raises epistemological and methodological concerns related to certain features of the litigation process. Medical research should therefore approach medical malpractice claims with caution. Taking one recent study as a an example, […]
‘Extracting Informed Consent’
Winterbotham v Shahrak [2024] EWHC 2633 (KB): Background. In Winterbotham, the Claimant had suffered a partially erupted wisdom tooth for many years, which had caused several episodes of pericoronitis (inflammation of the surrounding gum tissue) with associated pain and discomfort. Because of the lengthy wait for NHS treatment, the Claimant sought private treatment and was […]
Ellen Bublick, ‘What We Talk About When We Talk About the Duty of Care in Negligence Law: The Utah Supreme Court Sets an Example in Boynton v Kennecott Utah Copper’
ABSTRACT Every day, state common law courts define the duty of care in negligence law. There is no formula for how courts should determine duty. Yet when judges are charged with important decisions about whether to open or shut the courthouse doors to whole categories of claimants, judges need some framework for decision. This article […]
Lindgren and Oberman, ‘Recalibrating Risk under Dobbs’
ABSTRACT Several years into the US experiment with criminalizing abortion, there is little certainty about the answers to any number of basic questions about the scope and applicability of state abortion bans. For clinicians, this uncertainty, coupled with the high stakes of criminal liability, has triggered a broad-scaled retreat from the pre-Dobbs standard of care […]
David Wasserman, ‘Parental Liability for Prenatal Negligence?’, University of Toronto and Zoom, 15 November 2024
Our speaker will be David Wasserman of the Department of Bioethics at the US National Institutes of Health. David will speak on moral issues raised by parental liability for negligence causing prenatal injury to a fetus. He will speak for about 45 minutes after which there will be a Q&A period … (more)
‘The Calculus of Christianity’
I teach in the School of Law and Justice here, and that for a number of years I have been teaching the subject of Torts (civil liability). I am also a Christian, and in teaching about the tort of negligence it has struck me that some tools which the courts use in deciding negligence cases […]
Yan Kai Zhou, ‘Undesirably risky affairs: resuscitating the desire-based approach to risk as harm’
ABSTRACT This paper engages with the longstanding debate over whether being exposed to a risk of harm amounts to harm itself (what I call ‘risk-harm’). The dominant view has been that those exposed to risks of harm do not suffer harm. In this paper, I defend the widely unpopular subjectivist account of risk-harm – according […]