Litigation and the medical indemnity crisis

The medical indemnity crisis in Australia forced doctors, lawyers and insurers to re-appraise the way they handle claims for compensation for medical error. This article examines some of the new approaches available in Australia when patients claim compensation from their doctors.     

The Stark Law in retrospect

Considering the ultimate goals of preventing the over-utilization of medical services and protecting the Medicare program, are the numerous phases of the Stark Law and their concomitant regulations effective; or, conversely, has the legislation served to impede entrepreneurialism among physicians to the detriment of innovations and better integration in the delivery of medical treatment? This article endeavors to answer the above question through an analysis of the policy goals behind the legislation; the evolution of its regulations; its effect on competitiveness in the field of medicine; and the ethical considerations implicated by the issue of physician self-referral. It further offers some proposals which attempt to address the problem of physician self-referral abuse while at the same time reducing the complexity and breadth of the Stark law and its regulations. The article concludes by noting that to truly change the practice of inappropriate self-referral as well as the culture of over-utilization, it is necessary not only to target specific relationships and practices prone to abuse, but to realign the financial incentives created by our current payment mechanisms as well.     

行政诉讼中的检察监督与行政公益诉讼

在《行政诉讼法》制定之时,立法机关对检察监督的范围加以较大限制还有一定的理由和根据,但在现时的条件下,仍然将检察监督局限于抗诉一途就完全没有道理,已经不适用今天我国行政法治的现实需要了。因此,修改《行政诉讼法》,增加关于检察监督的具体条文,进一步明确检察监督的对象、方式和手段是非常必要的。     

The healing profession needs healers: the crisis in medical education

In this article, Dean and professor Albert E. Gunn explains that there is something wrong with the medical profession today. The lack of opposition by physicians to current practices that contravene basic human nature is disturbing. Gunn believes an origin of the problem lies in the process of the selection of medical students. Selection has been biased against the very traits that should make a person a good, caring physician. Gunn recommends looking favorably upon, even recruiting, applicants with a broad education in such subjects as history, philosophy, and literature, rather than just basic, technical science knowledge that they are currently being encouraged to study. Applicants should be recruited who are highly educated and able to think for themselves on important issues. Another bias the author has observed is that against applicants who possess a religiously justified morality. Such applicants are asked to justify and defend such a stance. Gunn believes that the fact that applicants who possess these traits are not considered highly desirable, much less preferred, is the basis of the deterioration of the medical profession, and recruiting such independent-minded, ethical, religiously motivated candidates could be the answer to reviving it.     

Mandatory Arbitration and Civil Litigation: An Empirical Study of Medical Malpractice Litigation in the West

This article looks at the effect that pretrial, statutorilyrequired screening panels in Nevada have had on medical malpracticelitigation. I use two unique data sets on litigation in Nevadaand neighboring states from 1983–88, during which theNevada legislature enacted screening panels. Applying time-seriesand difference-in-difference analyses, I show that observeddecreases in Nevada with respect to damage awards, attorney'sfees, and duration in litigation reflected a broader seculartrend. The panels did, however, reduce the relative probabilityof claims requiring resolution by the Nevada courts.     

Damage Caps and Civil Litigation: An Empirical Study of Medical Malpractice Litigation in the South

This article looks at the effect that damage caps have on plaintiffs'recovery in medical malpractice litigation, using a unique dataset of litigation in the South, from 1987 to 1999. During thistime, Alabama underwent both the implementation and nullificationof damage-cap laws; neighboring states did not undergo any significantlegal changes. The product of a difference-in-difference approach,the results reveal that the average relative recovery by Alabamaplaintiffs decreased by roughly $20,000 after the Alabama legislatureenacted damage caps and increased by roughly double that amountafter the Alabama Supreme Court ruled them unconstitutional.     

A medical model for criminalistics education

The history of medical education during the period of 1870 to 1926 is examined in the context of current issues confronting education in the forensic laboratory sciences. Medical education was radically altered during this period, changing from a rudimentary lecture/apprenticeship system into its modern form. Although the motivating forces had developed over some time, the actual change was quite rapid. By examining how this change occurred, we gain insight into how changes in our own profession might be initiated. Parallels between our current situation and that in medical education 117 years ago include: (1) the primary burden of professional education is borne outside the university in an apprenticeship system, (2) the apprenticeship system is overburdened by a dramatic expansion in the knowledge and skills needed for professional practice, (3) there is no standardized curriculum or accreditation process for educational programs, and (4) there is no educational program that incorporates formal clinical education. Based on this historical analysis, three major goals are proposed: (1) active entreprenurial promotion of professional educational programs by academics, (2) creation of a committee within the American Academy of Forensic Sciences to critique and rate university programs, and (3) the development of a well-defined clinical education program. A model for formalized clinical education in the forensic laboratory sciences is proposed, incorporating clinical professors, student clerkships, and university control over instruction within an operational forensic science laboratory. Benefits from this arrangement include: efficient combination of physical plants, added personnel resources in the laboratory, rapid introduction of research into the laboratory, enhanced prestige for both academics and practitioners, and relief of the laboratory's in-house training burden.     

关于匿名诉讼的立法思考——拷问实名诉讼的缺憾

不论英美法系国家和地区的民事诉讼规则,还是大陆法系国家和地区的民事诉讼法,都规定当事人以实名的方式进行诉讼。不过,崇尚实践理性的英美法系国家的法官,基于案件的实际情况有时许可当事人以匿名的方式进行诉讼。我国现行《民事诉讼法》有关起诉条件中应记明当事人姓名的规定已不能适应实践的需要。民事诉讼法应该规定当事人具有匿名诉讼的权利,法院应该按照一定的程序规则,在当事人匿名和公开其姓名之间权衡利弊以决定是否同意当事人的匿名诉讼申请。     

作为客观诉讼的行政公益诉讼

我国目前实际发生的行政公益诉讼案件几乎都是属于自益形式的公益诉讼,他益形式的公益诉讼在我国囿于起诉资格的限制尚难以展开。借鉴域外主观诉讼与客观诉讼区分理论,可以建构我国的行政公益诉讼,并丰富我国行政诉讼类型。未来我国行政公益诉讼的设置应遵循客观诉讼的法理和精神,建立一套符合客观诉讼法理的诉讼程序,诉权设计上可以采取多元的启动模式,诉讼类型应限制为非财产给付诉讼,起诉资格应以法律有特别规定为限。     

诉讼监督改革:抉择困境与实践进路

我国当前的诉讼监督具有全面性、事后性、弱效力和分散性等四个鲜明的特点,诉讼监督改革面临着选择诉讼与监督分离还是诉讼与监督合一、以同步监督为主还是以事后监督为主、全面监督还是重点监督、弱效力监督还是强效力监督的艰难抉择。在推进诉讼监督改革时,检察机关必须遵从必要性原则、有限监督原则、中立性原则等三个基本原则,必须鼓励先行先试、坚持循序渐进、注重协调配合以及加大诉讼监督工作力度和创新诉讼监督机制等。     

民事诉讼模式论:争鸣与选择

本文以民事诉讼模式论演变史及主要争鸣点为线索,对民事诉讼模式的界定、类型划分及根据、我国民事诉讼模式的定位及改革走向进行了分析。本文试图历览并辨明学界关于当事人主义与职权主义诉讼模式、马锡五审判方式、协同主义与和谐主义诉讼模式的主张与争鸣,力图正本清源并为正在进行的民事司法改革选择方向提供有价值的资鉴。     

组织法的诉讼构造:公司决议纠纷诉讼规则重构

公司决议只具有约束股东及董监事的内部效力而不具有外部效力,债权人等外部主体对决议效力不存在法律上的利益,无权主张确认决议无效或不存在。股东会决议撤销之诉中对股东资格的要求不应剥夺股权转让自由,董监事仅在决议损害公司利益时才享有撤销权。董事会决议瑕疵之诉中,董监事只可在董事会无法自我纠正时提起诉讼,同时应比照代表诉讼要求限制股东诉权。股东及董监事可作为无独立请求权第三人参加诉讼,有权进行与所参加方相抵触的诉讼行为。应按瑕疵而非决议区分诉讼标的,但针对同一瑕疵提起的后诉不构成重复诉讼而属共同诉讼,针对同一决议的诉讼应当合并审理。判决不存在对世效力,既判力只在原告胜诉时发生扩张。     

论我国行政诉讼中民事诉讼规则之准用——兼评《行政诉讼法》第101条

大陆法系主要国家和地区出于立法技术上的考虑,普遍允许在行政诉讼中准用民事诉讼规则,并在准用方式上逐渐由概括准用向具体准用过渡。尽管我国《行政诉讼法》对此最初并未规定,但司法实践中一直通过前后两个司法解释的规定参照民事诉讼规则,直到新法第101条正式确立这一制度。但该条的问题在于:一是对可准用范围的不完全列举仍属于概括准用,需要法官、检察官耗费精力找法;二是适用的表述使得他们只能被动地援引法条,无法真正结合具体案情决定准用问题;三是旧法司法解释的准用性规则并未废止,在一定程度上制约了本条的适用。这有待未来出台专门司法解释对相关条款作明确列举,对相关表述作扩大解释,并确定各种规则的先后援引顺序。