Negligence in securing informed consent and medical malpractice

1988 ◽  
Vol 9 (2) ◽  
pp. 111-120
Author(s):  
Clifton Perry
Keyword(s):  
Informed Consent ◽  
Medical Malpractice

scholarly journals Obligations, consent and contracts in Scots law: re-analysing the basis of medical malpractice liability in light of Montgomery v Lanarkshire Health Board

Legal Studies ◽  
2021 ◽  
pp. 1-21
Author(s):  
Jonathan Brown
Keyword(s):  
Informed Consent ◽  
Legal System ◽  
Medical Malpractice ◽  
Health Board ◽  
Medical Negligence ◽  
University Hospitals ◽  
Malpractice Liability ◽  
Patient Relationships ◽  
Physician Patient ◽  
Medical Regime

Abstract Professors MacQueen and Thomson have defined ‘contract’, within Scots law, as denoting ‘an agreement between two or more parties having the capacity to make it, in the form demanded by law, to perform, on one side or both, acts which are not trifling, indeterminate, impossible or illegal’. This definition reflects the fact that Scottish contracts are underpinned by consent, rather than by ‘consideration’. This, naturally, has the potential to be of great significance within the context of physician/patient relationships, particularly since the 2006 case of Dow v Tayside University Hospitals NHS Trust acknowledged that these relationships could be contractual in nature. This observation is of renewed importance since the landmark decision in Montgomery v Lanarkshire Health Board, which found that physicians must ensure that they obtain full and freely given ‘informed consent’ from their patients, prior to providing medical services. In light of the present medical regime which requires ‘doctor and patient [to] reach agreement on what should happen’, the basis of liability for medical negligence, in Scotland, requires reanalysis: ‘To have a contract only when the patient pays is not consistent with a legal system which has no doctrine of consideration in contract’.

scholarly journals Informed Consent in Medical Malpractice

1967 ◽  
Vol 55 (5) ◽  
pp. 1396 ◽  
Author(s):  
Michael Justin Myers
Keyword(s):  
Informed Consent ◽  
Medical Malpractice

scholarly journals The Standards of Proof in Medical Malpractice Cases

2020 ◽  
Vol 13 (2) ◽  
pp. 173-196
Author(s):  
Nina Cek
Keyword(s):  
Human Rights ◽  
Informed Consent ◽  
Legal System ◽  
Medical Error ◽  
Medical Malpractice ◽  
Civil Proceedings ◽  
Standards Of Proof ◽  
Evaluation Of Evidence ◽  
Procedural Aspect ◽  
The Eu

The article examines the procedural aspect of medical malpractice cases. It focuses on the differences in proof standards by first explaining the characteristics of the Slovenian legal system and then comparing it with German and English legal systems. The author sheds light on the EU court's approach on the question of the responsibility of the manufacturer for the product (vaccine) and suggests the direction to use a broader framework for the evaluation of evidence and presumptions. Given the disclosed problems of proving through a medical expert's help, the article emphasizes the importance of respect for human rights in civil proceedings. Particular emphasis is also placed on no-fault systems. The question is raised of how introducing such a system into the Slovenian legal system would affect the perceived problem of proving a medical error and informed consent omission.

Minimizing Vulnerability to Malpractice Claims

2017 ◽  
Author(s):  
William R Berry
Keyword(s):  
Informed Consent ◽  
Medical Malpractice ◽  
Interpersonal Skills ◽  
Informed Consent Process ◽  
Consent Process ◽  
Malpractice Claims

This review provides strategies for avoiding lawsuits and advice for dealing with a lawsuit if one is ever filed. Medical malpractice is explained as are the personal issues for the defendant physician. Strategies for preventing malpractice suits are presented, including those relative to communication and interpersonal skills, the informed consent process, and documentation. Advice is provided for what surgeons should do if sued or if threatened with a lawsuit, including measures for assisting in the defense and settling claims versus trying a case. Preparing for a deposition is discussed. How a surgeon should act when a defendants or witness in a courtroom trial is presented. This review contains 13 references.

The application of graph theoretical analysis to complex networks in medical malpractice: Lessons learned from China (Preprint)

2021 ◽  
Author(s):  
Shengjie Dong ◽  
Chenshu Shi ◽  
Zhiying Jia ◽  
Minye Dong ◽  
Yuyin Xiao ◽  
...  
Keyword(s):  
Informed Consent ◽  
Medical Malpractice ◽  
Semantic Network ◽  
Lessons Learned ◽  
World Health ◽  
Complex Network Theory ◽  
Scale Free ◽  
Interactive Behavior ◽  
Technical Errors ◽  
Malpractice Claims

BACKGROUND Studies have shown that hospitals or physicians with multiple malpractice claims are more likely to be involved in new claims; this finding indicates that medical malpractice may be clustered by institutions. OBJECTIVE We aimed to identify common factors that contribute to developing interventions to reduce future claims and patient harm. METHODS This study implemented a null hypothesis whereby malpractice claims are random events—attributable to bad luck with random frequency. As medical malpractice is a complex issue, thus, this study applied the complex network theory, which provided the methodological support for understanding interactive behavior in medical malpractice. Specifically, this study extracted the semantic network in 6610 medical litigation records (unstructured data) obtained from a public judicial database in China; they represented the most serious cases of malpractice in the country. The medical malpractice network of China (MMNC) was presented as a knowledge graph; it employs the International Classification of Patient Safety from the World Health Organization as a reference. RESULTS We found that the MMNC was a scale-free network: the occurrence of medical malpractice in litigation cases was not random, but traceable. The results of the hub nodes revealed that orthopedics, obstetrics and gynecology, and emergency department were the three most frequent specialties that incurred malpractice; inadequate informed consent work constituted the most errors. Non-technical errors (e.g. inadequate informed consent) showed a higher centrality than technical errors. CONCLUSIONS Hospitals and medical boards could apply our approach to detect hub nodes that are likely to benefit from interventions; doing so could effectively control medical risks. CLINICALTRIAL Not applicable

When Consent Does Not Help

2017 ◽  
Vol 43 (4) ◽  
pp. 388-425 ◽  
Author(s):  
Hindi E. Stohl
Keyword(s):  
Informed Consent ◽  
Pregnant Women ◽  
Cesarean Delivery ◽  
Medical Malpractice ◽  
Reproductive Rights ◽  
Vaginal Birth ◽  
Legal Remedy ◽  
Malpractice Reform

Pregnant women with a prior cesarean delivery face challenges in accessing a vaginal birth due to both hospital and provider preferences and practices. Although the doctrine of informed consent secures women's reproductive rights, it is not a viable legal remedy. Instead, women should champion increased maternity-related education and transparency as well as medical malpractice reform to increase the desired access.

“Usual and Customary Practice” Testimony as a Defense in Medical Malpractice Informed Consent Issues

2005 ◽  
Vol 22 (1) ◽  
pp. 57-59
Author(s):  
Melvin A. Shiffman
Keyword(s):  
Informed Consent ◽  
Medical Malpractice ◽  
Alternative Treatments ◽  
Adequate Information ◽  
The Law

Because of the lack of adequate information in many physicians' charts, it is sometimes not possible to find that the physician discussed informed consent with risks and complications and alternative treatments. The law in some jurisdictions allows the use of usual and customary practice to establish that the physician has informed the patient.

Patient Information on Drug Therapy. A Problem of Medical Malpractice Law: Between Product Safety and User Safety

2007 ◽  
Vol 14 (1) ◽  
pp. 47-59 ◽  
Author(s):  
Dieter Hart
Keyword(s):  
Drug Therapy ◽  
Informed Consent ◽  
Patient Information ◽  
Medical Malpractice ◽  
Product Information ◽  
Product Safety ◽  
Treatment Information ◽  
Therapeutic Benefits ◽  
Malpractice Law ◽  
Individual Information

AbstractMedicinal products are associated with risks as well as potential therapeutic benefits. This is reflected by the legal requirements for patient information on drug therapy which can be differentiated into general product information, regulated by pharmaceutical (i. e. product safety) law, and individual patient information on the treatment with the product, which is subject to medical malpractice law. The physician's duty to inform the patient comprises therapeutic information as well as information required for informed consent. Therapeutic information intends to empower the patient to comply with the requirements of treatment and to protect him/her against preventable danger and risk; it is part of the medical treatment, aimed at the individual patient and his/her personal situation. Information required for informed consent enables the patient to a self-determined decision on the treatment offered; it can be divided into information on the course of treatment and risk information. Product information and treatment information complement each other; the former should be the basis of individual information on the concrete treatment, provided by the physician in a mandatory oral conversation with the patient. Product information cannot replace the physician's individual information about the treatment.

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