From the Paper
"Tort Reform and Business Law
Current Events
Tort reform has not resulted in much change within the American system of law. A primary problem is that as appeals to lower court decisions about the serviceability of tort reform legislation have made their way to courts of appeal, all or part of tort reform legislation is being struck down. This is mainly because courts wish to preserve "the right to a jury trial for common-law torts without limitation" (Finzen, Haley, & Shaw, 1998). The article appearing in the February 16, 1998 issue of The National Law Journal, entitled "Illinois high court latest to nix reform law," goes a long way towards framing the difficulties inherent in tort law. It seems that while allowing juries the freedom to find for huge damages may seem ludicrous.."

Abstract
This paper explains that tort reform, putting a cap on jury awards in malpractice suits, is exactly what the insurers want because, in addition to making a handsome profit on their medical malpractice lines as it stands, they would then have to pay out even less. The author points out that reducing consumer health insurance costs would be better served by a systematic effort to weed out bad doctors and prevent malpractice. The paper stresses that, even if there were a link between medical malpractice insurance costs and consumer health insurance costs, the culprit is the insurer itself because it is not allowed, by law, to raise rates in response to big payouts; insurers are allowed to raise rates when their projected investment income declines.

From the Paper
"The suggestive portion of the NAIC findings is this: although malpractice insurance premiums make up such a small portion of health-care costs, medical malpractice as a line of insurance demonstrated the highest profit as a percentage of premiums (Stewart, 21+), making it very lucrative for the insurance companies. Further, losses paid by those insurers in 1991 came to only about 31 cents of every $100 of health care costs; remember, malpractice premiums accounted for 64 cents per $100 spent, leaving 33 cents for the company out of each $100. While the amount spent on malpractice insurance by the consumer, trough his or her medical expenditures, is negligible, there are a lot of people spending $100 frequently, massing up piles of 33 cents for the insurers."

Tags:insurer, premiums, costs, cap, profit

Abstract
The author discusses tort law as a confusing concept that society should be educated about because the issue of legal and financial tort liability of governing board members and administrative officers has been increasing fear in the daily activities of health care institutions. The paper focuses on three main categories of tort law: negligent torts, intentional torts, and strict liability.

From the Paper
"Negligence is a tort and a form of conduct caused by carelessness that constitutes a departure from the standard of care, generally imposed on reasonable members of society. Negligence of a professional person is classified as malpractice. Malpractice suits can claim a variety of mistakes made by professionals including misdiagnosis, mistreatment, delayed diagnosis, failure to diagnose, surgical errors, or medical errors. There are three basic forms of negligence and those are malfeasance, misfeasance, and nonfeasance.
"Malfeasance is the act of an unlawful or improper action. Misfeasance is improper performance of an act, resulting in injury to a person. Nonfeasance is failure to act when there is an obligation to act as a reasonably cautious person would under similar circumstance.
The elements that must be present for a plaintiff to recover damages caused by negligence are duty to care, breach of duty, injury, and causation. Duty to care is the obligation to conform to a recognized standard of care. Breach of duty is the deviation from the recognized standard of care and the failure to adhere to an obligation. For an injury there must be a damage established and if there are no injuries there are no damages due to the plaintiff. All four elements of negligence must be present for a plaintiff to recover damages suffered as a result of a negligent act (Pozgar, 22)."

Tags:negligent, intentional, legal, ethical, strict-liability

From the Paper
"While there is no dispute between lawyers and economists that tort law is a necessary facet of the legal system and needed to maintain an individuals rights, there is disagreement about how it should be utilized, what tests should be invoked to determine liability and finally, the cost efficiency of the tort law system. The two facets of tort law include: (1) that an individual should be entitled to recover damages from another individual (or company) if he was harmed or if reasonable steps to avoid harm were not used; and (2) under the theory of strict liability, that an individual can recover damages regardless of proof of negligence or intent.1

Torts have become an expensive business because of the alternative theory of liability developed out of implied-warranty law. The courts have not only extended the implied warranty of ... "

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Abstract
Jonathan Harr's "A Civil Action" recounts the story of the action taken by attorney Jan Schlichtmann against the W. R. Grace chemical company and Beatrice Foods on behalf of families in Woburn, Massachusetts. The children of these families had contracted leukemia, the suit claimed, from the ingestion of chemicals, dumped illegally by subsidiaries of the two giant corporations, that entered the wells that supplied a portion of the town. The paper discusses the details of this case, including the claimed bias of the ruling Judge Skinner, the difficulty the jury had in reaching a decision and the role of the Environmental Protection Agency in the case.

From the Paper
"Even had the case proceeded on equal terms for both parties, however, the problem of convincing a jury to make a considerable reward on the basis of an essentially "unprovable" connection between TCE and leukemia presented a major problem that carries over to many toxic waste cases. Epidemiological studies, which might provide sufficient evidence of connections to direct scientists' attention to problems, are under-utilized and poorly understood by many. Such studies constitute the bulk of the evidence in some cases, but they can be far too easily misrepresented by defendants which leaves plaintiffs such as the Woburn group at a loss for anything the courts and juries will accept as meeting a standard of proof--despite almost everyone's common-sense conviction that the cause and effect have been identified."

Tags:Jan, Schlichtmann, civil, litigation, EPA, Facher

Abstract
This paper uses the case discussed in Jonathon Harr's book "A Civil Action" to explain the system of Anglo/American tort law--the workings and limitations of the system and the intended goals as opposed to real life actualities. It follows case facts and describes the outcome, while explaining all the ensuing legal factors. Also included is an account of the historical divergence of civil obligations and tort law.

From the paper:

"Harr?s book relates the story of a type of case that is all too sadly familiar: A large corporation (in this case actually two large corporations) contaminate the environment because it is cheaper dump solvents than to dispose of them legally. The reason that corporations are supposed to be restrained from such cheap but illegal dumping is the threat of either criminal charges being made or of civil litigation. In other words, corporations are supposed to behave themselves because if they don?t then they will get sued. But the important catch to this argument, as this book shows, is that corporations do not in fact have a great deal to fear from civil litigation. All too often, the person who wins civil litigation is the person (or corporation) who can continue to pay for a lawyer longer than the other side. The results of civil litigation have less to do with right and wrong than with whose pockets were the deepest to begin with."

Tags:Harr, environment, punitive

Abstract
This paper examines how there can be no doubt that confidentiality is one of the core doctrines of ethical medical practice and has been so since ancient times and how the GMC and other professional organizations stipulate patient confidentiality as an ethical prerequisite, but, crucially, permit breaches of confidentiality in certain circumstances. It provides a comprehensive review of the ethical and legal problems faced by a physician in the management of a patient with a communicable, sexually-transmitted illness.

From the Paper
"Patients expect to have to divulge the most intimate information to their doctors on a professional basis in order that they receive the most appropriate care. This exchange of information is in return for the [implicit] assurance of confidentiality. Patients would be less willing to present to their doctors if this were not the case and the utilitarian ethic would declare that the harm that this would cause in the long run would far overshadow any benefits. There is also a deontological, or "duty-based" ethic, which would propose that Peter's GP has a "duty" to keep the contents of their consultation in confidence, for this is inextricably linked with the privilege of receiving the information and with upholding the autonomy of the patient. A utilitarian ethic could also propose that a breach of confidentiality would lastingly taint Peter's view of the medical profession."

Tags:consent, information, confidentiality

Abstract
This paper discusses the effectiveness of tort law in providing compensation for environmental damage. It also looks at the ability of tort law to prevent environmental damage from occurring. The paper describes some of the obstacles suffered by tort law in fulfilling a central role in environmental protection, such as cost, evidence and standing and then looks at the limits to the limitations that exist in terms of tort law and environmental damage.

Table of Contents:
Developing, and Restricting an 'Environmental Tort': Issues of Locality and Use
Establishing the Causative Link and Proving Foreseeability
Further Obstacles: Evidence, Cost and Standing
Limiting the Limitations
The European Influence - Lowering the Hurdles?
Assessing the Use of Common Law Actions in Tort

From the Paper
"Today there is a propensity to think of environmental protection as attained by the volume of specific legislation, but this does not mean that the role of the common law in environmental protection has become obsolete. Although perhaps a somewhat tenuous link, it has been argued that actions in tort are able to prevent environmental harm by deterring others from engaging in the same behaviour due to a fear of having to pay damages. However, Barbara Young, the chief executive of the Environment Agency, challenges such a rationalisation, arguing "the scale of penalties levied by the courts makes pollution and prosecution an acceptable risk and an acceptable business expense" . Naturally, the extent to which the extent to this will vary according to the polluting offender involved, however it would seem unlikely that the prospect of paying damages would have the same influence as the fear of facing an environmental regulator is set standards are breached."

Tags:legislation, pollution, causality

Abstract
This paper examines the issues of causation and remoteness in a tort of negligence claim. It provides a case study of a man who offers to fly a group to Disneyland in a private jet and breaches his duty of care when he drinks some alcohol in an effort to calm his nerves. The paper discusses the details of the case from a legal perspective and discusses the issues that arise.

From the Paper
"As it is unclear whether her arm could have been saved had Rachel been sent to see the consultant earlier we cannot apply the "but for" test. The delay in treatment may have reduced Rachel's chance of a full recovery; however, for such an argument to succeed it needs to be proved on the balance of probabilities to at least 51%. If a loss chance was recognised by Abby's failure to recognise the injury in time to treat it, then Abby would be liable. In the case of Hotson v East Berkshire Area Health Authority it was discovered that if the 13 year old boy who fell from a tree, was correctly diagnosed sooner he would have had a 25% of making a full recovery, but the delay in treatment meant that he lost this 25% chance and suffered avascular necrosis. However, it was held in the House of Lords that this 25% loss of chance does not prove the case to the necessary balance of probabilities that a civil action must be found. The Court of Appeal's 'quantification' of damages was wrong, as the obstacle of causation had not been overcome. In this scenario therefore, for Abby to be considered liable, it would need to be proved that had Rachel's injury been discovered sooner she would have had a 51% chance or more of making a full recovery."

Tags:duty of care, breach, responsibility

Abstract
This paper examines the intellectual property law of 'passing off'. The paper explains that the law of 'passing off' is a common law right of action in the law of tort and is based on the premise that 'nobody has any right to represent his goods as the goods of somebody else'. The paper looks at how the action is effectively one of unfair competition, and applies generally to situations where there is no registered trademark or any other intellectual property right. The paper then points out that a typical scenario would be when a defendant uses an unregistered trademark normally used by a claimant, and in so doing, represents the goods or services in such a way that the public is deceived into thinking that they are being offered by the claimant. The paper also explores how protection under the law of passing off is very much dependent on how much importance consumers place on the part when purchasing the product in question. In conclusion, the paper shows that the courts generally adopt a restrictive approach towards protecting the descriptive and the functional because granting such protection will have a negative effect on the market, and ultimately this is a question of fact, and the courts will look at all the circumstances of each case before making a decision.

From the Paper
"So long as these criteria are fulfilled, the claimant would have successfully established 'goodwill' for his goods or services, but a descriptive mark runs the greatest risk of becoming too distinctive over time that it is deemed generic. By losing its ability to indicate source, the claimant can no longer rely on the law of passing off to protect the mark. This danger has been highlighted by the case of Linoleum Manufacturing v Nairn [1878], where the public began using the term 'Linoleum' to refer to the product generally, without connoting the source of manufacture. As such, the courts will be reluctant to allow monopoly over such terms so as to promote healthy competition in the marketplace."

Tags:intellectual, property, copyright, patent, trade, mark