The aim of this study was to review the typical factors related to physician’s liability in obstetrics and gynecology departments, as compared to those in internal medicine and surgery, regarding a breach of the duty to explain.

On or about June 5, 1895, in Denver, Colorado, a 23-year-old law clerk named James Smith fell off a ladder and injured his left thigh near the hip. Three days later, on June 8, 1895, Smith consulted a physician named George Gibson. Gibson saw Smith twice.1 After several weeks of continued pain, on June 24, 1895 Grant consulted a different physician named W. W. Grant. Grant was already a well-known railway surgeon in the local medical community, and would go (...) on to even greater prominence. Grant treated Smith, but did not attempt to immobilize Smith’s leg. Rather, Grant “advised exercise of various kinds as though treating a contusion” (Withers 1931, p. 99). On April 14, 1896, Smith filed a lawsuit against .. (shrink)

The United States is in its fifth year of what is now widely referred to as “the new medical malpractice crisis.” Although some professional liability insurers have begun to report improvements in their overall financial margins, there are few signs that the trend toward higher costs is reversing itself - particularly for doctors and hospitals. In 2003-2004, the presidential election and tort reform proposals in Congress brought heightened public attention to the need for some type of policy intervention to (...) ease the effects of the crisis.The darling of tort reformers at both the federal and state levels has been legislation to limit, or “cap,” damages awarded to plaintiffs in malpractice cases. Health care provider groups, liability insurers, and the Bush Administration have all seized on the example of California's MICRA law, which since 1975 has capped noneconomic damages in malpractice cases at a flat $250,000, as the path to financial recovery. (shrink)

The United States is in its fifth year of what is now widely referred to as “the new medical malpractice crisis.” Although some professional liability insurers have begun to report improvements in their overall financial margins, there are few signs that the trend toward higher costs is reversing itself - particularly for doctors and hospitals. In 2003-2004, the presidential election and tort reform proposals in Congress brought heightened public attention to the need for some type of policy intervention to (...) ease the effects of the crisis.The darling of tort reformers at both the federal and state levels has been legislation to limit, or “cap,” damages awarded to plaintiffs in malpractice cases. Health care provider groups, liability insurers, and the Bush Administration have all seized on the example of California's MICRA law, which since 1975 has capped noneconomic damages in malpractice cases at a flat $250,000, as the path to financial recovery. (shrink)

This book examines the potential of litigation as a strategy to advance the right to health by holding governments accountable for these obligations. It asks who benefits both directly and indirectly—and what the overall impacts on health equity are. Included are case studies from Costa Rica, South Africa, India, Brazil, Argentina and Colombia.

BackgroundObstetrics and gynaecology always has reputation for being a highly litigious. The field of obstetrics and gynaecology is surrounded by different circumstances that stimulate the doctors to practice defensive medicine.MethodsThis study was directed to assess the extent and the possible effect of defensive medicine phenomenon on medical decision making among different grades of obstetric and gynaecologic Sudanese doctors, and to determine any experience of medical litigations with respect to sources and factors associated with it.ResultsA total of 117 doctors (...) were approached, their distribution according to job description was as follow: consultants registrars and specialists. The majority 89.7 % had the impression that litigation against doctors are increasing and 27.6 % had a direct experience of litigation. In this study less than one half of the surveyed doctors knew the concept of defensive medicine and 71.8 % reported practicing one or another form of defensive medicine. The different sources of the litigations reported by the doctors included: maternal death, perinatal death, other {misdiagnosis, intra-uterine fetal death, uterine perforation, rupture uterus}, fetal distress, injury to viscera and shoulder dystocia. In this study the experience of medical litigation was significantly observed among those who worked in area of blame culture. In logistic regression model, there was no significant difference between those who knew the concept of defence medicine and those who didn’t.ConclusionThere should be strategic plan to reduce the practice of defensive medicine and medical litigation against doctors. (shrink)

Over the past twenty-five years, thirty-seven states and the US Congress have passed mental health and substance use disorder (MH/SUD) parity laws to secure nondiscriminatory insurance coverage for MH/SUD services in the private health insurance market and through certain public insurance programs. However, in the intervening years, litigation has been brought by numerous parties alleging violations of insurance parity. We examine the critical issues underlying these legal challenges as a framework for understanding the areas in which parity enforcement is (...) lacking, as well as ongoing areas of ambiguity in the interpretation of these laws. We identified all private litigation involving federal and state parity laws and extracted themes from a final sample of thirty-seven lawsuits. The primary substantive topics at issue include the scope of services guaranteed by parity laws, coverage of certain habilitative therapies such as applied behavioral analysis for autism spectrum disorders, credentialing standards for MH/SUD providers, determinations regarding the medical necessity of MH/SUD services, and the application of nonquantitative treatment limitations under the 2008 federal parity law. Ongoing efforts to achieve nondiscriminatory insurance coverage for MH/SUDs should attend to the major issues subject to private legal action as important areas for facilitating and monitoring insurer compliance. (shrink)

BackgroundA physician's duty to provide an adequate explanation to the patient is derived from the doctrine of informed consent and the physician's duty of disclosure. However, findings are extremely limited with respect to physicians' specific explanatory behaviours and what might be regarded as a breach of the physicians' duty to explain in an actual medical setting. This study sought to identify physicians' explanatory behaviours that may be related to the physicians' legal liability.MethodsWe analysed legal decisions of medical malpractice (...) cases between 1990 and 2009 in which the pivotal issue was the physician's duty to explain (366 cases). To identify factors related to the breach of the physician's duty to explain, an analysis was undertaken based on acknowledged breaches with regard to the physician's duty to explain to the patient according to court decisions. Additionally, to identify predictors of physicians' behaviours in breach of the duty to explain, logistic regression analysis was performed.ResultsWhen the physician's explanation was given before treatment or surgery (p = 0.006), when it was relevant or specific (p = 0.000), and when the patient's consent was obtained (p = 0.002), the explanation was less likely to be deemed inadequate or a breach of the physician's duty to explain. Patient factors related to physicians' legally problematic explanations were patient age and gender. One physician factor was related to legally problematic physician explanations, namely the number of physicians involved in the patient's treatment.ConclusionThese findings may be useful in improving physician-patient communication in the medical setting. (shrink)

Recent debates about redress mechanisms for medical accident victims have been sidetracked by fears of an American-style medical malpractice crisis. What is required is a framework within which the debate can resume. This paper proposes such a framework by focusing on the compensation and deterrence objectives and placing them in the wider context of the social costs of providing medical services. The framework is then used to assess and compare the effectiveness of differing approaches. In particular, the (...) American and British experiences of litigation, including the concept of 'defensive medicine', are evaluated. Also discussed briefly are alternatives to court-based complaints procedures including 'no-fault' schemes, professional ethics and internal complaints mechanisms. (shrink)

Healthcare reforms in India have been a much-debated issue in the recent past. While the debate has focused mainly on the right to healthcare, another by-product that has evolved out of the debate was the current problem of medical malpractice and the healthcare law. The last decade has seen an increase in the healthcare facilities in the country. This, however, has come with a bulk of medical error cases which the courts have entertained. According to reports, there has (...) been an increase in medical litigation cases by 400% in the last decade. There are about 5.2 million cases of medical error in the country every year. While there exists a standard legal system in the country which entertains such complaints of medical malpractice, the attempt by regulators and medical practitioners should be to reduce these cases. This paper seeks to analyze the extent to which medical malpractice cases affect consumers. It analyzes the existing medical liability system which has mainly evolved through the jurisprudence laid down by the English courts and critiques it. It also looks into the major reasons for such medical mishaps. Authors argue that a “No-Fault” system may give better outcomes. They analyze this by looking at the no-fault liability model implemented in New Zealand. Narratives of no-fault liability being implemented in India have also been used. These are showcased from instances of Motor Vehicles Act, 1988, and Clinical Trial regulations. It is also argued that a by-product of a no-fault liability system is stringent regulations which are used to reduce the possibility of medical mishaps altogether. Lastly, the possible problems of the no-fault liability system are discussed in the paper. (shrink)

This book examines how regulatory and liability mechanisms have impacted upon product safety decisions in the pharmaceutical and medical devices sectors in Europe, the USA and beyond since the 1950s. Thirty-five case studies illustrate the interplay between the regulatory regimes and litigation. Observations from medical practice have been the overwhelming means of identifying post-marketing safety issues. Drug and device safety decisions have increasingly been taken by public regulators and companies within the framework of the comprehensive regulatory structure (...) that has developed since the 1960s. In general product liability cases have not identified or defined safety issues, and function merely as compensation mechanisms. This is unsurprising as the thresholds for these two systems differ considerably; regulatory action can be triggered by the possibility a product is harmful, whereas establishing liability in litigation requires proving that the product was actually harmful.As litigation normally post-dates regulatory implementation, the 'private enforcement' of public law has generally not occurred in these sectors. This has profound implications for the design of sectoral regulatory and liability regimes, including associated features such as extended liability law, class actions and contingency fees. This book forms a major contribution to the academic debate on the comparative utility of regulatory and liability systems, on public versus private enforcement, and on mechanisms of behaviour control. (shrink)

Drug recalls and lawsuits against pharmaceutical manufacturers are accompanied by announcements emphasizing harmful drug side-effects. Those with elevated health anxiety may be more reactive to such announcements. We evaluated whether health anxiety and financial incentives affect subjective symptom endorsement, and objective outcomes of cognitive and physiological functioning during a mock drug recall. Hundred and sixty-one participants reported use of over-the-counter pain medications and presented with a fictitious medication recall via a mock Food and Drug Administration website. The opportunity to join (...) a class-action lawsuit was manipulated. We assessed health anxiety, recalled drug usage, blood pressure, heart rate, and performance on a computerized Trail Making Test. Symptom endorsement was strongly predicted by health anxiety. When combined, three health anxiety measures explained 28.5% variance. These effects remain strong after controlling for depression and anxiety. Litigation condition did not predict symptom endorsement. Blood pressure and heart rate were modestly predicted by health anxiety, but not by litigation condition. TMT performance was consistently predicted by health anxiety, with higher scores associated with poorer performance. Although there were no main effects for litigation, interactions consistently emerged for the TMT, with generally poorer performance for those with higher health anxiety in the non-litigation condition; whereas health anxiety was unrelated to performance for the litigation condition. All but one participant joined the litigation when given the opportunity, despite a healthy sample and minimal use of pain medication. Subsequent data from 67 individuals with no mention of the FDA scenario or litigation showed that health anxiety still significantly predicts symptom endorsement, but the explained variance is less than half that obtained in the FDA scenario. The findings suggest that health anxiety plays a significant role in adverse symptom reporting, beyond anxiety or depression, and this effect is independent of the presence of the FDA recall. The lack of differences for health anxiety and symptom endorsement between litigation and non-litigation conditions rules out malingering. Although it is general practice in drug recalls to list potential adverse side effects caused by medications, this may elicit unintended symptom experiences and health anxious individuals may be more susceptible. (shrink)

Medical indemnity is not usually the stuff of high political and social drama in Australia. When the biggest medical defense organization went into voluntary liquidation in 2002, this all changed. Newspapers carried stories on an almost daily basis about the actual or possible negative impact of the “crisis” on doctors, hospitals, and communities. Doctors became increasingly vocal in their criticisms and expansive in their claims. Their political organization, the Australian Medical Association, lobbied powerfully and successfully for government (...) intervention to address the problem of dramatically escalating premiums for some doctors. This, combined with a broader public relations campaign about public liability insurance, resulted in significant changes in the law at both the federal and state level - not just in the area of medical negligence but in relation to most personal injury litigation.The genesis of and reasons for current medical indemnity problems in Australia have been the subject of much speculation and little rigorous analysis. (shrink)

It is often thought that there is a “crisis” or something akin to this in the field of medical malpractice in the USA and from time to time, as will be shown, there are suggestions that a similar situation could exist in the UK. This paper will examine what might be meant by the expressions “malpractice” and “crisis” in relation to the UK. It will be argued that there is no evidence to suggest that anything as dramatic as a (...) crisis exists, and that what current concerns exist about medical malpractice and litigation are not based upon an existing or impending crisis. Further, it will suggest that evidence points to medical litigation had reached a plateau, and that, due to a number of factors, if there were a serious problem it is likely to be on the wane. (shrink)

This article elucidates the premises and limited meaning of medical futility in order to formulate an ethically meaningful definition of the term, that is, a medical intervention’s inability to deliver the benefit for which it is designed. It uses this definition to show the two ways an intervention could become medically futile, to recommend an even more limited usage of medical futility, and to explain why an intervention need not be futile in order to be withdrawn over (...) patient-based objections. If an intervention retains some benefit, then patients or surrogates might legitimately consider that benefit in their case and request the intervention. Physicians might still be justified in declining it on the grounds that the burdens greatly outweigh the benefits, but not on the grounds of futility. Finally, the article uses bioethics research and healthcare litigation to clarify the meaning of futility in practice and recommends alternative language when possible. (shrink)

In 1997, when Oregon became the first U.S. jurisdiction authorizing medical aid in dying (MAID), its law included a requirement that patients be legal residents of the state. Other U.S. jurisdictions legalizing MAID followed Oregon in adopting residency requirements. Recent litigation challenges the legality, as well as the justification, for such requirements. Facing such challenges, Oregon and Vermont eliminated their MAID residency requirements. More states could follow this move, for, in certain circumstances, the U.S. Constitution's privileges and immunities (...) clause protects citizens’ right to travel to secure medical care. Policy considerations could also motivate states to reexamine whether such requirements are justified in light of existing evidence of how MAID laws have been applied. (shrink)

Clinicians' fear of malpractice litigation is the most significant obstacle to the open reporting of medical mistakes. Without open reporting of medical mistakes, however, root cause analysis of mistakes cannot be done, thus undermining efforts to implement safeguards to minimize the occurrence of future mistakes. Efforts to prevent medical mistakes, therefore, must first directly address cliniciansÕ fear of malpractice litigation. In this paper, we explore the relationship between the current malpractice system and cliniciansÕ fear of (...) litigation. Ultimately, we argue that both the prevention of medical mistakes and the goals of malpractice litigation itself will be better served if substantial malpractice reform is undertaken. (shrink)

Medical indemnity is not usually the stuff of high political and social drama in Australia. When the biggest medical defense organization went into voluntary liquidation in 2002, this all changed. Newspapers carried stories on an almost daily basis about the actual or possible negative impact of the “crisis” on doctors, hospitals, and communities. Doctors became increasingly vocal in their criticisms and expansive in their claims. Their political organization, the Australian Medical Association, lobbied powerfully and successfully for government (...) intervention to address the problem of dramatically escalating premiums for some doctors. This, combined with a broader public relations campaign about public liability insurance, resulted in significant changes in the law at both the federal and state level - not just in the area of medical negligence but in relation to most personal injury litigation.The genesis of and reasons for current medical indemnity problems in Australia have been the subject of much speculation and little rigorous analysis. (shrink)

Partly because physicians can “never say never,” partly because of the seduction of modern technology, and partly out of misplaced fear of litigation, physicians have increasingly shown a tendency to undertake treatments that have no realistic expectation of success. For this reason, we have articulated common sense criteria for medical futility. If a treatment can be shown not to have worked in the last 100 cases, we propose that it be regarded as medically futile. Also, if the treatment (...) fails to restore consciousness or alleviate total dependence on intensive care, we propose such treatment be judged futile. This definition provides clear end points and encourages the profession to review data from the past and perform, prospective clinical studies that not only report treatments that work but also treatments that do not work. We have also argued that, in a variety of settings, physicians have no ordinary ethical obligation to offer futile interventions. Although physicians should inform, and discuss all decisions to withhold or withdraw medical treatments with patients, they need not obtain the patient's permission to desist from futile interventions. (shrink)

It is often thought that there is a “crisis” or something akin to this in the field of medical malpractice in the USA and from time to time, as will be shown, there are suggestions that a similar situation could exist in the UK. This paper will examine what might be meant by the expressions “malpractice” and “crisis” in relation to the UK. It will be argued that there is no evidence to suggest that anything as dramatic as a (...) crisis exists, and that what current concerns exist about medical malpractice and litigation are not based upon an existing or impending crisis. Further, it will suggest that evidence points to medical litigation had reached a plateau, and that, due to a number of factors, if there were a serious problem it is likely to be on the wane. (shrink)

Civil rights attorneys challenging laws restricting transgender rights and access to healthcare often encounter anti-transgender medical experts in litigation at various stages. The experts often maintain dubious credentials in the relevant area of medical or scientific expertise which presents a challenge that undermines equitable access to justice by introducing pseudo-science into court proceedings. This commentary will discuss the phenomenon and propose a normative path forward.

Ben Rich’s stated aim in this book is to prove that the legal system has had a positive rather than a negative impact on medical practice and research. When lawyers are often attacked (by the medical professions and governments alike) for their role in medical litigation this conclusion seems to be at odds with our experience. Rich’s text is a timely and scholarly contribution to the debate about the role of the legal system in medicine. While (...) it may not prove to be completely convincing, the work offers penetrating insights into how the American legal system has influenced bioethics, primarily because of the way that it provides an ultimate forum for the resolution of ethical disputes. Rich’s initial chapters serve as an introduction to schools of medical ethics and jurisprudence. Chapters two and three will be of real benefit to the new student of bioethics as Rich provides very clear and concise summaries of the major schools of ethics …. (shrink)

I am an academically trained philosopher who has taught and written about medical ethics for three decades, who has done extra-mural ethics consultation in clinical and other settings for two decades, and who has served as an expert ethics witness in the courts for more than ten years. Trained as a traditional academic, none of these three pursuits have come easily. Like most philosophers, my education did not prepare me for such responsibilities. Indeed, regardless of a bioethicist's initial background (...) - i.e., health care, law, theology or philosophy - it is invariably necessary to build upon foundational knowledges and abilities in gearing up for work as a health care ethics consultant.Edward J. Imwinkelreid has prepared a remarkable overview of the work of the expert ethics witness from the point of view of the law of evidence. My perspective as a philosopher, an ethicist, and an expert witness, stands in contrast with his. (shrink)

Legal challenges to the FDA’s approval of mifepristone have destabilized patients’ ability to access controversial medicines like medication abortion. We argue that federal courts’ receptiveness to this litigation undermines the coherence and integrity of prescription drug regulation in the U.S.

BackgroundIn this study, medical errors are defined as unintentional patient harm caused by a doctor’s mistake. This topic, due to limited research, is poorly understood in Malaysia. The objective of this study was to determine the proportion of doctors intending to disclose medical errors, and their attitudes/perception pertaining to medical errors.MethodsThis cross-sectional study was conducted at a tertiary public hospital from July- December 2015 among 276 randomly selected doctors. Data was collected using a standardized and validated self-administered (...) questionnaire intending to measure disclosure and attitudes/perceptions. The scale had four vignettes in total two medical and two surgical. Each vignette consisted of five questions and each question measured the disclosure. Disclosure was categorised as “No Disclosure”, “Partial Disclosure” or “Full Disclosure”. Data was keyed in and analysed using STATA v 13.0.ResultsOnly 10.1% intended to disclose medical errors. Most respondents felt that they possessed an attitude/perception of adequately disclosing errors to patients. There was a statistically significant difference when comparing the intention of disclosure with perceived disclosures. Most respondents were in common agreement that disclosing an error would make them less likely to get sued, that minor errors should be reported and that they experienced relief from disclosing errors.ConclusionMost doctors in this study would not disclose medical errors although they perceived that the errors were serious and felt responsible for it. Poor disclosure could be due the fear of litigations and improper mechanisms/procedures available for disclosure. (shrink)

BackgroundIn this study, medical errors are defined as unintentional patient harm caused by a doctor’s mistake. This topic, due to limited research, is poorly understood in Malaysia. The objective of this study was to determine the proportion of doctors intending to disclose medical errors, and their attitudes/perception pertaining to medical errors.MethodsThis cross-sectional study was conducted at a tertiary public hospital from July- December 2015 among 276 randomly selected doctors. Data was collected using a standardized and validated self-administered (...) questionnaire intending to measure disclosure and attitudes/perceptions. The scale had four vignettes in total two medical and two surgical. Each vignette consisted of five questions and each question measured the disclosure. Disclosure was categorised as “No Disclosure”, “Partial Disclosure” or “Full Disclosure”. Data was keyed in and analysed using STATA v 13.0.ResultsOnly 10.1% intended to disclose medical errors. Most respondents felt that they possessed an attitude/perception of adequately disclosing errors to patients. There was a statistically significant difference when comparing the intention of disclosure with perceived disclosures. Most respondents were in common agreement that disclosing an error would make them less likely to get sued, that minor errors should be reported and that they experienced relief from disclosing errors.ConclusionMost doctors in this study would not disclose medical errors although they perceived that the errors were serious and felt responsible for it. Poor disclosure could be due the fear of litigations and improper mechanisms/procedures available for disclosure. (shrink)

Wrongful birth actions aim to compensate litigants who are negligently deprived by health professionals of their right to reproductive choice. Access to safe and legal abortion is integral to the action and wrongful birth claims in the United Kingdom have been facilitated by the Abortion Act 1967 (as amended). The recent Australian case CES v Superclinics (1995) 38 NSWLR 47 shows how judicial confusion about the legality of abortion can result in judges condoning medical negligence. The Superclinics case also (...) suggests that doctors are not required to provide pregnant women with the same standard of care as other patients. These developments show that law can become incoherent and health professionals can act negligently with impunity when reproductive choice does not have a secure legal foundation. (shrink)

This essay discusses unlimited insurance subrogation (UIS) as a means of improving the deterrence and compensation results of medical malpractice law. Under UIS, health care insureds could assign their entire potential medical malpractice claims to their first-party commercial and government insurers. UIS should improve deterrence by establishing first-party insurers as plaintiffs to confront liability insurers on the defense side, leading to more effective prosecution of meritorious claims and reducing meritless and unnecessary litigation. UIS should improve compensation outcomes (...) by converting litigation cost- and risk- laden “tort insurance” into cheaper and enhanced first-party insurance. UIS also promises dynamic benefits through further reforms by contract between the first-party and liability insurers that would take charge of system. No UIS-related costs are apparent that would outweigh these benefits. (shrink)

In this essay, I examine the relationship between lawsuits for medical malpractice and the legal standard of care. I suggest that there is an insidious, dynamic relationship between physicians' reactions to the recent increase in malpractice litigation and an artificial elevation of the legal standard of care. Since, that is, the legal standard for proper medical care is based upon the community standard of care rather than the reasonable person standard, to the extent that overtreatment or “defensive” (...) medicine becomes widespread as a reaction to malpractice litigation, the legal standard becomes elevated as well. Thus, it will increasingly be the case that unless a physician practices defensive medicine, and hence practices unreasonably, she risks being found liable for medical malpractice. (shrink)

This study attempts an exposition of different perceptions of obligation to medical treatment that have emerged from the Islamic theological understanding and how they contribute to diversity of options and flexibility in clinical practice. Particularly, an attempt is made to formulate an Islamic perspective on ordinary and extraordinary means of medical treatment. This distinction is of practical significance in clinical practice, and its right understanding is also important to public funded healthcare authorities, guardians of the patients, health and (...) life insurance institutions, and employers who provide health care coverage to their employees. Not only these parties, but also lawyers and justice administration functionaries such as public prosecutors and judges are in need of understanding this distinction to deal with relevant litigations. The distinction could be made regarding terminally ill patients and non-terminally ill patients separately. The essential factors that matter in making the distinction between ordinary and extraordinary means of treatment are: (1) patient capacity (2) expert advice, and (3) nature of medication. Regarding terminally ill patients, medical treatment can become extraordinary because of (1) patient capacity and (2) nature of medication. In both these case the deciding condition applies: the expert advice taken from a group of physicians. In regards to non- terminally ill patients, extraordinary medical treatment includes three cases: (1) treatment that is known to be useless and futile, (2) treatment that endangers the life or cause more harm than what it removes, and (3) useful treatment, but the patient is unable to bear the cost. (shrink)

Medical diagnosis has been traditionally recognized as a privileged field of application for so called probabilistic induction. Consequently, the Bayesian theorem, which mathematically formalizes this form of inference, has been seen as the most adequate tool for quantifying the uncertainty surrounding the diagnosis by providing probabilities of different diagnostic hypotheses, given symptomatic or laboratory data. On the other side, it has also been remarked that differential diagnosis rather works by exclusion, e.g. by modus tollens, i.e. deductively. By drawing on (...) a case history, this paper aims at clarifying some points on the issue. Namely: 1) Medical diagnosis does not represent, strictly speaking, a form of induction, but a type, of what in Peircean terms should be called ‘abduction’ (identifying a case as the token of a specific type); 2) in performing the single diagnostic steps, however, different inferential methods are used for both inductive and deductive nature: modus tollens, hypothetical-deductive method, abduction; 3) Bayes’ theorem is a probabilized form of abduction which uses mathematics in order to justify the degree of confidence which can be entertained on a hypothesis given the available evidence; 4) although theoretically irreconcilable, in practice, both the hypothetical- deductive method and the Bayesian one, are used in the same diagnosis with no serious compromise for its correctness; 5) Medical diagnosis, especially differential diagnosis, also uses a kind of “probabilistic modus tollens”, in that, signs (symptoms or laboratory data) are taken as strong evidence for a given hypothesis not to be true: the focus is not on hypothesis confirmation, but instead on its refutation [Pr (¬ H/E1, E2, …, En)]. Especially at the beginning of a complicated case, odds are between the hypothesis that is potentially being excluded and a vague “other”. This procedure has the advantage of providing a clue of what evidence to look for and to eventually reduce the set of candidate hypotheses if conclusive negative evidence is found. 6) Bayes’ theorem in the hypothesis-confirmation form can more faithfully, although idealistically, represent the medical diagnosis when the diagnostic itinerary has come to a reduced set of plausible hypotheses after a process of progressive elimination of candidate hypotheses; 7) Bayes’ theorem is however indispensable in the case of litigation in order to assess doctor’s responsibility for medical error by taking into account the weight of the evidence at his disposal. (shrink)

The prelims comprise: Introduction The Foundations of Altruism and Autonomy in Medical Ethics The Problem of Medical Injury and the Emergence of Safety The Ancient Practices of Malpractice Litigation What Do We Disclose Today, and What Will We Disclose in the Future? Malpractice Reform: Health Courts References.

The experience of Costa Rica highlights the potential for conflicts between the right to health and fair priority setting. For example, one study found that most favorable rulings by the Costa Rican constitutional court concerning claims for medications under the right to health were either for experimental treatments or for medicines that should have low priority based on health gain per unit of expenditure and severity of disease. In order to better align rulings with priority setting criteria, in 2014, the (...) court initiated a reform in its assessment of claims for medicine. This paper assesses this reform’s impact on the fairness of resource allocation. It finds three effects. First, a reduction in successful claims for experimental medication, which is beneficial. Second, an increase in the success rate of medication lawsuits, which is detrimental because most claims are for extremely cost-ineffective medications. Third, a decline in the number of claims for medicine, which is beneficial because it forestalls such low-priority spending. This paper estimates that, taking all three effects into account, the reform has had a modest net positive impact on overall resource allocation. However, it also argues that there is a need for further reforms to lower the number of claims to low-priority medicines that are granted. (shrink)

The general consensus is that reform of medical malpractice law should be part of the health care system's overhaul. Medical malpractice litigation results in the expenditure of tens of billions annually, largely paid out of health care insurance funds and mostly paid to defendants' and plaintiffs' lawyers. By all accounts, this tort law regime ill serves the basic deterrence and compensation goals of civil liability. The causes and magnitude of these failings are disputed, and many typical reform (...) proposals sidestep the basic problems and may do more harm than good. In contrast, we advance a straightforward way to improve both deterrence and compensation. Essentially, the proposal is to remove current legal limitations on the scope of insurance subrogation that bar private and public health care insurers from “buying” the whole of their insureds' potential medical malpractice claims in exchange for lower premiums and taxes and expanded insurance coverage. Our proposal’s benefits accrue regardless of the cause and magnitude of the failings of malpractice law or the further reforms that might be adopted. (shrink)

I am an academically trained philosopher who has taught and written about medical ethics for three decades, who has done extra-mural ethics consultation in clinical and other settings for two decades, and who has served as an expert ethics witness in the courts for more than ten years. Trained as a traditional academic, none of these three pursuits have come easily. Like most philosophers, my education did not prepare me for such responsibilities. Indeed, regardless of a bioethicist's initial background (...) - i.e., health care, law, theology or philosophy - it is invariably necessary to build upon foundational knowledges and abilities in gearing up for work as a health care ethics consultant.Edward J. Imwinkelreid has prepared a remarkable overview of the work of the expert ethics witness from the point of view of the law of evidence. My perspective as a philosopher, an ethicist, and an expert witness, stands in contrast with his. (shrink)

As the ethical framework of the Catholic Church becomes incapable of accommodating the cultural diversity in Ireland, the search for a new moral discourse takes on a greater urgency. In its absence, litigation in Ireland is on the increase.

In lieu of an abstract, here is a brief excerpt of the content:Kennedy Institute of Ethics Journal 11.2 (2001) 115-116 [Access article in PDF] The Ethics of Medical Mistakes: Historical, Legal, and Institutional Perspectives Introduction In late 1999, the Institute of Medicine (IOM) released its report on medical errors, To Err is Human: Building a Safer Health System. The report estimated almost 50,000 deaths per year nationally due to medical mistakes, making it a leading cause of death. (...) IOM speculated that more than half of the deaths related to medical error are preventable. The IOM report shocked the public and medical professionals alike, sparking a national discussion of how to make the health care system safer. This multifaceted issue has profound implications for all aspects of health care, from the very personal--e.g., the relationship of caregiver and patient--to the societal--e.g., a nation's responsibility to its citizens.On 15 May 2000, the University of Pittsburgh Medical Center hosted an ethics conference devoted to the topic of medical mistakes. The goal was to bring together experts from various disciplines, before an audience of both providers and patients, to discuss medical mistakes and their implications. In this issue of the Kennedy Institute of Ethics Journal, we present selected papers resulting from that conference. These papers reflect not only the original oral presentations, but also much of the discussion those presentations generated. Three key perspectives on the ethics of medical mistakes are offered: historical, legal, and institutional.Rosa Lynn Pinkus offers a revealing historical perspective on the ethics of medical mistakes. In analyzing the history of mistake reporting in neurosurgery, she shows how the notion of a mistake developed only as the notion of a standard of practice emerged. Although much of managed care is directed toward systematically fostering a standard of care, this pursuit is relatively new in health care. One might speculate that as more standards are created, mistakes--defined as deviations from standard practice--must increase. If deviation from standard practice is overly castigated, however, then needed innovation in practice may be stifled. Interestingly, as Pinkus discusses, medical malpractice suits quickly followed the emergence of practice standards, driving the initial open reporting of mistakes underground. [End Page 115]Taking up the issue of medical malpractice, Thomas May and Mark Aulisio consider the ramifications of the current malpractice system for mistake prevention. The current system, they argue, while failing to adequately achieve its purported goals of deterring medical mistakes and compensating victims, itself creates a climate that deters the open reporting of mistakes by engendering fear and shame in clinicians. According to May and Aulisio, this failure to report medical mistakes openly has serious ramifications. Chief among these is the inability to do root cause analysis of mistakes, and then, where possible, to implement safeguards to minimize the occurrence of future mistakes. Ultimately, both the prevention of medical mistakes and the goals of malpractice litigation itself will be better served if substantial malpractice reform is undertaken.Andy Thurman argues that even in the current climate institutions ought to have a policy (and practice) of admitting to and openly reporting medical mistakes. Thurman argues that doing so not only is the right thing to do, but is also in the interest of institutions. Interestingly, he contends that failing to admit and openly report mistakes is both at odds with the mission of health care institutions and puts them at higher risk of litigation, and liability. In light of this, Thurman then suggests an institutional process for handling medical mistakes.Michael DeVita concedes that disclosing mistakes is widely supported by the health professionals' principles of ethics, but argues that there are a number of factors that conspire to make doing so a very difficult task. In analyzing an index case, DeVita contends that platitudes about being honest are not nearly enough to foster honest behavior and that policies that offer specific guidance on handling unfavorable events are needed in health care institutions.Finally, we conclude with the policy on disclosure of unfavorable events (this terminology is chosen because it includes both iatrogenic and natural diseases and conditions) that resulted from... (shrink)

The ability to effectively prevent smallpox was the greatest medical accomplishment of the first half of the 19th century. From 1838 to 1840, half a century after vaccination was introduced but before it became mandatory in England, data about the general population of England and Wales recorded 70 deaths per million from smallpox; only 180, 900 vaccinations were recorded. In London alone from 1848 to 1852, there were 4, 858 youthful deaths from smallpox, 67% of which occurred during the (...) first five years of life (Simon 1857).In a report to the House of Commons in 1802, Edward Jenner (1749-1823) stated that person-to-person vaccination was a basic principle of his procedure. He gained confidence in it from the case .. (shrink)

An in-depth investigation of the influence that apprehension about litigation and legal liability exerts on ethical medical practice today.

Families and surrogates sometimes use religious themes to justify their insistence on aggressive end‐of‐life care. Their hope that “God will work a miracle” can halt negotiations with health care professionals and lead to litigation. The possibility of “re‐imagining” religious themes, to broaden their scope and present a wider vision of the Christian tradition, may offer a solution.

The case of Charlie Gard sparked an ongoing public and academic debate whether in court decisions about medical treatment for children in England & Wales the best interests test should be replaced by a harm threshold. However, the literature has scantly considered (1) what the impact of such a replacement would be on future litigation and (2) how a harm threshold should be introduced: for triage or as standard for decision-making. This article directly addresses these gaps, by first (...) analysing reported cases in England & Wales about medical treatment in the context of a S31 order, thus using a harm threshold for triage and second comparing court decisions about medical treatment for children in England & Wales based on the best interest test with Dutch and German case law using a harm threshold. The investigation found that whilst no substantial increase of parental discretion can be expected an introduction of a harm threshold for triage would change litigation. In particular, cases in which harm is limited, currently only heard when there are concerns about parental decision-making, may be denied a court hearing as might cases in which the child has lost their capacity to suffer. Applying a harm threshold for triage in decisions about withholding or withdrawing life-sustaining treatment might lead to a continuation of medical treatment that could be considered futile. (shrink)