Medical negligence is a branch of the law of torts or civil wrongs where relationships between individuals generate private law obligations. If an individual is harmed through breach of a duty of care in a health care context, then that individual has a private remedy in law. Therefore, understanding medical negligence means understanding the means open to patients and some non-patients, who suffer injury in the course of medical care, to seek compensation from the health care professional. This module facilitates such an understanding by focusing on the constituent elements of tortious liability for medical negligence - duty to patients and significant third parties, breach of duty through failure to observe the relevant standard of care, causation and damages - as they have developed in the medical context. We will also consider alternatives modes of addressing damage through medical error and malpractice.
Given the significant role of medical negligence in recognizing and remedying harms to patients when things go wrong, we will consider the merits of the boundaries of medical negligence as we go along. Interesting questions arise about the proper boundaries of medical negligence in relation to the recognition of emotional and psychological injury, the merit of a distinction between acts and omissions of third parties, and the standard of information and advice a patient is owed as an aspect of the duty of care.
Doing medical negligence law entails engaging in analogical case-based reasoning, where the particularities of the individual case matter in deciding whether and how negligence rules apply. Law and medicine share this interest in case-based reasoning, or what Harrington calls the universe of one. By understanding the different techniques of analogical reasoning, you will be better equipped to use, criticize and participate in the development of medical negligence law. We will also consider how other critical and contextual legal methods such as rhetorical analysis, human rights reasoning, and ethical evaluation, can assist in critical development of such reasoning and adaptations thereof.
LLM in Medical Law
3.15 hour examination