Medical malpractice reform and insurer claims defense: unintended effects?

In response to recent and past medical malpractice insurance crises, most states have implemented reforms meant to stabilize premiums and coverage availability. The importance of understanding whether these reforms implicitly affect the behavior and incentives of plaintiffs, attorneys, medical providers, and malpractice insurers in the intended way is crucial to policy makers, if they are to achieve their goal. This study specifically examines the effect of reforms on the claims defense efforts of insurers, given that defense expenses account for approximately 30 percent of malpractice premiums. Using state data for the period 1998-2002, we regress claims defense expenses against a variety of reform variables. These include seven tort reforms (noneconomic damage caps, punitive damage limits, attorney fee limits, modified collateral source rule, modified joint and several liability doctrine, mandatory pretrial screening, and statute of limitations) and two government-sponsored insurance mechanisms (joint underwriting associations and patient compensation funds). Claims defense expenses are found to be higher in the presence of noneconomic damage caps, punitive damage limits, and attorney fee limits--an unintended and counterproductive effect of reform--but are lower with mandatory pretrial screening and patient compensation funds.     

Medical malpractice litigation: do the British have a better remedy?

Medical malpractice claims are filed nearly ten times more frequently in America than they are in Great Britain. British patients generally adopt a less adversarial stance toward medical malpractice than do American patients. This Article examines the British malpractice system, as compared with the American system, and explores the differences between the two, in terms of costs and fees, liability rules, statutory provisions, and judicial attitudes toward malpractice litigation. The Article also discusses British social and institutional factors, such as the "taint" of litigation and the National Health Service, and evaluates how these factors affect British malpractice litigation. The Article presents the alternative forums available to British patients in seeking satisfaction for their medical service complaints. The Article concludes with an evaluation of how these factors achieve the three societal objectives of malpractice litigation: reparation, emotional vindication and deterrence.     

The reasonable physician standard: the new malpractice standard of care?

We are in the midst of a tremendous, but essentially unacknowledged, shift in the standard applicable in medical malpractice cases across the United States. The author provides a preliminary survey of this fluid area of the law, and provides rationales for the changes. At the same time, it is not yet clear whether the net impact of these changes will be for the better or for the worse--particularly in light of the simultaneous increase in societal emphasis of cost-conscious care.     

Medical treatment of dementia patients at the end of life: can the law accommodate the personal identity and welfare problems?

This article considers whether two significant philosophical objections to autonomy-based legal approaches to decision-making for incompetent individuals could be accommodated by the law. These philosophical objections are known as the personal identity and welfare problems. The article first sets out the autonomy-based approaches and their objections. Next, the present legal position is briefly canvassed in a comparative vein. Finally, the article suggests how the personal identity and welfare problems might be accommodated were legislators minded to do so, by proposing specific statutory amendments to the recent English legislation on advance decisions and evaluating their viability, particularly in light of the European Convention on Human Rights.     

The Legal Education and Training Review: regulating socio-legal and liberal legal education?

The Legal Education and Training Review (LETR) which reported in June 2013 conceded that undergraduate law degrees are generally outside the remit of the review other than when there is a direct impact on the provision of legal services. On first glance therefore the review has few implications for those of us interested in delivering a liberal legal education and developing socio-legal approaches to law and legal study. However, on closer reading, the report contains a number of suggestions which, if taken up by the regulators, have significant potential to change law degrees, even if regulation remains “light touch”. This article explores those issues with a particular focus on the implications for liberal law degrees and socio-legal approaches to law teaching. In particular the article will explore issues around possible changes to foundation subjects; the creation of a framework of learning outcomes; the possible strengthening of legal writing and research in the curriculum and the opportunities offered for the introduction of more socio-legal material; and the trickle-down effect likely to be felt by providers of undergraduate law degrees of changes in regulation of legal services and as a result of student, employer and other stakeholder expectations.     

Control systems/SCADA forensics,what's the difference?

Immature IT security, increasing network connectivity and unwavering media attention is causing an increase in the number of control system cyber security incidents. For forensic examinations in these environments, knowledge and skills are needed in the field of hardware, networks and data analysis. For forensic examiners, this paper is meant to be a crash course on control systems and their forensic opportunities, focussing on the differences compared to regular IT systems. Assistance from experienced field engineers during forensic acquisition of control systems seems inevitable in order to guarantee process safety, business continuity and examination efficiency. For people working in the control system community, this paper may be helpful to get an idea about specific forensic issues about which they would normally not bother, but may be crucial as soon as their systems are under attack or become part of a law enforcement investigation. For analysis of acquired data, existing tools for network security monitoring have useful functionality for forensic applications but are designed for real-time acquisition and often not directly usable for post-mortem analysis of acquired data in a forensically sound way. The constant and predictable way in which control systems normally behave makes forensic application of anomaly-based threat detection an interesting topic for further research.     

The Medical Exception to the Prohibition of Killing: A Matter of the Right Intention?

It has long been thought that by using morphine to alleviate the pain of a dying patient, a doctor runs the risk of causing his death. In all countries this kind of killing is explicitly or silently permitted by the law. That permission is usually explained by appealing to the doctrine of double effect: If the use of morphine shortens life, that is only an unintended side effect. The paper evaluates this view, finding it flawed beyond repair and proposing an alternative explanation. It is not the intention of the doctor that counts, but the availability of an “objective” palliative justification.