• Selected
• Entire List

Abstract:
This article argues that tort law should be developed to force physicians to confess known failures on their parts to render care to patients that meets the required standards of care of the profession in some material way. Under current legal rules, there is no free-standing duty on physicians to tell their patients that the doctors breached the standard of ordinary care and prudence in treating them. Sometimes treats as knowing concealment refusal of doctors to come forward when their malfeasance causes a patient to suffer palpable harm (1) through loss of the chance to sue for redress of malpractice because the doctor had hidden the fact that she has been wronged until after the statute of limitations has passed, or (2) by foregoing undertaking in a timely way appropriate treatment options to redress mistakes the doctor had made because the the doctor not hidden her problem from her until it was too late to undertake the treatment options. But these rules do not affirmatively punish the doctors for failure to be forthcoming; all they do is take from him - in the few cases in which he gets caught - the ability to profit from his own wrongdoing. The incentive remains to lie, secrete, and obfuscate, and the result is ongoing lay distrust of the profession, heightened willingness to sue, and increasingly punitive verdicts in the cases that are brought.

This paper argues that the courts should make the failure to confess known negligence a tort, closely akin to knowing concealment or fraud, even if it does not lead to harm. Doctrinally, imposition of an affirmative duty to come forward is justified because of the fiduciary nature of the doctor-patient relationship. The need to disentangle the failure to disclose from palpable injury arises because the law needs a way to encourage a new tradition in medical practice that will lead to greater openness between doctor and patient. A professional person’s failure to be truthful about treatment errors is not a physical wrong; instead, the wrong goes to the whole process through which medical decisions are made and medical services are rendered.

Treating failure to be truthful about one’s own negligence as a free standing tort, breach of which would lead to nominal damages as well as punitive damages, is unlikely to cause an increase in malpractice actions or liability. Since the principal reasons for bringing malpractice actions have to do with issues of trust, not really simply ones of competence, a regime of truth telling would create rather than undermine trust and lessen the likelihood of suits. Even when revelation does occur, the issues will focus on the nature and extent of plaintiff’s injury rather than on the blameworthiness of the doctor. This fact will aid in facilitating settlement of lawsuits, thus cutting down on the time, expense, and intensity of malpractice litigation, and will tend to moderate whatever financial settlements are reached in the cases.

medical malpractice, courts, doctors, physicians, negligence, disclosure

Abstract:
In Richardson v. Ramirez, 418 U.S. 24 (1974), the Supreme Court held that Section 2 of the Fourteenth Amendment authorized states to disenfranchise convicted felons. The decision thus leads to the anomalous result that, although Section 2 was clearly aimed at discouraging discriminatory denial of participation in the political process to African Americans, the provision nevertheless actually provides the primary justification for state statutes disproportionately denying African Americans the right to vote. This article argues that the Court got it very wrong in Richardson. Charles Sumner, one of the leaders of the Radical Republicans in the Congress that drafted the Fourteenth Amendment, argued that the amendment should pursue a political agenda of "inclusion and exclusion," by which he meant including former slaves in the larger political community while at the same time denying the franchise to whites who had participated in the Civil War on the side of the Confederacy. The Court in Richardson erred by ignoring the context in which the amendment was drafted and passed as well as specific parts of the legislative history of the amendment that demonstrate that the language recognizing state power to disenfranchise "felons" actually meant to include only those who had committed crimes of rebellion against the Union.

Felon Disenfranchisement, Racial Discrimination, Voting Rights

Abstract:
This paper is a brief Introduction to five articles dealing with the role a teacher's ideology might properly play in guiding his or her teaching by having the writers - each an afficionado of a particular "school" of academic thought (critical legal theory, law and economics, feminism, critical race theory, and a kind of traditional theoretical agnosticism) discuss how his or her perspective on law would color teaching a case appearing in many casebooks on Torts, O'Brien v. Cunard S.S. Co., 28 N.E. 266 (Mass. 1891), reprinted at 57 Mo. L. Rev. 347 (1992). The article briefly "states" the case in O'Brien and then introduces the other writers, whose papers ensue in the same volume.

legal education, case method, torts, O'Brien v. Cunard S.S. Co., teaching ideology

Abstract:
This paper analyzes Aetna Cas. & Sur.Co. v. Yeatts, 122 F.2d 350 (4th Cir. 1941) a case which arose after a botched abortion led to the death of a 17-year-old woman, Elizabeth Burton, in rural Virginia in 1938. The doctor-abortionist paid the woman's family wrongful death damages and then sought reimbursement from his malpractice insurance carrier, which declined to pay on the basis of non-coverage because the policy excluded claims resulting from criminal abortions.

The article opens with a lengthy narrative describing the circuitous route Ms. Burton had to traverse to "connect" with Dr. Yeatts, how he became an abortionist in a small southern town, and the sad and tragic details of her abortion and death from peritonitis caused by his sloppy medical ministrations in her behalf. The narrative is based on interviews with surviving family members of both the woman and the doctor as well as long-warehoused records and transcripts of the case as it unfolded in the aftermath of her death.

The paper describes the trial in detail. Despite overwhelming evidence that the doctor had in fact aborted her pregnancy and caused her death, the jury found for the doctor. Both the trial judge and the appellate court refused to order the verdict set aside and order a new trial on the basis that the verdict was against the clear weight of the evidence. The paper attempts to explain why the jury ruled for the doctor as well as why the court refused to set aside the verdict. The analysis concludes that the jury's decision involved jury nullification, a flat-out refusal to decide the case on the law and evidence, because the jury was uncomfortable with abortion law and did not want to drive the town abortionist out of business. This analysis is consistent with research indicating that in the period from 1850, when the first state statutes criminalizing abortion were passed, until 1973, when Roe v. Wade made abortions legal, juries routinely refused to enforce criminal laws against abortionists throughout the country. The only difference between these cases and Yeatts is that in the latter the jury was protecting the abortionist's pocketbook, not his liberty.

The discussion of the legal history of abortion policy in this country notes the historic ambivalence in Americans' attitudes toward abortion. This ambivalence led the country to criminalize abortions for nearly a century, while at the same time nullifying the criminal laws on the books, until Roe outlawed these statutes entirely, and it explains, in the post-Roe era, why polls show a majority of Americans believing that abortion is wrongful (one poll found a majority would characterize abortion as "murder") but nevertheless simultaneously give verbal assent to a laissez-faire policy permitting abortions to any women who need them.

Yeatts is a wonderful means of illustrating the point that, regardless of Americans' historic ambivalence toward abortion policy, when the chips are down juries are willing accept abortion as a necessary evil. In the decade preceding Roe, a reform movement had begun to decriminalize abortion services in this country; Roe, of course, eliminated the necessity for further legislative decriminalization. The principal argument decriminalizing abortion was the need to protect maternal health because of evidence that the alternative policy had created a dark and dank industry for "back alley" abortions subjecting women to unacceptable medical risks.

Elizabeth Burton's story is a poignant reminder of how maternal health was threatened when the abortion industry was driven underground and warns against legislative attempts to circumscribe the right of women to get abortion services when they feel pressed to get them.

abortion, family law, wrongful death, jury nullification, legal history

Abstract:
This article argues for expanded awards of medical monitoring relief in cases in which people exposed to dangerous industrial toxins have not incurred any physical injury. Free standing awards of monitoring costs demonstrably proven to be medically necessary or efficacious is justified, despite the fact that many of those given the awards may never actually incur physical harm, because the wrongdoing defendant has put the victim to Hobson's choice between risking death or serious injury or incurring medical expenses to head them off. The article argues that such relief should be awarded through equitable remedies that might, over time, modify or even eliminate the need for monitoring should the efficacy of such relief change with new information. Such awards in effect would tend actually to mitigate more serious damages by heading them off, while at the same time addressing, in a focused and responsible way, not only the risk that wrongdoers may have put victims to but also the emotional stresses associated with knowing that you are subject to substantial risk but being without the resources to prevent such risk from becoming fully realized.

Medical monitoring, Inchoate torts, Medical expense awards without Physical Injury, Physical Harm Rule

Abstract:
The author recounts growing up in the 1950's and 60's in the context of the Brown v. Board of Education decision, and its impact on the American South, specifically its effects on society in Danville, VA, where the author grew up. The overall struggle for racial equality is also discussed with the Brown decision as a backdrop.

Brown v. Board of Education, racial equality, reminiscences, racial history, race relations, afro-americans, desegregation, Martin Luther King,

Abstract:
This article attempts to provide an eclectic approach to teaching O'Brien v. Cunard S.S. Co., 28 N.E. 266 (Mass. 1891), reprinted at 57 Mo. L. Rev. 347 (1992) in a first year Torts course. The piece acknowledges the strength of seeing cases like O'Brien through the lens of critical legal theory, law and economics, feminism, and critical race theory, but in the end rejects any single approach in favor of a kind of unabashed eclecticism. It strongly suggests that teaching law from a single approach runs the risk of overreaching and coercion. In addition, it pointed out the utility of having professors who approach law from different "schools" of thought compare notes on how their perspectives color what and how they teach their students.

legal education, O'Brien v. Cunard S.S. Co., torts, critical legal theory, law and economics, feminism, critical race theory

Abstract:
This article outlines Maryland case law through the mid-1990's and argues that the state’s courts are on the verge of abandoning adherence to the territorialist choice of law rules of the First Restatement of Conflicts and adopting some sort of policy-oriented choice of law process blending the approaches suggested by the Second Restatement of Conflicts and Brainerd Currie’s writings on governmental interest analysis. Particular focus is given to a line of Maryland cases dealing with claims by tort victims against co-employees of a common employer - actions which Maryland permits but neighboring states forbid as a corollary to the policies of their workers’ compensation statute’s purpose of limiting employees to statutory claims against their employers when they suffer on-the-job injuries. The Maryland cases have enforced Maryland’s law and not limited the application of the Maryland rule to cases arising in Maryland or cases in which Maryland parties are opposed to one another; so long as either the claim or the employment relationship has significant relationship to Maryland, the cases suggest Maryland’s pro-plaintiff rule should be applied. Taking off from these cases, the article suggests that Maryland’s court of appeals is on the verge of a much-needed modernization of Maryland choice of law doctrine.

Maryland, choice-of-law process, conflicts doctrine, multistate cases, forum shopping, Restatement of Conflict of Laws

Abstract:
In the early 1990's, Congress attempted to enhance the federal program for subsidizing community health centers for the poor by eliminating the need of the centers for medical malpractice insurance. It did so by making the federal government the only proper defendant victims of the centers' malpractice could sue by "deeming" the centers and their clinicians to be federal "employees" covered by the Federal Tort Claims Act. The FTCA has a relatively short statute of limitations, two years, which cuts off liability for torts of federal employees no matter where they arise if the victim initiates suit more than two years after his or her claim accrues. Since patients of the community health centers have no reason to know of federal involvement in their medical services, when malpractice occurs neither they nor their lawyers are on notice that their state law claims are preempted by the FTCA. In states with statutes of limitations more generous than the federal two year period, a substantial number bring state law claims thought to be governed by state time limits only to discover too late that because of federal preemption their actions are time-barred. The article discusses an unreported federal district court decision in Maryland, Kelly v. Total Health Care, Inc., to illustrate how the law frustrates valid claims brought by diligent but ignorant poor people who have by victimized by medical practice. The paper ends up recommending solution to the problem through better statutory construction than that which occurred in Kelly or alternatively through legislative revision of the FTCA or the community health assistance act.

Abstract:
This article explains why jurisdiction through foreign attachment is withering away as a major source of state authority to secure jurisdiction over defendants who are nonresident individuals or foreign corporations. The article first explains how the holding of Shaffer v. Heitner, 433 U.S. 186 (1977) limits jurisdictional attachments by mandating that defending parties have sufficient contact with a forum state to meet the minimum requirements of the International Shoe Co. v. Washington, 326 U.S. 310 (1945). The article then explains that procedural due process rules announced in Fuentes v. Shevin, 407 U.S. 67 (1972) necessarily severely limit - and likely entirely foreclose - jurisdictional attachments, which necessarily occur without notice and opportunity to be heard by owners of the items of property being attached.

foreign attachment, foreign corporations, Shaffer v. Heitner, International Shoe Co. v. Washington, due process rules, Fuentes v. Shevin

Abstract:
From their first year in law school through their careers, attorneys have been mystified by the twists and turns of the Erie doctrine and the seemingly incompatible unfolding of what Judge Friendly labeled the "new federal common law." The author attempts a fresh reconciliation through a review of both bodies of law. He concludes that in areas not directly covered by either the Constitution or federal statutes, federal courts are authorized to resolve conflicts between federal and state rules through application of a federal procedural common law in much the same way that they have worked to resolve conflicts with state policy in areas of federal substantive concern.

Erie doctrine, Erie-Byrd rule,

Abstract:
With the merger of law and equity effected by revisions to Maryland's Rules of Civil Procedure, adopted on July 1, 1984, the Maryland judiciary must define the scope of trial by jury to be permitted in the now merged civil actions. This article examines the federal and various state approaches and sets forth alternatives available to Maryland courts. The authors posit that Maryland's judges should define the scope of the jury trial right in the merged system by recognition of established equitable functions. The right to trial by jury should be preserved, not by blindly following the federal approach, but by applying Maryland's traditional limitations on equitable jurisdiction.

jury trials, Maryland, law and equity, Maryland Rules of Civil Procedure