Tag: negligence

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Jahi McMath – Assess Whether She Is Alive in April 2017

This week, one of the medical defendants in Jahi McMath’s medical malpractice action filed a case management statement.  


It states that an IME (Independent Medical Exam) will be completed by 04/30/17.  This means that the defendants (jointly or individually) plan to have one or more retained independent medical experts physically examine Jahi in New Jersey.


While the purpose of this IME may be to assess the liability issues (i.e. did defendants commit malpractice), it seems that the primary purpose of the IME will be to assess damages.  Specifically, is Jahi McMath now alive or dead?  The answer to that question can change the value of the medical malpractice case by many millions of dollars.


However, the IME may not go forward in April 2017.  The plaintiffs have renewed their motion to bifurcate the trial and discovery.  They argue that it will be more efficient to first litigate the liability issues.  Stage one: have a jury determine whether the defendants were negligent and whether that negligence caused Jahi brain injury.


Only if the jury makes such a finding on liability, will it be necessary to move to stage two: is Jahi now alive and what is the appropriate amount of compensation.  This is the far more complicated question, so it seems efficient to sequence the trial to avoid having to answer this if possible.


The hearing on the motion to bifurcate is on April 27, 2017 in Alameda County Superior Court Dept. 16.

The views, opinions and positions expressed by these authors and blogs are theirs and do not necessarily represent that of the Bioethics Research Library and Kennedy Institute of Ethics or Georgetown University.

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The Rise of Evidence-Based Psychiatry

March 7, 2017

(Scientific American) – The case sparked a decades-long debate—one with “considerable spunk”—that captured the attention of the psychiatric community: “Has psychiatry reached the point where use of the psychodynamic model is viewed as malpractice when it is the exclusive treatment for serious mental disorders?” Stone asked. Another clinician questioned, “Are psychoanalysis and medical psychiatry compatible?” Data showing one therapy was effective could evidently legally compel clinicians to change practice to avoid claims of negligence. Furthermore, if theories about the etiology of brain diseases like depression were demonstrated and generally accepted, clinicians who guide therapy with “traditional,” nonscientific theories could also be considered negligent.

The views, opinions and positions expressed by these authors and blogs are theirs and do not necessarily represent that of the Bioethics Research Library and Kennedy Institute of Ethics or Georgetown University.

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The High Cost of Clinical Negligence Claims

By John Tingle In the UK, the Department of Health (DH) have just published a consultation paper on introducing fixed recoverable costs in lower value clinical negligence claims. The document contains some controversial proposals which many claimant, patient lawyers are … Continue reading

The views, opinions and positions expressed by these authors and blogs are theirs and do not necessarily represent that of the Bioethics Research Library and Kennedy Institute of Ethics or Georgetown University.

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Consent and Sexual Advance Directives

Consent and Sexual Advance Directives

Fritz Allhoff, Center for Law and the Biosciences

Consent, including the ability to withdraw it, is a major issue in biomedical research, as well as in health care.  A recent Canadian case and the following discussion raises another issue around consent that may have implications for law and the biosciences.

In R. v. J.A. (2011), the Canadian Supreme Court considered a case involving a sexual advance directive.  The pertinent details are summarized in a law review artice by Prof. Alexander Boni-Saenz (Chicago-Kent), and were featured in a provocative discussion over on Volokh.  Here’s an excerpt:

In May of 2007, a woman and her long-time male partner engaged in consensual kinky sex. Specifically, the woman consented to erotic asphyxiation, or the practice of choking during a sexual encounter as a way to restrict oxygen flow and enhance sexual arousal. She also consented to sexual penetration while unconscious.

The man then choked the woman, something which they had done before, and she passed out for approximately three minutes. During that time, the man tied the woman’s arms behind her back and inserted a dildo into her anus. When she regained consciousness, he removed the dildo, and they had consensual penile-vaginal intercourse as well. After they had both finished, she said her safe word—“Tweet  Bird”—and he cut her free of her bonds. Despite the woman’s consent, the state still prosecuted the man for sexual assault, claiming that she could not consent in advance as a matter of law. (Boni-Saenz at 2-3; internal citations omitted.)

The trial court convicted the man, holding that the woman “cannot legally consent to an activity that takes place while she is unconscious.” 

The views, opinions and positions expressed by these authors and blogs are theirs and do not necessarily represent that of the Bioethics Research Library and Kennedy Institute of Ethics or Georgetown University.

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In the Journals – December 2016, Part I by Livia Garofalo

Here is the first part of our December article roundup. Three journals have special issues this month (abstracts in the post below):

Enjoy reading (and what’s left of the holidays)!

American Anthropologist

The Contingency of Humanitarianism: Moral Authority in an African HIV Clinic

Betsey Behr Brada

One consequence of the recent expansion of anthropological interest in humanitarianism is the seeming obviousness and conceptual stability of “humanitarianism” itself. In this article, I argue that, rather than being a stable concept and easily recognizable phenomenon, humanitarianism only becomes apparent in relation to other categories. In short, humanitarianism is contingent: it depends on circumstance and varies from one context to another. Furthermore, its perceptibility rests on individuals’ capacity to mobilize categorical similarities and distinctions. One cannot call a thing or person “humanitarian” without denying the humanitarian character of someone or something else. Drawing on research conducted in clinical spaces where Botswana’s national HIV treatment program and private US institutions overlapped, I examine the processes by which individuals claimed people, spaces, and practices as humanitarian, the contrasts they drew to make these claims, and the moral positions they attempted to occupy in the process. More than questions of mere terminology, these processes of categorization and contradistinction serve as crucibles for the larger struggles over sovereignty, inequality, and the legacies of colonialism that haunt US-driven global health interventions.

Scripting Dissent: US Abortion Laws, State Power, and the Politics of Scripted Speech

Mara Buchbinder

Abortion laws offer a point of entry for “the state” to intervene in intimate clinical matters.

The views, opinions and positions expressed by these authors and blogs are theirs and do not necessarily represent that of the Bioethics Research Library and Kennedy Institute of Ethics or Georgetown University.

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After Battling Women’s Rights Groups for Years, India Is Finally Rolling Out Injectable Contraceptives

December 5, 2016

(Quartz) – Among these, female sterilisation remains the more popular choice, accounting for over 75% of contraceptive use in India. The procedure is offered for free by government-run camps, but negligence and even gross human rights violations have often led to deadly results. That could explain why the government is now increasing the number of free-of-cost methods on offer under its long-running family planning program to include injectable contraceptives featuring the drug depot medroxyprogesterone acetate, or DPMA. Currently, the program offers female and male sterilisation, IUDs, condoms, and pills for free.

The views, opinions and positions expressed by these authors and blogs are theirs and do not necessarily represent that of the Bioethics Research Library and Kennedy Institute of Ethics or Georgetown University.

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A landmark case transforms informed consent in the UK

A ruling by a UK court last year forces doctors to tell their patients the full range of treatment options and allowing them to choose. The Royal College of Surgeons has warned of “a dramatic increase in the number of litigation pay-outs” made if doctors and hospitals do not make changes to the processes they use to gain consent from patients before surgery.

Traditionally it was up to British doctors to decide what risks to communicate to patients. But last year the UK Supreme Court held in a case called Montgomery vs Lanarkshire Health Board, that doctors must ensure patients are aware of any and all risks that an individual patient, not a doctor, might consider significant.

In other words, doctors can no longer be the sole arbiter of determining what risks are material to the patient.

In the past, litigation in malpractice suits was governed by the Bolam principle, which saw the judgement of medical experts as the main criterion for assessing reasonable care in negligence cases and for deciding what risks should be communicated to the patient for a chosen treatment.

Now the pendulum has swung from the “reasonable doctor” to the “reasonable patient”. This could mean a huge increase in the workload of doctors. A spokesman for the College said:

“It’s not hard to see how in many hospitals gaining a patient’s consent has become a paper tick-box exercise, hurriedly done in the minutes before a patient is wheeled into theatre for their procedure. Operating lists and consultation clinics are packed leaving little time for these important consent discussions.

The views, opinions and positions expressed by these authors and blogs are theirs and do not necessarily represent that of the Bioethics Research Library and Kennedy Institute of Ethics or Georgetown University.

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IVF doctors issue new ethical guidelines for errors

Some IVF clinics are run like “like a 19th-century grocery”, says Art Caplan   

Cases of mix-ups, losses and genetic defects have given IVF clinics and sperm banks a black eye in the past year in the United States. A recent story in the New York Times was headlined “Sperm Banks Accused of Losing Samples and Lying About Donors”. The Times spoke of “a new wave of lawsuits against sperm banks, highlighting claims of deception and negligence, and adding an array of challenges beyond the longstanding issue of undetected genetic problems”.

Quality control has often been poor in the clinics. “Even in New York, when they inspect, they’re looking at hygienic conditions not record-keeping,” said bioethicist Arthur Caplan, of New York University. “Nobody confirms that you have what you say you have… It’s absurd that we have these materials so valuable that people pay to store them, but we run it like a 19th-century grocery. Cryopreservation has historically operated in a casual laissez-faire environment, where people were just supposed to trust.”

Now the American Society for Reproductive Medicine, the peak IVF body in the US, has issued non-binding ethical guidelines for its members. It states that clinics are ethically obliged to inform people of mistakes “of respect for patient autonomy and in fairness to patients”. Clinics should inform patients as soon as a mistake is discovered. And clinics should also foster “a culture of truth-telling”.

The temptation to avoid informing patients about mistakes must be great, but the ASRM insists that mistakes must be acknowledged as soon as possible:

“Principles of open and honest communication with patients have special significance in reproductive medicine.

The views, opinions and positions expressed by these authors and blogs are theirs and do not necessarily represent that of the Bioethics Research Library and Kennedy Institute of Ethics or Georgetown University.

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The social framing of diagnoses and empathetic listening by Aaron J. Jackson

The account that follows depicts a visit with my neurologist. The visit was one of many within a five-month period of navigating various medical spaces to get to the bottom of the illness that was ailing me. It speaks to the systemic and cultural dimensions of illness that threaten to undermine medical understandings, diagnosis and treatment, alongside personal narratives of suffering.

I need a body to live and my current one is harbouring a ghost. To medical professionals, its idiopathic guise makes it seemingly innocuous. But it’s not. How do I know? Because it’s already stripped me of valuable time with my children. Because I’m the one embodying these curious ailments. My muscles twitch. My hands ache. There’s an old guy sitting to my right in the waiting room, plaid shirt and jeans, who’s called in for his appointment. He has more bounce in his step than I do. I feel like I’m living an 80’s body swap comedy. But my body hasn’t been swapped. It’s the same white body I’ve always had. It just feels different. I’m envious of his seventy-five-year-old vitality.

Finally, Professor Mead – let’s call him that for purposes of anonymity – calls my name. The office atmosphere feels stiff and lifeless. He tells me to lie down on the bed. My shorts and t-shirt provide unencumbered access to my body’s flesh. A needle electrode is inserted into my muscles to record the electrical activity at rest. The monitor declares the electrodes findings through a series of wavy and spiky lines.

Small fasciculations are recorded in my left foot.

The views, opinions and positions expressed by these authors and blogs are theirs and do not necessarily represent that of the Bioethics Research Library and Kennedy Institute of Ethics or Georgetown University.

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Hospital Sued for Resuscitating Patient in Contravention of POLST

As I argued in a lengthy review of U.S. cases, providers face significant risk for administering UNWANTED life-sustaining treatment.  Here is the latest case in point.

On August 7, 2013, Beatrice Weisman’s healthcare agent completed a Maryland MOLST indicating that she did NOT want to be resuscitated if she coded.  Nevertheless, on August 29, 2013, clinicians at Maryland General Hospital (now part of the University of Maryland) performed CPR despite her express DNR instructions and against her wishes.  Hospital employees defibrilated Mrs. Weisman three (3) times, and injected her with epinephrine all in an effort to resuscitate her.


Weisman’s agent is now suing the hospital for assault,  negligence, IIED, breach of contract, and informed consent.  (Circuit Court of Maryland, Baltimore City, No. 24-C-16-004199).  He alleges:


“While that undesired effort was successful, Mrs. Weisman was severely injured by the violent process, has been burdened by enormous medical costs and now spends tens of thousand of dollars per month to care for herself, and was ultimately charged for medical services that she specifically advised Defendant that she did not want or were otherwise occasioned by Defendant having ignored her express wishes.


“In addition, Mrs. Weisman’s family now spends significant time, energy and resources caring for her because she cannot fully care for herself, despite The expenditure of what will be a significant part of her Estate and that of her late husband’s.”

The views, opinions and positions expressed by these authors and blogs are theirs and do not necessarily represent that of the Bioethics Research Library and Kennedy Institute of Ethics or Georgetown University.