Medical Liability Research Articles

Lessons from the SARS-CoV-2 Pandemic: Perspectives in the Medico-Legal Field

Background: The SARS-CoV-2 pandemic led to an enormous global health, social and economic crisis. The pandemic caused considerable upheaval and considerable difficulties due to an unforeseen and devastating health condition. Materials and Methods: We discuss the numerous challenges encountered in the fields of forensic medicine and public health during the COVID-19 pandemic. Particularly during the first wave of the pandemic, forensic pathologists faced significant difficulties due to the lack of safe autopsy protocols and insufficient personal protective equipment. Mainly in Europe, they had to manage a substantial number of potential cases of medical liability related to COVID-19. The widespread outbreak of the virus in residential care homes and prisons posed another significant challenge. Furthermore, forensic pathologists had to address the issue of complications arising from vaccination campaigns. Conclusions: This article underscores the need for continued efforts in scientific research and healthcare preparedness to effectively manage such complex crises. Forensic pathologists must be equipped with the necessary resources and training to address unpredictable, complex situations with far-reaching social implications.

Učestalost odštetne odgovornosti kod povrede pravnog standarda dužne pažnje u pedijatriji kao zdravstvenoj djelatnosti

Objective: The phenomenology of legal practice records emergence of the entire industry of medical liability lawsuits or litigation on global level. Consequently, there has been an increasing trend of legal proceedings against health care providers. Relevant research shows that the risk of exposure to compensation claims for doctors in paediatrics is higher than in other areas of medicine.Methods: In order to determine whether the aforementioned global trend was also reflected in Croatian legal practice, this researchproduces a survey of the frequency of final judicial decisions on compensation claims due to medical errors in the period from 2019 to 2023. The research also took into account the strongest correlation factor: malpractice. Methodologically research encompassedcase law of domestic courts in the mentioned period recorded in the Ius info database and recorded the number of decisions on medical error and malpractice by year, then narrowing the results down to paediatric cases, i.e. cases where a decision was made on the existence of a paediatrician’s medical error.Results: A total of 54 decisions on the existence or non-existence of a medical error were observed in the relevant period, of which the largest number (31.5%) was recorded in 2021. The total number of decisions on malpractice is half that (N=26), with the highest frequency (27%) recorded in the first year of the observed period. In the entire period of interesr, only one decision refers to a paediatric case (N=1).Conclusions: The results of this research show that in Croatia there is no significant increase in the number of compensation claims for damages due to medical errors in paediatrics. In other words, the trend in the Republic of Croatia does not follow the trends of global legal practice in that area.

A Novel Method for Identifying Patients with High Risk of Litigation in Plastic Surgery: Introducing the FATIMA Acronym.

In recent years, there has been an upward tendency in the number of claims against Plastic Surgeons in some countries, while remaining among the most litigated specialists worldwide. Identifying the most frequent traits in Plastic Surgery claimants could aid surgeons in performing better patient selection and avoid liability. The three main legal databases in Spain were consulted for Plastic Surgery litigations in Spain over a five-year period. Data from the plaintiffs, defendants and judicial processes were collected. In addition, expert witnesses were interviewed and data from the main medico-legal association in Spain was collected. This data was contrasted with the available literature regarding litigation in Plastic Surgery worldwide. A total of 199 court resolutions were analyzed, two expert witnesses were interviewed and "The Patient's Advocate Association" of Spain was consulted. The most frequent traits observed in the plaintiffs were summarized in the acronym FATIMA that describes a Female patient using Antidepressants or Anxiolytics, presenting body Tattoos, suing after undergoing a breast surgery with the use of Implants, Middle-aged and with Access to free legal services. The use of the acronym FATIMA in the identification of patients with high risk of litigation in Plastic Surgery could aid surgeons in performing adequate patient selection and avoiding medical liability. This journal requires that authors assign a level of evidence to each article. For a full description of these Evidence-Based Medicine ratings, please refer to the Table of Contents or the online Instructions to Authors www.springer.com/00266 .

Generative artificial intelligence (GenAI) and decision-making: Legal & ethical hurdles for implementation in mental health

This article argues that significant risks are being taken with using GenAI in mental health that should be assessed urgently. It recommends that guidelines for using generative artificial intelligence (GenAI) in mental health care must be established promptly. Currently, clinicians using chatbots without appropriate approval risk undermining legal protections for patients. This could harm the patient and undermine the standards of the profession, undermining trust in an area where human involvement in decision-making is critical. To explore these concerns, this paper is divided into three parts. First, it examines the needs of patients in mental health. Second, it explores the potential benefits of GenAI in mental health and highlights the risks of its use as it pertains to patient needs. Third, it notes the ethical and legal concerns around data use and medical liability that require careful attention. The impact of the European Union's (EU) Artificial Intelligence Act (AI-Act) is also considered. It will be seen that these laws are insufficient in the context of mental health. As such, the paper recommends that guidelines should be developed to help resolve the existing legal gaps until codified rules are established.

The impact of globalization and technological development on medical liability

This paper explores the profound impact of globalization and rapid technological advancements on the evolving landscape of medical liability. It examines how increased patient mobility, cross-border healthcare, and the integration of technologies like telemedicine, artificial intelligence, and big data are reshaping the doctor-patient relationship and creating new legal and ethical challenges. The analysis delves into the complexities of jurisdiction, informed consent, data protection, and the division of responsibility in this new era of medicine. Furthermore, it discusses the need for adaptive legal frameworks, international cooperation, and continuous ethical reflection to ensure patient safety, uphold medical professional standards, and promote equitable access to healthcare in a globalized and technologically driven world.

Legal aspects of civil liability of healthcare professionals for violation of patients’ rights in the course of provision of medical services: current challenges and prospects for improvement of legislation

In today’s world, where the quality of medical services and patients’ rights are becoming increasingly important, the issue of civil liability of medical professionals is becoming extremely relevant. The article is devoted to a comprehensive study of the legal aspects of civil liability of healthcare professionals for violation of patients’ rights in the course of providing medical services in the context of current challenges and prospects for improving Ukrainian legislation. The article examines theoretical and practical issues related to the peculiarities of civil liability in the medical field. The legal basis for such liability, its forms and consequences are analysed. Particular attention is paid to the specifics of proof in medical cases and the problems faced by patients in defending their violated rights. The article analyses the judicial practice of consideration of cases involving violation of patients’ rights, identifies the main trends and problems of law enforcement. On the basis of this analysis, the author formulates proposals for improving the mechanisms of civil liability in the medical field. Special attention is paid to the new challenges facing the healthcare system in the context of technological progress and globalisation. The author examines the issues of liability in the use of telemedicine, artificial intelligence in diagnosis and treatment, as well as the problems of protecting patients’ personal data. Based on the study, the author proposes specific ways to improve Ukrainian legislation in the area of civil liability of medical professionals. In particular, the author considers the possibilities of introducing specialised rules on medical liability into the Civil Code of Ukraine, creating an effective system of pre-trial settlement of disputes in the medical field, and strengthening guarantees for the protection of patients’ rights. The article contains substantiated conclusions regarding the need for a systematic approach to reforming legislation in the area of civil liability of medical professionals. The author emphasises the importance of a balance between protection of patients’ rights and creation of favourable conditions for professional activity of healthcare professionals.

The Virtual Physician: Clarifying Medical Liability Issues in the Use of Remote Patient Monitoring

More than ever before, information and communication technologies are playing an important role in the provision of health care services. As a form of telehealth, remote patient monitoring (RPM) uses information technologies and telecommunication tools to collect health data from patients outside of traditional health care institutional settings and transmit the data to health care providers for monitoring and evaluation. There are many challenges to RPM’s greater implementation in health care, including the potential for risk of harm for patients, and uncertainty regarding the liability of physicians utilizing RPM. Uncertain medical liability may have a chilling effect on the greater clinical use of RPM. To date, medical liability issues regarding RPM have not been addressed by courts and there is a paucity of literature on the topic. This article attempts to clarify some of the liability issues raised by RPM. To help guide physicians in their use of RPM, I propose the adoption of professional guidelines specific to RPM that courts can use in determining whether physicians have breached relevant standards of practice. Furthermore, by providing evidence-based standards, guidelines can mitigate risks of patient injury and reduce physicians’ reticence to adopt RPM.

Medical Liability for Omission under the Portuguese Criminal Law: A Critical Eye on Portuguese Jurisprudence

In the Portuguese legal system, criminal liability for omission can be conducted by the legal category that criminalises omission in itself, regardless of the result, or operate by equating omission with action. This is enshrined in section 10 of the Penal Code, as long as the omitting person has a personal legal duty to act as guarantor (section 10, no. 2). In medical criminal liability, the framework for a hypothetical omission by an on-duty doctor in emergency services has been controversial. In our legal system, section 284 of the Penal Code expressly stipulates that a doctor’s refusal to administer care be punishable conduct. On the other hand, it is possible that the doctor on duty in the emergency room of a hospital has a personal legal duty to act as a guarantor, arising from the contract that binds him/her to the hospital. Thus, it is necessary to affirm a subsidiarity relation between the mechanism of equating omission with action resulting from section 10 of the Penal Code and incrimination under section 284 of the Penal Code. However, this has not been the major understanding of the jurisprudence of the Portuguese courts on this subject. For instance, when the refusal of assistance by a doctor causes the death of a patient, instead of convicting the doctor for homicide by omission (section 131 of the Portuguese Penal Code, ex vi section 10, numbers 1 and 2), courts are convicting as per section 284 – refusal of the medical doctor to provide medical assistance. The present work aims to critically present this jurisprudence, state the legal and doctrinal foundations that justify the inclusion of these hypotheses within the scope of crimes committed by omission and point out the practical importance of choosing this solution. Keywords: Omission; Committed by omission; Medical liability; Duty to act as guarantor.

Case C-307/22: The GDPR Fine Line Between Access and Abuse

Abstract: It stands as a common practice for service providers to collect the personal data of clients or patients. At the same time, it becomes just as common for thee data subjects to have access to what is stored about them, sometimes via a “data subject access request”, as the GDPR names it in Article 15. In this context, Case C-307/22 (founded on such a request from a patient against their dentist) delineated when abusive data subject access requests occur, including the limits of the data controller’s refusal to comply with it or the decision to charge for the act of complying.As part of the case, the CJEU pinpointed the solution for the conflict between the GDPR and the German data protection implementation law, the reiteration of Recitals’ value in terms of GDPR applicability and the right of access as a tool in triggering medical liability. Correspondingly, the case note will explore the repercussions of this case at both doctrinal and legislative level, since the decision’s interpretation may come into conflict with national data protection laws.On this point,Greece and France will be the relevant jurisdictions for the analysis, since Article 12 of the GDPR was slightly amended in their data protection laws by introducing the concept of “abusive” requests. Furthermore, the implications towards Private Lawwill also be addressed, with particular focus onContract Law, Property LawandTort Law.Substantially, the case note depicts how inconsistency may arise from attempted consistency, compelling the data protection legal apparatus to restructuring.

Professional Medical Liability

Professional Medical Liability

Physician-Modified Endografts for Repair of Complex Abdominal Aortic Aneurysms: Clinical Perspectives and Medico-Legal Profiles.

Standard endovascular aortic repair (EVAR) has become the standard of care for treating infrarenal abdominal aortic aneurysms (AAAs) in patients with favorable anatomies, while patients with challenging AAA anatomies, and those with suprarenal or thoraco-abdominal aneurysms, still need alternative, more complex, solutions, including custom-made branched or fenestrated grafts, which are constrained by production delay and costs. To address urgent needs and complex cases, physicians have proposed modifying standard endografts by manually creating graft fenestrations. This allows for effective aneurysm exclusion and satisfactory patency of visceral vessels. Although physician-modified grafts (PMEGs) have demonstrated high technical success, standardized creation processes and long-term safety data are still lacking, necessitating further study to validate their clinical and legal standing. The aim of this article is to illustrate the state of the art with regard to this surgical technique, summarizing its origin, evolution, and the main clinical evidence supporting its effectiveness. The paper also aims to discuss the main medico-legal issues related to the use of PMEGs, with particular reference to the issue of safety related to the standardization of the surgical technique, medical liability profiles, and informed consent.

AI in Radiology: Navigating Medical Responsibility.

The application of Artificial Intelligence (AI) facilitates medical activities by automating routine tasks for healthcare professionals. AI augments but does not replace human decision-making, thus complicating the process of addressing legal responsibility. This study investigates the legal challenges associated with the medical use of AI in radiology, analyzing relevant case law and literature, with a specific focus on professional liability attribution. In the case of an error, the primary responsibility remains with the physician, with possible shared liability with developers according to the framework of medical device liability. If there is disagreement with the AI's findings, the physician must not only pursue but also justify their choices according to prevailing professional standards. Regulations must balance the autonomy of AI systems with the need for responsible clinical practice. Effective use of AI-generated evaluations requires knowledge of data dynamics and metrics like sensitivity and specificity, even without a clear understanding of the underlying algorithms: the opacity (referred to as the "black box phenomenon") of certain systems raises concerns about the interpretation and actual usability of results for both physicians and patients. AI is redefining healthcare, underscoring the imperative for robust liability frameworks, meticulous updates of systems, and transparent patient communication regarding AI involvement.

American Shoulder and Elbow Surgeons perspectives on political advocacy

BackgroundPhysician involvement in political advocacy has become increasingly important in recent years. This study aims to explore the types of involvement and barriers to involvement in political advocacy among American Shoulder and Elbow Surgeons (ASES) members, identify issues considered most important by ASES members, and assess demographic factors that might correlate with involvement in political advocacy efforts among ASES members. MethodsThis survey was conducted by the ASES Political Advocacy Committee over a two-week period in June 2021. The survey collected demographic information including sex, ethnicity, years in practice, practice type, political affiliation, and level of current involvement in political advocacy. Additional questions consisted of thoughts regarding current health care policy issues and the role of the American Academy of Orthopaedic Surgeons (AAOS)/ASES regarding such policy issues. ResultsWe received 297 responses for a total response rate of 27%. Of those who responded, 24.6% identified as Democrat, 33% identified as Republican, and 42.4% identified as Independent. There was no difference in political affiliation between membership groups. Physician Reimbursement (82%), Medical Liability Reform (50%), and Physician Ownership (50%) were the most important issues identified among respondents. Physician Ownership, Physician Reimbursement and GME and Student Loan Reform were most important to those in early practice, while Quality and Research was most important to those with greater than 25 years of practice experience. ConclusionThere is strong agreement among surgeons regarding the most important political advocacy issues. The efforts of the AAOS and ASES should focus on these areas. Additionally, the vast majority of respondents felt that advocacy efforts had a positive impact on patients and surgeons.

Recent Trends in the Cases Analysis of Medical Liability on Urology since

Recent Trends in the Cases Analysis of Medical Liability on Urology since

INTERSECTING MEDICAL AND LEGAL RESPONSIBILITIES IN INDONESIA

The primary objective of this research is to illuminate the evolution of medical responsibility in Indonesia over time. By examining the complex interplay between law and medicine, social transformations, medical advancements, and shifting legal perspectives, this study seeks to enhance understanding of medical responsibility in Indonesia. Utilizing an interdisciplinary approach grounded in the "Social Construction of Technology" (SCOT) theory, the research employs historical analysis to trace the origins of medical responsibility, its evolution, and the impact of various legal frameworks and cultural shifts in medicine. The study integrates qualitative data from legal and medical sources to provide a comprehensive view. Findings reveal that the evolution of medical responsibility in Indonesia is closely tied to the adoption of, and subsequent resistance to, entrenched notions within medical discourse. The research identifies a trend towards greater judicial independence from traditional medical narratives and an increased willingness to scrutinize established medical practices, particularly in the context of technological advancements. By situating these developments within Indonesia's historical and cultural context, this research enriches the understanding of medical liability's progression and ongoing transformation within a dynamic healthcare landscape. It addresses gaps in existing literature and offers a nuanced perspective on the interaction between law and medicine concerning medical liability.

Fault–Based Liability for Medical Malpractice in the Age of Artificial Intelligence: Α Comparative Analysis of German and Greek Medical Liability Law in View of the Challenges Posed by AI Systems

Fault–Based Liability for Medical Malpractice in the Age of Artificial Intelligence: Α Comparative Analysis of German and Greek Medical Liability Law in View of the Challenges Posed by AI Systems

Cross-sectional analysis of state and federal malpractice and medical liability claims for cutaneous energy-based device procedures, 1985 to 2023

Cross-sectional analysis of state and federal malpractice and medical liability claims for cutaneous energy-based device procedures, 1985 to 2023

The Nature of the Plastic Surgeon’s Commitment in the Jordanian Medical Liability Law No. 25 of 2018

Objectives: As long as the conditions for therapeutic medical intervention are met, it falls under the umbrella of justifications that shield the doctor from responsibility. However, this does not mean it does not absolve him for violating the obligation he is under. Therefore, this essay tries to clarify and provide insight into the nature this obligation means in general and for the plastic surgeon specifically. Similarly, the basis of the medical service provider's criminal responsibility was discussed and determined, namely whether to achieve result or taking care. Methods: To address the research challenge, the study adopted a descriptive approach by demonstrating the nature of the Jordanian Medical Liability Law and jurisprudence's plastic surgeon commitment. It also adopted an analytical approach to analyze and discuss relevant texts and jurisprudence. Results: According to the study's findings, the doctor's overall obligation to undertake care, given the nature of certain obligations, but in the absence of the accompanying element of likelihood makes the obligation an obligation to achieve an outcome. A plastic surgeon's commitment, on the other hand, has evolved over time as legislation, technology, and social developments have affected the demand for plastic surgeries. As a result, the plastic surgeon's commitment resembled the commitment to exercise special care, reflecting a recent developments in the context of criminal responsibility for plastic surgeons. Conclusions: Since establishing criminal liability is of crucial importance, the essay suggests establishing the responsibility of a surgeon in the law of medical and health responsibility and not allowing it to be left up to diligence and debate.

The Commitment to Inform the Patient According to the Jordanian Medical Liability Law of 2018

The Commitment to Inform the Patient According to the Jordanian Medical Liability Law of 2018

Artificial intelligence in healthcare: an Italian perspective on ethical and medico-legal implications.

Artificial intelligence (AI) is a multidisciplinary field intersecting computer science, cognitive science, and other disciplines, able to address the creation of systems that perform tasks generally requiring human intelligence. It consists of algorithms and computational methods that allow machines to learn from data, make decisions, and perform complex tasks, aiming to develop an intelligent system that can work independently or collaboratively with humans. Since AI technologies may help physicians in life-threatening disease prevention and diagnosis and make treatment smart and more targeted, they are spreading in health services. Indeed, humans and machines have unique strengths and weaknesses and can complement each other in providing and optimizing healthcare. However, the healthcare implementation of these technologies is related to emerging ethical and deontological issues regarding the fearsome reduction of doctors' decision-making autonomy and acting discretion, generally strongly conditioned by cognitive elements concerning the specific clinical case. Moreover, this new operational dimension also modifies the usual allocation system of responsibilities in case of adverse events due to healthcare malpractice, thus probably imposing a redefinition of the established medico-legal assessment criteria of medical professional liability. This article outlines the new challenges arising from AI healthcare integration and the possible ways to overcome them, with a focus on Italian legal framework. In this evolving and transitional context emerges the need to balance the human dimension with the artificial one, without mutual exclusion, for a new concept of medicine "with" machines and not "of" machines.