The Crimes Act 1961 and the New Zealand Bill of Rights Act 1990 provide that a person accused of a criminal offence in New Zealand has the right to be represented at trial by counsel. The purpose of representation by counsel is to protect the accused�s interests; ensure that the accused is able to present their defence to the Court; ensure that the accused receives a fair trial; and ensure that the accused is not the subject of a miscarriage of justice. It is implicit that criminal defence counsel must be competent if they are to be effective advocates on behalf of their clients. If counsel is not competent, there is a risk that counsel�s acts or omissions may cause or contribute to a miscarriage of justice. The Crimes Act 1961 allows an accused to appeal against their conviction on the basis that they have been the subject of a miscarriage of justice through the conduct of their counsel. The thesis analyses the Supreme Court decision of R v Sungsuwan that sets out the test that an appellate court must consider when deciding to allow an appeal based on the conduct of counsel. The thesis examines 239 Court of Appeal decisions between 1996 and 2007 that have considered appeals from jury trials where at least one of the grounds of appeal was that defence counsel caused or contributed to a miscarriage of justice. The thesis notes the increasing trend to use "conduct of counsel" as a ground of appeal. In 1996 there were 4 appeals; in 2006 there were 43 such appeals and in 2007 there were 29 appeals. During the period under review the Court of Appeal allowed the appeal and specifically held that counsel�s conduct, either alone or in combination with other grounds, caused or contributed to a miscarriage of justice in 41 cases. The thesis analyses the common complaints made by an accused against trial counsel and the common areas where the Court of Appeal upheld complaints against counsel. The thesis takes into account the Lawyers and Conveyancers Act 2006 and the Lawyers and Conveyancers (Lawyer: Conduct and Client Care) Rules 2008 that came into existence on 1 August 2008. The new legislation places particular emphasis on the obligations of counsel to uphold the rule of law and to facilitate the administration of justice in New Zealand. Counsel also has an obligation to protect the interests of their clients. The thesis concludes that the plethora of cases coming before the Court of Appeal, and the number of appeals allowed by the Court, demonstrate defence counsel do not always protect the interests of their clients and can cause or contribute to a miscarriage of justice. The thesis makes a number of recommendations that may reduce the risk of both an accused appealing on the basis on the conduct of counsel and an appeal being allowed on the basis of the conduct of counsel. In particular, it is suggested that there should be greater degree of co-operation between the New Zealand Law Society and the Legal Services Agency to ensure the maintenance of high standards among criminal defence lawyers.

Diss. (sammanfattning) Stockholm : Karolinska institutet, 2007. / Härtill 4 uppsatser.

Thesis--Auburn University, 2009. / Abstract. Vita. Includes bibliographical references (p. 61-63).

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.

Submitted by Leonardo Simões Agapito (leoagapito@gmail.com) on 2018-06-18T14:19:15Z No. of bitstreams: 1 impressão.final.pdf: 690488 bytes, checksum: 2dd44cf2aedc15d4a1498228fd8dde23 (MD5) / Approved for entry into archive by Jacqueline de Almeida null (jacquie@franca.unesp.br) on 2018-06-18T18:53:18Z (GMT) No. of bitstreams: 1 Agapito_LS_me_fran.pdf: 690488 bytes, checksum: 2dd44cf2aedc15d4a1498228fd8dde23 (MD5) / Made available in DSpace on 2018-06-18T18:53:18Z (GMT). No. of bitstreams: 1 Agapito_LS_me_fran.pdf: 690488 bytes, checksum: 2dd44cf2aedc15d4a1498228fd8dde23 (MD5) Previous issue date: 2018-05-02 / Coordenação de Aperfeiçoamento de Pessoal de Nível Superior (CAPES) / O presente trabalho tem como objetivo analisar a responsabilidade penal decorrente da omissão médica, particularmente por instrumentos dogmáticos e, por estes, obter maior segurança jurídica para médicos, pacientes e profissionais. Partindo dos métodos indutivo e sistemático, o trabalho analisa os critérios postos pelo código penal brasileiro para a omissão penalmente relevante – dever agir, poder agir e a especial posição de garante – relacionando com elementos próprios da imputação penal – injusto, culpabilidade e autoria – e externos, que configuram o próprio ambiente em que opera a tutela – deveres administrativos, gestão de risco e semiótica. Para tanto, utiliza-se como referencial teórico o pensamento funcional normativista, com especial atenção aos estudos de Günther Jakobs. Ao final, é possível, pelo método indutivo, depreender-se a própria opção político criminal brasileira, bem como, pelo método sistemático, demonstrar os caminhos necessários não apenas para o aprofundamento da questão, mas para a própria intervenção penal nos casos em que for chamado a atuar. / The presente study persuits to analise criminal responsability for medical default, particularly by dogmatic instruments and, by them, obtain more legal security for health professionals, patients and legal professionals. By indutiv and sistematic methods, the current study analyse brasilian penal code criteria for criminal relevant default – duty, permission and special position of garantor – conecting this with criminal responsability criteria – wrongful, culpability and authorship – and external elements that set up medical context – administrative duties, risk management and semiotic. Thereunto, the study uses as theoritc reference a normativist perspective, specialy Günther Jakobs’s studies. At the end, it’s possible, by indutiv analyses, understand the criminal policy option in Brazil, as well as, by sistemic analyses, demonstrate necessary ways for further studies, but also to righteous criminal justice intervention.

This paper utilizes data on physician malpractice insurance premiums and state tort law to analyze how physicians in various medical specialties are differentially affected by caps on noneconomic damages. As higher premiums put pressure on legislators to enact damage caps, I instrument caps on noneconomic damages with enactment of tort reform measures that do not affect malpractice premiums to uncover the effect of caps on noneconomic damages on such premiums. I find evidence to support that, in terms of dollars saved, physicians in high risk specialties benefit more from noneconomic damage caps than physicians in low risk specialties. However, in percentage terms, I find that physicians in all specialties essentially benefit equally from caps on noneconomic damages.

The thesis explores the various instances in which pharmacists may incur delictual liability for harm suffered by their patients or third parties. As such, it is primarily concerned with the field of professional negligence. The work focuses specifically on the wrongfulness, fault and causation enquiries in pharmacy malpractice cases. The discussion is set against the backdrop of the pharmacy profession's shift towards patient-orientated service in recent years and explores whether this change in the profession's social role has had any effect on the legal duties and standard of care to which pharmacists are currently bound. It is argued that, in light of the dangers posed by modern medicines and the extent to which pharmacists are professionally expected to involve themselves in patient care, pharmacists can no longer escape liability simply by accurately dispensing pharmaceutical products. Rather, they are expected to participate actively in avoiding drug-related injury by, for example, providing patient counselling, detecting invalid or erroneous prescriptions and monitoring prescription refills. Although the thesis places particular emphasis on the role of pharmacists in achieving risk management, it also argues that pharmacists are, in very limited circumstances, required to participate in the risk assessment process traditionally thought to fall exclusively into the realm of physicians. It is furthermore demonstrated that pharmacists can incur liability regardless of whether a patient's harm can also be partially attributed to the blameworthy conduct of another healthcare professional. Although the thesis concludes that pharmacists are currently exposed to greater risks of liability than they were in the past, it also shows that plaintiffs who seek damages from pharmacists will usually experience a number of difficulties in establishing liability. In particular, problems are likely to be encountered in satisfying a court as to the presence of factual causation, which is notoriously difficult to establish in drug-related cases.

The present thesis investigates the possible effects of limiting the compensations victims can obtain in medical malpractice cases through schedules of noneconomic damages. While economic damages are rather simple to calculate, problems arise with respect to the assessment of noneconomic damages. To reduce both the variability in the compensations granted to victims and the perception of a high level of arbitrariness in determining noneconomic losses, many countries have adopted different types of ceilings to limit the nonmonetary component of malpractice compensations. While flat and tiered caps have been widely studied in the related literature, the effects of schedules are still debated due to the scarce available evidence. Using Italy as a case study, I investigated the likely impact of schedules on noneconomic damages on a number of key outcomes showing that this policy can affect patients´ behavior and the filing of malpractice claims. Schedules are associated to a lower number of claims as well as of claims not decided on the merit. These results seem to be due to a drop in the number of frivolous claims. In addition, under schedules, average compensation and trial duration results to be higher. This is consistent with the expectation that under schedules there is a higher frequency of claims involving serious injuries. Hence, results could be further explored and used also in Czech Republic policy.

Public opinion in recent years has been seemingly manipulated by superfluous stories, bad press, and negative commentaries regarding the perceived "Medical Malpractice Crisis." It has initiated a political attack on Florida's tort system which has resulted in making valid medical malpractice claims even more so difficult for victimized plaintiffs to pursue. After months of diligent research, and with the loyal aid of my university advisors and the dedicated law librarians I've had the honor to work with, I have thoroughly analyzed Florida's past and present medical malpractice tort reforms and governing procedural laws; in addition to arguing, by virtue of this thesis, why these reforms were truly enacted, how traditional tort reforms have egregiously compromised public interests, why Florida's future--with regard to legislative change--is grim, and how new, innovative tort reforms--such as those established overseas--could genuinely benefit Floridians. The premise of the conclusion reached in this research is partially iterated in a quote by the critically acclaimed "Insurance Law Expert," Tom Baker: "...the medical malpractice myth. Built on a foundation of urban legend mixed with the occasional true story, supported by selective references to academic studies, and repeated so often that even the mythmakers forget the exaggeration, half truth, and outright misinformation employed in the service of their greater good, the medical malpractice myth has filled doctors, patients, legislators, and voters with the kind of fear that short circuits critical thinking." --Baker, T. (2005). The medical malpractice myth. Chicago: University of Chicago Press.

The fastest growing field of law is undoubtedly that of Medical Law with the civil and disciplinary cases flowing from it. Globalization, international communication, development and evolution of Law as well as Medicine, cause this worldwide rising medical litigation. Humanitarian rights, post-modern scepticism and even iconoclastic attitudes contribute to this phenomenon. Medico-legal litigation and disciplinary complaints rise (in South Africa) up to 10 per cent per year. To assist the courts and legal profession, in medico-legal issues, helping the parties where the plaintiff has the burden of proof and the defendant for rebuttal, a medical expert witness must be used. The dilemmas and pitfalls arise, in that although knowledgeable medical experts could be used to guide the courts to the correct decision, the lack of a legal mind setting, court procedure and legal knowledge could affect the relevance, credibility and reliability, making the medical evidence of poor quality. The legal profession, deliberately, could “abuse” medical expert witnesses with demanding and coercion of results, which have unrealistic and unreasonable expectations. “Case building” occurs, especially in the adversarial systems of law, making the medical expert vulnerable under cross-examination, when it is shown that the witness has turned into a “hired gun” or is unfair. Thus, lacunae develop, making reasonable cases difficult and a quagmire of facts have to be evaluated for unreasonableness, credibility and appropriateness, compounded by the fact that seldom, cases are comparable. The danger is that the presiding officer could be misled and with limited medical knowledge and misplaced values, could reach the wrong findings. Several cases arguably show that this has led to wrongful outcomes and even unacceptable jurisprudence. The desire to “win” a case, can make a medical witness lose credibility and reasonableness with loss of objectivity, realism and relevance. With personality traits and subjectivity, the case becomes argumentative, obstinate and could even lead to lies. The miasmatic, hostile witness emerges, leading to embarrassing, unnecessary prolongation of court procedures. The medical expert witness should be well guided by the legal profession and well informed of the issues. Medical witnesses should have legal training and insight into the legal and court procedures. At the time of discovery of documents, via arbitration or mediation, medical experts should strive to reach consensus and then present their unified finding, helping the parties fairly and expediting the legal procedure and processes. / Private Law / LLM