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PubMedDate not supplied

Between passion and policy: litigating the Guckenberger case.

This article describes the Guckenberger lawsuit from the perspective of the attorneys who litigated the case on behalf of Boston University. It first discusses the events leading to the lawsuit, including then-Provost Jon Westling's speeches, his articulation of new policies regarding documentation for accommodations requests, and the university's refusal to allow course substitutions for required foreign language courses. The article then describes the main events in the lawsuit that resulted from those policy changes, focusing first on pretrial matters, such as the university's search for experts, the various motions filed prior to trial, and tactical issues. Moving to the trial itself, the article discusses the nature of the witness and expert testimony presented to the court and touches on the differences of opinion expressed at trial by experts in the field of learning disabilities. Finally, the article sets forth the court's ruling on the major issues in the case and reflects on the case's impact on institutions of higher education.

Adult↗
PubMed2002

Science and statistical victim: modernizing knowledge in breast implant litigation.

The advent of mass torts in US federal courts in the latter third of the 20th century accelerated a process of modernization in an institution that was unprepared for standardized approaches to dispute resolution. Faced with large-scale technological disasters, in particular, courts struggled to reform both their procedures and their fact-finding approaches in order to deal with multiple claimants in consolidated proceedings. Using silicone gel breast implant litigation as a case study, this paper argues that the attempt to marry judicial concerns for individual justice with administrative concerns for speed, efficiency and economy has produced anomalous results. The testimony of the clinician and the victim has become less relevant as judicial remedies take account of injuries done to classes of plaintiffs. Subjective claims about the body are subordinated to statistical correlations between exposure and grouped complaints. At the same time, the transfer of fact-finding authority from juries to judges under new evidentiary rules has privileged the judiciary's lay knowledge and experience over that of the jury. While these transformations may hasten the processing of cases, the paper questions whether the courts can legitimately take on board the issues of risk and social justice in contemporary industrial societies.

Breast Implants↗
PubMedDate not supplied

Environmental personal injury litigation as one source of response effects: findings from the National Exposure Registry.

The potential for error in survey responses obtained from people involved with environmental personal injury litigation was examined in a registry of persons exposed to the chemical trichloroethylene. Two subgroups were selected and compared: environmental personal injury plaintiffs and nonlitigants residing in the same community. Self-reported information on demographic characteristics revealed no statistically significant differences. Although plaintiffs reported higher rates of symptoms and health problems, only 2 of the 20 comparisons on health were statistically significant. The overall similarity between the two groups suggests that environmental personal injury plaintiffs may be no more likely than nonlitigants to provide inaccurate information in health surveys.

Adolescent↗
PubMed2001

Comparison of the Fake Bad Scale and other MMPI-2 validity scales with personal injury litigants.

Five MMPI-2 validity scales were evaluated with 120 personal injury litigation patients (LP) and 208 clinical patients (CP) along with 43 normal participants (NP). The validity measures included the Fake Bad Scale (FBS), Infrequency scale (F), Back Infrequency scale (Fb), Infrequency-Psychopathology scale (F[p]), and the Dissimulation scale-2 (Ds2). Results showed that only the FBS significantly differentiated the LP and CP, whereas the LP and CP scored significantly higher than the NP on FBS, F, Fb, and Ds2. The content of the FBS, with several items from the Hypochondriasis (Hs) and Hysteria (Hy) Scales, appears to enhance the FBS' ability to detect the somatic overreporting often observed with personal injury claimants. The authors suggest that the FBS may be a useful index of symptom magnification when employed within a comprehensive assessment of malingering in personal injury plaintiffs.

Adult↗
PubMed2000

Managed care litigation: legal doctrine at the boundary of tort and contract.

This article summarizes the various approaches to how the law should assign responsibility in a system where health care financing and delivery are combined. Health law scholars have been debating whether conflicts in managed care between individual patient needs and preserving assets for the patient population should be resolved by tort or contract law. Until recently, the literature has been dominated by scholars arguing that managed care should be guided by contractual arrangements and concepts to stimulate the market changes occurring in health care delivery. We summarize the arguments for and against both contract and tort, along with recent attempts to bridge the gap between the two approaches. The case in favor of a contract regime fails to account for the hybrid nature of managed care delivery and the context in which managed care litigation arises. Thus, tort law retains a fundamental monitoring role in the managed care era.

Contract Services↗
PubMed1999

Taxometric analysis of impression management and self-deception on the MMPI-2 in child-custody litigants.

The typology of impression management (IM), a deliberate attempt to create a positive social image, and self-deceptive positivity (SDP), an unintentional concealment of symptoms, were examined using taxometric procedures with MMPI-2 (Butcher, Dahlstrom, Graham, Tellegen, & Kaemmer, 1989) underreporting scales in several custody-litigant samples. IM was identified as a taxon using several procedures and estimates of the base rate that were consistent (.40, .37, .31, .36, .37). SDP was better characterized as a dimensional construct. Means and estimated validities for MMPI-2 underreporting scales in this sample are reported. IM and SDP appear to be distinct and measurable underreporting constructs on the MMPI-2.

Adult↗
PubMed2006

The impact of litigation on neurologic research.

Environmental factors likely contribute to the etiology of many progressive neurologic diseases. Such factors include putative neurotoxins that are often byproducts of commercial industries, potentially exposing corporations to liabilities when their products or activities are linked to the development of disease. Any hint of scientific data that support such a cause and effect relationship often encourages plaintiffs' attorneys to file suits against corporations alleging harm to their clients forcing corporations and employers to defend themselves. Both plaintiff and defendant teams hire expert witnesses who are frequently active investigators in relevant fields to bolster their positions. These legal proceedings can influence investigators and hamper research. Interactions with researchers can lead to personal financial or career gain that may bias research findings or impugn other investigators. Even researchers who have not been retained by either side of a legal dispute may be forced to respond to subpoenas for research data causing a substantial loss of research time for investigators and financial burdens on universities. Courts may require release of research records containing personal health information that could sully the trust research participants have in investigators. Litigation and its peripheral effects may bias investigators, impede research efforts, and harm research participants, thereby undermining efforts to understand the cause of neurologic disease.

Biomedical Research↗
PubMed1991

Practice guidelines and malpractice litigation: collision or cohesion?

Practice guidelines are standardized specifications for managing particular clinical problems and are intended to improve the outcomes of medical care by increasing adherence to standards of care. They are also meant to make medicine more cost-effective by eliminating unnecessary procedures. A relatively recent phenomenon, the practice guidelines now emerging will have implications for malpractice, which also intends to bring about better care. They will probably not revolutionize the procedures that courts use to determine negligence, but judges will integrate guidelines into their decision-making process. This development should be welcomed. Guidelines should prove to be useful as either inculpatory or exculpatory evidence of negligence. They are unlikely to generate much new litigation, although there is some potential for suits against those who issue guidelines, especially if guidelines are not revised as the technology of medical care changes.

Clinical Medicine↗
PubMed2003

[Jurisprudent pharmacy as a new pharmacy--feedback from litigation to pharmacy].

Risk management in the medical field is said to be entering into the third generation. By definition, the first generation covers the period until some 10 years ago when medical errors themselves used to be regarded as inconceivable and therefore as something of a taboo. The second generation is a period in which those concerned with medical treatment grappled squarely with this issue of medical errors and compiled manuals of "near miss" cases in an effort to prevent errors. After that, such an idea has come into existence that even the deepest carefulness threatens errors that could develop into the disputes among those involved. The thought of this kind has resulted in the deepening of understanding of the importance of risk management. As a result, the point of view on this issue has been getting broader to cover not only prevention of errors but also prevention of disputes. This type is called third-generation risk management. In this sense jurisprudent pharmacy or legal pharmacy, which is a kind of pharmacy that constitutes medical pharmacy, is aimed at feeding back the lessons learned from litigations to pharmacy to improve and develop it as a practical science and contributing to the realization of "patient-centered medical science."

Adverse Drug Reaction Reporting Systems↗
PubMedDate not supplied

Standard setting and litigation.

The courts apply the standard of the reasonable professional exercising a particular skill to determine liability. This is known as the Bolam test. If there is a body of competent professional opinion that supports the defendant's actions, a claim for negligence will fail. The standards applied are those that were acceptable at the time of the alleged negligence. Lower locally agreed standards would not be accepted in place of higher national ones. The courts do not accept a concept of team liability. Lack of resources is not an acceptable defence to a failure to provide the correct standard of care. Standards in NHS agreements are not enforceable by the patient but may be of evidential value in litigation.

Humans↗
PubMedDate not supplied

Healthcare litigation: working towards a culture change.

This article discusses two recently published documents: the Department of Health's (DoH's) Executive Letter EL (96) 11 (DoH, 1996); and the Woolf Report (Woolf, 1996). These documents will have an important impact on healthcare litigation and will strongly influence the way in which clinical negligence claims are conducted and managed. The documents will influence clinical risk management strategies and the avoidance of clinical negligence.

Defensive Medicine↗
PubMed2004

Suicide, suicide litigation, and borderline personality disorder.

In the category of malpractice liability affecting mental health practitioners of all disciplines, malpractice based on suicide is the leading claim by a significant margin. Our discussion here will be organized in two sections. First, we consider the theory, practice, and psychology of malpractice litigation itself in relation to suicide. Second, we describe how those basic principles apply to patients with borderline personality disorder.

Borderline Personality Disorder↗
PubMed2005

A Daubert motion: a legal strategy to exclude essential scientific evidence in toxic tort litigation.

In the US Supreme Court's Daubert v Merrell Dow Pharmaceuticals, Inc decision, federal judges were directed to examine the scientific method underlying expert evidence and admit that which is scientifically reliable and relevant. However, if a judge does not have adequate training or experience in dealing with scientific uncertainty, understand the full value or limit of currently used methodologies, or recognize hidden assumptions, misrepresentations of scientific data, or the strengths of scientific inferences, he or she may reach an incorrect decision on the reliability and relevance of evidence linking environmental factors to human disease. This could lead to the unfair exclusion of valid scientific evidence, particularly that which is essential to a plaintiff's case in toxic tort litigation.

Causality↗
PubMed1994

Suicide litigation: an Australian survey.

Social and legal attitudes towards suicide through history are described. General medical malpractice trends internationally are portrayed before describing the survey. The survey involved nineteen organisations--insurers and solicitors in the six Australian states--and obtained a 100% response rate. Twenty cases of litigation regarding failure to prevent suicidal behaviour were described since 1972, suggesting that it is uncommon. All but one case involved inpatients and in most instances hospitals were the defendants. Failure to supervise was the leading basis of claims. Most cases concerned non-fatal suicide attempts, usually with extensive injuries. Most claims were settled in favour of claimants--half of these actually in court.

Australia↗
PubMed1977

Accident litigants with neurotic symptoms.

Experience gained from an examination of 750 consecutive accident litigants leads to the conclusion that the aetiology of neurotic symptoms after accidents is so complex that diagnostic labels implying single causation give a false and oversimplified picture. Terms such as "compensation neurosis", "traumatic neurosis", "Mediterranean back", "postconcussion syndrome" and many others illustrate preconceived ideas of causation which are in most cases not warranted, and it is recommended that this group of patients be considered under the general label of sufferers from "accident neurosis". The many symptoms which occur are discussed, and it is found that they present in such endless variety, and in varying severity from mild to completely disabling; they do not cluster in any consistent way to justify the delineating of discrete syndromes which are artificial and misleading; their existence confuses rather than clarifies our understanding of these unfortunate people.

Accidents↗
PubMed1987

Untangling causation issues in law and medicine: hazardous substance litigation.

Judges and juries are increasingly being asked to settle questions about disease caused by hazardous products. With the growth of litigation on toxic substances and unsafe products, more and more courts must wrestle with the complicated scientific proof of the relation between exposure and disease or injury. This proof frequently involves the use of probabilistic evidence in the form of statistical tests and epidemiologic studies. Anglo-American law relies on deductive notions of causation and is suspicious of probabilistic evidence of causation. As a result, court decisions of hazardous substance cases are sometimes based on a confused understanding of the critical causal connection. Physicians who testify in such cases, either as the treating doctor or as expert witnesses, must be aware of the court's difficulty with probabilistic evidence. In addition, physicians must state clearly the role of such evidence in the identification of a hazardous substance as the cause of a disease or injury.

Consumer Product Safety↗
PubMedDate not supplied

National Health Service Litigation Authority: 10 years on.

This paper outlines the circumstances leading to the formation of the National Health Service Litigation Authority (NHSLA) and describes how the authority has developed in its first 10 years. It also offers a few pointers to the future.

Group Processes↗
PubMed1999

How to handle the stress of litigation.

The article describes the psychological repercussions of being sued for malpractice. Although most physicians experience at least some emotional disruption during the process, they usually cope effectively. Factors that contribute to stress vulnerability as well as preventive measures are described. The influence of commonly shared personality features and the fact that tort law is fault based are explored in order to provide a psychological understanding of the litigation experience. General and specific approaches toward coping, including the importance of social support during the process, are offered.

Adaptation, Psychological↗