Negligence Claims Research Articles

“And Justice for All”: Modifying the Ninth Circuit’s <em>Feres</em> Doctrine Test to Reduce Service Member Inequity

In 1946, the Federal Tort Claims Act (FTCA) waived what was once absolute: federal sovereign immunity for government-caused torts. Nevertheless, the Supreme Court’s Feres doctrine declines to extend the FTCA’s immunity waiver to certain tort claims of military service members. The doctrine precludes petitioners who have suffered an injury incident to their military service from bringing a negligence claim against the government. Its origins are not without controversy and modern courts often have trouble applying it in an equitable manner. In 2021, for example, the U.S. Navy negligently contaminated the drinking water supply of thousands of civilians and service members on the island of Oahu. Although recent case law applying the FTCA to drinking water-related torts indicates a willingness to allow some of these claims to proceed, that willingness has not been extended to service members due to the Feres doctrine. This Note argues that the Feres doctrine is inequitable because it excludes service members’ injuries in an overbroad manner. Further, this Note proposes a modified Feres test based on the Ninth Circuit’s interpretation of the doctrine to promote equity and applies it to the Navy’s actions on Oahu.

Descriptive analysis of medical negligence claims in septicemia patients: a review of Indian National Consumer Court judgments

Abstract Background, Aims, and Objectives: Patients admitted to intensive care units are at a higher risk of experiencing medical errors and have an increased likelihood of developing septicemia. Due to the high mortality associated with sepsis, doctors are more frequently sued for negligence. Patients alleging medical negligence in India can seek compensation through the National Consumer Dispute Redressal Commission (NCDRC). This study aims to analyze NCDRC cases where patients suffering from septicemia filed for negligence. In medical negligence cases filed by patients suffering from Septicemia, the objective is to find out the court’s outcome/verdict, the pattern of monetary compensation involved in the case, the legal standard of accepted care in the management of septicemia, and ways in which doctors can protect themselves from negligence claims, etc. Materials and Methods: This is a record review study in which judgments were obtained from www.scconline.com. The final analysis included cases where patients were diagnosed with sepsis based on medical records or postmortem reports. Qualitative data is presented as percentages, while quantitative data is expressed as a median with an interquartile range. Fisher’s exact test was used to compare qualitative variables. Results: A total of 34 judgments met the inclusion criteria, with the court ruling in favor of doctors in only eight cases. Surgical intervention (11 cases, 32.3%) was the most common cause of sepsis, followed by abdominal infection (14.7%). The outcome of the cases was not influenced by whether the doctor or patient initiated the lawsuit (Fisher exact probability = 0.49). Conclusion: The NCDRC found doctors negligent in most cases where patients with septicemia sued. Eventful surgery was identified as the most common cause of sepsis. The study suggests that doctors can protect themselves by promptly diagnosing post-surgical injuries to intra-abdominal organs and preventing the spread of local infections.

The 'Reasonable Patient' of 2027: A Vision Paper.

The verdict of the UK Supreme Court in the case of Bellman versus Boojum-Snark Integrated Care Trust (2027) will have profound implications for medical practice, medical education, and medical research, as well as the regulation of medicine and allied healthcare fields. Major changes will result from the definition of person-centred care built into the expanded definition of informed and preference-based consent central to the judgment made in favour of Bellman's negligence claim. (For the avoidance of doubt this is a vision paper.).

Unleashing the anticipatory reasonable adjustment duty: University of Bristol v Abrahart (EHRC intervening) [2024] EWHC 299 (KB)

On 14 February 2024, the High Court upheld the decision of the Bristol County Court in University of Bristol v Dr Robert Abrahart. Ms Abrahart, a physics undergraduate, took her own life in April 2018, the morning before she was meant to deliver an oral presentation. The claim brought by Ms Abrahart’s father was that in failing to remove or adjust the requirement for oral assessments, the University had discriminated against her on the basis of her disability. The High Court upheld the discrimination claims under the Equality Act 2010 while dismissing the claim in negligence on the basis that the University did not owe Ms Abrahart a common law duty of care. This note discusses the contrasting moves made by the High Court in, on the one hand, lowering the bar for finding a breach of the anticipatory reasonable adjustment duty, and on the other hand, raising the bar for finding an assessment method to be a ‘competence standard’ set by universities. Although arising in relation to the very specific facts of this case, the implications of the ruling in Abrahart are far reaching.

How current law and policy supports providers of NHS healthcare in England to respond to patient harm: A scoping review protocol.

Harm arising from National Health Service (NHS) healthcare results in significant human cost for the patient, those who care for them, and the medical staff involved. Furthermore, patient harm results in substantial financial costs to the public purse. Improving how NHS providers in England respond to patient harm could reduce the number of claims for clinical negligence brought against NHS. Doing so will ensure those affected receive the justice they deserve and protect the public purse. Law and policy are key to supporting providers of NHS healthcare to respond to patient harm but are not necessarily understood and therefore can be challenging to apply to practice. Research exploring how law and policy supports this understanding is limited. The purpose of this scoping review is to address this knowledge gap and improve understanding by critically evaluating how law and policy supports providers of NHS healthcare in England to respond to patient harm. The review will use the methodological framework proposed by Arskey and O'Malley, Levac et al and the Joanna Briggs Institute. Search strategies will be developed using selected key words and index terms. MEDLINE, CINAHL, and Westlaw and reference lists of relevant publications will be searched to identify relevant grey literature. Two reviewers will independently assess the extracted data against the eligibility criteria. All studies identified will be charted and the results presented as a narrative synthesis.

Court rejects employee claim of negligence

Negligent supervision

Analysis on Medical Negligence Under Consumer Protection Act 2019 and Indian Contract Act 1872

Medical negligence occurs when medical care providers fail to fulfil their professional obligations. All healthcare practitioners must provide a standard of care to their patients. It may be considered medical negligence if they don't fulfil that duty. When patients go to a doctor, they expect to receive medical care using all of the doctor's expertise to solve their medical issues. The arrangement retains the fundamental components of a tort while taking the form of a contract. A physician has obligations to his patients, and any carelessness on the part of the physician may give rise to legal action. Before performing diagnostic procedures or administering therapeutic care, the physician must get the patient's informed consent. The Consumer Protection Act of 1986 covers the services provided by doctors, and patients can file complaints with the Consumer Courts for resolution. Case laws are a valuable resource law for resolving different issues. Before the adoption of the Consumer Protection Act, claims of medical negligence were made under Contract law, and even today, damages can be made under civil law ; however, since implementing the Consumer Protection Act, the civil law remedy has become less critical. The doctor and the patient have a specific relationship, which can be oral, written, or implicit agreements agreed upon by the patient or his representatives and the doctor or hospital. Anyone who has suffered losses due to a doctor's negligence can register a complaint with the appropriate authority. Despite this, the council can sanction the doctor and revoke their registration for their careless actions, but it cannot compensate the victim of such misbehaviour. The Indian Medical Council has enforced stricter measures to raise the bar for medical ethics and practice standards for the past few years.

Exploring the Factors that Drive Clinical Negligence Claims: Stated Preferences of Those Who Have Experienced Unintended Harm.

Better understanding of the factors that influence patients to make a financial claim for compensation is required to inform policy decisions. This study aimed to assess the relative importance of factors that influence those who have experienced a patient safety incident (PSI) to make a claim for compensation. Participants completed an online discrete choice experiment (DCE) involving 10 single profile tasks where they chose whether or not to file a claim. DCE data were modelled using logistic, mixed logit and latent class regressions; scenario analyses, external validity, and willingness to accept were also conducted. A total of 1029 participants in the United Kingdom responded to the survey. An appropriate apology and a satisfactory investigation reduced the likelihood of claiming. Respondents were more likely to claim if they could hold those responsible accountable, if the process was simple and straightforward, if the compensation amount was higher, if the likelihood of compensation was high or uncertain, if the time to receive a decision was quicker, and if they used the government compensation scheme. Men are more likely to claim for low impact PSIs. The actions taken by the health service after a PSI, and people's perceptions about the probability of success and the size of potential reward, can influence whether a claim is made. Results show the importance of giving an appropriate apology and conducting a satisfactory investigation. This stresses the importance around how patients are treated after a PSI in influencing the clinical negligence claims that are made.

Consent with complications in mind

Parity of esteem describes an aspiration to see mental health valued as much as physical. Proponents point to poorer funding of mental health services, greater stigma and poorer physical health...

Did court dismiss football player's negligence claim?

A first‐year football player at Ithaca College signed an “acknowledgment of risk form,” acknowledging the risk of head injury and concussion during football activities. Shortly thereafter, the football player participated in preseason football practices with other first‐year players. He was identified as a “top prospect” and asked to participate in practice sessions with the returning players.

Closing off the Warren of Negligence Claims for Data Breaches

Closing off the Warren of Negligence Claims for Data Breaches

Informed consent in neurosurgery - Evaluation of current practice and implementation of future strategies.

In recent times, clinical negligence claims against National Health Service hospitals have doubled, with 8% of claims being made due to "failure to warn/informed consent." This study aimed to assess the current compliance of the neurosurgical division within a large tertiary neuroscience center with the national legal framework and professional guidelines around the issue of surgical consent and to develop strategies to improve the consent process. Electronic patient records (EPR) were accessed to collect demographic data and information regarding the surgical procedures. Telephone questionnaires were carried out. Neurosurgical registrars were interviewed. The author met with the trust's Legal team, the neuropsychology lead, and the trust's consent lead. Fifty-eight patients were included in the analysis. Of the respondents to the questionnaire, 98% felt that they were adequately informed during the consent process. When consenting patients, all registrars felt that they explained the reason for the procedure, detailed benefits, and major risks, including uncommon and rare risks. However, 50% admitted to not specifically discussing the postoperative recovery time or alternatives. Only 15% admitted to documenting on the EPR or through a letter to the patient's General Practitioner. Informed consent is a delicate moment of communication between a clinician and the patient. Regular training and good communication skills help staff to focus on the most relevant aspects of consent, which should be delivered in an appropriate environment and with family support. Audio-visual aids can support the process but do not replace good communication.

Achieving True Strict Product Liability (But Not For Plaintiffs With Fault)

Under modern tort law, the “strict” product liability cause of action does not impose true strict liability (liability without fault). This Article suggests that this counterintuitive development is not the byproduct of a policy choice. Instead, an unresolved doctrinal difficulty is responsible for the modern requirement that a plaintiff prove fault before winning on a “strict” product liability claim. The doctrinal difficulty is this: How can tort law impose liability on faultless product manufacturers while simultaneously preventing plaintiffs with fault from being able to recover under a true strict liability standard? This Article posits that both results are desirable—true strict product liability, but not for plaintiffs with fault—but that it is analytically difficult to assemble tort doctrine to get both results. Without a doctrinal solution that allows for both results, courts have (mostly) retreated from a true strict product liability standard. This Article offers a simple solution to this analytical/doctrinal riddle: Restoring the strict product liability cause of action such that it truly imposes liability without fault, while allowing defendants a contributory negligence (flat-bar) defense to this strict liability claim. Under this doctrinal change, plaintiffs without fault would be able to recover from manufacturers on a true strict product liability claim. Plaintiffs with fault, however, would be forced to pursue a negligence claim, meaning that their ability to recover would require them to show that the defendant also had fault. This doctrinal fix uses tools and concepts already familiar to modern tort law and is thus easily achievable. In fact, all that is necessary to effectuate this result is a simple, minor change to the current comparative fault jury instructions used in most jurisdictions.

Are Medical Records Truly Prepared for Malpractice Liability in Cases of Suicide?

The most common reason for a malpractice claim is suicide or attempted suicide. It is argued that suicide can be prevented if the danger is recognized and proper and timely treatment is provided. Failure to make an informed decision as to whether to admit an individual to a psychiatric unit generally constitutes the initial breach in a claim of negligence. The present study was designed to identify exactly what essential data was missing from files of completed suicides, using 39 medical case records of the risk-management files of the state-owned malpractice insurance company between 2004 and 2022 in Israel. We found that a great deal of important information was missing from those files (e.g., records of previous suicide attempts, documentation of disagreement between the emergency department and the patient as to whether the individual should be hospitalized, and information regarding a history or lack thereof of suicidal tendencies in the individuals immediate family). Our study demonstrates that lacking the proper documentation of vital patient history, allegations of negligence would be very difficult to disprove.

Responsibility of Financial Institutions as Potential Intermediaries of Fraud and the Cheapest Cost Avoider Principle

Generally, a bank may owe a duty of care towards its customers in a negligence claim. In a recent case of Koperasi Sahabat Amanah Ikhtiar Bhd v RHB Investment Bank Bhd, the Court of Appeal extended the duty of care of banks to non-customers. This new ruling has a significant impact on the bank to ensure that the bank will exercise reasonable skill and care in performing its duties to both customers and non-customers. The fact that a contractual relationship does not exist is not a bar to establish a duty of care in negligence claims. The principle of cheapest cost avoider is consistent with the doctrinal approach taken by the Court of Appeal in affirming the duty of care of financial institutions since financial institutions are most likely in the best position to deter fraud and minimise losses due to such over-sight. It is also suggested that such duty should also be applied to other deposit-taking financial institutions such as electronic wallet providers against unauthorised transfer for funds from account holders.

Current thinking about medicolegal aspects of temporomandibular joint surgery

This paper considers the current situation regarding medicolegal risks in temporomandibular joint surgery from three perspectives: the law, the patient, and the surgeon. The law relating to successful claims of clinical negligence requires that a cause-and-effect relationship is demonstrated by the claimant. Complications are considered in the light of recent research on their stratification in other fields of surgery. Surgeons become repeat offenders rarely. They display certain common characteristics which are discussed in this paper.

Delay and settlement: The disposition of medical negligence claims in Ireland

AbstractReflecting the international experience, statistics show that most medical negligence cases in Ireland settle. Less is known, however, about the duration of these cases, though anecdotal evidence suggests that they are protracted in nature. Procedurally focused reforms, aimed at reducing costs and facilitating more expedient resolution of these disputes have been proposed in Ireland, yet await implementation. As such, the pace of litigation is largely determined by the parties to the dispute. Drawing on the findings of an empirical study (an analysis of closed case files and qualitative interviews), this article explores two questions: first, how long do medical negligence cases take to resolve; and secondly, what contributes to delay in this context. Whilst causes of delay may vary by case, it is important to attempt to identify and explore common factors which contribute to delay. If these factors can be problematised and understood, possible solutions may be reached. In doing so, the article contributes to the debate on medical negligence reform across common law jurisdictions, evidencing the broader considerations, in addition to procedurally focused reforms, which are required when considering the issue of delay.

Advocating for mediation as a way to de-escalate conflict, with a focus on medico-legal claims: The anatomy of human conflict

The incidence and extent of medico-legal claims in South Africa has increased exponentially over the past number of years. Conventionally, medical negligence claims follow the civil litigation route, while alternative, perhaps better-suited, dispute resolution techniques and mechanisms are seldom considered. Where the occasional disputant does opt for mediation instead of civil litigation, mediators are not adequately versed in the human behavioural factors of conflict, even though these are crucial in establishing an appropriate strategy to de-escalate conflict and achieve settlement. Paying particular attention to medical negligence claims, this article draws on interdisciplinary sources to propose practical guidelines for mediators, whether existing or aspirant, to develop their mediation styles and strategies with regard to the thought processes and psychological factors behind disputes. This occurs against the backdrop of the current failure by formal legal education and vocational training curriculums to equip lawyers and mediators with even a basic understanding of the anatomy of human conflict. Incorporating such teaching into our curriculums could go a long way towards greater and more effective use of mediation to settle disputes, instead of summarily opting for the adversarial, costly and time-consuming route of civil litigation.

The lived experiences of UK physiotherapists involved in Cauda Equina Syndrome litigation. A qualitative study.

Cauda Equina Syndrome is a serious spinal pathology, which can have life changing physical and psychological consequences and is highly litigious. Litigation can have negative personal and professional effects on the healthcare professionals cited in a clinical negligence claim. There is an absence of research looking at the experience of the physiotherapist and as such, it is unknown the impact litigation is having on them. This study explored the lived experiences of UK physiotherapists in relation to Cauda Equina Syndrome litigation. A qualitative design, informed by Gadamerian hermeneutic phenomenology, using semi-structured interviews was used to explore participants' lived experiences of litigation. Interviews were audio-recorded and transcribed verbatim. Findings were analysed using an inductive thematic analysis framework. Nvivo software was used to facilitate analysis. The study is reported in accordance with the consolidated criteria for reporting qualitative (COREQ) research. 40 interviews took place online or over the phone, with physiotherapists and stakeholders. Four themes were found; 'litigation effects', 'it feels personal', 'learning from litigation' and 'support and training'. This is the first study to investigate the lived experiences of litigation in UK physiotherapists. Involvement in clinical negligence affected physiotherapists' physical and mental wellbeing and impacted their clinical practice. Most physiotherapists felt litigation was a personal attack on them and their ability to do their job. Physiotherapists highlighted perceptions of a 'blame culture' and perceived stigma associated with the claim, which often led to a lack of sharing and learning from litigation. Physiotherapists emphasised the need for emotional support for those going through a legal claim and that training was needed to understand the process of litigation and range of potential outcomes.

Contrast Agent Administration as a Source of Liability: A Legal Database Analysis.

Background Radiology ranks high in terms of specialties implicated in medical malpractice claims. While most radiologists understand the risks of liability for missed findings or lapses of communication, liability for the use of contrast agents in imaging procedures may be underappreciated. Purpose To review the clinical context and outcomes of lawsuits alleging medical malpractice for contrast-related imaging procedures. Materials and Methods Two large U.S. legal databases were queried using the terms "Contrast" and "Radiology OR Radiologist" from database inception to October 31, 2022, to identify cases with published decisions or settlements related to medical malpractice in patients who underwent contrast-related imaging procedures. The search results were screened to include only those cases involving the practice area of health care law where there was at least one claim of medical negligence against a health care institution or provider. Data on the medical complications alleged by patients after contrast agent administration and on the trial were extracted and reported using descriptive statistics. Results A total of 151 published case summaries were included in the analysis. Anaphylactic reaction following contrast agent administration was the most common medical complication observed (30% [45 of 151 cases]), of which failure to diagnose developing anaphylaxis or failure to treat the anaphylactic reaction made up the majority of allegations (93% [42 of 45]). Inappropriate management of contrast media extravasation (27% [41 of 151]) and alleged contrast agent-induced acute kidney injury (13% [19 of 151]) were the next most frequent causes of lawsuits. Of the 11 cases of alleged kidney injury that went to trial, all resulted in a judgment in favor of the defense. Conclusion This study highlights the key reasons for medical malpractice lawsuits associated with use of contrast media and outcomes from these lawsuits. © RSNA, 2023 Supplemental material is available for this article. See also the editorial by Trop in this issue.