A medical negligence case presented to the court is based on averments of neglected duty of care of the defending doctor, a duty owed in accordance with the law of delict, and alternatively and/or accumulatively averments that the contractual agreement between the complainant and the defending doctor was not honoured. In order to prove failure of duty of care and/or breach of agreement, the complainant bears the onus of proof to present to the court reliable medical evidence that would enable the court to reach a decision. The courts have ruled for and against many plaintiffs throughout the years, setting the standards and yardsticks for the requirements of medical negligence. The value or lack thereof of the medical evidence presented came under the magnifying glass in the case of Michael vs Linksfield Park Clinic (Pty) Ltd 2001 (3) SA 1188 SCA and the court indicated the necessity for a "collective mind" from the medical profession. Brilliant legal writers published on this topic and the search and need created this dissertation. The study sets as goal to scrutinize the quality of medical evidence in general, and more specific the Michael-case. From a wide perspective medical evidence was researched, and the term evidence-based medicine led the study to an existing "collective mind" of the medical profession. The study investigated the history and development of evidence-based medicine in order to evaluate whether it can be seen as the "collective mind" of the medical profession. Satisfied that the "collective mind" was found the study tested the available medical evidence, randomly searched, against specific medical issues in the Michael-case and the study compiled substantial medical evidence to work with. An independent expert was consulted and the medical evidence was scrutinized with commentary, explanation and the basis formulated for negligence. The Michael-case was deconstructed and subsequently reconstructed, and the outcome predictably different, based on sound medical evidence. The study explained and warned against exploitation of the statistical data and incorrect interpretation of results. The study concluded that the court as the ultimate trier of the facts should determine whether the medical evidence presented to the court forms part of the "collective mind", and whether it complied with logical principles and reasoning prior to reaching a decision. General notes: <ul> <lo>1. Wikipedia and e-medicine was used as first search and easy reference and not for court purposes or proper reference;</lo> <lo>2. Note that the dissertation has a legal component and medical component and the references in the Bibliography is split under legal and medical references;</lo> <lo>3. Note all the chapter regarding the Michael-case reference to: epinephrine=adrenaline; nor-epinephrine=nor-adrenaline; propranolol=propanolol (American spelling versus the English spelling, both accepted in South Africa);</lo> <lo>4. The spelling of nomenclature like anaesthetist versus anesthetist, gynaecologist versus gynecologist; paediatrist versus pediatrist etc are used inconsistently as it is once again the American spelling versus the British spelling, which are accepted in South Africa.</lo> </ul> / Dissertation (LLM)--University of Pretoria, 2011. / Public Law / unrestricted

The purpose and object of this thesis was to investigate and research the utility and effect of the application of the doctrine of res ipsa loquitur to medical negligence cases. More particularly, it was endeavoured to establish conclusively that the approach of the South African courts that the doctrine can never find application to medical negligence cases is untenable and out of touch with modern approaches adopted by other Common law countries. It was further endeavoured to provide a theoretical and practical legal framework within which the application of the doctrine to medical negligence cases and related matters can develop in South Africa, in future. The research includes a comprehensive comparative survey of the diverging approaches with regard to the application of the doctrine to medical negligence cases between the legal systems of South Africa, England and the United States of America. The most important conclusions which the investigation revealed were the following: 1. There are substantial differences with regard to the application of the doctrine between the three legal systems, with regard to the requirements for, the nature of, the procedural effect on the onus of proof and the nature of the defendant's explanation in rebuttal. These differences are further compounded by differences between the principles enunciated by the courts and the opinions of legal commentators on the subject. 2. Whereas the approach adopted by the South African courts with regard to the application of the doctrine to medical negligence cases is outdated and untenable, more legal clarity, however, exists in South Africa with regard to the application of the doctrine to personal injury cases in general, so that the existing principles which are applied provide a structure within which the extension of its application to medical accidents can be readily accommodated. 3. The current approach adopted by England, where provision is made for the application of the doctrine to obvious medical blunders as well as more complex matters, where the plaintiff is permitted to buttress evidence relating to the res with expert medical evidence, commends itself for acceptance. Such an approach not only alleviates the plaintiff's burden of proof but also provides adequate protection to the defendant by endorsing the principle of honest doubt in the form of letting the defendant prevail if he comes to court and explains that despite due care, untoward results do sometimes occur especially in the practice of medicine. 4. The approach adopted by the majority of jurisdictions in the United States of America is probably too liberal and unstructured so that it may in some instances result in the imposition of liability in medical context, in a arbitrary fashion. 5. Constitutional principles such as procedural equality, policy and other considerations support the extension of the application of the doctrine to medical negligence cases in South Africa. There are also substantial grounds for advancing a persuasive argument that the majority judgment in the Van Wyk v Lewis case should be overruled and that the general application of the doctrine of res ipsa loquitur should not only be extended to cases of medical negligence, but also to related legal procedures which follow a medical accident such as medical inquests, criminal prosecutions and disciplinary inquiries instituted by the Health Professions Council of South Africa. / Thesis (LLD)--University of Pretoria, 2007. / Public Law / LLD / unrestricted

The criminal law has been critiqued as an unsuitable system to regulate adverse medical events (AME) because the unintentional nature of AME renders it incompatible with the penal objectives of the criminal law. This project uses an interpretivist approach to examine how blameworthiness is constructed in criminal cases involving AME. Situated within a contextual constructionist paradigm, and utilizing a theoretical framework that draws on legal pragmatism, symbolic interactionism, Habermasian thought, and Goffmanian frame analysis, this project employs a case study approach to explore how appellate courts construct AME as a product of fate or agency. The British case of Bawa-Garba v. R. (2016) and the Canadian case of R. v. Javanmardi (2019) are analysed using thematic analysis. It is concluded that the majority of the Supreme Court of Canada in Javanmardi constructed the AME within the realm of fate, contrasting the minority in Javanmardi and full panel of the England and Wales Court of Appeal in Bawa-Garba which constructed the AME within the realm of agency. It is also concluded that the majority in Javanmardi utilised pragmatic adjudication to determine blameworthiness. It is suggested that these findings could reduce fear of criminal liability among Canadian health care professionals. Future research is suggested to examine the legal cultures underlying this variation, critically explore the intersection of race and criminal prosecution of AME, and apply structural violence as a theoretical frame to further interrogate AME as a systemic failure.

This dissertation is composed of a critical preface, "Reconciling Art and Account in the Creative Essay," and the essay collection Resurrection Attempts: Essays. The preface situates the following essay collection within the genre of contemporary creative nonfiction. Specifically, it argues that genre-bending or genre hybridity are inherent and unavoidable features of creative nonfiction writing and should be celebrated, rather than denied or lamented. It points to other writers who deliberately challenge the bounds of genre, and discusses some of the collection's innovations in form and other ways it offers experimentation, such as use of unusual or borrowed points of view, disruption of chronology, and adoption of elements from other genres of writing, including fiction, poetry, and academic. Ultimately, embracing the artistic side of creative nonfiction (as opposed to its "purely" journalistic side) allows for heightened intimacy with the reader, a much wider breadth of storytelling, and a more vulnerable—and therefore more truthful—interrogation of legacy and the human experience. Resurrection Attempts is a collection of essays exploring the writer's rural Texas childhood and the early and tragic losses of her parents, including the effect of those experiences on her adult life and performance of motherhood. The voices of the writer's sisters sometimes intertwine with hers, especially as she examines the converging and diverging lenses of their shared experience. She works throughout to "resurrect" her parents and even to resurrect earlier versions of other family members, including herself. The collection is particularly fascinated with dreams, drawing a parallel between the subconscious lives of the dreamer and their waking constructions of their memories and experiences.

Biotechnologijų vystymasis medicinai buvo didelis žingsnis į priekį, ir viena iš priežasčių kodėl atsirado egzistencinės žalos atlyginimo ieškiniai dėl neteisėto gimimo ir neteisėto gyvenimo. Neteisėto gimimo atveju tėvai siekia kompensacijos dėl nenorimo ar neplanuoto vaiko gimimo, neteisėto gyvenimo – neįgalus vaikas siekia kompensacijos už tai, kad jis toks gimė. Tokie ieškiniai yra ginčytini, kadangi jie suponuoja tokiomis teisėmis kaip teisė negimti, nėra kriterijų kuriais remiantis būtų galima pateikti neteisėto gimimo ar neteisėto gyvenimo ieškinį bei apskaičiuoti egzistencinę žalą. Todėl įrodyti tokią žalą yra pakankamai sunku. Darbe buvo apžvelgtas žalos atlyginimo Lietuvoje institutas, ypatingą dėmesį skiriant neturtinės žalos atlyginimui, ir nustatyta, kad esama tvarka nėra liberali, todėl galimybė pateikti tokį ieškinį Lietuvoje ir gauti kompensaciją lygi nuliui. / Development of technologies has been a giant step forward for medicine and one of reasons, why suits of recovery of „existential damage” because of the wrongful birth or wrongful life arose. In claims for wrongful birth parents are seek compensation for the birth of unplanned or unwanted child and in claims for wrongful life – disabled child is seek compensation for the fact, that he is born disabled. Such suits are controversial, because they deal with such rights like right not to be born. There are no criterions for the recovery of “existential damage” under which it would be possible to bring an action of this damage, because of wrongful birth and wrongful life. It is rather difficult to prove “existential damage”. This article deals with the institute of recovery of damage, giving the biggest attention to recovery of moral damage. It was ascertained, that present order is not liberal, and to suit in Lithuania and to get award there is no any possibility.

Scientific evidence is increasingly relied on in litigation. Discussions and debates aimed at enabling courts to make the best use scientific evidence are therefore critical. This thesis adds the perspective of procedural legitimacy to the science and law dialogue. Procedural Legitimacy is the concept that consistent adherence to legal procedure maintains the overall legitimacy of the legal system, and the validity of its outcomes. I argue that to maintain legitimate legal outcomes, procedural rules must be applied consistently and vigilantly to scientific evidence. This means that admissibility rules must be applied properly to scientific evidence, and that admitted scientific evidence must be duly scrutinized and weighed against the legal standard of proof. This ensures that the legal outcome will be based on valid legal facts. When the law is applied to those legal facts, litigants are legitimately bound by the judicial decision, despite the risk of factual inaccuracy. / The bulk of this thesis develops the notion of procedural legitimacy, and argues that its role in the adjudicative process is vital. The argument is founded on the conditions of uncertainty in which legal decisions are made. I show that both liability determinations and damages determinations in personal injury actions are made in conditions of uncertainty, and are dependent on consistency in procedure to maintain legitimacy. Ultimately, I apply the procedural legitimacy argument to admissibility and use of scientific evidence, and endorse the recommendations of the Goudge Inquiry in that respect.

The author in his essay lays down pretreal and judicial opportunities of protection of patient‘s rights. For comparison there are analysed Lithuanian and British systems of protection of patient‘s rights. Patients suffer certain dificulties inherent only for this category of cases. Only a small number of patients have opportunity to embrace their rights in international level. Patients migrating wthin European Union have opportunity to apply to the Court of Justice of European Communities.

本文將負面醫療結果(醫療傷害)統稱為醫療事故(medical incident)，而醫療事故中又分為醫療過失(medical negligence)、醫療不幸（medical mishap，又名醫療災禍）及醫療意外(medical accident)三種情況。造成醫療傷害可能是因為醫療的過失責任，也可能是無醫療過失責任，本文特意將無醫療過失責任再細分為無過失責任、非過失責任與無法律責任（自然死亡或自然病程）三種，並將「無過失責任」no fault liability一詞泛以「無關過失責任」稱之；醫療行為中可預知的合併症與副作用的「醫療不幸」及不可預知、不可抗力的「醫療意外」屬非過失責任範疇，而不可避免性的自然死亡及自然病程，則屬無法律責任的範疇。 責任負擔可分為賠償、補償、救濟三種。賠償者，以不法之侵權行為，致使他人受損害時，因而填補其所受之損害，謂之賠償，英文為indemnity。補償者，指根據該法所指定的人員敲定的額度提供的金錢補助，而不是指針對不法行為或違反契約依法起訴所獲得的補償性賠償金，英文為compensation。救濟者，特別指由國家向貧困者提供的財政幫助，英文為relief。 過失責任的歸責原因是醫療疏失，所以是以損害填補原則及不當得利禁止原則，以填補受害者所受損害及所失利益；因此，過失責任要負的是損害「賠償責任」。非過失責任的歸責原因包括醫療不幸（即副作用、合併症）與醫療意外兩種，因為醫師客觀上已盡注意義務，不論有無結果預知義務或結果迴避義務，醫師已盡力防阻，仍不免發生醫療傷害，故並無醫療疏失可言，應由國家社會對受害者予以救濟；因此，非過失責任理應由福利國家的救濟制度來負責。無關過失責任no fault liability的歸責原因是危險責任，針對所有醫療事故，不論對錯無關過失下，只要有了醫療傷害，加害人就予以被害人限額補償的基本保障。因為醫師身為危險責任主體，依報償責任理論（利之所存，險之所擔）、危險控制理論及危險分擔理論下必須承擔危險責任，因以，無關過失責任應負醫療事故補償責任。 賠償、補償、救濟三種責任負擔都可以分別採用基金模式或保險模式來解決；本文則認為，醫療過失責任宜採取醫師專業責任保險，予受害人損害賠償。醫療無關過失責任宜採取醫事人員強制責任保險，輔以醫療事故特別補償基金，予受害人基本保障補償。醫療非過失責任宜採取醫療風險救濟基金，予受害人風險救濟，急難救助。 故本文結論提出事故補償、風險救濟、損害賠償三階層的保險與基金制度架構，以解決醫療糾紛民事責任問題即；第一層事故補償—針對醫療事故，以醫事人員強制責任保險無關過失，限額補償；第二層風險救濟—針對醫療意外，整合醫療風險救濟基金定額救濟；第三層損害賠償—針對過失責任，以醫師責任保險損害填補。 / In this paper, we study negative outcomes associated with the delivery health care, which are collectively referred to as “medical incident”. This is further divided into “medical negligence”, “medical mishap” (also known as “medical disaster”), and “medical accidents”. Medical injuries may be in consequence of medical negligence or otherwise, that is they may be with fault or without fault. In this paper we further medical injuries without fault into three categories: (1) liability regardless of fault, (2) liability without fault, and (3) no legal liability. Notably, we refer to “no-fault liability” as “liability regardless of fault” to better distinguish its legal implications with respect to other kinds of medical injuries without fault. Predictable complications and side effects of medical treatments are considered “medical mishap”; unavoidable natural death or nature course of disease have “no legal liability”. The burden of duty can be divided into three categories: indemnity, compensation, and relief. Indemnity is secondary to the violation of rights leading to injury and damages. Compensation is set by appointed experts and given in direct consequence of the occurrence of the injury, and is independently of the determination of legality and contract fulfillment. Relief specifically refers to financial assistance given by government entities to those in need. At-fault liability follows medical negligence, and as such indemnity is given for reparation of damages and the prohibition of gains from the provision of negligent medical care. Causes of liability with no fault include medical mishaps and medical accidents. In these cases, the physician has fulfilled duties as medical professionals and in so doing have done their best to prevent medical incidents. Nevertheless due to circumstances beyond control, medical injuries occur. Because there is no negligence on the part of the physician, these losses are ideally dealt with by the governmental agencies. Liability regardless of fault attributes liability based on risk alone. Under this system, for all medical incidents, whether or not they are the consequence of negligence, the victim receives relief at a pre-determined amount. This relief serves as the basic protection of patients. Since the physician as the chief medical care provider is also at the center of medical risk, by principles of risk management, liability regardless of fault should in addition be organized as medical incidents compensation. The three forms of duty burden–indemnity, compensation, and relief–can be organized either as foundations or as insurances. We argue that duty burden for medical negligence is best managed by professional liability insurance to provide compensation to the victims. Medical liability regardless of fault is best managed by compulsory medical provider liability insurance with additional medical incidence compensation fund to provide at least a basic level of compensation to the victims. Medical liability without fault is best managed by medical risk relief fund for assistance for the victims. In conclusion, in this paper we analyze various forms of liability and management of medical risks, and propose the use of professional liability insurance for medical injuries with fault, compulsory liability insurance for liability without fault, and relief fund for liability regardless of fault, in the setting of medical incidence. This provides a comprehensive, three-layered solution to the emerging problem of proliferation of medical incident cases in the courts. The first layer is incidence compensation, directed at all medical incidents, via compulsory medical personnel liability insurance regardless of fault. The second layer is risk relief, directed at medical mishaps and medical accidents, via risk relief funds. The third layer is damage indemnity, directed at at-fault liability, via physician professional liability insurance, to fulfill the victims’ damages.

Medical negligence is a growing concern within South Africa.1 The medical environment has great potential for conflict, because even the best trained physicians can commit errors that result in medical disabilities and sometimes in death.2 The conflicts that follow from these errors are mostly fuelled by emotions and they can become very expensive and time-consuming to settle using the litigation process.3 There is a growing recognition that alternative dispute resolution (ADR) systems in healthcare may alleviate some of the financial and psychological burdens on doctors and patients involved in medical negligence disputes. Mediation is a method of ADR that is flexible and it permits the parties to the dispute to have control over the resolution. A typical medical negligence dispute is driven by intensely emotional factors on the part of injured patients. Victims are not merely seeking financial compensation but they are also looking to understand the circumstances that brought on the event at hand. They want closure. A huge issue with regard to medical negligence litigation is the manner in which the claims are resolved. Litigation provides injured patients and caregivers with a traditional platform for addressing medical negligence claims. However, due to many reasons, this system seems not to be adequate for dealing with disputes arising from alleged medical negligence. Mediation offers a promising solution to the problems surrounding redress of medical negligence disputes. / Jurisprudence / LL. M.