Subsequent Appeals Research Articles

Medical Malpractice Litigation Trends Following Primary Total Hip and Knee Joint Arthroplasty: An Updated Nationwide Analysis

BackgroundTotal joint arthroplasty (TJA) is the most common procedure associated with malpractice claims within orthopaedic surgery. Although prior research has assessed prevalent causes and outcomes of TJA-related lawsuits before 2018, the dynamic healthcare environment demands regular re-evaluations. This study aimed to provide an updated analysis of the predominant causes and outcomes of TJA-related malpractice lawsuits and analyze the outcomes of subsequent appeals following initial jury verdicts. MethodsA legal database was queried for cases between 2018 and 2022 involving primary hip and knee TJA in the United States. Cases were listed as original rulings or appeals and reviewed for the alleged negligence, damages incurred, demographics, and verdicts. Appeals were further assessed for appellant details, preliminary judgment, and outcomes. The findings were compared to previous litigation data using descriptive statistics. ResultsThe final cohort comprised 59 cases: 33 (56%) total knee arthroplasty (TKA) and 26 (44%) total hip arthroplasty (THA). The TKA cases primarily cited pain (24%), while the THA cases cited nerve injuries (31%). Negligence largely stemmed from procedural error (47%), postsurgical error (27%), and failure to inform (14%). Case outcomes were in favor of the defense in 66% of cases. Overall, 90% of primary verdicts led to appeals, with 71% by the plaintiff. Initial rulings were upheld in 87% of plaintiff appeals, whereas 53% of defendant appeals retained the initial judgment. ConclusionsThe primary cause of litigation shifted from infection to ongoing/worsening pain in TKA cases over time. While nerve injury TKA cases have decreased, it remains the most cited damage after THA. Defense verdicts are common, but there is an increasing number of verdicts against defendants. Plaintiffs are more likely to appeal, but are less successful in appellate courts. These findings allow surgeons and policymakers to address emerging litigation trends in TJA to mitigate risks and improve the overall quality of TJA.

Rethinking the legal test for excessive pricing: insights from the landmark UK CMA v Pfizer/Flynn Case and its legal implications

Abstract The legal treatment of excessive pricing in the pharmaceutical sector has been a topic of intense debate. This article examines the UK Competition and Market Authority (CMA) approach in the Pfizer/Flynn case and the subsequent appeal. It explores the implications of the Courts’ findings on the CMA’s latest investigations. The article criticizes the UK Courts for imposing unnecessarily high burden on the CMA, which will likely impose additional burdens on future investigators. The analysis also suggests that the cost-plus test conducted by the CMA is a very advanced methodology that can provide different benchmarks not only for assessing the excessiveness but also for assessing the unfairness under the 2-fold United Brands test.

In Support of Industry-Conscious Disclosure Standards for Pharmaceutical and Biotechnology Patents

One of the fundamental requirements for a patent application is a disclosure of the invention via an accurate written description with sufficient detail to enable the recreation of the invention. The U.S. patent system has historically reviewed patent applications from various industries with a uniform set of requirements and standards. However, the biotechnology and pharmaceutical industries operate on notably extended product development timelines and face unique administrative pressures related to their products when compared with other industries. In response to these pressures, biotechnology and pharmaceutical companies have traditionally applied for patent protections through liberal use of genus claims and other strategies that allow for early and broad protection of groups of related products. However, three recent decisions by the Federal Circuit, and a subsequent appeal to the Supreme Court, have notably heightened patent disclosure requirements for technologies from these industries. This Comment discusses the Federal Circuit’s and Supreme Court’s decisions, compares these decisions to prior trends in the judiciary, and considers the potential impact of the decisions on the patent environment in the biotechnology and pharmaceutical industries. In light of the decisions’ potential impact on these industries, this Comment argues that the federal judiciary should align the disclosure standard more closely to the requirements of the Patent Act while protecting the usefulness of genus claims for the pharmaceutical and related industries.

Dutch dismissal practices: characteristics, consequences, and contrasts in residents' case law in community-based practice versus hospital-based specialties.

In the Netherlands, 2 to 10% of the residents terminate training prematurely. Infrequently, termination of training is by dismissal. Incidentally, residents may disagree, dispute and challenge these decisions from the programme directors. Resident dismissal is always a difficult decision, most commonly made after, repeated assessments, and triangulation of the resulting assessment data and one or more remediation attempts. Nevertheless, the underlying reasons for dismissal and the policies for remediation and dismissal may differ between training programmes. Such differences may however impact the chance of remediation success, the chance of dismissal and subsequent residents' appeals. We included a total of 70 residents from two groups (community-based and hospital-based specialties) during 10 years of appeals. Subsequently, we compared these groups on factors potentially associated with the outcome of the conciliation board decision regarding the residents' dismissal. We focused herein on remediation strategies applied, and reasons reported to dismiss residents. In both groups, the most alleged reason to dismiss residents was lack of trainability, > 97%. This was related to deficiencies in professionalism in community-based practice and medical expertise in hospital-based specialties respectively. A reason less frequently mentioned was endangerment of patient care, < 26%. However, none of these residents accused of endangerment, actually jeopardized the patients' health, probably due to the vigilance of their supervisors. Remediation strategies varied between the two groups, whereas hospital-based specialties preferred formal remediation plans in contrast to community-based practice. A multitude of remediation strategies per competency (medical expertise, professionalism, communication, management) were applied and described in these law cases. Residents' appeals in community-based practice were significantly less likely to succeed compared to hospital-based specialties. Hypothesised explanatory factors underlying these differences include community-based practices' more prominent attention to the longitudinal assessment of professionalism, the presence of regular quarterly progress meetings, precise documentation of deficiencies, and discretion over the timing of dismissal in contrast to dismissal in the hospital-based specialties which is only formally possible during scheduled formal summative assessment meetings.

Creativity — Narrativity — Fictionality: A Critical Genealogy

Abstract: The term “narrative” has become ubiquitous in public discourse, but to date little work has been done to explore how vitally it is related both historically and theoretically to another contemporary buzzword: creativity. By addressing this lacuna this essay seeks not only to illuminate the popularity of narrative as a mode of knowledge, but to shed new light on its relationship to another core concept in the field: fictionality. The essay argues that the narrative turn and the contemporary boom in instrumental storytelling have been facilitated by a lexical and semantic shift from narrative as artifact to narrative as process, and that this shift is the result of ongoing historical intersections with new secularized and democratized theories of creativity as a human faculty. By tracing this shift we can better understand the contested history of fictionality, particularly in relation to debates about the rise of the novel in the eighteenth century, and bring a new approach to the epistemological underpinings of the narrative turn in the academy and the subsequent popular appeal to personal storytelling in the networked public sphere.

The Jason Roberts case: A second or subsequent appeal process to correct miscarriages of justice?

The first re-trial under the second or subsequent appeal provisions introduced into the Criminal Procedure Act 2009 (Vic) has recently concluded, resulting in the acquittal of Jason Roberts for the 1998 murders of two Victoria Police officers. This article traces the various stages in Roberts’ efforts to have his conviction overturned, raising questions about the efficacy of the different mechanisms available for redressing miscarriages of justice. Ultimately, while the second or subsequent appeal process can be considered a success for Roberts, significant barriers remain for other wrongfully convicted persons whose circumstances do not receive the attention of a powerful commission of inquiry such as IBAC.

Fiat v Commission: A Misconception at the Heart of the Tax Ruling Cases

In October 2015, a ripple was sent through the tax world when the European Commission found that Luxembourg and the Netherlands had provided unlawful State aid to Fiat and Starbucks. At the core of the Commission's decisions was the assertion that the Member States had misapplied the ‘arm's length principle’ ‐ a principle which broadly seeks to ensure that transactions between associated enterprises are priced as if carried out by independent parties Both were appealed. The first decisions of the General Court were handed down in October 2019 and were a mixed bag for the Commission – a win in the Fiat decision, but not Starbucks. The judgment in the subsequent Fiat appeal was handed down in November 2022. This was the first opportunity the Court of Justice had to consider the Commission's central argument that Member States were bound to apply a general ‘arm's length principle’. This case note analyses the judgment and considers its ramifications for other Member States, for multinationals, and for the capacity of EU law to tackle harmful tax competition.

“One Nation—One Language”

Abstract This article analyses the development of national legislation in the field of language and minority-related policies and the subsequent public discussions in Latvia and Ukraine in 2018–2020. During this period, major reforms in the sphere of language policy and the protection of national minorities’ rights were initiated in both countries. The analysis of these initiatives shows that despite somewhat different ways of implementing ‘nationalizing’ practices in Latvia and Ukraine since the restoration of their independence in 1991, the overall trend suggests that the trajectories of the development of the state language and minorities’ policy are increasingly converging in the two countries. The central focus of this article concerns the amendments to education laws and the subsequent appeals to the Constitutional Court of Latvia in 2018–2020 and the adoption of the Law “On Ensuring the Functioning of the Ukrainian Language as the State Language” in 2019, which have had a considerable impact on the development of minority-related policy.

Bridgestone v Panama: Denial of Justice in a Trade Mark Dispute and the Locus Standi of a Licensee in International Investment Arbitration

This is the first publicly available arbitral award rendered by an ICSID tribunal addressing whether a judgment arising out of a dispute relating to trade marks constitutes a denial of justice. At issue is a Supreme Court decision holding the Claimants liable for having unsuccessfully opposed the registration of a competitor’s trade mark.4 The dispute is best understood against the backdrop of an international competition between two international tyre makers, the Chinese entity, the Luque Group on the one hand, and the Japanese entity the Bridgestone Group (‘BSJ’) on the other. Both companies manufacture and sell tyres under marks with the suffix ‘STONE’. When Muresa Intertrade S.A. (‘Muresa’), a subsidiary of the Chinese entity, applied in 2002 to register the mark ‘RIVERSTONE’ for tyres in Panama, the Japanese rival BSJ and its US subsidiary BSLS objected to the registration by claiming likelihood of confusion.5 BSLS are the holders of the registered Panamanian marks ‘BRIDGESTONE’ and ‘FIRESTONE’. The First Instance Court found the trade mark opposition without legal merit and the Bridgestone entities withdrew their appeal on 5 September 2006.6 Subsequently, the distributors of the RIVERSTONE tyres, Muresa and Tire Group of Factories Ltd. Inc. (TGFL), commenced tort proceedings against BSJ and BSLS. They argued that the trade mark opposition was wrong and had caused them to cease the sales of RIVERSTONE tyres out of fear that the inventory would be seized if the opposition succeeded.7 Muresa and TGFL alleged that this cease resulted in US$5 million losses. Their claim was initially dismissed at first instance and later by the Panamanian Court of Appeal. But, on a subsequent final appeal, the decision in favour of the Bridgestone entities was reversed by the Panamanian Supreme Court in its judgment of 2014.8 The Supreme Court found that the Bridgestone entities had initiated the opposition with the intent of harming their tyre rival. Thus, the Supreme Court held the Bridgestone entities liable for damages pursuant to article 217 of the Panamanian Judicial Code for reckless conduct in judicial proceedings. The Bridgestone entities were ordered to pay the Luque Group companies US$5 million in losses and US$431,000 in attorneys’ fees.9

Australian Transfer-Pricing in the Aftermath of Glencore Investment Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia (2019)

Glencore Investment Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia (2019) 272 FCR 30 has dominated the Australian transfer pricing landscape for the past two years, with international tax specialists awaiting the outcome with great anticipation. The decision in the Federal Court of Australia and its subsequent appeal to the Full Federal Court and the High Court are of great importance to Australian transfer pricing due to its direct implications on the Australian Commissioner of Taxation’s powers of reconstruction. While dealing with older statutory legislation, the insights of the court and the methods utilised to come to a decision have the potential to provide a strong interpretative precedent in future transfer pricing disputes. It is the opinion of the author that the outcome in Glencore will affect the current transfer pricing regime despite the gradual strengthening of the Commissioner of Taxation’s powers under the new legislation. This article revisits the decision in Glencore and aims to provide a frame of reference for the use of members of the tax community and other individuals interested in understanding the context of the appeal and the implications this will have for Australian transfer pricing.

An Uncertain Future for EU-Level Collective Bargaining: The New Rules of the Game After EPSU

Abstract The General Court of the European Union (GCEU) in EPSU and Goudriaan vs. Commission and the Court of Justice of the European Union (CJEU) in the subsequent appeal judgment reached an identical conclusion on a key aspect of the system of EU level collective bargaining. The Courts held that Article 155(2) of the Treaty on the Functioning of the European Union (TFEU) does not impose any obligation on the European Commission to send a social partner agreement to the Council. This is in line with the Commission’s recent interpretation of Article 155(2) TFEU that subordinates the implementation of the European agreements to a positive assessment of their appropriateness. This article critically assesses the GCEU and CJEU rulings in EPSU and argues that they confirm a major break with the praxis of European collective bargaining that will have negative consequences for the social partners’ autonomy and role in the EU. In order to better understand this break, the article examines how and when the Commission changed its approach to European social dialogue, resulting in the new interpretation of Article 155(2) TFEU, and proposes a hypothesis to understand why. The article concludes by describing the consequences of the new reading of Article 155(2) TFEU for the idea of collective autonomy in EU law as well as for the practice of EU level social dialogue and collective bargaining.

Возмещение вреда потерпевшему в случае смерти лица, виновного в совершении преступления и прекращении производства по уголовному делу

The author concludes that it is necessary to reform the system of law enforcement of this issue. Thus, the current jurisprudence shows that, despite the orders of the highest law enforcement officer on the consideration of civil claims directly in the administration of justice in criminal cases, most of the civil claims are left for independent consideration. This is inevitable in the event of the guilty person's death. Since a victim has already suffered negative consequences as a result of the committed act, a repeated appeal to the court in defense of their rights and interests with an unsecured prospect of the execution of a court decision will lead to the insolvency of everyone's right to compensation for harm caused by the crime, guaranteed by the Constitution of the Russian Federation. The author proposes to supplement the current legal system with the institution of free legal assistance from professional participants in the legal services market to victims of crimes. It is necessary to develop a mechanism for appointing an adviser on legal issues, who would provide qualified legal assistance to victims, ensure the collection of the necessary documents, the preparation of procedural documents, and support during the consideration of the case by the court. It is expedient to organize legal assistance to victims at the expense of the federal budget with the subsequent appeal of claims for compensation for costs incurred to the perpetrators. This would contribute to the early restoration of the property rights of the victim through both filing a lawsuit with the court and providing assistance in the course of enforcement proceedings.

Merger litigation: more recent developments

There has been a recent increase in merger-related litigation before the Competition Appeal Tribunal, driven largely by an increase in merger prohibition decisions taken by the Competition and Markets Authority. An earlier article considered several merger judgments of the CAT. The present article considers the outcomes of subsequent appeals in two of these cases, Facebook (concerning the CMA’s powers to impose interim enforcement orders) and JD Sports (in which the CAT quashed the CMA’s finding of a substantive lessening of competition). It also considers the outcome of two then pending challenges to CMA decisions to prohibit mergers, FNZ and Sabre. In particular, the Sabre case concerned the CMA’s power to assert jurisdiction, under the share of supply test, to review a merger between two American companies in circumstances where the target company had no direct revenues from customers located in the UK. The judgments in Facebook and Sabre are likely to be of particular relevance to parties that choose not to notify voluntarily their merger to the CMA and so expose themselves to the risk of the CMA identifying and then opening an own initiative investigation into that merger; they confirm that the CMA has a broad discretion in applying the share of supply test and in adopting an IEO of broad scope to the businesses of both merger parties.

Excessive Pharmaceutical Pricing as an Abuse of Dominant Position – The Case of CD Pharma (Denmark)

Abstract On 31 January 2018, the Danish Competition and Consumer Authority adopted a decision1 finding the Swedish company generic distributor CD Pharma in breach of Art. 102(a) Treaty on the Functioning of the European Union (TFEU) by abusing its dominant position and having imposed excessive and unfair prices for the drug Syntocinon. The company increased the price of the drug by 2000% in the period April-October 2014 in the Danish pharmaceutical market. CD Pharma appealed to the Danish Competition Appeals Board,2 which on 29 November 2018 upheld the decision by the Authority. On subsequent appeal to the Danish Maritime and Commercial Court,3 the judgment by the previous court was upheld in a 3-2 decision on 2 March 2020, thus finding CD Pharma liable for infringement of Danish competition law as well as Art. 102(a) TFEU. The decision is final and not subject to further appeal. The case raises outstanding legal-economic issues regarding excessive pricing such as relevant market definition in pharmaceutical cases, the length of abuse, competitive price benchmarks, definition of economic value and the matter of dominance in public procurement and tenders. The case is rather unusual in that the alleged abusive period amounted to a six-month period, CD Pharma was the ‘losing’ party in the bidding process for the supply of the medicine in question, and CD Pharma subsequently had reduced prices through negotiations with the Danish central medicine procurer, Amgros. Similar to the Aspen Pharma decision4 by the Italian Competition Authority, where the Italian Medicine Agency (AIFA) reported the case to the Competition Authority, it was the Danish medicine procurer Amgros who had notified the Danish Competition and Consumer Authority about allegedly abusive practices. This subsequently led to an investigation and the adoption of the Decision. Following an introduction describing the Danish pharmaceutical market and specifics of the case, section two of this contribution details the proceedings at Danish Competition Authority. Section three depicts the proceedings at Competition Appeals Tribunal, and section four deals with the proceedings at the Maritime and Commercial Court. Section five concludes.

How did it feel? Affect as a feedback system in repeated donation decisions

We examined how people's emotional experience in the wake of past donation decisions affect their future decisions. Building upon emotion-as-information theories we hypothesized and found that past affective reactions serve as a feedback system in predicting future donation decisions. In five studies, by manipulating or measuring participants' affective reaction in the wake of past decisions to donate (or not), we found that feeling good about the past decision encouraged them to respond in similar fashion to a subsequent appeal. Conversely, when participants felt bad about their decision in response to a donation appeal in the past, they were likely to take the opposite course of action. This pattern occurred irrespective of the perceived importance of the donation cause or social desirability. A similar pattern was obtained in Study 6—a longitudinal, online study, that simulated a “real life” situation, in which participants were asked for a donation on two separate occasions. We discuss the theoretical and practical implications of these findings.

Young Adult Populations Face Yet Another Barrier to Care With Insurers: Limited Access to Proton Therapy.

Young patients, including pediatric, adolescent, and young adult (YA) patients, are most likely to benefit from the reduced integral dose of proton beam radiation therapy (PBT) resulting in fewer late toxicities and secondary malignancies. This study sought to examine insurance approval and appeal outcomes for PBT among YA patients compared with pediatric patients at a large-volume proton therapy center. We performed a cross-sectional cohort study of 284 consecutive patients aged 0 to 39 years for whom PBT was recommended in 2018 through 2019. Pediatric patients were defined as aged 0 to 18 years and YA patients 19 to 39 years. Rates of approval, denials, and decision timelines were calculated. Tumor type and location were also evaluated as factors that may influence insurance decisions. A total of 207 patients (73%) were approved for PBT at initial request. YA patients (n = 68/143, 48%) were significantly less likely to receive initial approval compared with pediatric patients (n = 139/141; 99%) (P < .001). Even after 47% (n = 35 of 75) of the PBT denials for YA patients were overturned, YAs had a significantly lower final PBT approval (72% vs pediatric 99%; P < .001). The median wait time was also significantly longer for YA patients (median, 8 days; interquartile range [IQR] 3-17 vs median, 2 days; IQR, 0-6; P < .001). In those patients requiring an appeal, the median wait time was 16 days (IQR, 9-25). Given the decades of survivorship of YA patients, PBT is an important tool to reduce late toxicities and secondary malignancies. Compared with pediatric patients, YA patients are significantly less likely to receive insurance approval for PBT. Insurance denials and subsequent appeal requests result in significant delays for YA patients. Insurers need to re-examine their policies to include expedited decisions and appeals and removal of arbitrary age cutoffs so that YA patients can gain easier access to PBT. Furthermore, consensus guidelines encouraging greater PBT access for YA may be warranted from both medical societies and/or AYA experts.

The implications of recent English legal judgments, inquest verdicts, and ash dieback disease for the defensibility of tree risk management regimes

ABSTRACT Tree risk management is a complex process intended to balance the benefits that trees provide against the harm that can arise from their proximity to people and property. The level of management that the courts expect from duty holders is constantly being clarified through advancing technical knowledge and practical experience, and emerging societal insights from new legal judgments and inquests. Duty holders responsible for tree safety must regularly review and adapt to this evolving landscape if they are to successfully refute criticism and liability in the event of a tree failure causing harm and ending up in court. This paper explores the implications of recent developments in three areas that may influence how the courts will assess tree risk management regimes; 1) the civil case of Cavanagh v Witley Parish Council & Shepherd, and the subsequent High Court Appeal, raises questions around inspection frequency and occupancy; 2) two recent inquests have highlighted the importance of proactively managing highway trees; and, 3) the emerging threat from millions of dying trees because of ash dieback disease. A model for incorporating these implications into strategic tree risk management is proposed in the form of two revised decision-making frameworks for duty holders.

ВОЗМЕЩЕНИЕ ВРЕДА ПОТЕРПЕВШЕМУ В СЛУЧАЕ СМЕРТИ ЛИЦА, ВИНОВНОГО В СОВЕРШЕНИИ ПРЕСТУПЛЕНИЯ, И ПРЕКРАЩЕНИЯ ПРОИЗВОДСТВА ПО УГОЛОВНОМУ ДЕЛУ

The article focuses on the problem of restoring the rights and freedoms of the affected people in case of death of the person guilty of committing a crime. The author discusses the variability of the rights of victims, depending on the stage of consideration of an application for a committed crime, and proposes options for amending the current legislation in terms of improving legal regulation of protecting the rights of victims by introducing a new institution of legal assistance to victims. According to the author, the current legal system is to be supplemented with the institution of free legal aid from professional participants in the legal services market and believes that it is necessary to develop a mechanism for appointing a legal adviser who would provide qualified legal assistance to victims, ensure the collection of necessary documents, draw up procedural documents, and accompany the case in the court. It is advisable to provide such legal assistance to victims at the expense of the federal budget with the subsequent appeal of claims for compensation for the costs incurred to the perpetrators.

Engaging in a culturally mismatched thinking style increases the preference for familiar consumer options for analytic but not holistic thinkers

Our research examines the likelihood of choosing a well-known brand or product (e.g., global brands, national chain stores) relative to a new one (e.g., niche brands, local stores). Six studies examine the asymmetric consequences of engaging in an analytic or holistic thinking style that mismatches the dominant thinking style associated with one's cultural background. Our studies show that engaging in a culturally mismatched (versus matched) thinking style enhances the subsequent appeal of familiar consumer options and the likelihood of choosing them when making consumer decisions. However, this effect is observed only for those with a dominant analytic thinking style, not for those with a dominant holistic thinking style. This asymmetry emerges because analytic thinking is characterized by a greater intolerance of incongruity such that a mismatched experience is likely to be less well tolerated by analytic than holistic thinkers. Our studies suggest that this asymmetric effect on the preferences for familiar options is driven by a motivation to reduce psychological discomfort associated with a mismatched experience. The findings highlight the importance of understanding the effects of matched/mismatched thinking experiences on audiences of different ethnicities and cultural backgrounds.

An Organ for My Child: Public Appeals for Limited Resources.

The case of Jamie Fiske and subsequent public appeals for particular children by President Ronald Reagan represent classic cases in pediatric bioethics in which parents or others publicly appealed for a donor organ for a particular child. These raise questions about the appropriate boundaries for public appeals for a limited resource for a particular child and how the press and medical community should respond to such appeals. Public appeals by parents to advocate for their child to receive a limited resource above others promote rationing by morally irrelevant factors and shift the public focus from the national shortage of organs for transplant to the needs of a particular child. Yet these appeals are understandable and will likely continue. Recognizing this, we consider appropriate responses by the media, transplant community, hospitals, and individual clinicians.