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Standard of Care in Medical Malpractice: Deference, Daubert, or Different Direction. 医疗事故中的护理标准:顺从、怀疑或不同的方向。
Journal of Law and Medicine Pub Date : 2022-12-01
Michael Gvozdenovic
{"title":"Standard of Care in Medical Malpractice: Deference, Daubert, or Different Direction.","authors":"Michael Gvozdenovic","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>This article explores the effect of Daubert v Merrell Dow Pharmaceuticals Inc on the standard of care in United States medical malpractice proceedings. It posits that the significance of Daubert should not be viewed from the perspective of who should be permitted to testify as to the standard of care. Rather, the decision signals the need to reform what should be the content of that standard. Specifically, the Supreme Court, in overruling Frye v United States and imposing a \"gatekeeper\" role on trial judges, reasoned with the aim of producing more reliable expert evidence. This object would be best realised if doctors are required to testify in respect of whether the conduct in question was \"reasonable\", not whether it was in accordance with the thinking of other practitioners (as demanded by the current \"deferential\" standard of care).</p>","PeriodicalId":45522,"journal":{"name":"Journal of Law and Medicine","volume":"29 4","pages":"1220-1235"},"PeriodicalIF":0.0,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"10699373","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Medical Intervention as a Novus Actus Interveniens: Giving Meaning to the Concept of Gross Clinical Negligence. 医疗干预作为一种新的干预行为:赋予重大临床过失概念的意义。
Journal of Law and Medicine Pub Date : 2022-12-01
Louis Baigent
{"title":"Medical Intervention as a Novus Actus Interveniens: Giving Meaning to the Concept of Gross Clinical Negligence.","authors":"Louis Baigent","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>The focus of this article is the notion that only grossly negligent conduct by a health care provider will constitute a novus actus interveniens and break the chain of causation between a tortious act and the ultimate harm suffered by a plaintiff. More precisely, it explores the question of what it means for a health care provider to be grossly negligent. Its purpose is not to devise an exhaustive list of acts or omissions likely to constitute grossly negligent medical treatment; it is not necessary or even prudent to do so. However, it is argued that more clearly defined parameters are needed to distinguish ordinary, actionable negligence from gross negligence in a clinical context.</p>","PeriodicalId":45522,"journal":{"name":"Journal of Law and Medicine","volume":"29 4","pages":"1201-1219"},"PeriodicalIF":0.0,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"10699375","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Knowledge of Chronic Traumatic Encephalopathy and Concussion Cannot Support a Negligence Suit against Major Sporting Organisations by Athletes. Or Can It? 慢性创伤性脑病和脑震荡的知识不能支持运动员对主要体育组织的过失诉讼。或者可以吗?
Journal of Law and Medicine Pub Date : 2022-12-01
David Thorpe
{"title":"Knowledge of Chronic Traumatic Encephalopathy and Concussion Cannot Support a Negligence Suit against Major Sporting Organisations by Athletes. Or Can It?","authors":"David Thorpe","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>The settlement of the National Football League (NFL) Players Concussion Litigation was founded on a unique set of circumstances: in essence that the NFL investigated the risk of Chronic Traumatic Encephalopathy-like harm and then denied the risk. These circumstances are unlikely to be repeated in any of the thousands of lawsuits presently proposed by \"non-NFL athletes\" around the globe. These athletes face the far more difficult task of proving their overseeing sporting organisation had, or should have had, knowledge that repeated head trauma in playing contact sport can cause severe long-term cognitive harm, but to do so relying on \"archived\" reports dating back decades.</p>","PeriodicalId":45522,"journal":{"name":"Journal of Law and Medicine","volume":"29 4","pages":"1052-1078"},"PeriodicalIF":0.0,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"10708059","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Consent Rights of Gender Diverse Children in Australia and the United Kingdom: Will the Court's Involvement End? 澳大利亚和英国性别差异儿童的同意权:法院的介入会结束吗?
Journal of Law and Medicine Pub Date : 2022-12-01
Georgina Jacko
{"title":"Consent Rights of Gender Diverse Children in Australia and the United Kingdom: Will the Court's Involvement End?","authors":"Georgina Jacko","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>Gender diversity allows individuals to express their innate sense of self and has been increasingly recognised over time. Consequently, paediatric gender services have seen exponential increases in referrals internationally. This has resulted in novel issues for courts, such as a child's \"best interests\" when accessing puberty-suppressing and gender-affirming medical care. Most recently, in the United Kingdom, the adequacy of information provided to transgender children and their families was also debated. Progression of the common law in Australia has resulted in transgender children consenting to medical treatment once Gillick competent. Yet, Bell v Tavistock [2020] EWHC 3274 temporarily halted the care of the United Kingdom's transgender children, who were previously afforded consenting rights. On appeal it was determined to be inappropriate for the divisional court to have provided generalised guidance on children's capacity to consent to medical therapy. Through comparative analysis of case law, the adequacy of these regulations will be assessed.</p>","PeriodicalId":45522,"journal":{"name":"Journal of Law and Medicine","volume":"29 4","pages":"1269-1287"},"PeriodicalIF":0.0,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"10692590","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Regulation in Need of Therapy? Analysis of Regulatory Decisions Relating to Impaired Doctors from 2010 to 2020. 监管需要治疗吗?2010 - 2020年伤残医生相关监管决策分析
Journal of Law and Medicine Pub Date : 2022-12-01
Owen M Bradfield, Matthew J Spittal, Marie M Bismark
{"title":"Regulation in Need of Therapy? Analysis of Regulatory Decisions Relating to Impaired Doctors from 2010 to 2020.","authors":"Owen M Bradfield,&nbsp;Matthew J Spittal,&nbsp;Marie M Bismark","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>Doctors' mental wellbeing is a critical public health issue. Rates of depression, anxiety, and substance use are higher than in the general population. Regulating unwell doctors who pose a public risk is challenging, yet there is little research into how medical regulators balance the need to protect the public from harm against the benefits of supporting and rehabilitating the unwell doctor. We analysed judgments from Australia, New Zealand, Ireland, United Kingdom, Ontario, and Singapore between 2010 and 2020 relating to impaired doctors. We found similarities in how decision-makers conceptualise impairment, how they disentangle impairment from associated conduct or performance complaints, and how regulatory principles and sanctions are applied. However, compared to other jurisdictions, Australian courts and tribunals tended to prioritise deterrence above the rehabilitation of the impaired doctor. Supporting impaired doctors' recovery, when appropriate, is critical to public protection and patient safety.</p>","PeriodicalId":45522,"journal":{"name":"Journal of Law and Medicine","volume":"29 4","pages":"1090-1108"},"PeriodicalIF":0.0,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"10699371","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Emerging Issues from COVID-19 in the Australian Workplace. COVID-19在澳大利亚工作场所出现的新问题。
Journal of Law and Medicine Pub Date : 2022-12-01
Robert Guthrie, Robert Aurbach, Marina Ciccarelli
{"title":"Emerging Issues from COVID-19 in the Australian Workplace.","authors":"Robert Guthrie,&nbsp;Robert Aurbach,&nbsp;Marina Ciccarelli","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>This article addresses a range of workplace issues, with a focus on workers' compensation and return to work, and employment law and related medical issues after the outbreak and spread of COVID-19 in Australia since 2020. It will briefly address some changes to the insurance industry generally and then consider the sometimes complex issues arising from workers' compensation claims, which have changed behaviours in claims and injury management. It concludes the theme emerging from decided cases to date that employers, insurers, and rehabilitation providers must adopt a reasonable approach to the consultation and implementation of workplace changes affecting injured workers subject to return-to-work programs.</p>","PeriodicalId":45522,"journal":{"name":"Journal of Law and Medicine","volume":"29 4","pages":"1182-1200"},"PeriodicalIF":0.0,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"10699376","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
New Zealand's Bold New Structural Health Reforms: The Pae Ora (Healthy Futures) Act 2022. 新西兰大胆的新结构性医疗改革:《2022年健康未来法》。
Journal of Law and Medicine Pub Date : 2022-12-01
Joanna Manning
{"title":"New Zealand's Bold New Structural Health Reforms: The Pae Ora (Healthy Futures) Act 2022.","authors":"Joanna Manning","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>New Zealand has implemented a transformative overhaul of its public health system. Regulated by the Pae Ora (Healthy Futures) Act 2022 (NZ), the system has two key objectives: first, greater centralisation, with 20 regional district health boards replaced by two central commissioning agencies. New Zealand has a truly national health system for the first time, an aim being to end the \"post code lottery\". The second driver is to finally \"get real\" in tackling persistent inequities in health outcomes and access of disadvantaged groups, especially Māori, New Zealand's indigenous people, via various initiatives, including creation of a Maori Health Authority. A revolutionary aspect of the reforms is that the principles of the founding Treaty of Waitangi between Māori and the Crown have been embedded in the legislation as high-level guiding principles for all entities. Well-intentioned aims are a good start, but will need to be matched by realistic funding if the reforms are to have any chance of success.</p>","PeriodicalId":45522,"journal":{"name":"Journal of Law and Medicine","volume":"29 4","pages":"987-1005"},"PeriodicalIF":0.0,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"10708056","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Conscientious Objection in Australia: A Comparison between Abortion and Voluntary Assisted Dying. 澳大利亚的良心反对:堕胎与自愿协助死亡的比较。
Journal of Law and Medicine Pub Date : 2022-12-01 DOI: 10.2139/ssrn.4120006
R. Sifris
{"title":"Conscientious Objection in Australia: A Comparison between Abortion and Voluntary Assisted Dying.","authors":"R. Sifris","doi":"10.2139/ssrn.4120006","DOIUrl":"https://doi.org/10.2139/ssrn.4120006","url":null,"abstract":"Abortion and voluntary assisted dying (VAD) are areas of health care that elicit passionate and emotional responses. As a result of the diverse perspectives relating to these forms of medical care, Australian law allows for conscientious objection in both contexts. This article considers the role of conscientious objection in health care in Australia, with a particular focus on abortion and VAD. In begins by considering the legal position, highlighting some of the key differences in the way that conscientious objection is regulated in these two contexts and between Australian jurisdictions. It observes that jurisdictions which have legalised both abortion and VAD have not necessarily adopted the same approach to the question of conscientious objection as it pertains to abortion versus VAD. The article then turns to consider the reality of conscientious objection \"on the ground\" across these two domains in an effort to understand this distinction.","PeriodicalId":45522,"journal":{"name":"Journal of Law and Medicine","volume":"29 4 1","pages":"1079-1089"},"PeriodicalIF":0.0,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45243265","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Management of Behaviours in Dementia: Treatment or Restraint? 痴呆患者的行为管理:治疗还是约束?
Journal of Law and Medicine Pub Date : 2022-12-01
Rohan Wee
{"title":"Management of Behaviours in Dementia: Treatment or Restraint?","authors":"Rohan Wee","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>The use of antipsychotic medication in the management of behaviours of concern in dementia is complex. Antipsychotics may be part of medical treatment or be a restrictive practice. The uncertainty around consent for restrictive practices exposes patients to the risk of antipsychotic use without consent and doctors to the risk of liability. This situation is even less clear in Victoria following the ruling in HYY [2022] VCAT 97. This article examines the process of consent, the potential liabilities and possible defences. It concludes that changes are needed to the process for obtaining consent to use antipsychotic medications for restrictive practices, especially in Victoria.</p>","PeriodicalId":45522,"journal":{"name":"Journal of Law and Medicine","volume":"29 4","pages":"1255-1268"},"PeriodicalIF":0.0,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"10692589","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Autonomy Versus Integrity: The "Mind" and its "Body" in the Law. 自治与诚信:法律中的“心”与“身”。
Journal of Law and Medicine Pub Date : 2022-12-01
Chris Dent
{"title":"Autonomy Versus Integrity: The \"Mind\" and its \"Body\" in the Law.","authors":"Chris Dent","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>The law has changed, over the past century, in respect of how it sees the legal subject. From the 1980s, the law began to articulate an understanding of the \"mind\" of those who came before the courts. This is evident in decisions around nervous shock in negligence law. The law also began to articulate a distinction between the \"mind\" and the \"body\" - evident in the law of consent to health treatment. The engagement of the courts with the development of the capacity of children to consent, in particular, when tied with the idea of \"abstraction\", allows for an in-depth exploration of the concepts. The assessment of the law in the two areas, in turn, facilitates an exploration of the law's understanding of the \"autonomy\" and the bodily \"integrity\" of the legal subject.</p>","PeriodicalId":45522,"journal":{"name":"Journal of Law and Medicine","volume":"29 4","pages":"1241-1254"},"PeriodicalIF":0.0,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"10692593","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
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