Threat Of Liability Research Articles

The practice of defensive medicine among Jordanian physicians: A cross sectional study.

Defensive medicine (DM) is a deviation from medical practice that is induced primarily by a threat of liability. While the DM behavior is well studied in the developed countries, little is known in developing countries and never been evaluated in Jordan. To evaluate the prevalence of DM practice in Jordan among physicians and to investigate reasons behind its practice and potential strategies to alleviate this practice. In this Cross-sectional study, self-administered questionnaire was distributed to a sample of physicians in both public and private sectors in Jordan. The collection period was from Jan 2021 to June 2021. The prevalence of DM practice was estimated among the study sample. Frequency scores of different DM behaviors, reasons of DM behaviors, and effectiveness of strategies in changing DM behaviors were summarized as average frequency scores with standard deviations. Multivariable linear regression models were conducted to evaluate potential predictors of total assurance and avoidance behavior scores. A total of 175 Jordanian physicians completed the survey. The prevalence of adopting (or witnessing) DM behaviors among the study sample was 68% (n = 119). Diagnostic laboratory exams followed by prescribed medications were the most practiced behaviors in excessive rate during a typical working week. Unfavorable legislation for the physician was reported as the headmost reason for practicing DM, followed by pressure from the public and mass media opinion. Continuous update of knowledge, abilities, and performance and following specific protocols and/or appropriate clinical evidence and appropriate multidisciplinary and multi-professional communication were the most effective strategies that can mitigate DM behaviors. Defensive medicine practice is common among Jordanian physicians with concerns about increasing pattern in the future.

When is a law firm liable for a data breach? An exploration into the legal liability of ransomware and cybersecurity

PurposeThe threat of cybercrime is pervasive. Corporations cannot be convinced, out of sheer luck or naïve conviction, that they will remain unaffected. When targeted, the stark reality is that a company also incurs a liability risk. This paper aims to explore the boundaries of liability resulting from a data breach and privacy concerns according to the emerging regulations on cybersecurity.Design/methodology/approachThe nature of cybercrime and its constant evolution is analysed as a threat of liability. Its distinctly modern developments require consideration. In response to the threat of hackers, the protection that a corporation can invoke is also considered as a mitigating factor in ascribing liability.FindingsPreventative steps to protect a corporation from cyberthreats must remain a consistent priority in the running of a company. The influence of human behaviour has become a foreseeable element in cybersecurity and as such the management of unreliable user behaviour is a key determining factor in ascribing liability in hindsight.Originality/valueForesight is everything in the prevention of cyberattacks. Cyberattacks can no longer be dismissed as an unlikely eventuality. Legislation on data security and data privacy is demanding higher standards of preventative action, under the duty of care to stakeholders. There is a substantial literature deficit on data security and data liability regulations in light of the liability risk incurred by cyberattacks.

Запреты как средства «умного регулирования» возмещения вреда окружающей среде

Introduction: an important vector of development of modern society is the formation of an ecological and economic paradigm, in whose context the legal regulation of public relations is carried out with the emphasis on the environmental component. The problems of compensation for environmental damage, without losing their independent relevance, become the leitmotif of the modernization of the legal implementation processes. Given that the specifics of compensation for environmental damage are multi-faceted, reflecting cross-industry trends, this area requires the development of “smart regulation”, whose effective means are legal prohibitions. Purpose: to conduct a theoretical and legal study of prohibitions as means of “smart regulation” of compensation for environmental damage. Methods: the research is carried out using a set of methods of scientific cognition, namely, analysis (the analysis of concepts, identification of their features, traits) and synthesis (the generalization of debatable conclusions, contrasted definitions), the method of analogies, with the help of which the characteristics of the studied theses, definitions were projected on legal relations. The preparation of the paper required the use of special legal research methods, such as formal-legal and comparative law. Results: the study focuses on the analysis of the concepts of “environmental harm”, “environmental communications”, “environmental information”, “mechanism of legal regulation”, “smart regulation”, “prohibitions”, presents their author’s interpretations, reflects that prohibitions as instructions to refrain from certain negative actions under the threat of liability in the matters of compensation for environmental damage are effective means of the legal regulation that ensures the satisfaction of the interests of society and nature. Prohibitions, as criteria for distinguishing between the legality and illegality of behavior in the interests of environmental protection, as means of the legal regulation, form the basis for bringing to justice those who violate them. The paper presents the ways of applying and modernizing prohibitions for “smart regulation” of compensation for environmental damage. Conclusions: prohibitions as means of “smart regulation” serve to ensure transparency and efficiency of compensation for the environmental damage, provide innovative communications of decision-makers and citizens in the implementation of their rights to a favorable environment, to compensation for damage caused to the environment in full, provide suspension, restriction, termination of the activities that cause harm from the creation of a regulatory act to its implementation. The analysis of legal prohibitions demonstrates that in the matters of compensation for environmental harm, the problem of legal prohibitions is effective.

Injurers versus Victims: (A)Symmetric Reactions to Symmetric Risks

AbstractTort models assume symmetry in the behavior of injurers and victims when faced by a threat of liability and a risk of harm without compensation, respectively. This assumption has never been empirically validated. Using a novel experimental design, we study the behavior of injurers and victims when facing symmetric accident risks. Experimental results provide qualified support for the symmetric behavior hypothesis.

Who (if Anyone) Should be Liable for Injuries from Generic Drugs?

Two recent Supreme Court decisions (PLIVA, Inc. v. Mensing (2011), and Mutual Pharmaceutical v. Bartlett (2013)), have essentially removed the threat of liability from generic drug manufacturers. In this paper, we consider four possible liability regimes in a simple model of drug market competition and safety research. Specifically, we compare a baseline regime of No Liability (NL) with the Everyone Liable (EL) regime (generics face the same liability as branded manufacturers), the No Liability for Generics (NLG) regime, resulting from PLIVA and Mutual (generics face no liability), and a novel Brand Fully Liable (BFL) regime (branded developer faces liability from injuries caused by a generic version of a drug it has developed). We find that the BFL regime typically provides the most efficient incentives to identify side effects and develop an efficient warning. However, the BFL regime can lead to overconsumption of the generic drug by patients who should not take the drug at all. For this reason, the EL regime may be preferable for a drug where the danger of side effects may outweigh the clinical value, as was alleged in Mutual Pharmaceutical v. Bartlett . We find that the NLG regime that resulted from the recent Supreme Court decisions is unlikely to be optimal, because it is dominated by BFL when the consumption decision is not important, and inferior to EL when it is very important.

Association Between State Medical Malpractice Environment and Postoperative Outcomes in the United States

The US medical malpractice system assumes that the threat of liability should deter negligence, but it is unclear whether malpractice environment affects health care quality. We sought to explore the association between state malpractice environment and postoperative complication rates. This observational study included Medicare fee-for-service beneficiaries undergoing one of the following operations in 2010: colorectal, lung, esophageal, or pancreatic resection, total knee arthroplasty, craniotomy, gastric bypass, abdominal aortic aneurysm repair, coronary artery bypass grafting, or cystectomy. The state-specific malpractice environment was measured by 2010 medical malpractice insurance premiums, state average award size, paid malpractice claims/100 physicians, and a composite malpractice measure. Outcomes of interest included 30-day readmission, mortality, and postoperative complications (eg sepsis, myocardial infarction [MI], pneumonia). Using Medicare administrative claims data, associations between malpractice environment and postoperative outcomes were estimated using hierarchical logistic regression models with hospital random-intercepts. Measures of malpractice environment did not have significant, consistent associations with postoperative outcomes. No individual tort reform law was consistently associated with improved postoperative outcomes. Higher-risk state malpractice environment, based on the composite measure, was associated with higher likelihood of sepsis (odds ratio [OR] 1.22; 95% CI 1.07 to 1.39), MI (OR 1.14; 95% CI 1.06 to 1.23), pneumonia (OR 1.09; 95% CI 1.03 to 1.16), acute renal failure (OR 1.15; 95% CI 1.08 to 1.22), deep vein thrombosis/pulmonary embolism (OR 1.22; 95% CI 1.13 to 1.32), and gastrointestinal bleed (OR 1.18; 95% CI 1.08 to 1.30). Higher risk malpractice environments were not consistently associated with a lower likelihood of surgical postoperative complications, bringing into question the ability of malpractice lawsuits to promote health care quality.

Private Solutions to Global Crises

Corporations rarely suffer liability for violations of human rights. This is because most abuses occur in developing countries where local authorities cannot, or refuse, to prosecute multinational companies. The courts of western nations also seldom hear human rights cases because disputes arising from foreign events can implicate serious sovereignty and jurisdictional issues. Several international regimes governing human rights exist but similarly lack authority to sanction abuses. In turn, human rights observers assert that, without the threat of liability, little compels transnational companies to adopt socially responsible behaviors.However, an effective and particularly unlikely means to redress corporate abuses has emerged despite receiving only scant attention. A new generation of contracts and international agreements are using arbitration as a means to enforce human rights. The oddity of this solution is that most popular and scholarly writings consider arbitration to be overwhelmingly biased towards corporations. But, in actuality, the arbitral process overcomes most of the obstacles that have frustrated prior human rights litigants. So if arbitration now offers a remedy to victims in the developing world, this article asks, not only what has changed, but why might arbitration be better able than courts of law to resolve human rights cases?Supported by interviews with prominent lawyers and practitioners, this article pursues several goals. The first is to bring attention to an emerging legal phenomenon that could alter the nature of transnational tort litigation, human rights enforcement, and international arbitration. In fact, several notable organizations — such as the United Nations, International Labor Organization, and the International Olympic Committee — are parties to, or are considering ratifying, agreements and contracts merging human rights and arbitration. And on a theoretical level, this article finds that arbitration is better structured than courts of law to hear certain disputes, including human rights violations. In turn, private solutions might be the best, or possibly the only, means to redress foreign corporate torts.

Liability in the Medical Sector: The ‘Breast-Taking’ Consequences of the Poly Implant Prothèse Case

The article deals with the liability of third-party certifiers in the medical sector and especially focuses on the role of TüV Rheinland in the recent Poly Implant Prothèse (PIP) breast implant case. The aim of the contribution is twofold. Firstly, it provides an overview of the different challenges that courts face when having to decide on the liability of certifiers of medical devices towards third parties. These, for instance, relate to the strict conditions under which certifiers can incur third-party liability under national law. Whether product certifiers can be held liable depends on the jurisdiction where the claims have been filed. Therefore, the PIP breast implant case is also interesting from a private international law perspective. Third-party certifiers can be sued before the courts of their domicile. Whether they can be brought before courts in other Member States depends inter alia on the interpretation of the place of the damaging event and the place of the damage. The difficulty to pinpoint these locations not only emerges in the field of jurisdiction but also manifests itself within the search for the applicable law as identical connecting factors are employed in that area of private international law. Secondly, the article examines the decisions that have been issued by national courts in the PIP breast implant case. Rulings in France and Germany denied compensation for patients who purchased the defective breast implants. The PIP case is currently pending before the European Court of Justice (ECJ). It thus remains to be seen what stance the ECJ will take and especially what the consequences might be for certifiers in the medical sector. Based on the analysis of these decisions, the contribution puts forth a number of reasons why the threat of liability seems the most effective way to guarantee that third-party certifiers issue accurate and reliable certificates. This in turn ensures that only safe medical devices are placed on the European market and safeguards the health of consumers. Future scandals with medical devices might in this way be prevented.

The Unintended Pregnancy Crisis: A No-Fault Fix

There is an ongoing and concerning public health problem in the United States relating to unintended pregnancies. Despite the fact that women consistently express dissatisfaction with existing contraception methods, the availability of cutting edge technologies remains stagnant. This paper argues that the threat of liability in the form on product liability lawsuits dissuades contraceptive manufacturers from innovating. This paper proposes a no-fault fix to the problem modeled around the National Childhood Vaccine Act of 1986.

Who (If Anyone) Should Be Liable for Injuries from Generic Drugs?

Two recent Supreme Court decisions (PLIVA, Inc. v. Mensing (2011), and Mutual Pharmaceutical v. Bartlett (2013)), have essentially removed the threat of liability from generic drug manufacturers. In this paper, we consider three possible liability regimes in two simple models of drug market competition and safety research. Specifically, we compare the Everyone Liable (EL) regime, where generics face the same liability as branded manufacturers, the No Liability for Generics (NLG) regime, resulting from PLIVA and Mutual, where generics face no liability, and a third, Branded Fully Liable (BFL) regime, where a branded developer faces liability from injuries caused by a generic version of a drug it has developed. We find that the BFL regime generally provides the most efficient incentives to identify side effects and develop an efficient warning. However, the BFL regime can lead to overconsumption of the generic drug by patients who should not take the drug at all. For this reason, the EL regime may be preferable for a drug where the danger of side effects may outweigh the clinical value, as was alleged in Mutual Pharmaceutical v. Bartlett. We find that the NLG regime that resulted from the recent Supreme Court decisions is unlikely to be optimal, because it is dominated by BFL when the consumption decision is not important, and inferior to EL when it is very important.

IPOs and the Slow Death of Section 5

Since its enactment, Section 5 of the Securities Act of 1933 has restricted sales-based communications with investors, but that effort is nearly dead even with respect to the most sensitive of offerings, the IPO. Our paper traces that devolution, which began almost as soon as the ’33 Act came into existence, though the SEC’s 2005 de-regulatory reforms and Congress’ intervention in the JOBS Act of 2012. We show how much of this related to an embrace of “book-building” as the industry’s preferred method of price discovery, which requires private two-way communications between underwriters and potential sophisticated investors. But book-building (and the predictable IPO underpricing that results) has a retail dimension as well, and we point to ways in which the otherwise sensible deregulation may enable an over-stimulation of retail investor demand. We then explore two main justifications that have been given for the aggressive deregulation. The first is that any loss in prophylactic protection can be made up for by the threat of liability, particularly with an enhanced Section 12(a)(2). We find this unpersuasive for a variety of reasons. The other — amply visible in the long history of Section 5 — is a faith in the “filtration” process, that retail investors gain protection because of the availability of the preliminary prospectus during the waiting period, to those involved in the selling process if not the investors themselves. Putting aside the biased incentives that affect filtration, much of what is most important — and conveyed privately to the institutions in the course of book-building — is forward-looking information that probably need not appear in the formal disclosure, whether preliminary or final. None of this is an argument for returning to the old prophylactics of Section 5. But it is cause for the SEC and FINRA to pay close attention to the retail investor effects of the IPO selling practices, especially in the post-JOBS Act era.

The Looming Threat of Liability for Accountable Care Organizations and What to Do About It

The Looming Threat of Liability for Accountable Care Organizations and What to Do About It

The consequences of protecting audit partners' personal assets from the threat of liability: A discussion

In their investigation of UK auditors that voluntarily switch from unlimited to limited liability, Lennox and Li (in this volume, The consequences of protecting audit partners' personal assets from the threat of liability. Journal of Accounting and Economics) provide new insights into a fundamental issue related to audit quality. This discussion attempts to place Lennox-Li into the broader auditing literature and to consider what we learn from their analysis.

The consequences of protecting audit partners’ personal assets from the threat of liability

This study investigates the audit firm’s decision to protect its partners’ personal assets by becoming a limited liability partnership (LLP). We find that the likelihood of an audit firm switching from unlimited to limited liability is increasing in its size and exposure to litigation risk. We find no evidence that audit firms supply lower audit quality, lose market share, or charge lower audit fees after they become LLPs. However, the mix of public and private clients in audit firms’ portfolios exhibits a significant shift toward riskier publicly traded companies after the switch to limited liability.

Bullying and School Liability—Implications for School Personnel

Bullying is a serious and escalating problem in public schools across America. Each day, thousands of students face taunts and humiliation stemming from bullies. Bullying victims experience emotional and psychological problems that may persist for a lifetime. Other victims commit suicide or retaliate against bullies out of fear for their own safety. Because the courts presume that schools are safe places, teachers and administrators have a leading responsibility to protect students from the harmful behavior exhibited by bullies. They are expected to foresee that bullying is a harmful activity and initiate appropriate steps to eliminate it. This article discusses the magnitude of the problem of bullying in public schools and the threat of liability for school personnel who fail to respond to bullying incidents. It concludes with a set of guides that should assist teachers and administrators in protecting students from foreseeable harm while minimizing their legal exposure to law suits based on negligence.

The Story of Allis-Chalmers, Caremark, and Stone: Directors' Evolving Duty to Monitor

This chapter explores the evolution in Delaware's approach to director oversight of legal compliance. The transformation of Delaware's duty to monitor is, in part, a story of how the dramatic increase in the scope and magnitude of federal corporate criminal liability pushed the Delaware state courts to treat compliance with federal criminal law as an important corporate governance issue. It also is the story of the struggle between the Delaware Chancery Court and the Delaware Supreme Court over the standard of conduct and standard of review to govern directors' oversight duties. In the seminal opinion on this issue, In re Caremark International Inc. Derivative Litigation, Chancellor William T. Allen challenged two different facets of Delaware Supreme Court precedent. First, he in effect reversed Allis-Chalmers by holding that directors have a duty to ensure that the firm establishes an effective compliance program, where no duty previously existed. Second, he pushed back against Smith v. Van Gorkom by holding that (i) the proper standard of review to govern director liability for breach of this monitoring duty was good faith, not gross negligence (irrespective of 102(b)(7)), and (ii) that bad faith required a conscious neglect of duty, not merely objectively (excessively) unreasonable conduct. Chancellor Allen's approach in Caremark arises from his twin convictions that (1) directors will satisfy judicially imposed duties even without the threat of liability and (2) judges do not have the expertise to assess the objective reasonableness of directors' actions. Caremark succeeded in moving the Delaware Supreme Court to Chancellor Allen's approach, as evident from Stone v. Ritter. Yet, as became evident following WorldCom and Enron, Caremark did not induce directors to focus adequately on compliance. Caremark specifies a general oversight duty, without specific content. Directors have latitude to adopt a loose interpretation of their oversight duties, largely insulated from liability by the good faith standard of review. In response, federal authorities and the stock exchanges intervened with more precise rules relating to corporate oversight of compliance.

Promissory Fraud: A Cost-Benefit Analysis

The purpose of this comment is to analyze the potential benefits and costs of the doctrine of promissory fraud, prompted by the generally positive evaluation of the doctrine contained in an accompanying article by Ian Ayres and Gregory Klass. The analysis is premised upon the notion that the principal effect of the doctrine of promissory fraud is to encourage prospective promisors who believe that there is a low probability that they will perform their promises either to disclose this information or to refrain from promising. However, using the doctrine of promissory fraud in this fashion only seems likely to be beneficial in circumstances where the promise is not otherwise enforceable under contract law. Moreover, in these circumstances, for a variety of reasons, the threat of liability for promissory fraud is likely to discourage promisors from making certain types of socially beneficial promises. These costs have to be balanced against any benefits associated with the doctrine, keeping in mind the fact that to the extent that the doctrine qualifies as a default rule both its costs and benefits are limited by the costs of contracting around it.

Corporate Law and Social Norms

Corporate law serves both tofacilitate and to regulate the conduct ofthe corporate enterprise. Insofar as corporate law is regulatory, it provides incen? tives and disincentives to the major actors in the corporate enterprise?direc? tors, officers, and significant shareholders?through the threat of liability. In significant part, however, these actors are motivated not by the desire to avoid liability, but by the prospect of financial gain, on the one hand, and by social norms, on the other. Much work has been done on the way in which these actors are motivated by the threat of liability and the prospect of finan? cial gain, but relatively little work has been done on the operation of social norms. The purpose ofthis Article is to illuminate both corporate law specifi? cally, and the interrelation of law and social norms generally, by studying the ways in which that interrelation operates in the field of corporate law. The Article begins by describing three kinds of social norms?behavioral pat? terns, practices, and obligational norms?and considering the origins and effects of social norms. It then examines the critical role of social norms in several central areas of corporate law: fiduciary duties (specifically, care and loyalty), corporate governance (specifically, board composition and the role of institutional investors), and takeovers.

Introduction: The law and economics of real estate

was to assemble a group of papers that applied the insights and methods of law and economics to issues related to real estate. I believe that the seven articles included herein accomplish that objective admirably. What is most impressive is the wide range of topics covered, including issues in property law, tort law, contract law, and methodology. I have organized the papers according to these subject areas. The first two papers address issues in property law. Hughes and Turnbull examine the use of land-use covenants as private, contractual alternatives to zoning as a means of promoting efficiency in the land market (the analysis thus overlaps with contract law). They first develop a theoretical model that highlights the economic function of covenants--namely, to allow landowners to make credible commitments regarding land uses in the presence of spatial externalities. They then go on to examine the actual spatial variation of covenants in a particular urban area in light of the theory. Trefzger and Colwell examine the implications of paying compensation for government "takings" on the incentive of landowners to invest in land. It has been previously shown, most notably by Blume, Rubinfeld, and Shapiro (1984), that paying full compensation creates a moral hazard problem that leads to overinvestment. The primary contribution of the Trefzger and Colwell paper is to develop a model that unifies the literature that has arisen around this issue. The next two papers deal with issues intort law. Boyd, Harrington, and Macauley examine the effects of liability for environmental contamination on the operation of the land market. They show that uncertainty over potential liability of landowners per se does not necessarily impede efficient transfer and development decisions; instead, inefficiencies arise from information asymmetries between buyers and sellers and from costs of detecting hazards. The paper by Mieeli, Pancak, and Sirmans examines laws that assign liability for injuries caused by lead paint. In general, they show that holding landlords and sellers of housing strictly liable for damages suffered by tenants and buyers, respectively, is inefficient because it will result in overinvestment in removal of lead paint, and underinvestment in precaution against contamination. They do argue, however, that landlords and sellers should have a duty, backed by threat of liability, to disclose known hazards. The paper by Jaffe and Sharp examines statutorily imposed moratoria on mortgage foreclosures against the background of vairous theories of contract law, including the economic theory. Since foreclosure moratoria suspend the enforcement of one party's contractual obligations, they can be defended on efficiency grounds only if there ever exist situations in which nonenforcement of contracts is efficient. The authors examine explanations of this sort. Their conclusions are largely speculative and point to the need for further research.

Professional Liability of the Architect and Engineer

One of the most disturbing issues of the medical profession has begun to disturb those in the engineering community—malpractice. Although professional engineering liability made its debut in the 1950's, it has become an item of concern for every engineer. The threat of liability frequently has replaced the idea of creativity with ideas of conservation. There are several actions an engineer can take to reduce or eliminate, or both, the potential for a liability lawsuit: (1) Use of AEPIC for structural failure data; (2) avoidance of liability‐prone projects; and (3) purchase of liability insurance. However, there is no guarantee that an engineer will not be named in a lawsuit, regardless of the precautions he or she takes.