Uncertain Causation in Medical Liability

Inbunden, Engelska, 2006

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'Proving' the cause of the plaintiff's injury in personal injury litigation often entails significant challenges, particularly when science cannot identify the cause of a biological phenomenon or when the nature of this cause is debatable. This problem is frequently encountered in medical malpractice cases, where the limitations of scientific knowledge are still extensive. Yet judges must decide cases, however uncertain the evidence with regard to proof of causation. Reluctant to leave patients without compensation, courts have in some cases challenged their traditional approach to causation through recourse to such techniques as reliance on factual presumptions and inferences, the concept of loss of chance, and reversal of the burden of proof. This book analyses and criticises the use of these various techniques by the courts of England, Australia, Canada, France, and the civilian Canadian province of Quebec in confronting evidentiary causal difficulties caused by the uncertainties of medical science.

Produktinformation

Utgivningsdatum2006-07-18
Mått156 x 234 x 20 mm
Vikt612 g
FormatInbunden
SpråkEngelska
Antal sidor256
FörlagBloomsbury Publishing PLC
ISBN9781841135175
UtmärkelserWinner of Quebec Bar Foundation Prize 2007 (UK)

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Introduction Section 1-A Society of Risks and Uncertainty Section 2-Uncertainty in Medical Malpractice Section 3-Jurisdictions, Fields of Law, and Methodology Section 4-Structure Chapter 1: Problems in the Proof of Causation Section 1-Proof of Causation Section 2-Evidence in the Four Jurisdictions Section 3-The Impact of Scientific Uncertainties on the Proof of Causation Chapter 2: Flexibility . Section 1-Importance and Mutability of the Traditional Standards . Section 2-Flexibility and Independence of the Judiciary . Section 3-Flexibility in Light of Expert Controversies Chapter 3: Reversal of the Burden of Proving Causation . Section 1-Common Law ... Section 2-Civil Law . . Section 3-Critical Analysis . Chapter 4: Probabilistic Assessment of Damages . Section 1-Loss of Chance Section 2-Market-share Liability . Section 3-Critical Analysis (Loss of Chance) Chapter 5: Inferences of Causation Section 1-Inferences and Factual Presumptions . . Section 2-The Development of Justifications Section 3-Critical Analysis Final Analysis and Conclusion Section 1-General Review . Section 2-Review of the Critique of the Solutions Section 3-The Alternative-Cumulative Causes Distinction . . Section 4-Flexibility and the Evidential Solution Section 5-Alternative Solutions?

Khoury's book expertly shows and explains the attempted solutions and their shortcomings with regard to medical liability... Jens M. Scherpe The Law Quarterly Review October 2007- volume 123 This is a magisterial discussion of the complexities surrounding causal issues in medical negligence cases. It provides a detailed analysis of the courts' approach to these issues in England, Australia, Canada, France and Quebec. The scholarship is thorough and detailed. I could not find a single case or relevant article that was not referred to. The writing is clear and engaging. The reasoning is careful and deep. It is easy to see how the book won the Prix Minerve 2004. Jonathan Herring Legal Studies Vol. 27, No. 4, December 2007 ...thorough and informative. Ken Oliphant Yearbook of European Tort Law 2007 This book undertakes a very valuable project in a detailed and thoughtful way...The comparative focus is undoubtedly a strength of the book...it is hard to imagine that anyone would fail to learn something useful from the analysis. Jenny Steele King's Law Journal Vol 19, Issue 1, 2008 ...Lara Khoury's book will provide lawyers with valuable guidance on proof of causation in such cases. Harold Luntz Torts Law Journal 2008 ...Khoury has made an interesting contribution to the never-ending academic dissection of this issue... Vaughan Black Canadian Business Law Journal Vol 47