scholarly journals Obligations, consent and contracts in Scots law: re-analysing the basis of medical malpractice liability in light of Montgomery v Lanarkshire Health Board

Legal Studies ◽  
2021 ◽  
pp. 1-21
Author(s):  
Jonathan Brown
Keyword(s):  
Informed Consent ◽  
Legal System ◽  
Medical Malpractice ◽  
Health Board ◽  
Medical Negligence ◽  
University Hospitals ◽  
Malpractice Liability ◽  
Patient Relationships ◽  
Physician Patient ◽  
Medical Regime

Abstract Professors MacQueen and Thomson have defined ‘contract’, within Scots law, as denoting ‘an agreement between two or more parties having the capacity to make it, in the form demanded by law, to perform, on one side or both, acts which are not trifling, indeterminate, impossible or illegal’. This definition reflects the fact that Scottish contracts are underpinned by consent, rather than by ‘consideration’. This, naturally, has the potential to be of great significance within the context of physician/patient relationships, particularly since the 2006 case of Dow v Tayside University Hospitals NHS Trust acknowledged that these relationships could be contractual in nature. This observation is of renewed importance since the landmark decision in Montgomery v Lanarkshire Health Board, which found that physicians must ensure that they obtain full and freely given ‘informed consent’ from their patients, prior to providing medical services. In light of the present medical regime which requires ‘doctor and patient [to] reach agreement on what should happen’, the basis of liability for medical negligence, in Scotland, requires reanalysis: ‘To have a contract only when the patient pays is not consistent with a legal system which has no doctrine of consideration in contract’.

scholarly journals The Standards of Proof in Medical Malpractice Cases

2020 ◽  
Vol 13 (2) ◽  
pp. 173-196
Author(s):  
Nina Cek
Keyword(s):  
Human Rights ◽  
Informed Consent ◽  
Legal System ◽  
Medical Error ◽  
Medical Malpractice ◽  
Civil Proceedings ◽  
Standards Of Proof ◽  
Evaluation Of Evidence ◽  
Procedural Aspect ◽  
The Eu

The article examines the procedural aspect of medical malpractice cases. It focuses on the differences in proof standards by first explaining the characteristics of the Slovenian legal system and then comparing it with German and English legal systems. The author sheds light on the EU court's approach on the question of the responsibility of the manufacturer for the product (vaccine) and suggests the direction to use a broader framework for the evaluation of evidence and presumptions. Given the disclosed problems of proving through a medical expert's help, the article emphasizes the importance of respect for human rights in civil proceedings. Particular emphasis is also placed on no-fault systems. The question is raised of how introducing such a system into the Slovenian legal system would affect the perceived problem of proving a medical error and informed consent omission.

scholarly journals Moral structuring of children during the process of obtaining informed consent in clinical and research settings

2020 ◽  
Vol 21 (1) ◽  
Author(s):  
Anderson Díaz-Pérez ◽  
Elkin Navarro Quiroz ◽  
Dilia Esther Aparicio Marenco
Keyword(s):  
Informed Consent ◽  
Educational Process ◽  
Moral Awareness ◽  
Structured Interviews ◽  
Physician Patient Relationship ◽  
Cross Sectional ◽  
Moral Structure ◽  
Patient Relationships ◽  
Physician Patient ◽  
Extreme Care

Abstract Background Informed consent is an important factor in a child’s moral structure from which different types of doctor–patient relationships arise. Children’s autonomy is currently under discussion in terms of their decent treatment, beyond what doctors and researchers perceive. To describe the influential practices that exist among clinicians and researchers toward children with chronic diseases during the process of obtaining informed consent. Methods This was a cross-sectional, qualitative study via a subjective and interpretivist approach. The study was performed by conducting semi-structured interviews of 21 clinicians and researchers. Data analysis was performed using the SPSS version 21® and Atlas Ti version 7.0® programs. Results The deliberative and paternalistic models were influential practices in the physician–patient relationship. In the deliberative model, the child is expected to have a moral awareness of their care. The paternalistic model determined that submission was a way of structuring the child because he or she is considered to be a subject of extreme care. Conclusions The differentiated objectification [educational] process recognizes the internal and external elements of the child. Informed consent proved to be an appropriate means for strengthening moral and structuring the child.

scholarly journals Medical Malpractice Liability in the United States of America in the Light of the 19th Century Origins of the American Legal System

2021 ◽  
Vol 14 (3) ◽  
pp. 287-305
Author(s):  
Marcin Michalak
Keyword(s):  
Legal System ◽  
Medical Malpractice ◽  
Historical Analysis ◽  
The United States ◽  
Formative Period ◽  
Medical Liability ◽  
Important Place ◽  
Scientific Debate ◽  
American Model ◽  
Malpractice Liability

The American model of medical malpractice liability has been the subject of lively public and scientific debate for years. This system is characterized by a large number of lawsuits against doctors and very high damages awarded in such cases. In turn, these phenomena contribute to the occurrence of so-called medical malpractice crisis. It seems that an important place in the proper understanding of the American model of physicians’ liability for medical malpractice may be the historical analysis of legal norms regulating this matter. The text claims that the modern specificity of the system of liability for medical malpractice is closely related to the development of American law in its formative period in the nineteenth century. The article indicates four features of the legal system developed at that time, which today are identified as responsible for a large number of lawsuits and high compensation in malpractice trials. These include, in particular, linking medical liability to the tort law regime, domination of the civil law dimension of liability for medical errors, the role of the jury in lawsuits for medical malpractice, and the method of remuneration of attorneys in such cases.

Adversarial Medical and Scientific Testimony and Lay Jurors: A Proposal for Medical Malpractice Reform

1995 ◽  
Vol 21 (2-3) ◽  
pp. 281-300
Author(s):  
Jody Weisberg Menon
Keyword(s):  
General Theory ◽  
Legal System ◽  
Medical Malpractice ◽  
Common Knowledge ◽  
Common Law ◽  
Expert Witnesses ◽  
Malpractice Reform ◽  
The Right ◽  
Scholarly Attention ◽  
Scientific Testimony

Pleas for reform of the legal system are common. One area of the legal system which has drawn considerable scholarly attention is the jury system. Courts often employ juries as fact-finders in civil cases according to the Seventh Amendment of the Constitution: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved … .” The general theory behind the use of juries is that they are the most capable fact-finders and the bestsuited tribunal for arriving at the most accurate and just outcomes. This idea, however, has been under attack, particularly by those who claim that cases involving certain difficult issues or types of evidence are an inappropriate province for lay jurors who typically have no special background or experience from which to make informed, fair decisions.The legal system uses expert witnesses to assist triers of fact in understanding issues which are beyond their common knowledge or difficult to comprehend.

Crisis and Informed Consent: Analysis of a Law-Medicine Malocclusion

1987 ◽  
Vol 12 (1) ◽  
pp. 55-97 ◽  
Author(s):  
Fran Carnerie
Keyword(s):  
Informed Consent ◽  
Medical Treatment ◽  
Clinical Setting ◽  
Patient Relationship ◽  
Physician Patient Relationship ◽  
Catastrophic Illness ◽  
Physician Patient ◽  
Emotional Impairment

AbstractMany individuals develop a temporary state of cognitive and emotional impairment after being diagnosed with catastrophic illness. Thus, when crucial decisions about medical treatment are required, they are unable to assimilate information; or worse, the legal need to be informed can rival a psychological desire to not be informed. The Canadian informed consent doctrine is unresponsive to crisis and clinically impracticable, and so paradoxically compromises the integrity and autonomy it was designed to protect. Many aspects of the physician-patient relationship and clinical setting also undermine the philosophical values enshrined in this doctrine. This further jeopardizes the individual's integrity. The Article explores proposals for change such as delaying the informing and consenting, improving the concept of consent, and improving the role of the physician.

Integrating social class and privilege in the community medicine curriculum

2017 ◽  
Vol 52 (3) ◽  
pp. 228-235
Author(s):  
Christopher Haymaker ◽  
Amber Cadick ◽  
Allison Seavey
Keyword(s):  
Social Class ◽  
Hidden Variables ◽  
Therapeutic Approaches ◽  
Physician Patient Relationship ◽  
Health Curriculum ◽  
Group Format ◽  
Resident Physicians ◽  
Patient Health ◽  
Patient Relationships ◽  
Physician Patient

Social class and privilege are hidden variables that impact the physician–patient relationship and health outcomes. This article presents a sample of activities from three programs utilized in the community health curriculum to teach resident physicians about patients within context, including how social class and privilege impact physician–patient relationships and patient health. These activities address resident physicians’ resistance to discussion of privilege, social class, and race by emphasizing direct experience and active learning rather than traditional didactic sessions. The group format of these activities fosters flexible discussion and personal engagement that provide opportunities for reflection. Each activity affords opportunities to develop a vocabulary for discussing social class and privilege with compassion and to adopt therapeutic approaches that are more likely to meet patients where they are.

Physician—Patient Relationships

1985 ◽  
Vol 78 (1) ◽  
pp. 15-21
Author(s):  
Robert B. Howard
Keyword(s):  
Patient Relationships ◽  
Physician Patient

The Role of the Autopsy in Medical Malpractice Cases, I

2002 ◽  
Vol 126 (9) ◽  
pp. 1023-1031 ◽  
Author(s):  
Kevin E. Bove ◽  
Clare Iery
Keyword(s):  
Clinical Diagnosis ◽  
Medical Malpractice ◽  
Standard Of Care ◽  
State Court ◽  
Medical Negligence ◽  
Trial Court ◽  
Autopsy Findings ◽  
Original Trial ◽  
Autopsy Diagnosis

Abstract Context.—Fear that damaging information from autopsy may be introduced as evidence in lawsuits alleging medical malpractice is often cited as one factor contributing to the decline in autopsy rates. Objective.—To determine how autopsy information influences the outcome of medical malpractice litigation. Design.—We studied state court records in 99 cases of medical malpractice adjudicated from 1970 to the present to assess the role of information from autopsies in the outcomes. Results.—The 3 largest groups defined by cause of death at autopsy were acute pulmonary embolism, acute cardiovascular disease, and drug overdose/interaction. Findings for defendant physicians outnumbered medical negligence in the original trial proceedings by a 3:1 margin. The appellate courts affirmed 51 acquittals and 19 findings of negligence, and reversed the original trial court decision in 29 cases for technical reasons. We found no significant relationship between accuracy of clinical diagnosis (using the autopsy standard) and outcome of a suit charging medical negligence. Even when a major discrepancy existed between the autopsy diagnosis and the clinical diagnosis, and the unrecognized condition was deemed treatable, defendant physicians were usually exonerated. Moreover, major diagnostic discrepancies were relatively uncommon in suits in which a physician was found to be negligent. Conversely, in about 20% of cases, autopsy findings were helpful to defendant physicians. Conclusions.—Our study confirms that a finding of medical negligence is based on standard-of-care issues rather than accuracy of clinical diagnosis. Autopsy findings may appear to be neutral or favorable to either the plaintiff or the defendant, but are typically not the crux of a successful legal argument for either side in a malpractice action. We conclude that fear of autopsy findings has no rational basis and is an important obstacle to uninhibited outcomes analysis.

scholarly journals Informed Consent in Medical Malpractice

1967 ◽  
Vol 55 (5) ◽  
pp. 1396 ◽  
Author(s):  
Michael Justin Myers
Keyword(s):  
Informed Consent ◽  
Medical Malpractice
Sign in / Sign up

Export Citation Format

Share Document