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 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 COMPARATIVE ANALYSIS OF THE LEGISLATION OF THE USA AND THE RUSSIAN FEDERATION ON CIVIL LIABILITY FOR DAMAGE CAUSED BY GOODS WITH INCREASED HAZARDOUS PROPERTIES

2020 ◽  
Vol 35 (3) ◽  
pp. 86-90
Author(s):  
S.M. Salikhova ◽  
◽  
A.M. Shakhaeva ◽  
Keyword(s):  
United States ◽  
Legal System ◽  
Civil Liability ◽  
The United States ◽  
Important Place ◽  
State Laws ◽  
Goods And Services ◽  
The Usa ◽  
American Legal System ◽  
Definition Of

The relevance of the consideration of the problem of civil liability for harm caused by goods with increased hazardous properties is determined by the fact that such cases occupy an increasingly important place in judicial practice. This shows that not only the legal awareness of citizens is growing, but the very definition of “goods with increased dangerous properties” does not have all the principles of specificity. In this regard, one can turn to the experience of other countries, especially those where consumer protection has proven effective. The United States is one of such countries, where not only the culture of consumption is high, but also the legal culture. This combination allows the American legal system to respond to citizens ’appeals in a timely manner and resolve issues with an objective review of cases where liability for damage caused by goods with increased dangerous properties is considered. In the United States, the definition of civil liability for manufacturers and sellers of goods and services is governed by federal and state laws. Moreover, it is the laws of the states in most cases that govern the most important aspects related to determining the shortage of goods, services and work. It should be noted the importance of the precedent in the US legal system, which also determines many cases for determining civil liability for harm caused by some properties of goods. To compare the fundamentals of the legislation of the two countries in the studied area, the comparative legal research method was applied, which allows us to highlight general and excellent legislative norms. Based on the results of the comparison, it was concluded that the similarities and differences between the American and Russian legislation in terms of civil-steam liability for damage caused by goods with dangerous properties.

scholarly journals The Impact of Defense Expenses in Medical Malpractice Claims

2012 ◽  
Vol 40 (1) ◽  
pp. 135-142 ◽  
Author(s):  
Aaron E. Carroll ◽  
Parul Divya Parikh ◽  
Jennifer L. Buddenbaum
Keyword(s):  
Medical Malpractice ◽  
The United States ◽  
Medical Professional ◽  
Liability Insurance ◽  
Medical Liability ◽  
Professional Liability ◽  
Medical Specialties ◽  
Insurance Premiums ◽  
Malpractice Claims ◽  
The Impact

Whenever health care reform is debated, the state of the medical professional liability (MPL) system (i.e., medical malpractice system) in the United States re-emerges as an issue of importance. What exactly is broken with the MPL system and what the implications are is a point of contention among different stakeholder groups. Recent data demonstrate that medical liability premiums have been improving in recent years and the majority of premiums remained flat in 2010. General agreement still exists, however, that medical professional liability insurance premiums have become unaffordable for many physicians, and coverage has become less available, especially for certain medical specialties and in specific areas of the country.Multiple factors go into the determination of medical professional liability insurance premiums including return on investments, reinsurance costs, claims frequency, average amount paid out on malpractice claims, defense expenses, and administrative costs such as underwriting expense.

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”.

Shifting Liability with Licensing: An Empirical Analysis of Medical Malpractice and Scope-of-Practice Laws

2019 ◽  
Vol 12 (2) ◽  
pp. 213-253
Author(s):  
Benjamin J. McMichael
Keyword(s):  
Healthcare System ◽  
Nurse Practitioners ◽  
Medical Malpractice ◽  
Quality Care ◽  
Tort Law ◽  
The United States ◽  
Scope Of Practice ◽  
More Care ◽  
Malpractice Liability ◽  
Liability Risk

Abstract Medical malpractice liability plays an important role in the healthcare system, as evidenced by the many studies finding that changes in malpractice liability risk induce changes in the delivery and consumption of care. Importantly, the effect of malpractice liability depends on who is held liable, and recent developments in the healthcare system have clouded which providers face the risk of liability in certain situations. In particular, as the United States continues to face a physician shortage, nurse practitioners (NPs) have assumed greater roles within the healthcare system. Their ability to provide care, however, depends on state scope-of-practice (SOP) laws which often mandate that physicians supervise NPs’ practices. These mandatory supervision laws can facilitate the ability of injured patients to use various familiar doctrines, e. g. respondeat superior and negligent supervision, to hold supervising physicians liable based on the acts of NPs. As healthcare becomes increasingly team-based and as NPs deliver more care traditionally provided by physicians, understanding the interaction between malpractice liability and SOP laws will become critical. This Article reports novel empirical evidence on the interplay between malpractice liability and SOP laws. Examining a unique dataset of the malpractice premiums charged to physicians in various specialties, I analyze the extent to which SOP laws requiring that physicians supervise the practices of NPs impact the malpractice liability risk faced by physicians. In general, eliminating physician supervision requirements reduce the malpractice risk faced by physicians (as measured by the premiums paid to insure against this risk) by 7.5 %. In addition to elucidating a previously unappreciated interaction between tort law and state SOP laws, this evidence suggests that the imposition of physician supervision requirements may blunt the role of tort law in deterring the provision of unsafe or low-quality care. If SOP laws facilitate the shifting of liability risk from NPs to physicians through various tort doctrines, then neither NPs nor physicians will be appropriately deterred. Indeed, reaching optimal deterrence for one group would necessarily imply suboptimality for the other. This Article reviews several options to address this problem and recommends removing physician supervision requirements from state SOP laws.

The Medical Review Panel in Louisiana Neurosurgery and Beyond

Neurosurgery ◽  
2019 ◽  
Vol 85 (6) ◽  
pp. E992-E1001
Author(s):  
Jennifer Kosty ◽  
Bowen Jiang ◽  
Devon C LeFever ◽  
Jared R Brougham ◽  
Frederick White ◽  
...  
Keyword(s):  
United States ◽  
Medical Malpractice ◽  
The United States ◽  
Medical Liability ◽  
Medical Review ◽  
Review Panel ◽  
The Past ◽  
Malpractice Claims ◽  
States Data ◽  
Medical Malpractice Claims

Abstract For the past several decades, medical malpractice claims in the state of Louisiana have been screened by a pretrial medical review panel (MRP). Composed of 3 physicians and 1 attorney, these panels are a method of filtering nonmeritorious lawsuits while expediting creditable claims. Currently, 14 jurisdictions in the United States require medical liability/malpractice cases be heard by an MRP or screening panel prior to trial. In this article, we review the MRP process in Louisiana and compare it to those in other states. Data are presented for the past 10 yr of malpractice claims in Louisiana with an emphasis on the neurosurgery specialty. Finally, the benefits and challenges of pretrial screening panels are discussed.

Profits, Reputation, and the Risk of Medical Malpractice Liability

2021 ◽  
pp. 1-16
Author(s):  
Na-Eun Cho ◽  
Yue Maggie Zhou
Keyword(s):  
Nonprofit Organizations ◽  
Medical Malpractice ◽  
Low Cost ◽  
The United States ◽  
Strategy Choice ◽  
Medical Expenditures ◽  
High Quality ◽  
For Profit ◽  
Malpractice Liability ◽  
Using Data

We investigate the classic strategy choice between low cost and high quality when quality is not directly observable and legal liability about quality is uncertain. In addition, we investigate how for-profit and nonprofit organizations differ in their responses to a changing risk of quality liability. Our theoretical analysis predicts that nonprofit organizations, because of their lesser dependence on profits and greater dependence on support from donors and local communities based on perceived quality, will adjust their investment in quality more aggressively than for-profit organizations in response to exogenous changes in the risk of quality liability. This difference in responsiveness will be greater for organizations with better reputations for quality. We find support for these predictions using data on hospital medical expenditures, state medical malpractice awards, and tort reforms in the United States for 1997–2006.

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.

State Tort Reforms and Hospital Malpractice Costs

2010 ◽  
Vol 38 (1) ◽  
pp. 127-133 ◽  
Author(s):  
Charles R. Ellington ◽  
Martey Dodoo ◽  
Robert Phillips ◽  
Ronald Szabat ◽  
Larry Green ◽  
...  
Keyword(s):  
Medical Malpractice ◽  
The United States ◽  
Medical Community ◽  
Medical Liability ◽  
Minor Role ◽  
Crossover Effect ◽  
Malpractice Insurance ◽  
A Minor ◽  
Care Costs ◽  
Economic Damages

Medical liability remains a major concern among U.S. physicians, and according to the American Medical Association (AMA) the United States is currently experiencing its third fullblown medical liability crisis with many physicians limiting their practices as a result of rising malpractice costs. The AMA, many in the medical community, and several prominent politicians including former president George W. Bush have called for medical liability reform including caps on non-economic damages. Some researchers argue that the medical liability crisis has been overdrawn. Several studies have shown that the vast majority of patients injured through medical malpractice do not sue, that the insurance cycle is likely major contributor to rising malpractice insurance premiums, and that defensive medicine likely plays a minor role in rising health care costs. Further, evidence shows that malpractice damage caps may lead to a crossover effect where juries increase the amount of economic damages they award to offset limitations in non-economic damages available.

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