MEDICAL MALPRACTICE, MISTAKES AND MISHAPS: Essays on Medical Litigation, the Mandatory Reporting of Health Professionals and the Limits of the Law

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This book discusses several important topics. Firstly, the book analyzes the limits of tort law; the problems with Australian law on the negligent failure to disclose medical risks and the merits of no-fault compensation schemes. Then it studies the importance of the elimination of medical error and the adoption of sound and comprehensive risk management principles; apologies and open disclosure in medicine. It also discusses the relationship between expert evidence and medical malpractice litigation.


“Debates about medical malpractice usually take a polemical shape, with lawyers and unhappy patients on one side and medical professionals on the other. In their new book, Joseph Wayne Smith and Guy Maddern eschew polemics in favor of a detailed analysis of the relevant statistics and a bracing, but not nihilistic thesis about the law’s inability to settle questions that are often more psychological and cultural than they are legal. An impressive achievement.”
Prof. Stanley Fish,
Florida International University

“This is a work of high technical sophistication and scholarly sweep that winds up on the side of good sense. It is an important book that should reorient the field of legal studies by bringing it back into contact with its primary subject matter: legal practice with its strengths and weaknesses.”
Prof. Robert Fogelin,
Dartmouth College

“This is a valuable, thoughtful and comprehensive contribution to the continuing international debate about how medical and legal systems can best compensate patients for adverse outcomes of medical treatment.”
Prof. Robert Dingwall,
University of Nottingham

“Smith and Maddern cover an impressive amount of medico-legal terrain. They raise important questions about the proper role of law in shaping health policy.”
Prof. David Michael Studdert,
University of Melbourne

Table of Contents

Foreword by Paul Babie
Chapter 1: What’s Wrong with Torts? The case for No-Fault Compensation Schemes
The Medical Malpractice Litigation System
Non-Negligence-Based Reform: No-Fault Compensation Schemes
Conclusion: An Incremental Road to No-Fault
Chapter 2: The Negligent Failure to Disclose Medical Risks: The Limits of the Common Law
Rogers v. Whitaker: The “Legal Non-Sense” Begins
Chappel v. Hart and its Limits
Chapter 3: Medically Adverse Events, Errors and Risk Management
Medically Adverse Events and Errors
Dealing with Medically Adverse Events and Errors
Chapter 4: Apologies and Open Disclosure in Medicine
Apologies and Open Disclosure in Medicine
The Law of Apologies and Open Disclosure
Problems with Apologies and Open Disclosure
Chapter 5: Expert Evidence and Medical Malpractice Litigation
The Nature of Expert Evidence
The Problem of Expert Evidence
The Medical Malpractice Crisis and the Standard of Evidence
Chapter 6: Surgical Scandals, Health System Failures, and Surveillance: The Mandatory Reporting of Health Professionals
The Natural of Mandatory Reporting Law
Further Difficulties with Mandatory Reporting Law
Conclusion: Beyond Mandatory Reporting
Chapter 7: Critical Perspectives on the Mandatory Reporting of Health Professionals: Medicine, Ethics and Law
Introduction: Australian Health Systems Failures
Dr. Death: Jayant Patel
After Dr. Death
Conclusion: Mandatory Reporting and the Limits of Law
Chapter 8: Law’s Quandary: The Illusions of Law
Requiem for Reason: Law and the Disenchantment of Philosophical Discourse
Skepticism and the Failure of Philosophy
Law, Skepticism and the Strike of Systems
Conclusion: Taking Stock of Legal Skepticism
Chapter 9: Proof, Probability and Paradox: Law and the Limits of Logic
Evidence, Logic and Legal Reasoning
Bayesianism: The Problem of Probability
The Limits of Probability Theory
Law, Logic and Paradox
Vagueness and Legal Skepticism
Conclusion: Legal Skepticism
Chapter 10: Conclusion: Living with Less Law

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