Medical liability and health care reform

We examine the impact of the Affordable Care Act (ACA) on medical liability and the controversy over whether federal medical reform including a damages cap could make a useful contribution to health care reform. By providing guaranteed access to health care insurance at community rates, the ACA could reduce the problem of under-compensation resulting from damages caps. However, it may also exacerbate the problem of under-claiming in the malpractice system, thereby reducing incentives to invest in loss prevention activities. Shifting losses from liability insurers to health insurers could further undermine the already weak deterrent effect of the medical liability system. Republicans in Congress and physician groups both pushed for the adoption of a federal damages cap as part of health care reform. Physician support for damages caps could be explained by concerns about the insurance cycle and the consequent instability of the market. Our own study presented here suggests that there is greater insurance market stability in states with caps on non-economic damages. Republicans in Congress argued that the enactment of damages caps would reduce aggregate health care costs. The Congressional Budget Office included savings from reduced health care utilization in its estimates of cost savings that would result from the enactment of a federal damages cap. But notwithstanding recent opinions offered by the CBO, it is not clear that caps will significantly reduce health care costs or that any savings will be passed on to consumers. The ACA included funding for state level demonstration projects for promising reforms such as offer and disclosure and health courts, but at this time the benefits of these reforms are also uncertain. There is a need for further studies on these issues.     

Damages for pain and suffering in tort law

Legislation enacted between 2002 and 2005 by each Australian State and Territory reformed and partially codified the common law of personal injuries. This column examines the nature and history of damages for pain and suffering and analyses the approach taken by different Australian jurisdictions to compensation for non-economic loss. Non-economic loss is generally composed of pain and suffering, loss of amenities of life, and loss of enjoyment of life (some jurisdictions, eg New South Wales, also include disfigurement, and loss of expectation of life). Several jurisdictions have imposed thresholds that a claimant must meet as a prerequisite to suing for damages at common law.     

Regulating physician supply: the evolution of British Columbia's Bill 41

This paper traces the development of British Columbia's controversial Bill 41, which empowers that province's Ministry of Health to restrict the issuance of billing numbers entitling physicians to seek payment from the provincial medical services plan. The bill and its predecessors have been the subjects of two court challenges by the medical profession, and the legal battles continue. The bill has also taken on a role in the evolving interpretation of Canada's new Charter of Rights and Freedoms. Meanwhile, the policy appears to be slowing the rate of growth in physician supply in the province, but its impact on the real target--medical care costs--is still uncertain.     

Trial and Error at the End of Life--No Harm Done?

English law gives the competent patient the right to refuselife-saving medical treatment, either contemporaneously or inan advance directive, and a physician commits a battery whentreating a patient who validly refused treatment. However, withregard to the details of a physician's liability, many questionsremain unanswered, and it is not at all clear under what circumstancesa patient's tort action for unwanted life-saving treatment willsucceed, and what remedies would be available to the patient.The article suggests that a physician should be liable in batteryfor administering life-saving treatment, even if he/she haddoubts about the validity of the patient's treatment refusal,unless a defence of reasonable mistake can be established. Furthermore,in case of a battery which resulted in keeping the patient alive,the patient should not only be able to claim nominal damages,but general and special damages, including mental and physicalpain and suffering caused by the prolongation of the patient'slife, should equally be available.     

韩国医疗纠纷调解立法及对我国的启示

为有效化解医疗纠纷、救济医疗损害从而为医务人员创造一个安宁的诊疗环境,韩国出台了《关于医疗事故损害救济及医疗纠纷调解等的法律》。依据该法律之规定,韩国设立了医疗纠纷调解仲裁院,在调解仲裁院下设医疗纠纷调解委员会和医疗事故鉴定团,实施新的医疗纠纷调解仲裁制度。该法律还规定了医疗损害赔偿互助制度、医疗损害无过失补偿制度及代偿制度等。     

The liability of medical directors for utilization review decisions

Managed Care Organizations (MCOs) have turned to numerous cost-containment measures to combat rising healthcare costs. One of the most common is the use of utilization review to ascertain whether a recommended mode of treatment is "medically necessary." When the medical director of an MCO determines that care recommended by a patient's treating physician is not medically necessary and not eligible for coverage (and, as a result, potentially unattainable due to cost), the stage is set for litigation. In such situations, medical directors may become potentially liable for disciplinary action by their state medical licensing board as well as lawsuits for malpractice or negligence. However, plaintiffs wishing to recover damages for improper determinations of this nature or state boards trying to discipline these physicians, face the hurdles of the preemptive force of ERISA, and state doctrines to the effect that corporations (and, derivatively, their medical directors) cannot practice medicine and therefore cannot be liable for malpractice. Conflicting decisions and opinions make it impossible at the present time to have a settled expectation regarding the potential liability of medical directors in this context, although the law appears to be moving toward the treatment of utilization review as medical decisionmaking; therefore, it appears likely that the activities of medical directors increasingly will face state oversight--including the imposition of common law liability in appropriate situations.     

违反告知义务引发医疗纠纷案例分析

告知义务是医师应尽的注意义务之一,在医疗损害赔偿诉讼中原告常以医师在医疗活动过程中未能履行告知义务造成病人损害而要求医疗机构承担赔偿责任。本文介绍了5例有关医师违反告知义务的医疗损害案件及人民法院审理结果,并对医师违反告知义务时如何判定其是否存在医疗过错以及医疗过错与损害后果之间的因果关系进行了分析和讨论,旨在为医疗损害司法鉴定提供参考。     

错误出生的损害赔偿责任及适当限制

随着科技发展及社会伦理观念的变迁,我国与胎儿畸形相关的纠纷和诉讼呈明显上升趋势。我国侵权法应当引入错误出生的概念,确认错误出生损害赔偿责任。该损害赔偿责任侵害的是患者获得适当产前保健服务的合法权益,由此产生了一系列财产损害和精神损害。损害赔偿的范围主要为从医疗机构第一次做出错误产检报告时起,至分娩结束时止的与怀孕相关的医疗费用、特殊抚养费用以及精神损害赔偿。精神损害赔偿可以根据东西部的差异限定为5万到10万人民币的最高额;财产损害则根据原因力规则和与有过失规则加以适当限制。     

PUNITIVE DAMAGES,CHINESE TORT LAW,AND THE AMERICAN EXPERIENCE

In a country such as China, with abundant consumer products and the inevitability of product defects, claims for punitive damages are sure to arise under Article 47 of the new Chinese Tort Law. Article 47 provides that “(w)hereany producer or seller knowingly produces or sells defective products, causing death or serious damage to the health of others, the injured party may request appropriate punitive damages.” As Chinese jurists and scholars interpret Article 47, they may wish to consider whether lessons can be drawn from the American experience. During the past two decades, few areas of American law have changed more radically than the law on punitive damages. While there were once few restraints on the ability of a judge or jury to impose punitive damages in a case involving egregious conduct, today there are a host of limitations embodied in American state and federal law. In many American states, statutes or judicial decisions restrict the ability of a court to award punitive damages by narrowly defining the types of conduct that will justify a punitive award, raising the standard of proof, capping the amount of punitive damages, requiring a portion of a punitive award to be forfeited to the state, or limiting vicarious liability for punitive damages. In addition, under federal constitutional law, the principle of due process limits the imposition of punitive damages by scrutinizing the ratio between compensatory and punitive damages and prohibiting an award to be based on harm to persons other than the plaintiff. An examination of these developments from a comparative law perspective may prove useful to the implementation of Article 47.     

A Tort-Based Approach to Damages under the Human Rights Act 1998

This article argues that a strong case can be made for departing from the current approach to damages under the Human Rights Act 1998, and for the adoption of an alternative tort-based approach. The article critically analyses the English courts' arguments against adopting a tort-based approach and demonstrates that neither the Act nor the European Convention on Human Rights militate against such approach. It makes a positive case for a tort-based approach, arguing that the law of damages in tort provides an appropriate model for damages under the Act as a matter of principle given the common functions and protected interests that underpin both areas of the law. Further, tort law offers an established and elaborate corpus of principles to draw on, which can readily and naturally be read across to the human rights context. A tort-based approach would also promote consistency across English law, while generally affording greater protection to human rights than the English courts' current approach.     

论医疗损害

医疗损害是因医疗行为对患方造成损害的一种法律事实。它不仅包括对患者生命健康权的侵害,而且还包括因医疗过失行为引起的一切不利的事实和后果。对医疗损害的内涵和外延应当依据侵权法上损害事实理论进行认定,但要注意识别医疗损害与医疗事故之间的联系与区别。只有在理论层面上全面了解医疗损害的适用范围,才能切实保障医患双方的合法权益,公正合理地裁决医疗纠纷,才能构建和谐的医患关系。     

论票据丧失及其法律救济

票据权利人在非出于本意的情况下丧失对票据的占有,就有可能发生票据权利人的票据权利随之而丧失,因此,各国的票据法律为保护票据流通的安全,保障因票据权利人意志以外的原因丧失票据利益,均对票据丧失后的法律救济途径作了明确规定。我国票据法在借鉴大陆法系和英美法系立法经验的基础上,结合我国实际规定了挂失止付、公示催告和普通诉讼三种法定救济途径。     

并入提单的仲裁条款若干法律问题探讨

本文针对我国海事审判实践中遇到的租约仲裁条款并入提单的若干问题 ,如并入与否、提单受让人是否并入仲裁条款的当事人、认定仲裁条款效力的准据法等 ,根据准据法、海商法、民商法、国际私法的基本原理对不同观点进行了分析 ,提出了建议性的意见。     

论医疗事故的构成

医疗事故是医疗专家在医疗活动中,违反医疗卫生管理法律、行政法规、部门规章和诊疗护理规范、常规,过失造成患者人身损害,由医疗机构承担法律责任的事故。医疗事故的行为主体是医疗专家,责任主体是医疗机构,行为主体主观方面是过失,医疗事故发生领域是医疗活动中。     

医疗损害赔偿的相关问题分析与规范化处理

医疗损害赔偿是现阶段医疗纠纷处理中最现实和最敏感的问题,如何公正、合理、有效地处理医疗损害赔偿问题一直被社会公众所关注。本文围绕如何正确理解医疗损害赔偿责任的构成,准确把握法律适用和规范赔偿处理行为等关键性影响因素作出分析和阐述,并力求在法理性与规范性方面为医疗损害赔偿问题的处理提供相关借鉴。     

规范处理医疗损害赔偿的几个关键性问题

医疗损害赔偿是现阶段医疗纠纷处理中最现实和最敏感的问题,如何公正、合理、有效地处理医疗损害赔偿问题一直被社会公众所关注。本文围绕如何正确理解医疗损害赔偿责任的性质,准确把握法律适用和规范赔偿处理行为等关键性影响因素作出分析和阐述,并力求在法理性与规范性方面为医疗损害赔偿问题的处理提供相关借鉴。     

记名提单托运人货物控制权与收货人提货权研究

记名提单作为提单的一种,在海上货物运输环节具有至关重要的功能和作用。从记名提单托运人货物控制权-9收货人提货权这一新视角切入,在中国海上货物运输法律框架下,解读相关法律要素,还原记名提单应有的法定特征及功能,得出记名提单承运人需凭正本记名提单放货的结论。     

票据无因性之经济诠释

票据无因性包括外在无因性和内在无因性。票据无因性的坚持与否端赖其流通性如何。通过对票据无因性的含义及采无因性的经济逻辑进行分析,提出我国票据法的立法缺陷及其完善,从而使我国的整个票据制度更趋合理,与国际票据法接轨。     

Intentional torts claims in medical cases

Civil liability legislation enacted in each Australian jurisdiction following the Ipp Report recommendations created a clear divide between "negligence" and "intentional" torts. The common law action for trespass to the person is to varying extents maintained in the approaches taken by the State and Territory legislatures. This article explores the potential application of intentional torts claims in a medical context in light of recent case law. It identifies advantages for plaintiffs who plead intentional tort claims, including onus of proof, causation, remoteness, the quantum of compensatory damages and the availability of aggravated and exemplary damages.     

提单与票据之比较研究

有关提单的法律规定尚不完整 ,因提单和票据实质上有许多相似之处 ,人们可以利用票据法的一些规定来解决提单的一些问题。本文比较研究了提单和票据的法律性质以及二者在转让中的前后手权利优劣等事项。