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In the law of torts, malpractice, also known as professional negligence, is an "instance of negligence or incompetence on the part of a professional".
Res ipsa loquitur is a doctrine in common law and Roman-Dutch law jurisdictions under which a court can infer negligence from the very nature of an accident or injury in the absence of direct evidence on how any defendant behaved in the context of tort litigation. Although specific criteria differ by jurisdiction, an action typically must satisfy the following elements of negligence: the existence of a duty of care, breach of appropriate standard of care, causation, and injury. In res ipsa loquitur, the existence of the first three elements is inferred from the existence of injury that does not ordinarily occur without negligence.
Informed consent is a principle in medical ethics, medical law and media studies, that a patient must have sufficient information and understanding before making decisions about their medical care. Pertinent information may include risks and benefits of treatments, alternative treatments, the patient's role in treatment, and their right to refuse treatment. In most systems, healthcare providers have a legal and ethical responsibility to ensure that a patient's consent is informed. This principle applies more broadly than healthcare intervention, for example to conduct research and to disclose a person's medical information.
In law, a reasonable person, reasonable man, or the man on the Clapham omnibus, is a hypothetical person whose character and care conduct, under any common set of facts, is decided through reasoning of good practice or policy. It is a legal fiction crafted by the courts and communicated through case law and jury instructions. In some practices, for circumstances arising from an uncommon set of facts, this person represents a composite of a relevant community's judgement as to how a typical member of that community should behave in situations that might pose a threat of harm to the public.
Medical malpractice is professional negligence by act or omission by a health care provider in which the treatment provided falls below the accepted standard of practice in the medical community and causes injury or death to the patient, with most cases involving medical error. Claims of medical malpractice, when pursued in US courts, are processed as civil torts. Sometimes an act of medical malpractice will also constitute a criminal act, as in the case of the death of Michael Jackson.
In common law, battery is a tort falling under the umbrella term 'trespass to the person'. Entailing unlawful contact which is directed and intentional, or reckless and voluntarily bringing about a harmful or offensive contact with a person or to something closely associated with them, such as a bag or purse, without legal consent.
In tort law, the standard of care is the only degree of prudence and caution required of an individual who is under a duty of care.
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 is an English tort law case that lays down the typical rule for assessing the appropriate standard of reasonable care in negligence cases involving skilled professionals such as doctors. This rule is known as the Bolam test, and states that if a doctor reaches the standard of a responsible body of medical opinion, they are not negligent. Bolam was rejected in the 2015 Supreme Court decision of Montgomery v Lanarkshire Health Board in matters of informed consent.
In United States and Canadian law, competence concerns the mental capacity of an individual to participate in legal proceedings or transactions, and the mental condition a person must have to be responsible for his or her decisions or acts. Competence is an attribute that is decision-specific. Depending on various factors which typically revolve around mental function integrity, an individual may or may not be competent to make a particular medical decision, a particular contractual agreement, to execute an effective deed to real property, or to execute a will having certain terms.
Reibl v Hughes [1980] 2 S.C.R. 880 is a leading decision of the Supreme Court of Canada on negligence, medical malpractice, informed consent, the duty to warn, and causation.
Health law is a field of law that encompasses federal, state, and local law, rules, regulations and other jurisprudence among providers, payers and vendors to the health care industry and its patients, and delivery of health care services, with an emphasis on operations, regulatory and transactional issues.
Tort reform consists of changes in the civil justice system in common law countries that aim to reduce the ability of plaintiffs to bring tort litigation or to reduce damages they can receive. Such changes are generally justified under the grounds that litigation is an inefficient means to compensate plaintiffs; that tort law permits frivolous or otherwise undesirable litigation to crowd the court system; or that the fear of litigation can serve to curtail innovation, raise the cost of consumer goods or insurance premiums for suppliers of services, and increase legal costs for businesses. Tort reform has primarily been prominent in common law jurisdictions, where criticism of judge-made rules regarding tort actions manifests in calls for statutory reform by the legislature.
In re A.C., 573 A.2d 1235 (1990), was a 1987 District of Columbia Court of Appeals case. It was the first appellate court case decided against forced Caesarean sections, although the decision was issued after the fatal procedure was performed. Physicians performed a Caesarean section upon patient Angela Carder without informed consent in an unsuccessful attempt to save the life of her baby. The case stands as a landmark in United States case law establishing the rights of informed consent and bodily integrity for pregnant women.
Aetna Health Inc. v. Davila, 542 U.S. 200 (2004), was a United States Supreme Court case in which the Court limited the scope of the Texas Healthcare Liability Act (THCLA). The effective result of this decision was that the THCLA, which held Case Management and Utilization Review decisions by Managed Care entities like CIGNA and Aetna to a legal duty of care according to the laws of The State of Texas could not be enforced in the case of Health Benefit plans provided through private employers, because the Texas statute allowed compensatory or punitive damages to redress losses or deter future transgressions, which were not available under ERISA § 1132. The ruling still allows the State of Texas to enforce the THCLA in the case of Government-sponsored (Medicare, Medicaid, Federal, State, Municipal Employee, etc., Church-sponsored, or Individual Health Plan Policies, which are saved from preemption by ERISA. The history that allows these Private and Self-Pay Insurance to be saved dates to the "Interstate Commerce" power that was given the federal Government by the Supreme Court. ERISA, enacted in 1974, relied on the "Interstate Commerce" rule to allow federal jurisdiction over private employers, based on the need of private employers to follow a single set of paperwork and rules for pensions and other employee benefit plans where employers had employees in multiple states. Except for private employer plans, insurance can be regulated by the individual states, and Managed Care entities making medical decisions can be held accountable for those decisions if negligence is involved, as allowed by the Texas Healthcare Liability Act.
Wrongful birth is a legal cause of action in some common law countries in which the parents of a congenitally diseased child claim that their doctor failed to properly warn of their risk of conceiving or giving birth to a child with serious genetic or congenital abnormalities. Thus, the plaintiffs claim, the defendant prevented them from making a truly informed decision as to whether or not to have the child. Wrongful birth is a type of medical malpractice tort. It is distinguished from wrongful life, in which the child sues the doctor.
Madrigal v. Quilligan was a federal class action lawsuit from Los Angeles County, California, involving sterilization of Latina women that occurred either without informed consent, or through coercion. Although the judge ruled in favor of the doctors, the case led to better informed consent for patients, especially those who are not native English speakers.
Sterilization law is the area of law, that concerns a person's purported right to choose or refuse reproductive sterilization and when a given government may limit it. In the United States, it is typically understood to touch on federal and state constitutional law, statutory law, administrative law, and common law. This article primarily focuses on laws concerning compulsory sterilization that have not been repealed or abrogated, i.e. are still good laws, in whole or in part, in each jurisdiction.
Medical malpractice is a legal cause of action that occurs when a medical or health care professional, through a negligent act or omission, deviates from standards in their profession, thereby causing injury or death to a patient. The negligence might arise from errors in diagnosis, treatment, aftercare or health management.
Montgomery v Lanarkshire Health Board [2015] UKSC 11 is a Scottish delict, medical negligence and English tort law case on doctors and pharmacists that outlines the rule on the disclosure of risks to satisfy the criteria of an informed consent. The Supreme Court departed and overruled the earlier House of Lords case in Sidaway v Board of Governors of the Bethlem Royal Hospital, in reconsidering the duty of care of a doctor towards a patient on medical treatment. The case changed the Bolam test to a greater test in medical negligence by introducing the general duty to attempt the disclosure of risks.
Salgo v. Leland Stanford Jr. University Board of Trustees was a 1957 court case that helped to establish what the practice of informed consent was supposed to look like in the practice of modern medicine. This was evaluated with respect to the California Court of Appeals case where Martin Salgo sued the trustees of Stanford University and Stanford physician Dr. Frank Gerbode for malpractice as he claimed that they did not inform him nor his family of the details and risks associated with an aortogram which left him permanently paralyzed in his lower extremities.
References
- 1 2 3 4 5 6 7 Roberts, Sam "Jerry Canterbury, Whose Paralysis Led to Informed Consent Laws, Is Dead at 78," New York Times, May 16, 2017.
- 1 2 Meisel, Alan. “Canterbury v. Spence: The Inadvertent Landmark Case.” Health Law & Bioethics: Cases in Context.”
- 1 2 Langer, Emily (April 8, 2023). "Jerry Canterbury, paralyzed plaintiff in lawsuit that established 'informed consent,' dies at 78". Washington Post. ISSN 0190-8286 . Retrieved June 20, 2023.
- 1 2 "רשלנות רפואית בניתוח". August 3, 2023. Monday, April 27, 2020
- 1 2 Langer, Emily, "Court ruling in his case established doctrine of informed medical consent", The Washington Post, May 21, 2017, p. C8.
- ↑ See, e.g., Editorial, "On telling dying patients the truth", Journal of Medical Ethics, 1982 (8): 115-116, treating the argument that the duty to "do no harm" can include not adding to the woes of a terminally ill patient, among other justifications.
- ↑ Murphy, Walter J Jr., Canterbury v. Spence—the case and a few comments The Forum (Section of Insurance, Negligence and Compensation Law, American Bar Association) Vol. 11, No. 3 (Spring 1976), pp. 716-726
- ↑ "NYC Medical Malpractice". June 22, 2023.