Drug liability litigation: toward better dental care

Seattle attorney Ann Pearl Owen reviews the proliferation of litigation involving dental anesthesia and drug liability, ties it to trends in dentistry and pharmaceutical manufacturing, and finds a positive role for trial lawyers.     

Judges as satisficers: a law and economics perspective on judicial liability

If judges are guardians of the law, who is to protect the individual member of society from the occasional corrupt, malicious, or reckless judge? The aim of this paper is to provide an answer to the last part of this question, focusing more heavily on cases of negligently inflicted harm. Departing from Simon’s bounded rationality and influenced by other constructs in behavioral law and economics, we view judges as satisficers who make decisions within real-world constraints, such as imperfect information and uncertainty, cognitive limitations and erroneous information. Judges are limited by the commonly observed barriers to the decision making process. Because their goal is not to optimize but to render opinions that are merely satisfactory, they often act as poor agents of their principals’ interests. In this light, it becomes clearer why judges tend to engage in behavior that is “improper”, especially under the circumstances of the currently overloaded judicial caseloads. We first address the differences in judges’ roles in Anglo-American and Continental legal systems. We then present our simple model for judicial misbehavior based on an understanding of judges as “satisficers”. Next we discuss the particularities of judicial errors and introduce a realistic and viable construct of “inexcusable judicial error”. On this basis we evaluate the impact of various incentive schemes on judicial behavior, focusing on the civil liability of judges. We conclude that civil liability for grave judicial errors is the most adequate remedy.     

Optimal agency contracts: The effect of vicarious liability and judicial error

Under the doctrine of vicarious liability, a deep-pocket principal is often held responsible for a third-party harm caused by a judgment-proof agent’s negligence. We analyze the incentive contract used by the principal to control the agent’s behavior when a court can make an error in determining the agent’s negligence. We show that (1) reducing the error of declaring the agent not negligent even when he was (pro-defendant or type II error) is better than reducing the error of declaring the agent negligent even when he was not (pro-plaintiff or type I error) and (2) allowing the principal to penalize the agent even when the court declares the agent not negligent improves welfare. The latter supports the argument that causing an accident (or a reliable allegation of misconduct) should be sufficient to justify a “just cause” termination of an employee.     

对中国司法解释中打捞费有关责任限制规定的理解

海上打捞引起的赔偿请求能否限制责任,《中华人民共和国海商法》没有规定,最高人民法院以司法解释的形式对其予以明确规定。司法解释也对碰撞船舶之间追偿的打捞费规定为应受限制,但不周全,建议在修改《中华人民共和国海商法》时予以完善。     

The judicial role in life-sustaining medical treatment decisions.

Although there has been speculation regarding the pervasiveness and nature of judicial decisions regarding life-sustaining medical treatment (LSMT), no attempt has been made to empirically assess their prevalence or the issues they address. An exploratory study utilizing a mail survey of a nationwide random sample (N = 905) of state trial court judges was conducted to provide initial information regarding this decision-making process. Twenty-two percent of the responding judges had heard at least one LSMT case, and judicial review did not appear endemic to particular states. The number of judges hearing LSMT cases dropped from 1975 to 1981 but has increased since then. Three major issues predominate: patient competency, appointment of a surrogate decisionmaker, and resolution of the ultimate issue of forgoing LSMT. Relatively few cases either contested a prior directive's validity or involved imposing sanctions for instituting or forgoing LSMT. Although subject to different interpretations, the results suggest the courts are having a significant impact on certain aspects of the LSMT decision-making process. However, the infrequency with which any one judge is called upon to make an LSMT decision causes concern about the judiciary's ability to respond in a timely and appropriate manner. With their potential for a profound effect on the actions of health care providers, greater attention to this decision-making process is warranted.     

Orphan drugs: the question of products liability

Orphan drugs, essential for the treatment of persons with rare diseases, generally are unprofitable for manufacturers to develop and market. While congressional and administrative efforts to promote the development of orphan drugs have met with modest success, application of products liability doctrine to orphan drug sponsors could subvert those efforts. This Note describes the provisions of the Orphan Drug Act and analyzes products liability law with respect to orphan drug litigation. It argues that the goals of tort law support the imposition of liability for design defect, failure to warn and negligence in testing. Finally, the Note acknowledges that liability costs create disincentives for orphan drug development and suggests mechanisms for reducing manufacturers' liability concerns.     

Loss of a chance in medical malpractice litigation: expanding liability of health professionals versus providing justice to those who have lost

The loss of a chance doctrine in medical malpractice litigation is essentially based on the perceived unfairness of denying recovery to a patient when a health provider's malpractice has reduced the patient's chance of a better outcome. It is the thesis of the article that loss of a chance must the recognised at law, notwithstanding that the chance is less than even or not subject to the benefit of statistical and/or scientific proof and that each lost chance should be assessed according to the value of that chance. Varying approaches to allocating value to the chance lost are examined both historically and internationally. The author contends that the policy arguments--which include potential for increased medical malpractice litigation, tainted reputations and an increase in professional indemnity policies--are insignificant when compared to the value and quality of human life and therefore cannot be supported.     

美国变性人立法和司法情况评议

变性人在进行变性手术后,会面临一些现实的法律困境,如,户口,婚姻,就业,医疗等,目前我国法律在这方面还是处于空白。虽然美国在这方面不是特别完善,但联邦及各州法律都对此做出了很多规定来保护变性人。通过介绍和评议美国在立法和司法对变性人做出的相关规定,借此深入了解变性人在变性后所面临的法律上的尴尬,将更有利于保护越来越多的变性人,也有助于我国法律在这方面的完善。     

一起医疗执业卫生行政诉讼案例分析

通过对一起未取得《医疗机构执业许可证》擅自开展医疗执业活动的行为实施卫生行政处罚并因此引起行政诉讼案例的分析,探讨卫生行政处罚法律依据的适用,违法事实的认定和程序的合法性,值得借鉴。     

Comment on Francis van Loon,stephane delrue,and wim van wambeke, “sociological research on litigation: perspectives and examples”

The sociology of law has a long-standing tradition and indeed produced a vast literature in the area of litigation. Meanwhile, a complementary perspective has been presented which we discuss with the following four perspectives: the relationship between legal economists and legal sociologists; the project of Van Loon, Delrue, and Van Wambeke; an overview of law and economics research with respect to the legal process; and the question of whether both approaches are complementary.     

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.     

医疗机构因医院感染应承担的法律责任探讨

医院感染是影响病人安全、医疗质量和增加医疗费用的重要原因。当患者因医院感染受到损害时,医疗机构是否应当承担赔偿责任,医患双方可能各执一词。本文根据《侵权责任法》与《医院感染管理办法》分析、讨论医疗机构因医院感染而应承担的法律责任。