Malpractice or masterful practice?Navigating vicarious liability in healthcare

In the intricate landscape of healthcare,vicarious liability looms large,shaping the responsibilities and actions of healthcare practitioners and administrators alike.Illustrated by a poignant scenario of a medication error,this article navigates the complexities of vicarious liability in healthcare.It explains the legal basis and ramifications of this theory,emphasizing its importance in fostering responsibility,protecting patient welfare,and easing access to justice.The paper explores the practical effects of vicarious responsibility on day-to-day operations,leadership practices,and decision-making processes via the eyes of senior consultants,junior doctors,and hospital administrators.Through comprehensive insights and real-world examples,it underscores the imperative of fostering a culture of accountability,communication,and quality care to navigate the intricate web of liabilities inherent in modern healthcare.

Compensatory Damages in Personal Information Public Interest Litigation in China: Challenges and Prospects

In contrast to private interest litigation,public interest litigation provides a more potent solution to personal information infringements marked by extensive scope,unspecified victims,and limited individual loss.However,com⁃pensatory damages remain a contentious issue,both in theory and in practice,within the legal framework of personal in⁃formation public interest litigation.Through an empirical study conducted within China's judicial practice,this paper reveals that the pending issue concerning the nature and function of compensatory damages has caused highly contra⁃dictory verdicts regarding their calculation and allocation,as well as their relationship with other forms of pecuniary li⁃abilities.Only by acknowledging the role of compensatory damages imposed in personal information public interest liti⁃gation as"Skimming off Excess Profits",and affirming their function as deterrence rather than compensation can they truly achieve the broader objective of safeguarding personal information security and promoting public welfare,as well as avoid disrupting the harmony of the existing legal landscape.

Challenges to Online Criminal Litigation in the Context of Smart Justice and Responses——Focusing on the Protection of the Right to Defense

Online criminal litigation transcends the constraints of physical time and space and changes the logic and path of trial hearings for some criminal cases with the help of technology.However,the leapfrog shift from the“physical field”to the“virtual field”has brought great challenges to the effective exercise of the defendant's right to defense.Online criminal justice further highlights the imbalance in the relationship between prosecution and defense in the context of smart justice,and proposes a new topic for protecting the human rights of the prosecuted.The introduction of online criminal litigation in judicial practice is intended to achieve justice in a faster and more convenient way.However,the dissipation of the ritualized remote hearings tends to undermine the effectiveness of the defense and impair the defense's ability to cross-examine evidence,while the technically advantageous public authorities can aggravate the barrier to the defense's meeting and reading the case file.The root cause is that technological power instrumentalism overemphasizes pragmatism and the pursuit of truth under the position of authority,thus diluting humanistic care for the subject of litigation.In order to resolve the problem with the quality and effectiveness of the right to defense in remote hearings,it is necessary to transform online criminal litigation from a“practical technical tool”to a“convenient auxiliary method,”and appropriately weigh the limits of pursuing truth against human rights protection in special scenarios.Meanwhile,it is also feasible to provide technical care for the defense and strengthen its ability to cross-examine evidence.Moreover,a covert communication platform should be furnished for the defender's online meeting to actively strengthen the protection of the defendant's right to defense.

Investigation of litigation in trauma orthopaedic surgery

BACKGROUND It has been said that the number of orthopaedic claims has increased in the last few years. Investigation through the most prevalent cause would help to prevent further cases.AIM To review the cases of medical complaints in orthopedic patients who had been involved in a traumatic accident.METHODS A retrospective multi-center review of trauma orthopaedic-related malpractice lawsuits from 2010 to 2021 was conducted utilizing the regional medicolegal database. Defendant and plaintiff characteristics along with fracture location, allegations, and litigation outcomes were investigated.RESULTS A total of 228 claims referred to trauma-related conditions with a mean age of 31.29 ± 12.56 were enrolled. The most common injuries were at hand, thigh, elbow, and forearm, respectively.Likewise, the most common alleged complication was related to malunion or nonunion. In 47% of the cases, the main problem that led to the complaint was the inappropriate or insufficient explanation to the patient, and in 53%, there was a problem in the surgery. Eventually, 76% of the complaints resulted in a defense verdict, and 24% resulted in a plaintiff verdict.CONCLUSION Surgical treatment of hand injuries and surgery in non-educational hospitals received the most complaints. The majority of litigation outcomes were caused by a physician’s failure to fully explain and educate the traumatic orthopedic patients and technological errors.

Diffusion tensor imaging in the courtroom:Distinction between scientific specificity and legally admissible evidence

Interest and uptake of science and medicine peer-reviewed literature by readers outside of a paper’s topical subject,field or even discipline is ever-expanding.While the application of knowledge from one field or discipline to others can stimulate innovative solutions to problems facing modern society,it is also fraught with danger for misuse.In the practice of law in the United States,academic papers are submitted to the courts as evidence in personal injury litigation from both the plaintiff(complainant)and defendant.Such transcendence of an academic publication over disciplinary boundaries is immediately met with the challenge of application by a group that inherently lacks in-depth knowledge on the scientific method,the practice of evidence-based medicine,or the publication process as a structured and internationally synthesized process involving peer review and guided by ethical standards and norms.A modern-day example of this is the ongoing conflict between the sensitivity of diffusion tensor imaging(DTI)and the legal standards for admissibility of evidence in litigation cases of mild traumatic brain injury(mTBI).In this review,we amalgamate the peer-reviewed research on DTI in mTBI with the court’s rationale underlying decisions to admit or exclude evidence of DTI abnormalities to support claims of brain injury.We found that the papers which are critical of the use of DTI in the courtroom reflect a primary misunderstanding about how diagnostic biomarkers differ legally from relevant and admissible evidence.The clinical use of DTI to identify white matter abnormalities in the brain at the chronic stage is a valid methodology both clinically as well as forensically,contributes data that may or may not corroborate the existence of white matter damage,and should be admitted into evidence in personal injury trials if supported by a clinician.We also delve into an aspect of science publication and peer review that can be manipulated by scientists and clinicians to publish an opinion piece and misrepresent it as an unbiased,evidencebased,systematic research article in court cases,the decisions of which establish precedence for future cases and have implications on future legislation that will impact the lives of every citizen and erode the integrity of science and medicine practitioners.

Human Rights-based Argumentation in Climate Change Lawsuits

Climate change lawsuits represented by strategic litigation have become a new force to promote global climate governance. Among them, using the norms and theories of human rights law to present litigation claims, conduct legal reasoning, and form human rights-based argumentation has been one of the most successful strategies for climate change lawsuits. The Paris Agreement marked a major watershed for human rights-based argumentation in climate change lawsuits: Before the signing of the Agreement, human rights-based argumentation in climate change lawsuits remained in its trial stage;since the signing of the Paris Agreement, as a litigation strategy, it has become more flexible and diversified, as its relationship with climate governance is becoming increasingly complicated. The uncertainty of climate legal obligation and the process of legalization of climate targets have fostered new dimensions for human rights-based argumentation: Shifting from an accountability logic to a litigation strategy, from international law to domestic law, from holding governments accountable to holding enterprises accountable. There are micro, medium, and macro paths to clarify the human rights-based argumentation, all leading to truly integrating human rights perspectives and ideas into a nation’s specific process of climate governance and valuing and leveraging the value of human rights-based argumentation as a tool, so as to achieve the goal of climate governance.

Judicial Typification of Human Rights Protection Amid Climate Risks:Legal Analysis and Path Choice

In accordance with the canonical sources of the right of legal claim,the targets of judicial review,and the intensity of judicial review intervention policies,lawsuits that directly and indirectly activate the function of human rights protection amid climate risks can be divided into the following categories:climate change lawsuits based on international human rights law,climate change lawsuits based on the domestic constitution,and judicial review of administrative procedures.Due to the singularity of the legal status and force of international human rights law,its“direct applicability”and“explanatory applicability”limit its function in protecting human rights;Climate change lawsuits based on domestic constitutions have the identification of basic right of claim,the judgment of basic rights and function,and the scope of state obligations as the judgment process.Factors such as the difficulty in right typification caused by the integration of climate law and interests,the expansion of discretionary and administrative power in legislation under the context of risk prevention,and the functional boundary of the judicial system cause the dysfunction of the dichotomous review standard of positive rights and negative rights.Procedural rights represent an important dimension of climate-related human rights.With the standardization of administrative procedures on addressing climate risks,the courts are gradually reinforcing decision-making authorities’obligation of due diligence through judicial review of risk decision-making procedures,thus indirectly guaranteeing the realization of tangible human rights.

The Protection of Right of Minors to Express Their Opinions in Family Litigations

The right of minors to express their opinions in family litigations refers to minors,who have a certain degree of mental capacity and assertiveness,having the right to express their opinions on the arrangements or decisions related to themselves when the courts handle familial litigation cases involving their interests,and to request the courts hear their opinions.In essence,the right of minors to express their opinions in family litigations belongs to the basic procedural rights of minors as well as judicial beneficiary rights.As for the protection of the right of minors to express their opinions in family litigations,recognizing the status of minors as independent subjects of rights is the logical premise,the procedural guarantee for the rights of the substantive parties involved is the direct cause,and ensuring the best interests of children is the fundamental reason.In order to protect the right of minors to express their opinions in family litigations,China should standardize the mechanisms for judges to hear the opinions of minors directly,improve the mechanisms for family investigators,and establish mechanisms for representing the interests of minors.

Medical malpractice litigation related to gastrointestinal endoscopy in Japan:A two-decade review of civil court cases

AIM: To examine the allegations in malpractice litigations related to gastrointestinal endoscopy in Japan. METHODS: A retrospective review of cases tried in the civil court system during the 21-year period from 1985 to 2005, identified in a computerized legal database, was undertaken. RESULTS: Eighteen malpractice litigations and a total of 30 allegations were identified. Of the 18 (44%) malpractice litigations, 8 (44%) were related to eso- phagogastroduodenoscopy, 4 (22%) to colonoscopy, 4 (22%) to endoscopic sphincterotomy, and 2 (11%) to endoscopic retrograde cholangiopancreatography. Seventeen (94%) cases pertained to complications, and the remaining (6%) case pertained to misdiagnosis. In 10 cases, the patient died of the complications. Allegations were categorized as: (1) performance error during the endoscopic procedure (n = 12, 40%); (2) lack of informed consent (n = 9, 30%); (3) performance error during the treatment after the endoscopic procedure (n = 4, 13%); (4) premedication error (n = 3, 10%); (5) diagnostic error (n = 1, 3%); and (6) indication error for the endoscopic procedure (n = 1, 3%). CONCLUSION: These data may aid in the design of risk prevention strategies to be used by gastrointestinal endoscopists.

On the Plaintiff's Subject Qualification for Environmental Public Interest Litigation Instituted by People's Procuratorates

Although it is not the main duty for the People's Procuratorate to institute environmental public interest litigation proceedings, the existence of "reserve" prosecution right of plaintiff not only is beneficial to timely prevention and cure of environmental damage, but also contributes indispensable judicial supervision force to the environmental legality construction. In order to safeguard environmental public interests, many local prosecutorial organizations have practiced environmental public interests litigation. Since Chinese law has not made explicit stipulation on the function of the People's Procuratorate instituting environmental public interest litigation, the plaintiff's subject qualification for environmental public interest litigation instituted by the People's Procuratorate is still in question. In order to propel the People's Procuratorate to completely and fully exercise their power of supervision and prosecution, there shall be corresponding legislation that provides powerful guarantee for the People's Procuratorate instituting environmental public interest litigation.

Physicians’Perspectives of Informed Consent for Medical Procedures:A Qualitative Interview Study

This work is based on an on-going research on medical informed consent in Papua New Guinea(PNG)with 19 doctors from hospitals,health care centers and private medical establishments in the National Capital District and Central Province who voluntarily participated in the study.The authors conducted an examination of doctors’understanding of informed consent for medical procedures through a qualitative interview study and we describe our findings.We saw a need to involved patients in decision-making about their care,ethical imperative and concerns about litigation and their complaints highlighted the issue of informed consent.In order for the patients to make an informed decision about medical procedure,the doctors involved in the proposed treatment should conduct the informed consent discussion.The discussion should include the treatment,the risks and benefits of treatment,and alternative therapies with associated risks and benefits.We studied doctors’perspectives of gaining informed consent for routine medical procedures.We used qualitative study methods using structured interviews selected by purposive sampling.The data collected were entered into a data base and were analyzed thematically.The discussion is based on review of legal decisions,commentaries and our personal experience in studying medical malpractice cases.We have utilized case reports and several informative writings that have appeared in the world literature,as well as selections from vast amounts of material available in USA,UK,Australia,India and PNG.The current informed consent processes do not appear to be ideal for many doctors in PNG.In particular,there are inhibiting factors that affect patients from making medical informed decisions,doctors find time not enough to run discussions on informed consent,Department of Health does not have a standard informed consent form,patients complain about no consent form,and they have not signed consent forms.These are but some issues that affect patients when trying to make informed decisions.We say that informed consent process flows from the relationship between doctor and patient,however when this does not occur,serious legal and ethical consequences may result.This report is not intended to be specific advice on any private legal matter.

The audit expectation gap： A review of the contributing factors

The audit expectation gap is critical to the auditing profession because the greater the unfulfilled expectations from the public, the lower is the credibility, earning potential and prestige associated with the work of auditors. The aim of this paper is to uncover the causes of an audit expectation gap. It is revealed that the existence of an audit expectation gap is due to complicated nature of an audit function; conflicting role of auditors; retrospective evaluation of auditors＇ performance; time lag in responding to changing expectation; and self-regulation process of the auditing profession.

Medico-legal risks associated to hand and wrist trauma

BACKGROUND Acute hand and wrist injuries are common and may lead to long-term disability if not managed adequately.Claims for negligence have been increasing in medical practice over the past few decades,with hand and wrist injuries and their treatment representing a significant percentage of orthopedic surgery lawsuits.There is no available literature regarding medical malpractice claims in hand and wrist injuries and surgery in Greece.AIM To identify claims related to hand and wrist trauma and surgery and to define the reasons of successful litigations.METHODS We performed a retrospective study of all legal claims of negligence for hand and upper extremity surgery that went to a trial,attributed to all surgical specialties,in Greece for a 20-year period.Data was further analyzed to identify claims related to hand and wrist trauma and surgery.RESULTS There were six malpractice claims related to hand and wrist trauma that ended in a trial.A missed diagnosis,which resulted in failure of initial management of the injury,was the main reason for a claim.Three of the six cases resulted in complete or partial loss of a finger.Two cases are still open,requiring an expert witness’s report,two cases were closed in favor of the defendant,and two cases were closed in favor of the plaintiff with a mean compensation of€2000(€1000-€3000).CONCLUSION Missed diagnosis was the main reason for a malpractice claim.Better understanding of factors leading to successful claims will help surgeons improve their practice to minimize legal implications and litigation.

Research on Environmental Public Interest Litigation in Taiwan

As germination and rise of public environmental awareness in Taiwan, large-scale air pollution, water pollution, noise, land subsidence and other public hazards harming human health and living environment caused by various production or consumption activities are generated. Facing the situation of environment increasingly aggravates, environmental public interest litigation system is constructed. First, Article 9 of Administrative Procedure Law stipulates public interest litigation;then ,Article 34 of Environmental Basic Law cleady stipulates important elements of public interest litigation. In the research, taking the first environmental public interest litigation in Taiwan as the example, collusion process between government and developer, and private environmental protection groups finally obtaining victory through the continuous effort and litigation are illustrated, thereby uncovering so-called ＂legal＂ saying by government and developer. Environmental maintenance and improvement is the duty of every citizen should do, but not only the duty of govemment, which is mentality of environmental public interest litigation development should have and road must take.

Corporate Litigation,Reputation and Top Executive Turnover-Considering the Moderating Roles of Political and Legal Conditions

With the rapid development of China's economy,more and more listed companies have to face frequent corporate litigation.As corporate lawsuits are on the rise,it is necessary to study the measures taken by the company when a corporate litigation occurs.Some scholars'research indicates that top executive turnover may be one of the countermeasures,but few scholars have discussed this issue in the Chinese market.Our research uses 13435 samples of Chinese market,takes the company's reputation as an observing point,and studies the relationship between corporate litigation and top executive turnover.In addition,due to the special political environment and the large differences in the legal environment between different provinces in China,we have further explored the moderating role of political conditions and legal conditions.It is worth mentioning that our empirical research method is the propensity score matching(PSM),and by this way we can easily avoid sample selectivity bias.Finally,a robust experimental conclusion is obtained:corporate litigation and top executive turnover are significantly positively correlated,and this correlation will be adjusted by political and legal conditions.Our research enriches the field of corporate litigation and also have certain guiding significance for the social construction of the rule of law in China.

Analysis on Ecological Personality Right--In the Perspective of Environmental Personality Right

This essay focuses on expanding the traditional theory of personality right and referring to the outside legislative cases in order to promote environmental information disclosure,the purpose,therefore is to realize the ecological personality right.

Issues Trustees Face in Natural Resource Damage Assessments, Part I

The Natural Resource Damage Assessment (NRDA) process evaluates natural resource injuries arising from hazardous waste or oil spills and determines the appropriate remedies. In this article, the first of a two part series, I address the issues that Natural Resource Trustees regularly face during the NRDA process outlined in numerous environmental statutes. Large scale environmental disasters call for sound science, but also discretionary and informed decision-making specific to the particulars of the scenario faced by the trustee that will make the public whole. If the environmental statutes are read correctly, a NRDA will enable a trustee to make the best decisions regarding restoration plans and damages owed. However, constant challenges to the trustee’s authority by the responsible party during the assessment process are not only inconsistent with the trustee’s statutorily delegated authority and the purpose of the environmental statutes themselves, but add considerable delay and cost to the restoration process. This article outlines the NRDA process a trustee typically follows while addressing common misinterpretations of statutory authority that often hinder the ultimate goal of environmental restoration.

Issues Trustees Face in Natural Resource Damage Assessments, Part II

The first part of this two part series laid out the process that a Natural Resource Trustee will follow to complete a sound Natural Resource Damage Assessment (NRDA) as well as the typical challenges they face from the Responsible Party. The second part will present the typical issues that the trustee will face as the NRDA is tested in a court of law. A major litigation hurdle typically concerns what counts as “sound science” under the fact specific circumstances of a particular case. Many responsible parties will attempt to challenge a trustee’s assessment under the Daubert standard, which is the test for admissibility of evidence. However, because trustees are selected for their scientific expertise and subject to applicable laws and policies, including guidance on how to conduct a NRDA, trustees are generally the best arbiters of appropriate science, and as such should not be subject to a rigorous Daubert analysis.

Empirical study of the dilemma regarding preliminary proof of causality and methods used by victims in China's environmental health litigation

Environmental health incidents have occurred frequently in recent years;in China,however,litigation has not been effective in protecting the rights and interests of victims due to their heavy burden of proof.In order to mitigate the burden of proof for victims,the environmental judicature in China introduced the rule of inversion of burden of proof;this means that the victim only assumes the preliminary burden of proof,but in practice it has not been sufficient.Victims in environmental health litigation still face many difficulties in proving causality.Based on the statistical analysis of judicial big data,this paper demonstrates three dilemmas faced by victims.First,the preliminary burden of proof of causality has a high standard.Second,the victim's ability to produce evidence is low.Third,the casual relationship between pollution behaviors and health damage is difficult to identify.When examining the possible legal instruments,there are three aspects to the causes of these dilemmas:theory,judicial practice,and society.The theoretical aspect manifests as the differences between the rule of inversion of burden of proof and the presumption of causality;the practical aspect manifests as the lack of an identification system for personal injury;and the social aspect manifests as the victim's lack of economic,scientific,technological,and information resources,as well as the absence of assistance from government sectors and social organizations.Combining Chinese law with judicial practice,this paper proposes a solution to the dilemma of victims needing to prove causality in environmental health litigation.On the basis of clarifying the theoretical differences between the inversion of burden of proof and the presumption of causality,China should adhere to the rule of inversion of burden of proof,establish an identification system for personal injuries caused by environmental pollution,and use methods such as epidemiological causality,indirect counterevidence,and prima facie bewies.Furthermore,the full functions of the government and social organizations must be brought into play.This will not only help victims demonstrate causality,it can also help victims achieve equitable relief.

Selection and Optimization of Path Responding to Unexpected Environmental Incidents in China

By analyzing disposal status of unexpected environmental incidents by government,public and enterprise,and combining the characteristics of unexpected environmental incidents,specific measures of responding to unexpected environmental incidents are proposed from the aspects of perfecting guarantee system of emergency nomocracy,enhancing information disclosure,encouraging public participation,enhancing the construction of emergency response capability,and enhancing post-event management,to improve the ability of defending environmental risk.