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Chapter 2 explained the main areas of the law, including the differences between civil and criminal law. This chapter will focus on one of the main parts of the civil law that is relevant for nurses: the law of negligence. The law of negligence allows a person to bring legal proceedings against another person to correct a wrong or harm that the other person has done to them. Usually the person who has been harmed (the plaintiff) will seek payment of money (called ‘damages’) in compensation for their injury from the person whose act or omission caused the harm (the defendant).
This chapter will outline the key parts of the law of negligence, with a particular focus on the special rules that have developed in relation to health-care professionals, including nurses. By understanding how the law applies to things nurses do that can cause people harm, it should be possible for nurses to better avoid acting negligently.
This chapter simplifies the complex multi-payer healthcare reimbursement market and explains how to position your product for successful reimbursement. The best time to bring reimbursement planning into the product development process is discussed here. The U.S. healthcare system is used as a baseline and the healthcare systems of other countries are reviewed briefly. Reimbursement for devices and administered drugs is based on many factors, and this chapter shows the steps a biomedical product company can take to maximize revenues in the US Healthcare system. The basics of reimbursement – coverage, coding, and payment – are explained in simple terms with diagrams. Case studies help show how individual companies have addressed the reimbursement process for novel breakthrough technologies.
International responsibility law today is in great need of theorizing or, at least, that is the present volume’s argument. This introduction sets the stage for that argument. It unfolds in four steps: first, it clarifies the reasons that led to putting this collection of essays together and explains what it hopes to achieve; second, it introduces the main theoretical challenges addressed in the volume; third, it provides some information about how the book is organized; and, finally, it sketches out the content of its successive chapters and their articulation.
The provision and practice of healthcare is subject to a broad legal framework of accountability. Healthcare professionals must develop a sound understanding of their legal responsibilities and the underpinning ethical, professional and legal reasons for them. Ultimately, healthcare law is about people, their bodies, and those entrusted to care for them. Therefore, the aim of this chapter is to rationalise and offer insight into the link between legal accountability and quality of patient care. This chapter has been written to support all perioperative practitioners in developing their legal knowledge in the context of the operating theatre.
There is no issue more central to a legal order than responsibility, and yet the dearth of contemporary theorizing on international responsibility law is worrying for the state of international law. The volume brings philosophers of the law of responsibility into dialogue with international responsibility law specialists. Its tripartite structure corresponds to the three main theoretical challenges in the contemporary practice of international responsibility law: the public and private nature of the international responsibility of public institutions; its collective and individual dimensions; and the place of fault therein. In each part, two international lawyers and two philosophers of responsibility law address the most pressing questions in the theory of international responsibility law. The volume closes with a comparative 'world tour' of the responsibility of public institutions in four different legal cultures and regions, identifying stepping-stones and stumbling blocks on the path towards a common law of international responsibility.
In a negligence action against a defendant suffering from a mental disorder or an incapacity, a key but neglected question is what we mean by involuntariness. Although involuntariness is an accepted response, its relationship to mental or physical incapacity is poorly understood. The existing authorities offer only basic instruction about what is meant by involuntariness. Moreover, there is a suspicion that involuntariness undermines the objectivity of the standard of care. However, in this paper, it is argued that involuntariness can be better defined and a clearer understanding can be gained of how responsibility operates within tort law. By relating the case law and commentary on involuntariness to a choice theory of responsibility and arguing that this operates at a foundational level which is analytically prior to questions of breach, this paper tries to illuminate how tort law – like other areas of law – makes fundamental assumptions about the capacity of individuals to whom duties are expected to apply. None of this will necessarily increase the volume of claims or unsettle well-worn authorities but it does ensure both consistency and fairness and argues for a deeper appreciation of agency within how tort law characterises the applicability of duties.
This chapter explores the critical consensus that children are always figures of the future anchored to cisgendered heterosexual reproduction, as proposed by critics like Rebekah Sheldon, Lee Edelman, Lauren Berlant, and Robin Bernstein. Against this view of the child, this chapter foregrounds the experiences of children in the U.S. educational system and in racially differentiated ways that don’t necessarily spare white children from a high disregard for their welfare. What it finds is that the “sacralization of the Child,” as Edelman put it, is a thin discursive tissue that distracts from pervasive negligence and racial anxiety. It concludes with a meditation on Ezra Pound’s famous imagist poem “In the Station of the Metro,” which the critic Josephine Park has identified as an important figure in Asian American literature because of the ways in which it popularized a highly orientalized idea of Chinese and Japanese culture. What is the view from the crowd the poem conjures, which is racially diverse and getting more so? What kind of claim on childhood does this crowd make?
Within the criminal justice system, there is always a balancing act between two conflicting tenets: incarcerating the prisoners as a preventive measure, on the one hand, and, on the other, aiming to rehabilitate them. Without a proper transition, it is possible that prisoners will reoffend upon release. German legislation allows corrections officers to grant relaxed terms of imprisonment to prisoners who have proved themselves suitable. However, on June 7, 2018, corrections officers were essentially deprived of this power when the Regional Court of Limburg convicted two corrections officers of negligent killing after a prisoner, to whom they had granted relaxed terms of imprisonment, killed someone during one of his periods of release. In the immediate wake of this controversial judgment, corrections officers throughout Germany were seemingly left with two options: either to remain conscientious and attempt to rehabilitate the prisoners with the underlying risk of being subject to prosecution themselves, or to ensure their own “safety”, thereby jeopardizing prisoners’ crime-free futures. This article provides an overview regarding negligently committed offenses under German law, analyzes what led the trial court to this radical decision, and assesses why the final appeal court overruled the Regional Court’s decision.
In the twenty-first century, it has become easy to break IP law accidentally. The challenges presented by orphan works, independent invention or IP trolls are merely examples of a much more fundamental problem: IP accidents. This book argues that IP law ought to govern accidental infringement much like tort law governs other types of accidents. In particular, the accidental infringer ought to be liable in IP law only when their conduct was negligent. The current strict liability approach to IP infringement was appropriate in the nineteenth century, when IP accidents were far less frequent. But in the Information Age, where accidents are increasingly common, efficiency, equity, and fairness support the reform of IP to a negligence regime. Patrick R. Goold provides the most coherent explanation of how property and tort interact within the field of IP, contributing to a clearer understanding of property and tort law and private law generally.
This chapter discusses the political, professional and legal aspects of non-medical prescribing from its inception in the 1990s to the present day. It considers important legal cases that illustrate the key issues of autonomy, negligence and consent and illustrates how these scenarios can impact on prescribing practice on a daily basis. The role of professional regulators is highlighted and the notion that patients/clients are no longer subservient to benign medical paternalism but rather are seen as consumers of healthcare is considered. New educational aspirations are mentioned with a reliance on evidenced-based practice and a holistic humanised approach to care delivery
Defensive medicine may be an instinctive reaction, but like many primeval reactions, it may not come cheaply. And rather than the monetary cost, which is known to all, one refers here to loss of the pleasure of practice, the depersonalization of the patient and the self-destructive constant paranoid deliberating. The honest advice, which comes after 40 years’ experience in the field, is to practice evidence-based medicine and keeping updated with advances in the medical, legal, ethical and technological spheres. Practitioners must take pride in their work and rejoice that they have done well.
This is the second of two companion papers that discuss accidents caused by robots. In the first paper (Guerra et al., 2021), we presented the novel problems posed by robot accidents, and assessed the related legal approaches and institutional opportunities. In this paper, we build on the previous analysis to consider a novel liability regime, which we refer to as ‘manufacturer residual liability’ rule. This makes operators and victims liable for accidents due to their negligence – hence, incentivizing them to act diligently; and makes manufacturers residually liable for non-negligent accidents – hence, incentivizing them to make optimal investments in R&D for robots' safety. In turn, this rule will bring down the price of safer robots, driving unsafe technology out of the market. Thanks to the percolation effect of residual liability, operators will also be incentivized to adopt optimal activity levels in robots' usage.
A well-known tradition in private law theory says that one is responsible for the outcomes of one’s negligence when those outcomes are connected with one’s agency in the right way. Though they differ on the detail, theorists within that tradition (exemplified in the work of Tony Honoré, Stephen Perry, Joseph Raz, and John Gardner) tend to agree that a story about what we are responsible for must be grounded on a story about who we are, and what we are like as agents. In their view, you are responsible to make repair for the consequences of your careless driving insofar as not ascribing such responsibility to you would fail to treat you appropriately as an agent who has certain general capacities and commands the normal range of rational powers, including the power to take up driving and to make driving decisions. This chapter identifies three problems with such ‘agency’ accounts. First, those accounts have difficulty explaining why the connection with agency seems to matter more in some contexts, e.g., in blaming, and less in others, e.g. in the allocation of substantive burdens among persons. Second, they lack the resources to help us decide whose responsibility it is to deal with some outcome when more than one agents are connected to that outcome in the ‘right’ way, e.g., when a malicious attacker and the speaker he targets could both have avoided the speaker’s injury by choosing appropriately. Third, their implicit claim that our ideas about agency are more basic or fundamental than our ideas about responsibility is not obviously correct.
The standard way to distinguish between negligence and recklessness is in terms of the agent’s awareness of the risk he is taking. An agent who knows that there is a risk of harm is reckless, an agent who does not know (leaving aside for now whether the belief is reasonable or not) is negligent. Antony Duff argues that we should amend this slightly – What renders an agent reckless is not caring enough about a risk. Duff’s amendment suggests, very plausibly, that mere lack of awareness is not what really matters morally. What matters, rather, is why an agent is not aware. This is taken for granted in the background conditions for negligence – which, for example, should be distinguished from stupidity. An agent may not be aware of a risk because she is not cognitively capable of such awareness. The background condition for negligence is that an agent could have been aware of the risk, but is not. So if an agent could have been aware of a risk, but is not because she was too lazy to look out the window, or check her calendar, or whatever, if, in other words, the reason that she is not aware of the risk is that she does not care enough, she should count as acting recklessly rather than negligently. I argue that there is something in Duff’s view to be rescued here. The rapist who does not understand or accept sexual refusal is not reckless if he has no awareness at any level of the relevant descriptive and normative facts. However, he should not be seen as negligent either. The structure of the situation is such that his ignorance is systematic, not one off. I argue that it is an important feature of negligence that it is one off, that it is not connected to a system of oppression. This gives us a justification for moralizing the ‘reasonable belief’ requirement in sexual consent cases. Even when a belief is reasonable by epistemic standards, it may be unreasonable by moral standards. The overall point here is that in a society riven by sexism, the essential definition of rape must advert to reasonable moral beliefs rather than reasonable epistemic beliefs.
In explaining why an instance of negligence is a case of culpable wrongdoing, it is natural and common to cite missing features of the agent’s behavior or mental state. “She failed to notice the stop sign,” “He did not check the water temperature before putting the baby in the bath.” In general, it can seem puzzling to ground judgments of wrongdoing and culpability not in the qualities that the agent’s mind and behavior possess but, instead, in the qualities they lack. After all, the class of people lacking the relevant feature is much larger than the class who are guilty of the culpable wrongdoing to which we are responding in cases of negligence. The passenger in the car, as well as the driver, failed to notice the stop sign. The houseguest also did not check the temperature of the baby’s bath. Why are they not guilty of culpable wrongdoing if these respective failures are what supports the charge in the case of the driver and the father? This chapter argues, first, that an account of why cases of negligence are ever cases of culpable wrongdoing must solve this problem by providing an explanation for why some absences are instances of culpable wrongdoing and others are not. Several quick efforts to solve the problem are shown to be inadequate. The chapter then goes on to offer a general theory of culpability that explains why absences – failures to notice or to attend, failures to take precautions – can be instances of culpable wrongdoing, and also why such absences sometimes fail to ground claims of culpable wrongdoing. Along the way, the chapter also draws a distinction between moral and criminal culpability and demonstrates that there can be instances of criminally culpable negligence in the absence of moral culpability.
Legal scholars often prescind to moral philosophy to try to solve legal puzzles or paradoxes and to shape the positive law by reference to the seemingly pure and uncluttered lessons derived from within first-order moral theory. This chapter aims to do something quite close to the opposite. By looking at the structure of negligence law and certain concepts within it and by exhibiting their principled bases, it generates possible solutions to some of the problems about negligence that have troubled moral philosophers. These include: whether conduct that would ordinarily be called “negligent” can qualify as a breach of moral duty even if it was solely the product of inadvertence; whether it matters to the blameworthiness of a negligent actor that her conduct caused no harm; and whether a person whose negligent conduct is purely a product of inadvertence can properly be blamed or held responsible for injuring another. In the domain of negligence law, which contains “negligence,” “duty,” and “legal responsibility” in the form of legal liability, the answer to all three analogous questions is emphatically “yes,” and tort law explains why. Moving back to moral questions, we see our way to defensible answers to those questions and we also see why the questions present themselves as so difficult.
This chapter defends three ideas. (1) That negligence is essentially a conative failure to exercise due care. The negligent agent doesn’t care enough about a relevant moral aim. (2) Resultantly, the potential cognitive failures of agents, whether they foresee or fail to foresee certain risks of harm, are only incidentally relevant to their negligence. In this way, (3) negligence is conceptually contiguous with recklessness. The hallmark of both reckless and negligence conduct is an insufficient regard for the legitimate interests of others, and what separates them is better understood in terms of conative differences in how each agent disregards those interests, rather than cognitive differences in advertence. I examine these claims in the context of a puzzle regarding negligence and foresight, and consider the implications of my conclusions for negligence culpability in morality and the traditional hierarchy of mens rea in the law.
Foreseeable threats to life such as from accidents, disease, and natural disasters, demand both preventive and reparative action from the authorities, and such action must be of a minimum level of competence. The General Comment on the right to life issued by the African Commission on Human and Peoples’ Rights in 2015 stipulates that the African Charter demands that States act to protect life against threats from natural disasters, famines, and outbreaks of infectious diseases.
This chapter considers whether, and if so, how, the right to life may be violated by pollution and, at the least, a wilful failure to seek to tackle climate change. A serious violation of international environmental law leading to death is ipso facto violative also of the right to life. This includes also the situation where environmental pollution in one State affects the environment and the population in another. Pollution has a significant and growing impact on the lives of children. According to the World Health Organization (WHO), lower respiratory infections are among the largest causes of mortality in children, accounting for 15% of deaths in 2015. In 2020, a death certificate in England listed air pollution as a cause of death for the first time.
This article surveys Tony Weir's case notes and book reviews for the Cambridge Law Journal between 1963 and 2002 in order to illuminate Tony's unique genius as a legal academic and thinker. Reading Tony's case notes and book reviews reveals that he cannot be characterised as either a “lumper” (someone who seeks to reduce the law down to a few elemental ideas and concepts) or as a “splitter” (someone who resists such a reduction). Instead, Tony's genius lay in his possessing the Keatsian quality of “negative capability”. This quality allowed Tony to be both a lumper and a splitter at the same time, refusing to identify himself definitively with either way of thinking about the law.