The medical and legal risks of the electronic fetal monitor

Electronic fetal heart monitoring (EFM) is the most widely used method of monitoring the fetal heartbeat for possible signs of distress during delivery. Soon after its development in the 1960s, EFM replaced intermittent auscultation as the standard of care in the obstetrical community. However, Margaret Lent argues that the widespread use of EFM is both medically and legally unsound. Lent points to a series of clinical trials that demonstrate that EFM does not reduce fetal mortality, morbidity, or cerebral palsy rates. These studies suggest that EFM has a very high false positive rate, and that EFM usage correlates strongly with a rise in cesarean section rates. Similarly, EFM provides no protection in the courtroom. Though obstetricians believe that they should use EFM because its status as the standard of care will protect them from liability, Lent argues that it may in fact expose them to liability given its failings. Instead, she argues that auscultation is equally, if not more, safe and effective, and is more likely to protect physicians from liability. Lent concludes that obstetricians have an obligation to their patients and to themselves to adopt auscultation as the new standard of care.     

Inmate sues the Correctional Service of Canada

This article summarizes a lawsuit commenced recently in the Ontario Superior Court of Justice by an HIV-positive inmate in the federal penitentiary system against the Correctional Service of Canada (CSC). This action is an important part of the ongoing struggle to hold government and public officials accountable for failing to address the HIV/AIDS crisis in prisons. The suit contends that CSC must be held liable for the seroconversion of an inmate while in CSC's care and custody, and that it must also be held liable for the alleged negligent provision of medical care to HIV-positive inmates.     

Raising the "civilized minimum" of pain amelioration for prisoners to avoid cruel and unusual punishment

This Article addresses the problems with our nation's cultural and legal prohibitions against certain pain management treatments. The practice of pain management has not kept pace with the many medical advances that have made it possible for physicians to ameliorate most pain. The Author notes that some patients are denied access to certain forms of treatments due to the mistaken belief that addiction may ensue. Additionally, some individuals are under-treated for their pain to a greater degree than are others. This is especially the case for our nation's prisoners. The Author contends that prisoners are frequently denied effective pain amelioration. He notes, however, that there has been improvement in medical treatment in general for prisoners due to court challenges based on the Eighth Amendment's prohibition against cruel and unusual punishment. Yet, due to the protection of qualified immunity given to jailers and prison health care providers, prisoners cannot bring a claim for negligence or medical malpractice, they must allege a violation of their constitutional rights, a significantly higher legal standard. Prisoners must meet a subjective test showing that there was a deliberate indifference to their medical needs that violates the protection of the Eighth Amendment. The Author concludes that because medical advances have made it possible to alleviate most pain suffering, withholding pain treatment or providing a less effective treatment is tantamount to inflicting pain and should be viewed as a violation of the Eighth Amendment.     

Lender Liability for Environmental Harm: An Argument Against Negligence Based Rules

A firm strictly liable for any harm done will choose an inefficiently low care level if there is a possibility that it goes bankrupt. One possibility to improve care is extending liability to secured lenders, as applied under CERCLA and as currently being discussed in the EU. I compare strict liability, partial liability and vague negligence for lenders in a model with moral hazard and environmental auditing. While auditing is socially valuable only if it increases the firm's care level, the creditor also calculates the reduction in the information rent. Thus, for each possible care level, monitoring is always too high. This effect is aggravated by a vague negligence rule, where the probability that a lender is found liable decreases in the level of auditing. It is demonstrated that partial liability is superior, because the incentive for excessive monitoring is diminished.     

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.     

Reallocating liability to medical staff review committee members: a response to the hospital corporate liability doctrine

Under the doctrine of hospital corporate liability, the hospital governing board bears the responsibility for detecting the incompetence of its staff physicians. Since hospital governing boards are generally composed of lay community members, they lack the expertise to evaluate the clinical competence of their staff. Therefore, they must delegate their screening responsibilities to medical staff review committees. After analyzing the development of hospital corporate liability doctrine, this Note examines the respective policing capabilities of review committees and the governing board. The Note contends that the board should not be held liable for aspects of the policing process which it is incapable of controlling. The Note concludes that, given their superior ability to evaluate clinical competency, staff review committees should shoulder the responsibility for the clinical aspects of staff evaluation, leaving remaining aspects to the hospital governing board. The Note proposes that courts should recognize a cause of action for negligence against medical staff review committee members in order to upgrade the effective policing of the medical profession.     

On judgment proofness in the case of bilateral harm

This paper defies the widely held belief concerning the unambiguous superiority of negligence in settings of judgment proofness. We analyze a set-up with bilateral harm, bilateral care, and potential judgment proofness by one party to the accident. We establish that strict liability with a defense of contributory negligence can perform better than simple negligence and negligence with a defense of contributory negligence. It is shown that the former liability rule can better establish a discontinuity in individual costs conducive to inducing efficient care than the other rules.

The disutility of advance directives: we know the problems, but are there solutions?

Advance directives (ADs) are recognized in some form by the laws of every state. Despite the availability of ADs for more than twenty years, few adults have completed any type of AD document. Even when ADs are validly executed, physicians routinelyfail to honor patients' wishes. The lack of communication between physicians and patients may be the primary reason why AD completion rates remain so low. The failure to honor an AD may stem from the physician's belief that to honor a directive would not be in the patient's best interest. The adoption and enforcement by all states of the Uniform Health-Care Decisions Act, recognition of a physician's ethical duty to assist patients in AD formulation, and routine third-party payor reimbursement to physicians for their role in patients' advance care planning will encourage and facilitate the completion and subsequent honoring of patients' directives.     

Optimal liability for optimistic tortfeasors

As Alicke and Govorun (The self in social judgment, Psychology Press, New York, 2005, p. 85) observed, “most people are average, but few people believe it.” Optimism and other forms of inflated perception of the self lead parties to exercise suboptimal precautions when undertaking risky activities and often undermine the incentive effects of tort rules. In this paper, we show that the presence of optimism undermines several critical assumptions, upon which law and economics scholars have relied when modeling the incentive effects of tort law. We construct a model representing the incentives of “optimistic” tortfeasors and victims, and consider mechanisms for mitigating the effects of biased decision-making. We show that in the presence of optimism, comparative negligence rules are preferable to contributory negligence rules (i.e., the traditional equivalence between contributory and comparative negligence does not hold). Further, we discover the surprising conclusion that the most effective way to correct optimism may often simply be to “forgive” it, shielding optimistic individuals from liability, rather than holding them liable for the harms they cause.     

知情同意原则下医疗过失损害赔偿责任的几个问题--从一起患者知情同意纠纷案说起

知情同意原则所保护的客体是自我决定权.知情同意原则下的损害赔偿责任不同于医疗事故损害赔偿责任.二者不能互相否认.医方违反知情同意原则的责任是一种侵权损害赔偿责任.该责任的构成要件可包括(1)医师存在法定的告知义务;(2)医师未能将对患者的决定产生实质性影响的风险/信息告知患者;(3)在告知不充分的情况下,患者由于选择了当前的治疗方案而受到伤害;(4)医师的义务违反与患者的伤害之间存在因果关系.其中,告知义务是否充分的判断应以处于同样情境的一个理性患者所需作为主要的标准;对信息"实质性"的判定应看一个与患者处于同一位置的合理审慎之人在决定是否对所建议的治疗做出同意时会对某一事实赋加重要性或将该事实作为一"决定性"影响因素加以考虑;在因果关系存无的认定上,则要考虑若患者被充分告知实情他是否会做出不同的选择决定.     

共同过失犯罪中的违反共同注意义务研究

传统刑法理论是否认共同过失犯罪的,理论研究的发展使刑法学界已不能回避共同过失犯罪的存在.明确违反共同注意义务在共同过失犯罪中的核心地位,准确划分违反共同注意义务的判断对象,正确认识违反共同注意义务的共同过失与竞合过失的区别,对纠正传统理论对共同过失犯罪的误解,建立和完善共同过失罪理论体系有重要的意义.     

Abandoning the common law: medical negligence, genetic tests and wrongful life in the Australian High Court

The Australian High Court recently found that the common law could allow parents to claim tortious damages when medical negligence was proven to have led to the birth of an unplanned, but healthy, baby (Cattanach v Melchior (2003) 215 CLR 1). In Harriton v Stephens (2006) 80 ALJR 791; [2006] HCA 15 and Waller v James; Waller v Hoolahan (2006) 80 ALJR 846; [2006] HCA 16 the High Court in a six-to-one decision (Kirby J dissenting) decided that no such claim could be made by a child when medical negligence in failing to order an in utero genetic test caused the child severe disability. In an era when almost all pregnancies will soon require patented fetal genetic tests as part of the professional standard of care, the High Court, by barring so-called "wrongful life" (better termed "wrongful suffering") claims, may have created a partial immunity from suit for their corporate manufacturers and the doctors who administer them. What lessons can be learnt from this case about how the Australian High Court is, or should be, approaching medical negligence cases and its role as guardian of the Australian common law?     

医疗事故诉讼中过失认定

医疗事故属于医疗执业侵权。医疗执业侵权中医方的过失来自于其违反了法律要求的照护义务。美国的医疗执业侵权法从“医疗常规标准”已经发展出了“群体接受的标准”,以及在此基础上的过失认定原则。在程序上,美国的原告依赖于专家证人举证证明医方过错。我国的医疗事故诉讼的过失标准是“医疗常规标准”,存在着许多法律缺陷;程序没有专家证人制度,但实行单一举证责任倒置。事实上,过失的认定上交给了医疗事故技术鉴定,成为了医疗事故诉讼的核心。“医疗常规标准”和举证责任、医疗事故鉴定存在很多法律上的冲突。医疗事故鉴定和医疗事故诉讼间的关系,现有法律存有许多待讨论的问题;鉴定人的欠缺法律责任的规范。但现有达到专家辅助人和可能有的医学专家充当陪审员,很可能有助于解决我国医疗事故诉讼中的专业问题。     

通过现有规范解决自动驾驶汽车肇事之刑事责任归属问题

以自动驾驶汽车为代表的人工智能产品在给我们带来便利的同时也带来了新的法律问题。为了解决自动驾驶汽车肇事的刑事责任问题,学者或是承认自动驾驶汽车的犯罪主体地位,或是建议修改刑法增设罪名。实际上,既有的刑事法律规范足以解决自动驾驶汽车肇事的刑事责任归属问题。自动驾驶汽车的驾驶人未尽到合理注意义务的,承担过失责任;制造单位生产的自动驾驶汽车存在缺陷或者明知有缺陷而未召回的,承担产品质量相关的刑事责任;使用人发现自动驾驶汽车存在缺陷继续使用的,承担监管过失责任;入侵智能驾驶系统或者利用自动驾驶汽车实施犯罪的,承担故意犯罪的刑事责任。现阶段应克服刑事立法冲动,在既有的刑事法律规范体系内寻求解决方案,更具有现实意义。     

Cost-effectiveness analysis in the courts: recent trends and future prospects

This article provides an initial look at how managed care organizations (MCOs) might incorporate cost-effectiveness analysis (CEA) into their decision-making process and how the courts might respond. Because so few medical liability cases directly involve CEA, we must look at other areas of the law to assess potential MCO liability for applying CEA. In general negligence cases, courts rely on a risk-benefit test to determine customary practice. Likewise, in product liability cases, courts use a risk-utility calculus to determine liability for product design defects. And in challenges to government regulation, courts examine how agencies use CEA to set regulatory policy. The results have been mixed. In product liability cases, CEA has led to some punitive damage awards against automobile manufacturers. But courts have integrated it in negligence cases without generating juror antipathy, and generally defer to agency expertise in how to incorporate CEA. The article discusses the implications of these cases for MCO use of CEA and outlines various options for setting the standard of care in the managed care era.     

善意认定的属性及反推技术

善意是对虚假信息传递途径的不知情,它必然与行为相关联,与恶意存在非此即彼的互异关系。善意的判断与过失的判断是两个不同的问题,但基于利益衡量,行为人的重大过失妨碍其善意的成立。由于善意认定方法的综合判断属性及对客观事实的适度超越性、认定结论的弹性化、非验证性以及很难直接以反证推翻的特征,决定了善意认定的法律判断属性。在具体认定过程中,反推技术是一种便捷且有效的方法。     

The Department of Health and Human Services issues proposed regulations on physician incentive payments by hospitals

Hospitals tempted to operate their own physician incentive plans are reminded that, under OBRA 1986, they are precluded from paying physician incentives of any kind to reduce or limit Medicare or Medicaid covered services. In light of the proposed regulations and the guidance of the preamble, hospitals should review their incentive plans to determine whether physicians providing direct patient care are receiving prohibited payments. Further, supervising physicians who are receiving incentives for certain hospital departments may not influence direct care over patients served by those departments, even through other physicians. Some risk may also exist if incentives are based on a formula that considers patients of the supervising physician's medical group. Finally, it may be useful to develop a utilization and quality of care review program specifically designed to assure that patient undertreatment does not occur as a result of any supervising physician incentive program.     

Beshada v. Johns-Manville Products Corp.: the function of state of the art evidence in strict products liability

In Beshada v. Johns-Manville Products Corp., the Supreme Court of New Jersey held that a state of the art defense is unavailable in cases brought under a theory of strict liability for failure to warn. The court indicated that asbestos producers may be held liable for their products' harms even if the health hazards of asbestos were unknown and not discoverable when the products were marketed. In a subsequent case, the New Jersey court held that state of the art evidence is relevant to whether a product is defective. This Case Comment examines these different uses of knowledge evidence in the disposition of products liability cases. It contends that manufacturers should not be held liable for unknowable risks. The Comment concludes that the state of the art defense establishes a logical limit on strict liability and promotes efficient resolution of products liability claims.     

论不作为过错的侵权责任

作为过错与不作为过错的区分是现代过错侵权行为法的基础 ,因为 ,过错侵权行为法不应要求他人承担积极作为的义务 ,而仅能要求他人承担消极不作为的义务。因此 ,法律可责令行为人就其积极作为的过错承担侵权责任 ,而不应责令行为人就其不作为的行为承担侵权责任。在确立不作为不承担过错侵权责任的原则的同时 ,现代法律亦对这一原则作某些例外的限制 ,认为在这些例外情况下 ,行为人应当承担积极作为的义务 ,如果他们违反这些义务并导致他人损害 ,应当承担侵权责任。     

The Principle of Full Compensation in Tort Law

According to the principle of full compensation, tort law seeks to put the victim in the position he was in before the tort. This position is generally considered to be the situation where the victim does not suffer any harm at all. We consider an alternative interpretation. If an injurer takes due care, the victim is faced with expected harm. This can be considered the victim's expected harm in the situation he was in before the tort. Thus conceived full compensation requires a negligent injurer to pay damages which bring the (potential) victim ex ante in the same position as the victim was in the case where the (potential) injurer takes due care. We investigate the consequences of this restated negligence rule. For due care levels larger than efficient care, the standard negligent rule may lead to excessive care, whereas the restated negligent rule always leads to efficient care. Furthermore, the activity level under the restated negligent rule is greater than the activity level under the standard negligent rule, which itself is greater than the efficient activity level. Social welfare under the restated negligence rule can either be higher or lower than social welfare under the standard negligence rule.