State medical malpractice laws and utilization of surgical treatment for rotator cuff tear and proximal humerus fracture: an observational cohort study

Background How much does the medical malpractice system affect treatment decisions in orthopaedics? To further this inquiry, we sought to assess whether malpractice liability is associated with differences in surgery rates among elderly orthopaedic patients. Methods Medicare data were obtained for patients with a rotator cuff tear or proximal humerus fracture in 2011. Multivariate regressions were used to assess whether the probability of surgery is associated with various state-level rules that increase or decrease malpractice liability risks. Results Study results indicate that lower liability is associated with higher surgery rates. States with joint and several liability, caps on punitive damages, and punitive evidence rule had surgery rates that were respectively 5%-, 1%-, and 1%-point higher for rotator cuff tears, and 2%-, 2%- and 1%-point higher for proximal humerus fractures. Conversely, greater liability is associated with lower surgery rates, respectively 6%- and 9%-points lower for rotator cuff patients in states with comparative negligence and pure comparative negligence. Conclusions Medical malpractice liability is associated with orthopaedic treatment choices. Future research should investigate whether treatment differences result in health outcome changes to assess the costs and benefits of the medical liability system.

Incremental Learned Hand Standard, Degrees of Negligence and Allocation of Damages: a Comparative Tort Law and Economics Approach

The incremental Learned Hand standard is recognized as the main contribution of the law and economics literature to legal practice, as an objective criterion of negligence assessment. Traditionally, negligence gradation has been a factor considered by legal technology to allocate the damages. However, one of the main problems in legal practice lies in the establishment of objective criteria for quantitative assessment of the reduction or increase in the indemnity-damage ratio, considering the degree of negligence of the injurer and of the victim. Withal, is it possible to use the incremental Learned Hand standard as criterion of negligence graduation in order to allocate the damages? Using the theoretical foundations of law and economics literature in conjunction with the traditional legal classification of negligence into severe, ordinary and slight, and considering the Brazilian tort system as analytical basis, the paper shows that the answer is positive. The basic idea is that the incremental Learned Hand standard is an algorithm which can be employed in legal practice to systematize the allocation of damages, performing, according to the degree of negligence of the injurer and of the victim, the full compensation or the decouple of the indemnity from the damages, streamlining the application of legal institutes such as comparative negligence, punitive damages, and equitable reduction of compensation (fairness).

Causation vs. Background Events

This chapter examines the problem of causation. An intelligent approach to drafting a criminal code deliberately avoids certain problematic philosophical issues. Among these are the nature of human action; the purposes of punishment; and, most importantly, the problem of causation. The problem of causation runs through the crimes defined by the Rome Statute. The issue is implicit, even if the drafter wisely declined to define the concept. It is obvious that a concern for impunidad and the fate of victims presuppose the harm that has occurred to a defined victim, which implies that the harm must have been caused by the crimes defined by the Rome Statute. The chapter then considers the notion of causal energy, which explains the rise of comparative negligence in tort law.

Defining The Known Risk: Context-Sensitivity In Tort Law Defenses

The law of negligence is designed to apply uniformly across contexts. Whether dealing with a car accident, medical malpractice, or a slip-and-fall case, tort law consistently asks whether a defendant owed a duty of care to the plaintiff and whether he exercised reasonable care in fulfilling that duty. Tort law defenses, too, are generally understood to be context-neutral. The doctrines of comparative negligence and assumption of risk should not vary depending on the precise circumstances surrounding an injury. And yet, there is a peculiar inconsistency in how some defenses are applied in cases of medical malpractice as compared to cases outside the health care context. Specifically, reliance on secondary implied assumption of risk seems to require greater knowledge on the part of the plaintiff in malpractice cases than in other contexts. In recreational sport cases, for example, a plaintiff will be denied recovery if he voluntarily encountered a known risk of physical injury – regardless of whether he understood that the risk was the result of a defendant’s negligence. In contrast, in medical malpractice cases, most people’s intuition is that the plaintiff’s recovery should be denied or limited only if he had knowledge of the risk of physical injury as well as the fact that this risk was created by a negligent defendant. There is no clear doctrinal explanation for this distinction. This article describes this conundrum and poses the question of whether and when such context-specific adjustments might be doctrinally justified. Ultimately, the most likely explanation is grounded in medical exceptionalist claims that the unique nature of health care justifies a more flexible and nuanced application of legal doctrine. While this conclusion may be unsatisfying to some, it presents a valuable opportunity to revisit debates about the supposed context-neutrality of tort law.

Last Clear Chance: A Defense To A Defense

This case problem will provide the student with the familiarity that they will need for the concepts of contributory negligence and last clear chance. It should also be noted that the concept of last clear chance is on the wane as a legal maxim. It is applicable in states that still use the legal defense of contributory negligence. Whereas in other states, which constitute the majority, the courts apply the concept of comparative negligence, which apportions the monetary damages given by the fact finder. There may be other considerations depending upon the country of the legal action, as this case study is based solely on United States laws.

Malpractice Issues for the Private Practitioner

This chapter provides an overview of major concerns for practicing mental health professionals regarding issues of negligence. It discusses the concept of a professional relationship, the standard of care that derives from that relationship, the deviations from standards of care, and damages directly due to the deviations. Frequent areas of malpractice litigation are reviewed with illustrative cases presented. Common defenses against malpractice are discussed, focusing on challenging whether all four elements of malpractice have been met, and whether or not there have been contributions to the unfortunate outcomes by the patient or client herself or himself (contributory or comparative negligence). The guidance in this chapter also reduces the likelihood of administrative legal actions like board complaints. Do you want to narrow it so much. Risk management strategies are presented to assist practitioners to minimize the risk of malpractice occurring.