Academic literature on the topic 'Medical negligence'

The progress made in diagnostic and therapeutic medicine has resulted in an increase in the number of malpractice suits brought against medical practitioners. To constitute negligence it must be shown that the conduct of the accused did not measure up to the standard of care the law required of him in the particular circumstances and that he acted with guilt and therefore can be blamed for the deed. This paper describes medical practitioner negligence and reviews relevant cases.

The first aim of the thesis is to set out and analyse critically the main principles of the (common) law of medical negligence. An overview of the bases of liability and their development is given as a precursor to this. The second aim of the thesis is to put forward the writer's proposals for reform, which, it is submitted, would ameliorate the unsatisfactory aspects of the present approach. The topics selected for consideration are principally the duty and standard of care, causation and the justification for the fault principle, including underlying aims where appropriate. Analysis of these yields the result that the present law is not satisfactory, in that its aims are insufficiently achieved. The most important of the aims which are identified and discussed comprise compensation, deterrence and accountability. Although many suggest that the deterrent aim is now obsolete, the writer argues that it is inconsistent and haphazard in its application to medical negligence. However, as a goal, it should be retained albeit interpreted more broadly than hitherto. Alternative approaches such as no-fault compensation are also discussed. In putting forward his proposals for reform, the writer argues that attempting to meet these underlying aims by the combined mechanism of the action for damages is unsatisfactory, and that they are best met by provision for separate mechanisms in respect of the fundamental avenues of compensation and deterrence/accountability. In essence, social security provides a vehicle for distributing the former (assessment being separate), and the writer's suggested approach of an enhanced, non-adversarial medical audit and reporting systems as a vehicle for the latter.

Medical negligence claims are social episodes which are caught in the midst of dispute journeys and involve their participants' understandings of, explanations of, and responses to healthcare service standards. However, the manner in which concerns with healthcare services emerge through such claims is complex. This is because the disputing process is dynamic and variables encountered during that process determine the nature and scope of what aspects of those claims become visible, as well as transform the focus of what is visible, from time to time. Accordingly, by adopting a dispute-centered analytical framework and situated within a particular socio-legal microcosm, namely Sri Lanka, this study questions and investigates the extent to which medical negligence claims in Sri Lanka reflect concerns with healthcare service standards. The investigation dissects the dispute variables within medical negligence claims journeys: parties, grievance emergence, the substance of grievances, grievance management strategies, claimant goals, claims forums, claiming capacity, claims processing and claims outcomes. However, the findings return attention to what we can learn about healthcare service issues from those claims. The research contribution of the study is three-fold: it expands the analytical approach in medical negligence claims research by applying dispute theories, widens the thematic concerns of such claims by relating them to healthcare service standards in a more sceptical manner, and extends the focus of medical negligence literature by exploring a relatively ignored research site, a non-Western jurisdiction. It is hoped that the findings here will also inform policy. That is, by making it easier to identify what medical negligence claims are about and, consequently, using that information to improve quality of care, as well as grievance management systems, in Sri Lanka and other similarly placed socio-legal contexts.

It has been suggested by some commentators that the ‘real’ damage (as opposed to that pleaded) in the cases of Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309 and Chester v Afshar [2005] 1 AC 134 was the claimant’s lost autonomy. Arguments have consequently been put forward that lost autonomy either already is or should be recognised as a new form of actionable damage in medical negligence cases. Given the value placed on respecting patient autonomy in medical law and bioethics, it might be thought that such a development should be welcomed. But if lost autonomy is accepted as a new form of damage in negligence, it will not be confined to the two scenarios that were present in those cases and it may be inconsistent with other established negligence principles. This thesis considers whether lost autonomy ought to be recognised as a new form of damage in negligence and concludes that it should not. A close textual analysis of Rees and Chester is undertaken in order to determine whether a ‘lost autonomy’ analysis actually provides the best explanation of those two cases. I then look at how the concepts of autonomy and harm should be understood to determine whether, ethically speaking, to interfere with someone’s autonomy is to cause them harm. The final part of the thesis considers important doctrinal tort law considerations that have been overlooked in the medical law literature. I argue that the nature of autonomy means that it cannot coherently be considered actionable damage within the tort of negligence and that recognising a duty of care to avoid interfering with people’s autonomy would be inconsistent with the restrictive approach the courts take to recovery for psychiatric injury and economic loss. My ultimate conclusion is that the benefits of allowing such claims do not outweigh the undermining of established principles that would ensue if lost autonomy were recognised as a form of actionable damage in negligence.

This thesis assesses the legal doctrine res ipsa loquitur ('the thing speaks for itself) in the context of delictual claims for compensation for medical negligence in South African law. The thesis accepts that the doctrine is defensible in principle: a civil court may justifiably draw an inference that a defendant's negligent conduct was a factual cause of the harm suffered in simple cases where there is uncontradicted evidence sufficient to establish a prima facie case. However, it is argued that the South Africa Appellate Division's rejection of the doctrine in the context of medical negligence in 1924 remains justified. It is sometimes thought that the doctrine would assist plaintiffs in complex medical cases by easing the difficulty of establishing a cause of action on a balance of probabilities. However, the thesis argues to the contrary that applying the doctrine in the context of medical negligence claims in South Africa is potentially unjust to claimants and defendants alike. Judgments of medical negligence cannot be made soundly without a proper appreciation of the relevant medical facts. The availability of the doctrine, in the South African context, provides a motivation for plaintiffs to advance insufficiently-prepared evidence, sometimes without the views of experts. This results in the oversimplification of complex medical realities, which increases the risk that courts may reach conclusions regarding negligence and factual causation for reasons that are unjustifiable from a medical perspective. Insufficiently-prepared evidence is also vulnerable to rebuttal by defendant-doctors on 'exotic' or inadequate grounds from a medical perspective, resulting in the unjust rejection of negligence claims. By enabling a superficial approach to deciding questions of medical negligence in the South African context, the doctrine may promote the erroneous assumption that bad medical outcomes typically result from medical wrongdoing. To make its case, the thesis draws on case studies of a variety of medical procedures and contrasts the operation of res ipsa loquitur in South Africa against English legal experience. Differences between the two systems of medical negligence cast doubt on the notion that the English approach should be transplanted to South Africa. Rather than relying on the res ipsa loquitur doctrine to bolster claims made without medical expert evidence, the South African plaintiff should instead rely on constitutional arguments, appealing to basic rights to bodily integrity and dignity, to justify the injection of a degree of flexibility into the common-law elements of a delictual claim.

This purpose of this dissertation is to determine the ambit of the current requirements for the proof of factual causation in the South African law of delict, and to consider the implications thereof with reference to medical negligence. Proceeding from the premise that South African courts have employed the conditio sine qua non as the sole test for factual causation for at least the past forty years, this study commences with a review of selected older South African case law which evidences judicial recognition of alternative, less stringent tests for factual causation. It is concluded that South African courts have in the past employed versions of the material contribution test as well as hybrid tests in assessing factual causation to the benefit of plaintiffs who had proven negligence and injury, but were confronted with difficulty or impossibility in the proof of causation. The South African case law selection is concluded with the Constitutional Court s judgment in Lee v Minister of Correctional Services 2013 (2) SA 144 which, it will be argued, represents a significant departure from the prior common law position regarding factual causation. In an attempt to gain some perspective on what the said departure from the traditional test for factual causation might entail and what repercussions it may have, a study is made of selected case law from the United Kingdom pertaining to the application of modified tests for factual causation. It is concluded that the Constitutional Court in fact employed a material contribution to risk test for factual causation in Lee v Minister of Correctional Services 2013 (2) SA 144 and the reception of this judgment is considered in the light of academic commentary and perspectives gleaned from the United Kingdom. The discussion culminates in an opinion that the current common law position regarding the test for factual causation has not been defined clearly by the courts although it has certainly been relaxed into a less stringent formulation. The prevailing position is considered with reference to the Constitution and the possible reliance by organs of state on section 36 thereof is contemplated as a possible mechanism to resist positive findings of causation. Finally it is submitted that the contemporary formulation of the test for factual causation represents perhaps the most plaintiff-friendly delictual disposition in South African legal history, with the result that medical negligence is likely to be proved with greater ease in future.
Dissertation (LLM)--University of Pretoria, 2015.
Public Law
LLM
Unrestricted

The paper discusses the concept and purposefulness of medical error in positive Serbian law (the Law on Health Care), then in comparative law, in order to formulate a proposal for the most adequate definition of this legal term de lege ferenda. The subject of the analysis is the different views of the doctrine and judicial practise on the reach of medical professional error, as well as its positioning in the structure of elements of civil liability for damages, especially in relation to professional fault. The author estimates that the liability of a physician for a medical error, although somewhat peculiar, is not a new legal basis of civil liability for damage in domestic law. It is only one of the possible manifestations of a breach of the due diligence of an expert (from the Law on Obligations), and it is a form of subjective civil liability for the basis of fault (guilt). Thus, physicians bear civil liability for mere negligence on the basis of (objectified) professional fault, which, as a broader term, includes medical error.

Introdução: O progresso científico que ocorreu nas últimas décadas viabilizou uma reestruturação na sociedade. Atualmente água encanada, esgoto, serviços de coleta seletiva de lixo, energia elétrica, educação em saúde e dentre tantos outros recursos são uma realidade em boa parte do mundo, todavia, muitos carecem desses serviços, sobretudo em países não desenvolvidos, como no Brasil. Objetivos: O presente trabalho visa analisar a realidade precária da aplicação da saúde pública no combate e prevenção a parasitoses. Material e Métodos: Para o desenvolvimento do presente resumo descritivo utilizou-se artigos presentes em bases de dados consolidadas como SciELO, PubMED e arquivos governamentais, mediante aos descritores "saúde pública"; "parasitoses"; "saneamento básico". Resultados: No Brasil é possível vislumbrar diferentes tipos de realidade socioeconômica, sendo necessário adaptar os serviços públicos de saúde para cada uma dessas, de modo que atenda o artigo 196 da constituição federal de 1988. Entretanto, é notório a negligência na aplicação de grande parte desses serviços, sobretudo no processo de ampliação do saneamento básico que venha atender populações interioranas. Esse fato corrobora para a incidência contínua de registros de parasitoses, que interferem no processo de nutrição, podendo atrapalhar o desenvolvimento das crianças e adolescentes e gerar agravos severos na saúde do parasitado. Outrossim, ressalta-se que profilaxias educacionais ou sanitárias gerarão um impacto direto na redução de casos e de agravos, consequentemente reduzem a taxa de internações e de tratamentos de longo prazo. Conclusão: Portando, pode-se afirmar que a presente negligencia apresentada é anticonstitucional, e revela a imediata necessidade de desenvolvimento de medidas em saúde pública para mitigar os casos de parasitoses.

Aim/Purpose: This paper provides the results of the preliminary analysis of the findings of an ongoing study that seeks to examine the social media use, cultural and political awareness, civic engagement, issue prioritization, and social activism of Gen Z students enrolled at four different institutional types located in the Mid-Atlantic region of the United States. The aim of this study is to look at the group as a whole as well as compare findings across populations. The institutional types under consideration include a mid-sized majority serving or otherwise referred to as a traditionally white institution (TWI) located in a small coastal city on the Atlantic Ocean, a small Historically Black University (HBCU) located in a rural area, a large community college located in a county that is a mixture of rural and suburban and which sits on the border of Maryland and Pennsylvania, and graduating high school students enrolled in career and technical education (CTE) programs in a large urban area. This exploration is purposed to examine the behaviors and expectations of Gen Z students within a representative American region during a time of tremendous turmoil and civil unrest in the United States. Background: Over 74 million strong, Gen Z makes up almost one-quarter of the U.S. population. They already outnumber any current living generation and are the first true digital natives. Born after 1996 and through 2012, they are known for their short attention spans and heightened ability to multi-task. Raised in the age of the smart phone, they have been tethered to digital devices from a young age with most having the preponderance of their childhood milestones commemorated online. Often called Zoomers, they are more racially and ethnically diverse than any previous generation and are on track to be the most well-educated generation in history. Gen Zers in the United States have been found in the research to be progressive and pro-government and viewing increasing racial and ethnic diversity as positive change. Finally, they are less likely to hold xenophobic beliefs such as the notion of American exceptionalism and superiority that have been popular with by prior generations. The United States has been in a period of social and civil unrest in recent years with concerns over systematic racism, rampant inequalities, political polarization, xenophobia, police violence, sexual assault and harassment, and the growing epidemic of gun violence. Anxieties stirred by the COVID-19 pandemic further compounded these issues resulting in a powder keg explosion occurring throughout the summer of 2020 and leading well into 2021. As a result, the United States has deteriorated significantly in the Civil Unrest Index falling from 91st to 34th. The vitriol, polarization, protests, murders, and shootings have all occurred during Gen Z’s formative years, and the limited research available indicates that it has shaped their values and political views. Methodology: The Mid-Atlantic region is a portion of the United States that exists as the overlap between the northeastern and southeastern portions of the country. It includes the nation’s capital, as well as large urban centers, small cities, suburbs, and rural enclaves. It is one of the most socially, economically, racially, and culturally diverse parts of the United States and is often referred to as the “typically American region.” An electronic survey was administered to students from 2019 through 2021 attending a high school dual enrollment program, a minority serving institution, a majority serving institution, and a community college all located within the larger mid-Atlantic region. The survey included a combination of multiple response, Likert scaled, dichotomous, open ended, and ordinal questions. It was developed in the Survey Monkey system and reviewed by several content and methodological experts in order to examine bias, vagueness, or potential semantic problems. Finally, the survey was pilot tested prior to implementation in order to explore the efficacy of the research methodology. It was then modified accordingly prior to widespread distribution to potential participants. The surveys were administered to students enrolled in classes taught by the authors all of whom are educators. Participation was voluntary, optional, and anonymous. Over 800 individuals completed the survey with just over 700 usable results, after partial completes and the responses of individuals outside of the 18-24 age range were removed. Findings: Participants in this study overwhelmingly were users of social media. In descending order, YouTube, Instagram, Snapchat, Twitter, Facebook, Pinterest, WhatsApp, LinkedIn and Tik Tok were the most popular social media services reported as being used. When volume of use was considered, Instagram, Snapchat, YouTube and Twitter were the most cited with most participants reporting using Instagram and Snapchat multiple times a day. When asked to select which social media service they would use if forced to choose just one, the number one choice was YouTube followed by Instagram and Snapchat. Additionally, more than half of participants responded that they have uploaded a video to a video sharing site such as YouTube or Tik Tok. When asked about their familiarity with different technologies, participants overwhelmingly responded that they are “very familiar” with smart phones, searching the Web, social media, and email. About half the respondents said that they were “very familiar” with common computer applications such as the Microsoft Office Suite or Google Suite with another third saying that they were “somewhat familiar.” When asked about Learning Management Systems (LMS) like Blackboard, Course Compass, Canvas, Edmodo, Moodle, Course Sites, Google Classroom, Mindtap, Schoology, Absorb, D2L, itslearning, Otus, PowerSchool, or WizIQ, only 43% said they were “very familiar” with 31% responding that they were “somewhat familiar.” Finally, about half the students were either “very” or “somewhat” familiar with operating systems such as Windows. A few preferences with respect to technology in the teaching and learning process were explored in the survey. Most students (85%) responded that they want course announcements and reminders sent to their phones, 76% expect their courses to incorporate the use of technology, 71% want their courses to have course websites, and 71% said that they would rather watch a video than read a book chapter. When asked to consider the future, over 81% or respondents reported that technology will play a major role in their future career. Most participants considered themselves “informed” or “well informed” about current events although few considered themselves “very informed” or “well informed” about politics. When asked how they get their news, the most common forum reported for getting news and information about current events and politics was social media with 81% of respondents reporting. Gen Z is known to be an engaged generation and the participants in this study were not an exception. As such, it came as no surprise to discover that, in the past year more than 78% of respondents had educated friends or family about an important social or political issue, about half (48%) had donated to a cause of importance to them, more than a quarter (26%) had participated in a march or rally, and a quarter (26%) had actively boycotted a product or company. Further, about 37% consider themselves to be a social activist with another 41% responding that aren’t sure if they would consider themselves an activist and only 22% saying that they would not consider themselves an activist. When asked what issues were important to them, the most frequently cited were Black Lives Matter (75%), human trafficking (68%), sexual assault/harassment/Me Too (66.49%), gun violence (65.82%), women’s rights (65.15%), climate change (55.4%), immigration reform/deferred action for childhood arrivals (DACA) (48.8%), and LGBTQ+ rights (47.39%). When the schools were compared, there were only minor differences in social media use with the high school students indicating slightly more use of Tik Tok than the other participants. All groups were virtually equal when it came to how informed they perceived themselves about current events and politics. Consensus among groups existed with respect to how they get their news, and the community college and high school students were slightly more likely to have participated in a march, protest, or rally in the last 12 months than the university students. The community college and high school students were also slightly more likely to consider themselves social activists than the participants from either of the universities. When the importance of the issues was considered, significant differences based on institutional type were noted. Black Lives Matter (BLM) was identified as important by the largest portion of students attending the HBCU followed by the community college students and high school students. Less than half of the students attending the TWI considered BLM an important issue. Human trafficking was cited as important by a higher percentage of students attending the HBCU and urban high school than at the suburban and rural community college or the TWI. Sexual assault was considered important by the majority of students at all the schools with the percentage a bit smaller from the majority serving institution. About two thirds of the students at the high school, community college, and HBCU considered gun violence important versus about half the students at the majority serving institution. Women’s rights were reported as being important by more of the high school and HBCU participants than the community college or TWI. Climate change was considered important by about half the students at all schools with a slightly smaller portion reporting out the HBCU. Immigration reform/DACA was reported as important by half the high school, community college, and HBCU participants with only a third of the students from the majority serving institution citing it as an important issue. With respect to LGBTQ rights approximately half of the high school and community college participants cited it as important, 44.53% of the HBCU students, and only about a quarter of the students attending the majority serving institution. Contribution and Conclusion: This paper provides a timely investigation into the mindset of generation Z students living in the United States during a period of heightened civic unrest. This insight is useful to educators who should be informed about the generation of students that is currently populating higher education. The findings of this study are consistent with public opinion polls by Pew Research Center. According to the findings, the Gen Z students participating in this study are heavy users of multiple social media, expect technology to be integrated into teaching and learning, anticipate a future career where technology will play an important role, informed about current and political events, use social media as their main source for getting news and information, and fairly engaged in social activism. When institutional type was compared the students from the university with the more affluent and less diverse population were less likely to find social justice issues important than the other groups. Recommendations for Practitioners: During disruptive and contentious times, it is negligent to think that the abounding issues plaguing society are not important to our students. Gauging the issues of importance and levels of civic engagement provides us crucial information towards understanding the attitudes of students. Further, knowing how our students gain information, their social media usage, as well as how informed they are about current events and political issues can be used to more effectively communicate and educate. Recommendations for Researchers: As social media continues to proliferate daily life and become a vital means of news and information gathering, additional studies such as the one presented here are needed. Additionally, in other countries facing similarly turbulent times, measuring student interest, awareness, and engagement is highly informative. Impact on Society: During a highly contentious period replete with a large volume of civil unrest and compounded by a global pandemic, understanding the behaviors and attitudes of students can help us as higher education faculty be more attuned when it comes to the design and delivery of curriculum. Future Research This presentation presents preliminary findings. Data is still being collected and much more extensive statistical analyses will be performed.

Este análisis muestra los factores de vulnerabilidad de las mujeres ante el cambio climático, agudizada por la pandemia de la COVID-19. También propone algunos lineamientos para el seguimiento de los compromisos asumidos por los países iberoamericanos, motivando el debate y seguimiento a sus políticas públicas sobre cambio climático desde una perspectiva de género. La evidencia empírica muestra que las mujeres desarrollan acciones y estrategias para sobreponerse a situaciones adversas, y asumen el reto del cuidado de la salud a pesar de las inequidades, violencias e injusticias del sistema patriarcal. Es necesario mejorar los estándares y la evaluación de los resultados de las intervenciones, pero no basta con que integren un enfoque de género; además es indispensable que las medidas transformen las condiciones de vulnerabilidad. Para lograrlo, se requiere de la voluntad política de los Estados y del financiamiento de las intervenciones. No actuar sobre las condiciones sociopolíticas y culturales que generan mayor vulnerabilidad en las mujeres, y desarrollar planes neutros al género, constituiría una negligencia de los Estados y reforzaría las condiciones estructurales de exclusión patriarcal.

Este análisis muestra los factores de vulnerabilidad de las mujeres ante el cambio climático, agudizada por la pandemia de la COVID-19. También propone algunos lineamientos para el seguimiento de los compromisos asumidos por los países iberoamericanos, motivando el debate y seguimiento a sus políticas públicas sobre cambio climático desde una perspectiva de género. La evidencia empírica muestra que las mujeres desarrollan acciones y estrategias para sobreponerse a situaciones adversas, y asumen el reto del cuidado de la salud a pesar de las inequidades, violencias e injusticias del sistema patriarcal. Es necesario mejorar los estándares y la evaluación de los resultados de las intervenciones, pero no basta con que integren un enfoque de género; además es indispensable que las medidas transformen las condiciones de vulnerabilidad. Para lograrlo, se requiere de la voluntad política de los Estados y del financiamiento de las intervenciones. No actuar sobre las condiciones sociopolíticas y culturales que generan mayor vulnerabilidad en las mujeres, y desarrollar planes neutros al género, constituiría una negligencia de los Estados y reforzaría las condiciones estructurales de exclusión patriarcal.

Este análisis muestra los factores de vulnerabilidad de las mujeres ante el cambio climático, agudizada por la pandemia de la COVID-19. También propone algunos lineamientos para el seguimiento de los compromisos asumidos por los países iberoamericanos, motivando el debate y seguimiento a sus políticas públicas sobre cambio climático desde una perspectiva de género. La evidencia empírica muestra que las mujeres desarrollan acciones y estrategias para sobreponerse a situaciones adversas, y asumen el reto del cuidado de la salud a pesar de las inequidades, violencias e injusticias del sistema patriarcal. Es necesario mejorar los estándares y la evaluación de los resultados de las intervenciones, pero no basta con que integren un enfoque de género; además es indispensable que las medidas transformen las condiciones de vulnerabilidad. Para lograrlo, se requiere de la voluntad política de los Estados y del financiamiento de las intervenciones. No actuar sobre las condiciones sociopolíticas y culturales que generan mayor vulnerabilidad en las mujeres, y desarrollar planes neutros al género, constituiría una negligencia de los Estados y reforzaría las condiciones estructurales de exclusión patriarcal.