During the past decade medical malpractice litigation has created problems and concern within the medical and legal professions, the malpractice insurance industry, and for healthcare patients. The purpose of this dissertation was to analyze and evaluate the ability of the negligence standard of civil liability to facilitate efficient resource allocation between physicians and their patients. The analysis also attempted to determine whether or not the negligence rule of liability is an effective means of ensuring that cost-justified levels of precaution will be undertaken and that the efficient levels of iatrogenic injuries will result. The negligence standard is not the appropriate liability assignment for activities involving direct contact between buyers (patients) and sellers (physicians). Transaction and negotiation costs are not so high as to engender significant negative externalities and to result in inefficient resource allocation. Tort liability is a problematic and costly system of victim compensation. The study concluded that most personal injuries arising from medical treatment should be allocated contractually between physicians and patients. Assigning more liability for adverse outcomes to patients would not likely reduce the quality of health care while allowing the parties involved to assume voluntarily the appropriate level of risks. / Ph. D.

This thesis seeks to contribute to the debate about the role of the criminal law in holding health professionals and health institutions to account for malpractice. The research attempts a critical comparison of the role of the criminal law and the criminal process in healthcare malpractice in France, a civil law jurisdiction, and England, a common law jurisdiction. In France, the criminal process is more readily invoked to address failings and malpractice in healthcare. The aim of this research is to see how the comparison of the two jurisdictions sheds light on the now much debated question of how the criminal process should relate to healthcare malpractice. The purpose of the comparative examination of law and process is twofold: (1) to highlight what might be seen as failings within each legal system and identify lessons that might be learned from each other and (2) to locate these differences in an analysis of how (if at all) the criminal process can best engage with healthcare malpractice. The much publicised HIV-contaminated blood episode in France and England is studied as an illustration of a case of systemic healthcare failure and the use of the criminal process in France. It is used to illustrate and explore more fully the questions above and shed light on the overall aim of the thesis, which is to assess what the role of the criminal law should be in the context of healthcare malpractice. The research reveals that particular features of the general substantive criminal law and criminal process go a long way toward explaining differences in the criminalisation of healthcare malpractice as between France and England. The criminalisation of ‘simple’ direct negligence which may result in death or injury in France provides the possibility to criminalise healthcare malpractice more readily than in England, where only gross negligence resulting in death is generally criminalised in the healthcare malpractice context. Features of the French inquisitorial criminal process (notably juges d’instruction and parties civiles) play a central role in providing a greater platform for the criminalisation of healthcare malpractice in France, whereas features of the English adversarial system (in particular the role of the Crown Prosecution Service and the jury) tend to minimise the possibility for a wider criminalisation of healthcare malpractice in England. However, I do not argue that England should follow France in adopting more extensive use of the criminal process in the context of healthcare malpractice. Key lessons drawn from the present study are that the criminal process is not usually an appropriate means to respond to many instances of healthcare malpractice. This is not to say that the criminal process has no role to play where the conduct of the professional has shown no regard for the safety of patients. Features of French criminal law and criminal procedure might be useful to counteract healthcare malpractice using alternative non-criminal proceedings. For instance, it will be argued that the model of thorough investigations conducted by juges d’instruction in the French criminal process could be better achieved outside the criminal law to provide transparency in the healthcare context. The study will point out the limitations of the criminal process in preserving health and safety and will thus highlight the importance of alternatives to the criminal process such as prevention in the healthcare setting and support to victims of healthcare malpractice.

This diploma thesis goes into a problem of the legal interpretation of the term lex artis, which some authors describe as well-known term of unknown content. Generally, this term relates to the activities of doctors and other health care professionals within taking care of patients, and usually we can meet with the ablative lege artis, which is used to denote a professionally correct action. This term is in common usage also in the reference books and case law where the breach of the duty to act lege artis is considered to be a precondition for liability of physician or health care provider for injury to the patient. Certain difficulty of using the term lex artis lies in the fact that the legislation in force does not mention not even define this term and its meaning must therefore be inferred from legislation by interpretation. For the legal definition of lex artis is from 1st April 2012 considered the provision of s. 4 (5) of Act No. 372/2011 Sb., about Health Services and Terms (the Health Services Act), as amended, which defines appropriate professional standard of providing health services and which is from the early beginning criticized by the part of professionals for its alleged conflict with patients' rights guaranteed by the Convention on Human Rights and Biomedicine. The aim of this...

This thesis examines the development of medical liability in Germany during its intense formative period from 1800-1945. The focus is on how the fault requirement in civil law was conceptualised and applied to liability for errors in the diagnosis and treatment of a patient. By focusing on the development of the law, and how it related and responded to changes in the nature of medicine, medical practitioners and healthcare over this period, this thesis uncovers a rich interaction between the legal and medical narratives of fault. In doing so, it offers an account of legal development where the law and lawyers were deeply embedded in, and influenced by, that broader social context. It identifies a gradual shift towards asserting courts’ independence from the medical narrative alongside greater willingness to question accepted practice, particularly in light of medical advances. The thesis says nothing directly about the closely related topic of liability for failure to secure the patient’s consent. We begin by mapping medicine and medical practice during this period. We then consider the evolution of ‘internal’ regulatory mechanisms and conceptions of error, in particular discussion over how to define a ‘Kunstfehler’ during the nineteenth century. We then unpack how the legal relationship between practitioner and patient was framed in nineteenth century Germany in criminal law, contract law and the law of delict before analysing the attendant standards of care and their application. Finally, we examine the changes wrought by the Bürgerliches Gesetzbuch and the growth of medical liability and technology in the first half of the twentieth century. The thesis offers a heavily contextualised study of legal development in a core area of private law and concludes that the pattern of development here was driven by acceptance of, and eventually reaction against, a concept of fault rooted in the medical discourse.

The United States has faced a number of medical malpractice crises over the past four decades. In response to these crises, state legislatures have enacted a variety of tort reforms of varying strength. This paper seeks to explore the determinants of such reforms. This study uses a dataset composed of state tort reforms, indicators of political partisanship, healthcare campaign finance contributions, malpractice payments, and malpractice lawsuits. This paper finds that political partisanship is a key determinant of the relative strength of reforms, with Republicans likely to pass hard reforms of economic significance and Democrats likely to pass soft reforms with little impact.

Background: Drug administration is a main duty of a nurse’s clinical role. It involves great risk in patients’ lives and can potentially cause great harm. Despite many safeguards, preventable medication errors still occur. The aim of this descriptive quantitative study is to explore geriatric nurses’ perceptions of medication errors, perceived causes and their reporting behaviours. Methods: A self- report standardized survey was used to collect data from a purpose sample of nurses (n=17) working on geriatric wards at the Montfort hospital located in the province of Ontario. Data entry and analysis were done by using Statistical Package for the Social Sciences (SPSS) version 12 and presented using frequencies, number and percentage. Results: The most frequently identified causes of medication errors were failure to check patient’s name band with the patient’s medication administration record (MAR), nurses' tiredness, illegible physician handwriting, and nurses’ miscalculations of medication doses. In general, nurses were usually sure of constitutes a medication error and when to report it. However, only 30% of errors were perceived by nurses to be reported to the nurse manager. More than half (64.7%) of participants perceived that, some errors are not reported because nurses are afraid of the reaction they will receive from the nurse manager and the majority of them will notify the physician than to complete an incident report. Conclusion: Recognizing a medication error is the first step to reduce report and eliminate them, especially in acute care settings. Finding suggests that nurses need more educational reenforcement as to various issues related to medication errors, particularly defining and reporting these errors. Furthermore, the introduction of hospital policies and the development of structured protocols on drug administration may decrease medication errors. The hospital administration system needs to stress the importance of reporting errors and adopt a non-punitive approach to safeguard patient safety.

1 Abstract The thesis is focused primarily on medical litigations in which either patient or (usually) his family apply for a remedy due to a medical malpractice (deviation from medical proffesional duty of care (lex artis) resulting in injury or death of the pacient. Author concentrate on this problematics from the perspective of defendant. At first, he think about setting targets of the hospital (defendant) in the dispute, then he consider ways to achieve these goals (which instruments can be used) . The thesis also consists of analyses of 20 medical litigations. Before the main part author introduces general theoretical questions and refer to the literature on which he based his thesis, as he decided to not deal with general issues. In this context he mentions areas to which, according to him, the doctrine does not yet provide answers. The author's research follows these questions and in following text he concentrates on them and tries to find the answers to controversial questions. These includes, for example, whether in practice the concept of "další nemajetkové újmy" is fulfilled the intention of the lawgiver, wheter the regulation of liberation of liability is applicable in medical litigations and what is its relationship with the "lex artis corrections". After this, the author specifies the methods...

As a point of departure in this inherently interdisciplinary endeavour, the concept "Holistic Multidisciplinary Management" ("HMM") is introduced a.s a macrocosmic adaption of principles of project management. In line with HMM, a number of submissions regarding terminology and definitions in the interdisciplinary context of medicine (and particularly clinical psychiatry) and law, are made, and the foundations of medical malpractice are examined. Building on the various foundations laid, specific types of conduct that can constitute clinical-psychiatric malpractice, are addressed. A common theme that emerges in the various contexts covered, is that the psychiatrist must negotiate various proverbial tightropes, involving inter alia tensions between restraint and freedom, excessive and insufficient medication, becoming too involved and not being involved enough with clients, as well as client confidentiality and the duty to warn third parties. It is concluded that law and medicine. must work harmoniously together to establish appropriate balance. This can be achieved only if mutual understanding and integrated functioning are promoted and translated into practice. / Law / LL.M.

published_or_final_version / Law / Doctoral / Doctor of Philosophy

Damage to health: comparative study The final thesis deals with the issue of damage to health in the Czech, American and French legislation and case law. The work deals with individual claims arising from injuries and thesis describes the criteria and methods of compensation for these claims. The thesis is divided into three chapters, which are further divided into subsections and subchapters. The first half of the thesis describes the legislation of damage to health and personal injury in the Czech law. This part focuses on the conditions that must be met in order to create an obligation of compensation for personal injury. It also describes the damage to health and its partial claims which may be compensated and it describes the process of determining the amount of damages according to the Methodology of the Supreme Court. Final part of this chapter deals with damages to health caused by medical malpractice. The second half of the thesis is divided into two parts, the first part deals with the US legislation of compensation for damage to health and the second part concentrates on the French legislation which deals with this institute. In the chapter devoted to American law, the work describes the different types of personal injury compensation, which developed in the United States. The thesis...