Tag: Tort Reform

A man holds a shield in his hand.

The Pathology (and Politics) of Liability Shields

Nicolas P. Terry Leave a comment

By Nicolas Terry

Over one million Americans have died from COVID-19, while 20 percent of those who survive may develop post-COVID conditions. With weak safety net policies and high health care costs it would hardly be surprising if our fellow citizens tried to shift some of their COVID costs to arguably responsible defendants.

For example, lawsuits could have emerged against either businesses (or their employees) alleging negligent failure to mitigate (e.g., vaccinate, mask, or even implement hygiene theater policies), or against health care providers for failures in the professional standard of care (e.g., failure to amass/provide adequate numbers of personal protective equipment or ventilators).

However, the predicted litigation explosion has not materialized. In its stead (and without any apparent causal valence) we have experienced a proliferation of liability shield (aka limited immunity) laws.

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Herndon, USA - April 27, 2020: Virginia Fairfax County building exterior sign entrance to Mom's Organic Market store with request to wear face mask due to covid-19 pandemic.

Tort Liability is a Potentially Powerful Tool for Pandemic Response

The Petrie-Flom Center Staff Leave a comment

By Timothy D. Lytton

When pandemic response efforts are hampered by inadequate enforcement resources and political polarization, tort liability could, potentially, be a powerful public health tool. However, starting in the initial stages of the pandemic, tort reform advocates quickly secured for businesses sweeping immunity from negligence, thereby sidelining the tort system. In this blog post, I will describe why this represents a lost opportunity.

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doctor holding clipboard.

Change for the Medical Malpractice Compensation System in England?

John Tingle Leave a comment

By John Tingle

It is fair to say that the British public are generally speaking very proud of our National Health Service  in England, and treasure it greatly. The NHS Constitution sets out the seven key principles which guide the NHS in all its activities, and these include:

  1. The NHS provides a comprehensive service, available to all.
  2. Access to NHS services is based on clinical need, not an individual’s ability to pay. NHS services are free of charge, except in limited circumstances sanctioned by Parliament.

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Physical therapist helps person in wheelchair.

Balancing Patient Rights and Costs in Medical Malpractice Claims

John Tingle Leave a comment

By John Tingle and Amanda Cattini

The issue of the high and increasing costs of clinical negligence (medical malpractice) in the National Health Service (NHS) in England has long been a contentious one. There are common themes in the debate. The economic arguments supporting reform explain that the NHS is spending a considerable amount of money out of its health budget on malpractice claims, which otherwise could be put into front line health care services.  While the economic arguments are important, others contend that the patient’s voice must be heard more widely in the reform debate. They emphasize that it is important to look deeper as to what compensation means to victims of clinical negligence, and caution against unnecessarily fettering patients’ reasonable pursuit of claims.

Two recently published reports provide several key perspectives on these issues.

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NHS building

Health Care Providers’ Legal Duty to Be Open and Honest with Patients

John Tingle Leave a comment

By John Tingle

Last September, the first ever prosecution of a National Health Service (NHS) trust for failure to comply with the regulation concerning duty of candor was adjudicated.

University Hospitals Plymouth NHS Trust was ordered to pay a total of £12,565 after admitting it failed to disclose details relating to a surgical procedure and to apologize following the death of a 91-year-old woman.

Duties of candor require that patients be informed of adverse events as soon as possible after they occur. These duties serve as mechanisms to help balance power dynamics in health care and to advance patient rights. In England, duties of candor are contained in the professional codes of ethics of doctors and nurses, and in statutory regulations.

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Busy Nurse's Station In Modern Hospital

COVID-19 Clinical Negligence and Patient Safety Update

John Tingle Leave a comment

By John Tingle

Health care law is evolving particularly rapidly during the COVID-19 pandemic.

For example, as the COVID-19 pandemic continues, families in England who have lost loved ones to the virus are considering filing clinical negligence claims. And there have even been calls in some quarters to bring global lawsuits against China for breaches of international health regulations over its handling of COVID 19.

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Photograph of a gavel in front of a British flag

Trends in NHS Clinical Negligence Litigation Revealed in Latest NHS Resolution Annual Report and Accounts

John Tingle 2 Comments

By John Tingle

NHS Resolution is a major National Health Service (NHS) organisation concerned with patient safety, health quality, and litigation management in the NHS and provides essential infrastructure services. NHS Resolution has recently published its 2018/19 annual report and accounts, which contains valuable insights into the current state of clinical negligence litigation in the NHS in England. Several key themes and trends are identified in the report.

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