scholarly journals New Rules on Patient’s Safety and Professional Liability for the Italian Health Service

2019 ◽  
Vol 20 (8) ◽  
pp. 615-624 ◽  
Author(s):  
Sara Albolino ◽  
Tommaso Bellandi ◽  
Simone Cappelletti ◽  
Marco Di Paolo ◽  
Vittorio Fineschi ◽  
...  
Keyword(s):  
Medical Malpractice ◽  
Healthcare Providers ◽  
Medical Liability ◽  
Healthcare Economics ◽  
Good Medical Practice ◽  
Legal Literature ◽  
Single Text ◽  
Malpractice Liability ◽  
Legislative Activity ◽  
The Law

Background:The phenomenon of clinical negligence claims has rapidly spread to United States, Canada and Europe assuming the dimensions and the severity of a pandemia. Consequently, the issues related to medical malpractice need to be studied from a transnational perspective since they raise similar problems in different legal systems.Methods:Over the last two decades, medical liability has become a prominent issue in healthcare policy and a major concern for healthcare economics in Italy. The failures of the liability system and the high cost of healthcare have led to considerable legislative activity concerning medical malpractice liability, and a law was enacted in 2012 (Law no. 189/2012), known as the “Balduzzi Law”.Results:The law tackles the mounting concern over litigation related to medical malpractice and calls for Italian physicians to follow guidelines. Briefly, the law provided for the decriminalisation of simple negligence of a physician on condition that he/she followed the guidelines and “good medical practice” while carrying out his/her duties, whilst the obligation for compensation, as defined by the Italian Civil Code, remained. Judges had to consider that the physician followed the provisions of the guidelines but nevertheless caused injury to the patient.Conclusion:However, since the emission of the law, thorny questions remain which have attracted renewed interest and criticism both in the Italian courts and legal literature. Since then, several bills have been presented on the topic and these have been merged into a single text entitled “Regulations for healthcare and patient safety and for the professional responsibility of healthcare providers”.

Het medisch aansprakelijkheidssysteem en defensief gedrag in België

2021 ◽  
Author(s):  
K. DANIELS ◽  
T. VANDERSTEEGEN ◽  
W. MARNEFFE ◽  
L. DE WILDE
Keyword(s):  
Health Care Providers ◽  
Healthcare Providers ◽  
Defensive Medicine ◽  
The Other ◽  
Medical Liability ◽  
Care Providers ◽  
Defensive Behaviour ◽  
Risk Patients ◽  
Malpractice Liability ◽  
The One

The medical liability system and defensive behaviour in Belgium The aim of the medical liability system is, on the one hand, providing adequate compensation to victims of medical incidents and, on the other hand, incentivising health care providers to adopt sufficient care. However, the fear of healthcare providers for being involved in a liability procedure in case of a medical incident may cause them to practice defensive medicine. Defensive medicine is defined as the ordering of more tests, procedures and visits (assurance behaviour) or the avoidance of high-risk patients or procedures (avoidance behaviour), primarily (but not necessarily solely) to reduce the exposure to malpractice liability. Although various foreign studies assess the prevalence of defensive medicine, it is not yet sufficiently clear to what extent Belgian physicians act defensively in practice. A survey conducted in 2015 among 90 specialist physicians indicates that the medical liability system in Belgium may have an influence on their clinical practice and decision-making. However, additional research is necessary to inform policymakers about the real prevalence of defensive behaviour and its potential drivers and consequences.

scholarly journals Medical Liability: Review of a Whole Year of Judgments of the Civil Court of Rome

2021 ◽  
Vol 18 (11) ◽  
pp. 6019
Author(s):  
Michele Treglia ◽  
Margherita Pallocci ◽  
Pierluigi Passalacqua ◽  
Jacopo Giammatteo ◽  
Lucilla De Luca ◽  
...  
Keyword(s):  
Medical Malpractice ◽  
Health Workers ◽  
Healthcare Providers ◽  
Medical Liability ◽  
Medical Law ◽  
Healthcare Facilities ◽  
Civil Court ◽  
Specialized Section ◽  
Liability Costs ◽  
Reported Data

Background: Complaints about medical malpractice have increased over time in Italy, as well as other countries around the world. This scenario, perceived by some as a “malpractice crisis”, is a subject of debate in health law and medical law. The costs arising from medical liability lawsuits weigh not only on individual professionals but also on the budgets of healthcare facilities, many of which in Italy are supported by public funds. A full understanding of the phenomenon of medical malpractice appears necessary in order to manage this spreading issue and possibly to reduce the health liability costs. Methods: The retrospective review concerned all the judgments drawn up by the Judges of the Civil Court of Rome, XIII Chamber (competent and specialized section for professional liability trials) published between January 2018 and February 2019. Results: The analysis of data concerning the involved parties showed that in 84.6% of the judgments taken into account, one or more health facilities were sued, while in 58.2% of cases, one or more health workers were present among the defendants. When healthcare providers are the only ones to be summoned, it is dentists and aesthetic doctors/plastic surgeons who undergo most of the claims. In the overall period analyzed, the amount paid was 23,489,254.08 EUR with an average of 163,119.82 EUR. Conclusion: The evidence provided by the reported data is a useful tool to understand medical malpractice in Italy, especially with regard to the occurrence of the phenomenon at a legal level, an aspect still hardly mentioned by existing literature.

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.

scholarly journals Evaluating the Medical Malpractice System and Options for Reform

2011 ◽  
Vol 25 (2) ◽  
pp. 93-110 ◽  
Author(s):  
Daniel P Kessler
Keyword(s):  
Medical Malpractice ◽  
Healthcare Providers ◽  
Healthcare Spending ◽  
The United States ◽  
Defensive Medicine ◽  
Cost Of Health Care ◽  
Malpractice Law ◽  
Patient Health ◽  
Malpractice Liability ◽  
The U.S

The U.S. medical malpractice liability system has two principal objectives: to compensate patients who are injured through the negligence of healthcare providers and to deter providers from practicing negligently. In practice, however, the system is slow and costly to administer. It both fails to compensate patients who have suffered from bad medical care and compensates those who haven't. According to opinion surveys of physicians, the system creates incentives to undertake cost-ineffective treatments based on fear of legal liability—to practice “defensive medicine.” The failures of the liability system and the high cost of health care in the United States have led to an important debate over tort policy. How well does malpractice law achieve its intended goals? How large of a problem is defensive medicine and can reforms to malpractice law reduce its impact on healthcare spending? The flaws of the existing system have led a number of states to change their laws in a way that would reduce malpractice liability—to adopt “tort reforms.” Evidence from several studies suggests that wisely chosen reforms have the potential to reduce healthcare spending significantly with no adverse impact on patient health outcomes.

Topical issues of medical malpractices

2014 ◽  
Vol 155 (38) ◽  
pp. 1510-1516
Author(s):  
Tamás Heiner ◽  
Tímea Barzó
Keyword(s):  
Medical Malpractice ◽  
Medical Service ◽  
Early Stage ◽  
Healthcare Providers ◽  
Healthcare Services ◽  
Practical Experience ◽  
Current Analysis ◽  
Breach Of Contract ◽  
Judicial Decisions ◽  
Contractual Relationship

The number of medical malpractice lawsuits filed each year in Hungary has considerably increased since 1990. The judicial decisions and practices on determining and awarding wrongful damages recoverable for medical malpractices in the Hungarian civil law have been developing for decades. In the meantime, a new Hungarian Civil Code (Act V of 2013) has entered into force, which among others, necessitates the revaluation of assessment of damages recoverable for medical malpractices. There are two main areas where fundamental changes have been introduced, which may significantly affect the outcome of medical malpractice lawsuits in the future. In the early stage of medical malpractices it was unclear whether the courts had to consider either the contractual relationship between patients and healthcare providers (contractual liability) or general codal articles on damages arising from non-contractual liability/torts (delictual liability) in their judgement delivered in the cases. Both the theoretical and practical experience of the last ten years shows that healthcare services agreements are concluded between healthcare providers and patients with the aim and intention to provide appropriate professional healthcare services to patients, which meet patients’ interests and wishes. The medical service is violated if it fails to meet patients’ interests and wishes as well as the objectives of the agreement. Since the new legislation implies a stricter liability for damages in the case of breach of contract and stricter rules for exempting the party in breach from compensation obligations, the opportunities to exempt healthcare providers from these obligations have become limited compared to previous regulations. This modification, which was aimed at further integrating the established judicial practices into legislation, stipulates the application of the rules for liability for damages resulting from medical malpractice in non-contractual situations. This paper analyses dogmatic and practical problems related to this topic. Another important area of current analysis is the institution of injury fees, which replaced the reimbursement of non-pecuniary damages. The mere fact of infringement allows setting injury fees. Taking into consideration the current resources in staff and equipment available in healthcare, this regulation may promote claims for injury fees impartial. Consequently, courts will have to apply other criteria when judgment in ‘trivial cases’, which might not require legal assessment, is delivered. Orv. Hetil., 2014, 155(38), 1510–1516.

Authority by Aggregation and Abstraction

2017 ◽  
Author(s):  
Rebecca Skreslet Hernandez
Keyword(s):  
Pragmatic Theory ◽  
Legal Thought ◽  
Universal Principles ◽  
Legal Literature ◽  
Religious Learning ◽  
The Law ◽  
Substantive Law ◽  
Lasting Influence

In addition to his views on ijtihād and tajdīd, al-Suyūṭī’s lasting influence in Islamic legal thought lies in the area of legal precepts (pithy maxims or questions that sum up areas of the law). Al-Suyūṭī’s al-Ashbāh wa-l-naẓāʾir stands as a core work in this genre of legal literature and is still a popular textbook for students at Egypt’s premier institution of religious learning, al-Azhar. Using the pragmatic theory of Grice and others, I argue that legal precepts fulfill a number of key discursive functions for the jurist. It is with al-Suyūṭī’s Ashbāh that he is most successful in asserting his authority as an aggregator, abstractor, and framer of the law. The power of framing lies in the ability to distill key universal principles from the vast corpus of Islamic substantive law and to assert that these principles represent the essence and spirit of the Sharīʿa.

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’.

The paradoxes of legal paternalism and how to resolve them

Legal Studies ◽  
2010 ◽  
Vol 30 (1) ◽  
pp. 61-73 ◽  
Author(s):  
Anthony Ogus
Keyword(s):  
Policy Making ◽  
Fundamental Importance ◽  
Freedom Of Choice ◽  
Legal Literature ◽  
Soft Paternalism ◽  
Technological Developments ◽  
The Law ◽  
Benefit Cost

Legal paternalism occurs when the law forces individuals to avoid certain risks (‘hard paternalism’), or, without coercion, nudges them away from such risks (‘soft paternalism’), on the ground that otherwise they will make unwise decisions. The questions when and how such approaches should be taken are of fundamental importance in a society in which there are increasing risks to health and livelihood resulting from technological developments and greater freedom of choice. However, they are not openly addressed in policy-making circles and have also been neglected in the European legal literature. In this paper, I attempt to explain these paradoxes and to outline a theoretical benefit–cost framework for determining when and how legal paternalism might be considered appropriate.

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