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Contributors
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- By Mitchell Aboulafia, Frederick Adams, Marilyn McCord Adams, Robert M. Adams, Laird Addis, James W. Allard, David Allison, William P. Alston, Karl Ameriks, C. Anthony Anderson, David Leech Anderson, Lanier Anderson, Roger Ariew, David Armstrong, Denis G. Arnold, E. J. Ashworth, Margaret Atherton, Robin Attfield, Bruce Aune, Edward Wilson Averill, Jody Azzouni, Kent Bach, Andrew Bailey, Lynne Rudder Baker, Thomas R. Baldwin, Jon Barwise, George Bealer, William Bechtel, Lawrence C. Becker, Mark A. Bedau, Ernst Behler, José A. Benardete, Ermanno Bencivenga, Jan Berg, Michael Bergmann, Robert L. Bernasconi, Sven Bernecker, Bernard Berofsky, Rod Bertolet, Charles J. Beyer, Christian Beyer, Joseph Bien, Joseph Bien, Peg Birmingham, Ivan Boh, James Bohman, Daniel Bonevac, Laurence BonJour, William J. Bouwsma, Raymond D. Bradley, Myles Brand, Richard B. Brandt, Michael E. Bratman, Stephen E. Braude, Daniel Breazeale, Angela Breitenbach, Jason Bridges, David O. Brink, Gordon G. Brittan, Justin Broackes, Dan W. Brock, Aaron Bronfman, Jeffrey E. Brower, Bartosz Brozek, Anthony Brueckner, Jeffrey Bub, Lara Buchak, Otavio Bueno, Ann E. Bumpus, Robert W. Burch, John Burgess, Arthur W. Burks, Panayot Butchvarov, Robert E. Butts, Marina Bykova, Patrick Byrne, David Carr, Noël Carroll, Edward S. Casey, Victor Caston, Victor Caston, Albert Casullo, Robert L. Causey, Alan K. L. Chan, Ruth Chang, Deen K. Chatterjee, Andrew Chignell, Roderick M. Chisholm, Kelly J. Clark, E. J. Coffman, Robin Collins, Brian P. Copenhaver, John Corcoran, John Cottingham, Roger Crisp, Frederick J. Crosson, Antonio S. Cua, Phillip D. Cummins, Martin Curd, Adam Cureton, Andrew Cutrofello, Stephen Darwall, Paul Sheldon Davies, Wayne A. Davis, Timothy Joseph Day, Claudio de Almeida, Mario De Caro, Mario De Caro, John Deigh, C. F. Delaney, Daniel C. Dennett, Michael R. DePaul, Michael Detlefsen, Daniel Trent Devereux, Philip E. Devine, John M. Dillon, Martin C. Dillon, Robert DiSalle, Mary Domski, Alan Donagan, Paul Draper, Fred Dretske, Mircea Dumitru, Wilhelm Dupré, Gerald Dworkin, John Earman, Ellery Eells, Catherine Z. Elgin, Berent Enç, Ronald P. Endicott, Edward Erwin, John Etchemendy, C. Stephen Evans, Susan L. Feagin, Solomon Feferman, Richard Feldman, Arthur Fine, Maurice A. Finocchiaro, William FitzPatrick, Richard E. Flathman, Gvozden Flego, Richard Foley, Graeme Forbes, Rainer Forst, Malcolm R. Forster, Daniel Fouke, Patrick Francken, Samuel Freeman, Elizabeth Fricker, Miranda Fricker, Michael Friedman, Michael Fuerstein, Richard A. Fumerton, Alan Gabbey, Pieranna Garavaso, Daniel Garber, Jorge L. A. Garcia, Robert K. Garcia, Don Garrett, Philip Gasper, Gerald Gaus, Berys Gaut, Bernard Gert, Roger F. Gibson, Cody Gilmore, Carl Ginet, Alan H. Goldman, Alvin I. Goldman, Alfonso Gömez-Lobo, Lenn E. Goodman, Robert M. Gordon, Stefan Gosepath, Jorge J. E. Gracia, Daniel W. Graham, George A. Graham, Peter J. Graham, Richard E. Grandy, I. Grattan-Guinness, John Greco, Philip T. Grier, Nicholas Griffin, Nicholas Griffin, David A. Griffiths, Paul J. Griffiths, Stephen R. Grimm, Charles L. Griswold, Charles B. Guignon, Pete A. Y. Gunter, Dimitri Gutas, Gary Gutting, Paul Guyer, Kwame Gyekye, Oscar A. Haac, Raul Hakli, Raul Hakli, Michael Hallett, Edward C. Halper, Jean Hampton, R. James Hankinson, K. R. Hanley, Russell Hardin, Robert M. Harnish, William Harper, David Harrah, Kevin Hart, Ali Hasan, William Hasker, John Haugeland, Roger Hausheer, William Heald, Peter Heath, Richard Heck, John F. Heil, Vincent F. Hendricks, Stephen Hetherington, Francis Heylighen, Kathleen Marie Higgins, Risto Hilpinen, Harold T. Hodes, Joshua Hoffman, Alan Holland, Robert L. Holmes, Richard Holton, Brad W. Hooker, Terence E. Horgan, Tamara Horowitz, Paul Horwich, Vittorio Hösle, Paul Hoβfeld, Daniel Howard-Snyder, Frances Howard-Snyder, Anne Hudson, Deal W. Hudson, Carl A. Huffman, David L. Hull, Patricia Huntington, Thomas Hurka, Paul Hurley, Rosalind Hursthouse, Guillermo Hurtado, Ronald E. Hustwit, Sarah Hutton, Jonathan Jenkins Ichikawa, Harry A. Ide, David Ingram, Philip J. Ivanhoe, Alfred L. Ivry, Frank Jackson, Dale Jacquette, Joseph Jedwab, Richard Jeffrey, David Alan Johnson, Edward Johnson, Mark D. Jordan, Richard Joyce, Hwa Yol Jung, Robert Hillary Kane, Tomis Kapitan, Jacquelyn Ann K. Kegley, James A. Keller, Ralph Kennedy, Sergei Khoruzhii, Jaegwon Kim, Yersu Kim, Nathan L. King, Patricia Kitcher, Peter D. Klein, E. D. Klemke, Virginia Klenk, George L. Kline, Christian Klotz, Simo Knuuttila, Joseph J. Kockelmans, Konstantin Kolenda, Sebastian Tomasz Kołodziejczyk, Isaac Kramnick, Richard Kraut, Fred Kroon, Manfred Kuehn, Steven T. Kuhn, Henry E. Kyburg, John Lachs, Jennifer Lackey, Stephen E. Lahey, Andrea Lavazza, Thomas H. Leahey, Joo Heung Lee, Keith Lehrer, Dorothy Leland, Noah M. Lemos, Ernest LePore, Sarah-Jane Leslie, Isaac Levi, Andrew Levine, Alan E. Lewis, Daniel E. Little, Shu-hsien Liu, Shu-hsien Liu, Alan K. L. Chan, Brian Loar, Lawrence B. Lombard, John Longeway, Dominic McIver Lopes, Michael J. Loux, E. J. Lowe, Steven Luper, Eugene C. Luschei, William G. Lycan, David Lyons, David Macarthur, Danielle Macbeth, Scott MacDonald, Jacob L. Mackey, Louis H. Mackey, Penelope Mackie, Edward H. Madden, Penelope Maddy, G. B. Madison, Bernd Magnus, Pekka Mäkelä, Rudolf A. Makkreel, David Manley, William E. Mann (W.E.M.), Vladimir Marchenkov, Peter Markie, Jean-Pierre Marquis, Ausonio Marras, Mike W. Martin, A. P. Martinich, William L. McBride, David McCabe, Storrs McCall, Hugh J. McCann, Robert N. McCauley, John J. McDermott, Sarah McGrath, Ralph McInerny, Daniel J. McKaughan, Thomas McKay, Michael McKinsey, Brian P. McLaughlin, Ernan McMullin, Anthonie Meijers, Jack W. Meiland, William Jason Melanson, Alfred R. Mele, Joseph R. Mendola, Christopher Menzel, Michael J. Meyer, Christian B. Miller, David W. Miller, Peter Millican, Robert N. Minor, Phillip Mitsis, James A. Montmarquet, Michael S. Moore, Tim Moore, Benjamin Morison, Donald R. Morrison, Stephen J. Morse, Paul K. Moser, Alexander P. D. Mourelatos, Ian Mueller, James Bernard Murphy, Mark C. Murphy, Steven Nadler, Jan Narveson, Alan Nelson, Jerome Neu, Samuel Newlands, Kai Nielsen, Ilkka Niiniluoto, Carlos G. Noreña, Calvin G. Normore, David Fate Norton, Nikolaj Nottelmann, Donald Nute, David S. Oderberg, Steve Odin, Michael O’Rourke, Willard G. Oxtoby, Heinz Paetzold, George S. Pappas, Anthony J. Parel, Lydia Patton, R. P. Peerenboom, Francis Jeffry Pelletier, Adriaan T. Peperzak, Derk Pereboom, Jaroslav Peregrin, Glen Pettigrove, Philip Pettit, Edmund L. Pincoffs, Andrew Pinsent, Robert B. Pippin, Alvin Plantinga, Louis P. Pojman, Richard H. Popkin, John F. Post, Carl J. Posy, William J. Prior, Richard Purtill, Michael Quante, Philip L. Quinn, Philip L. Quinn, Elizabeth S. Radcliffe, Diana Raffman, Gerard Raulet, Stephen L. Read, Andrews Reath, Andrew Reisner, Nicholas Rescher, Henry S. Richardson, Robert C. Richardson, Thomas Ricketts, Wayne D. Riggs, Mark Roberts, Robert C. Roberts, Luke Robinson, Alexander Rosenberg, Gary Rosenkranz, Bernice Glatzer Rosenthal, Adina L. Roskies, William L. Rowe, T. M. Rudavsky, Michael Ruse, Bruce Russell, Lilly-Marlene Russow, Dan Ryder, R. M. Sainsbury, Joseph Salerno, Nathan Salmon, Wesley C. Salmon, Constantine Sandis, David H. Sanford, Marco Santambrogio, David Sapire, Ruth A. Saunders, Geoffrey Sayre-McCord, Charles Sayward, James P. Scanlan, Richard Schacht, Tamar Schapiro, Frederick F. Schmitt, Jerome B. Schneewind, Calvin O. Schrag, Alan D. Schrift, George F. Schumm, Jean-Loup Seban, David N. Sedley, Kenneth Seeskin, Krister Segerberg, Charlene Haddock Seigfried, Dennis M. Senchuk, James F. Sennett, William Lad Sessions, Stewart Shapiro, Tommie Shelby, Donald W. Sherburne, Christopher Shields, Roger A. Shiner, Sydney Shoemaker, Robert K. Shope, Kwong-loi Shun, Wilfried Sieg, A. John Simmons, Robert L. Simon, Marcus G. Singer, Georgette Sinkler, Walter Sinnott-Armstrong, Matti T. Sintonen, Lawrence Sklar, Brian Skyrms, Robert C. Sleigh, Michael Anthony Slote, Hans Sluga, Barry Smith, Michael Smith, Robin Smith, Robert Sokolowski, Robert C. Solomon, Marta Soniewicka, Philip Soper, Ernest Sosa, Nicholas Southwood, Paul Vincent Spade, T. L. S. Sprigge, Eric O. Springsted, George J. Stack, Rebecca Stangl, Jason Stanley, Florian Steinberger, Sören Stenlund, Christopher Stephens, James P. Sterba, Josef Stern, Matthias Steup, M. A. Stewart, Leopold Stubenberg, Edith Dudley Sulla, Frederick Suppe, Jere Paul Surber, David George Sussman, Sigrún Svavarsdóttir, Zeno G. Swijtink, Richard Swinburne, Charles C. Taliaferro, Robert B. Talisse, John Tasioulas, Paul Teller, Larry S. Temkin, Mark Textor, H. S. Thayer, Peter Thielke, Alan Thomas, Amie L. Thomasson, Katherine Thomson-Jones, Joshua C. Thurow, Vzalerie Tiberius, Terrence N. Tice, Paul Tidman, Mark C. Timmons, William Tolhurst, James E. Tomberlin, Rosemarie Tong, Lawrence Torcello, Kelly Trogdon, J. D. Trout, Robert E. Tully, Raimo Tuomela, John Turri, Martin M. Tweedale, Thomas Uebel, Jennifer Uleman, James Van Cleve, Harry van der Linden, Peter van Inwagen, Bryan W. Van Norden, René van Woudenberg, Donald Phillip Verene, Samantha Vice, Thomas Vinci, Donald Wayne Viney, Barbara Von Eckardt, Peter B. M. Vranas, Steven J. Wagner, William J. Wainwright, Paul E. Walker, Robert E. Wall, Craig Walton, Douglas Walton, Eric Watkins, Richard A. Watson, Michael V. Wedin, Rudolph H. Weingartner, Paul Weirich, Paul J. Weithman, Carl Wellman, Howard Wettstein, Samuel C. Wheeler, Stephen A. White, Jennifer Whiting, Edward R. Wierenga, Michael Williams, Fred Wilson, W. Kent Wilson, Kenneth P. Winkler, John F. Wippel, Jan Woleński, Allan B. Wolter, Nicholas P. Wolterstorff, Rega Wood, W. Jay Wood, Paul Woodruff, Alison Wylie, Gideon Yaffe, Takashi Yagisawa, Yutaka Yamamoto, Keith E. Yandell, Xiaomei Yang, Dean Zimmerman, Günter Zoller, Catherine Zuckert, Michael Zuckert, Jack A. Zupko (J.A.Z.)
- Edited by Robert Audi, University of Notre Dame, Indiana
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- The Cambridge Dictionary of Philosophy
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- 05 August 2015
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- 27 April 2015, pp ix-xxx
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6 - Human action, neuroscience and the law
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- By Alexander Mccall Smith, Professor of Medical Law University of Edinburgh; Vice-chairman Human Genetics Commission of the UK
- Edited by Dai Rees, Steven Rose, The Open University, Milton Keynes
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- The New Brain Sciences
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- 08 August 2009
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- 21 October 2004, pp 103-122
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Summary
A cynical view regards the criminal law as a crude system of state-enforced sanctions designed to ensure social order: punishment follows the commission of a proscribed act. In one sense this is true: criminal law involves rules, the breaking of which results in punishment, and often rather crude punishment at that (a tyrant from an earlier age would certainly recognise a contemporary prison cell in a British prison, even if he might remark on its relative degree of comfort). This view of criminal law, however, is a very shallow one, and an anachronistic one too. Criminal justice is not purely concerned with the undiscriminating regulation of anti-social behaviour; a modern criminal justice system has far more sophisticated tasks than the mere punishment of those who break the law. These include the need to be imaginative in response to crime and to take into account the range of possible measures that can be invoked to deal with the offender. They also include the need to take into account the moral implications of the system and to ensure that the system is fair to those to whom it reacts. This is demanded not only by the moral imperative that the state should only punish the guilty, but by the pragmatic requirement that to be effective, the criminal justice system should enjoy a reasonable measure of popular support. A harsh system of criminal justice, which lacks the consent of the governed, will simply not work in an open and liberal society.
Contents
- Alan Merry, University of Auckland, Alexander McCall Smith, University of Edinburgh
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- Errors, Medicine and the Law
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- 05 October 2013
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- 16 August 2001, pp v-v
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1 - Accidents
- Alan Merry, University of Auckland, Alexander McCall Smith, University of Edinburgh
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- Errors, Medicine and the Law
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- 05 October 2013
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- 16 August 2001, pp 6-40
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Summary
We begin with a chapter of accidents. The accident par excellence of the twentieth century was the loss of the RMS Titanic, which on the night of 12 April 1912 collided with an iceberg in the North Atlantic. Who, or what, was to blame for this incident, which was to become so enduring and potent a cultural symbol? There are numerous potential explanations: the iceberg might have been sighted in time, but was not. A warning message was sent, but not passed on. The metal used for the construction of the ship's rivets contained impurities, with the result that they gave under strain. The ship's architects had miscalculated the ability of sealed-off compartments to maintain buoyancy. A wireless operator on a nearby ship, which could have arrived on the scene to rescue the passengers, had turned off his set, only twenty minutes earlier, with the result that Mayday messages were not received. If the crew had been equipped with binoculars, the watch might have been alarmed in time. All of these played some role in the final disaster.
The equivalent in our own times of the loss of the Titanic – in the sense that it demonstrated the same essential vulnerability of grandiose human ambitions – was the explosion of the space shuttle Challenger in 1986, 73 seconds after launch. It is clear that ring seals failed, causing the explosion of escaping fuel, but this failure would not have occurred had the seals not been exposed to low temperatures on the ground.
Errors, Medicine and the Law
- Alan Merry, Alexander McCall Smith
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- 05 October 2013
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- 16 August 2001
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Untoward injuries are unacceptably common in medical treatment, at times with tragic consequences for patients. The phrases 'an epidemic of error' and 'the medical toll' have been coined to describe this problem of 'iatrogenic harm', which it has been suggested may have contributed to 98,000 deaths per year in the US. Some of these incidents are the result of negligence on the part of doctors, but more usually they are no more than inevitable concomitants of the complexity of modern healthcare. This book is fundamentally about distinguishing the former from the latter. Although medicine is used as the book's primary example, the points made apply equally to aviation, industrial activities, and many other fields of human endeavour. The book advocates a more informed alternative to the blaming culture which has increasingly come to dominate our response to accidents, whether in the medical field or elsewhere.
6 - The standard of care
- Alan Merry, University of Auckland, Alexander McCall Smith, University of Edinburgh
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- Errors, Medicine and the Law
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- 05 October 2013
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- 16 August 2001, pp 152-175
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Summary
How are we to decide when an act is negligent? As is often the case with complex questions, the answer to the question may depend on the reason for asking it in the first place. If the question is asked when one is seeking to determine liability in tort, then the definition of negligence will be framed in such a way as to grasp those situations where it is thought that loss should be shifted from plaintiff to defendant. If the question is framed in the context of criminal punishment, or as part of an inquiry into moral blame, negligence may be given a very different definition. In this chapter we shall be concerned solely with civil liability and with the way in which negligence should be defined for those purposes.
A central question in tort theory in recent decades has been that of how we are to identify a satisfactory justification for transferring loss through the medium of civil liability. A prominent trend in this analysis has been the championing of economic theories which have sought to establish a broadly utilitarian theory for the attribution of liability. In these theories, the aim of the law of torts is to shift loss where to do so will satisfy the economic interests of society.
8 - Beyond blame: responding to the needs of the injured
- Alan Merry, University of Auckland, Alexander McCall Smith, University of Edinburgh
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- Errors, Medicine and the Law
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- 05 October 2013
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- 16 August 2001, pp 204-240
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Summary
Our concern in this book has been to assess how we respond to accidents – with a focus on accidents in medicine. We have indicated that many events which are judged to constitute instances of medical negligence are, in fact, the inevitable concomitant of human limitations in the face of demanding situations. We have argued for a re-examination of the process of the allocation of blame in such cases and suggested that an excessive focus on fault may be unjust and counter-productive to the improvement of safety. Such claims, though, may easily be misinterpreted. It might be thought that to argue against an undue emphasis on blame is to favour the doctor and pay inadequate attention to the plight of the injured patient. After all, this is not merely a matter of academic interest but concerns real people who have suffered injury.
One might recall at this stage the studies (reviewed in chapter 2) which show just how extensive the harm from error and negligence in medicine may be. As we have pointed out, estimates as to incidence vary, but the central conclusion is clear: too many patients are being harmed in this way, often quite seriously. Behind these statistics there exists substantial suffering, not only in the shape of the pain and discomfort of physical injury but also in financial terms, with loss of earnings and costs associated with disability. In general, however blameless the doctor, the patient is even less to blame for the injury.
4 - Violations
- Alan Merry, University of Auckland, Alexander McCall Smith, University of Edinburgh
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- Errors, Medicine and the Law
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- 05 October 2013
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- 16 August 2001, pp 98-126
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Summary
It is not only error that contributes to the failure of human endeavour. People drink, drive and wreak havoc on the road. Substandard structures are erected, and collapse, with loss of lives. Doctors in intensive care units fail to wash their hands between patients, and contribute to the problem of cross-infection. There are many situations like these in which harm flows from an action which, in contrast to an error, is quite deliberate in its conceptualisation and execution, even though no harm was intended. We have said that errors are entirely involuntary. The moral implications of an injury are quite different if some element of choice by the actor was involved in the actions which led to its causation. A mistake (mistakes being that subset of errors in which the flaw lies in the decision or plan) is defined as an error precisely because the actor believes that the action is an appropriate way of achieving an objective safely. He or she is acting in good faith, trying to do the best possible thing, but failing. A decision or plan can no longer be considered a mistake (or any other kind of error under the definition in chapter 3) if the person concerned knows that there is a more acceptable alternative, or an alternative more likely to achieve the given objective safely, and yet deliberately chooses the less satisfactory alternative.
5 - Negligence, recklessness and blame
- Alan Merry, University of Auckland, Alexander McCall Smith, University of Edinburgh
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- Errors, Medicine and the Law
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- 05 October 2013
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- 16 August 2001, pp 127-151
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Summary
We have argued that certain incidents which lead to harm and attributions of liability may, in fact, reasonably be regarded as accidents – in the sense in which we have defined accidents – and not as occasions for blame. We have also suggested that error is an inevitable concomitant of human activity, particularly in complex systems. In practice, however, when things go wrong, there is often a call by the community, or by the injured party, for an explanation, and this is frequently accompanied by pressing demands for the attribution of blame. In some cases these demands are justified, but the justification lies not in the mere fact that harm has occurred, but in the fact that it has been caused in a culpable manner.
Theories of moral responsibility based on free choice have traditionally stressed the inextricable link between blame and culpability. Yet this connection has been weakened by the tendency to assume that if there has been a harmful outcome then there is a strong possibility of blame. This claim may be made in the name of accountability and is a concomitant of the policy of dismantling elitist patterns of professional privilege. The consumerist movement has encouraged this view, arguing that more strenuous efforts to uncover responsibility for mishaps will ensure better protection for the public. There is, of course, some merit in this: it is clearly not in the interest of the public that those providing public services should be able to conceal incompetence or deliberate wrongdoing behind institutional or professional shields.
7 - Assessing the standard – the role of the expert witness
- Alan Merry, University of Auckland, Alexander McCall Smith, University of Edinburgh
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- Errors, Medicine and the Law
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- 05 October 2013
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- 16 August 2001, pp 176-203
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Summary
The central thesis of this book is that many incidents currently defined as negligent – in both a criminal and a civil context – do not, on close analysis, reflect significant blameworthiness. Our discussion of the standard of care concluded that this standard will tend to be driven up by the way in which it is applied in negligence litigation. The expert witness plays an important role in this process.
The court is the trier of fact in any legal action. In jury-based systems, it will be the jury that performs this role; in non-jury systems, it will be the judge. Whichever system is favoured, the task will be the same – that of deciding whether a particular fact existed. To do this, courts will listen to the evidence of those who witnessed or participated in the events under dispute. The law of evidence is designed to ensure that the court considers only that evidence that will enable it to reach a reliable conclusion. Opinion evidence – evidence about what people thought about a matter is usually excluded, as is evidence of knowledge that is indirectly obtained (the hearsay rule). Opinion evidence, however, may be allowed where the opinion is necessary to enable the trier of facts to understand the facts in question. So, for example, a witness may be asked whether, in his opinion, a person was intoxicated at the time of his observation, or whether he was in a state of distress.
Acknowledgements
- Alan Merry, University of Auckland, Alexander McCall Smith, University of Edinburgh
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- Errors, Medicine and the Law
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- 16 August 2001, pp vi-vi
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Introduction
- Alan Merry, University of Auckland, Alexander McCall Smith, University of Edinburgh
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- Errors, Medicine and the Law
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- 05 October 2013
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- 16 August 2001, pp 1-5
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Summary
Modern medicine is highly effective. It is also available to greater numbers of people than ever before, but preventable injury has been identified as a strikingly common occurrence in all aspects of modern healthcare. The term ‘epidemic of error’ has been coined. In the United States, the Institute of Medicine, acting under the National Academy of Sciences, has identified errors in healthcare as a leading cause of death and injury, comparable with that of road accidents. The precise extent of this problem is open to question, but it is beyond argument that an unacceptable number of people suffer serious harm or die as a result of ‘avoidable adverse events’. Sometimes these events are attributable to negligence. However, it is often simple human error, operating in an intrinsically hazardous system, which results in an unnecessary death or serious injury. For the person concerned, and for the person's family and friends, the consequences of a deceptively simple mistake may be a tragedy of the first order. In addition, there may also be grave implications for a doctor or nurse at whose door the blame for the accident is laid, with consequences for his or her family as well.
This book is a study of how mishaps occur and how people are blamed for them. In many areas of human activity there is a strong tendency to attribute blame for incidents which, on further investigation, may be shown not to involve any culpable conduct.
3 - Errors
- Alan Merry, University of Auckland, Alexander McCall Smith, University of Edinburgh
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- Errors, Medicine and the Law
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- 05 October 2013
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- 16 August 2001, pp 72-97
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Summary
We all know that everyone makes mistakes – but are everyday mistakes (misplacing a household item or misdialling a telephone number) really equivalent to inadvertently administering the wrong drug to a patient? There is an understandable view that professionals are trained and paid precisely to ensure that they do in fact do the right thing. The problem of iatrogenic harm in healthcare described in chapter 2 demands a response. The first reaction to accidents in medicine is often punitive, and based on a denial of the nature of human error. The culture of clinical practice is in general one of relentless dedication to high achievement and the medical profession is the foremost culprit in perpetuating the myth of professional infallibility. It is not surprising that the courts and disciplinary authorities have taken their lead from doctors themselves and have at times seemed to treat any kind of failure in medical practice as unacceptable.
In chapter 2 we discussed some of the processes involved in human cognition and described the way in which the mind may mislead an actor and create a situation in which bizarre and apparently inexplicable actions become perfectly understandable. We now attempt to distinguish between different types of error and investigate whether it is possible to predict which type of error is most likely to occur in a given situation. We shall discuss reasons for believing that errors (in contrast to violations) are both understandable and inevitable, even for a highly trained and regulated professional.
Frontmatter
- Alan Merry, University of Auckland, Alexander McCall Smith, University of Edinburgh
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- Errors, Medicine and the Law
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- 16 August 2001, pp i-iv
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Index
- Alan Merry, University of Auckland, Alexander McCall Smith, University of Edinburgh
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- Errors, Medicine and the Law
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- 05 October 2013
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- 16 August 2001, pp 249-254
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2 - The human factor
- Alan Merry, University of Auckland, Alexander McCall Smith, University of Edinburgh
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- Errors, Medicine and the Law
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- 16 August 2001, pp 41-71
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Our knowledge of the workings of the human brain has progressed enormously over recent decades, not only in respect of the receptors, transmitters and pathways that form the physical matrix of the brain but also in our understanding of human cognition. It is our human cognitive ability that has given us our highly organised and technologically sophisticated societies, with all their advantages and disadvantages. Yet it is precisely these cognitive processes that also make human beings prone to error. To this risk must be added the fact that the technology and complexity which characterise modern life, and which have resulted from our ability to think, have created an environment in which the opportunities for error are numerous and in which serious harm may readily follow if an error is made. Error, then, should be viewed not as an unfortunate frailty on the part of human beings but rather as an inevitable concomitant of the powerful cognitive processes that have permitted us to extend the limits of human achievement.
There have been good observational data concerning human error since the work of Freud first suggested that errors were not necessarily random events attributable to carelessness, but could be meaningful in terms of a person's psychology. Today, cognitive science can provide considerable insight into the workings of the human mind. This knowledge is of more than theoretical significance: a wider understanding of the processes that underlie our decisions and our actions is essential if we are to make progress in improving the safety of complex systems (such as medical practice).
Conclusion
- Alan Merry, University of Auckland, Alexander McCall Smith, University of Edinburgh
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- Errors, Medicine and the Law
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- 16 August 2001, pp 241-248
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This study started with a chapter of accidents. How those accidents are viewed – and how we regard untoward occurrences in human affairs – has been the subject of our enquiry. It is our view that many of our current responses to such events are not only morally and scientifically unsophisticated, but may also be unhelpful in promoting better and safer practices. If we want to reduce the damage caused by accidents, then we should ensure that the legal response is fashioned with an awareness of the insights which psychology and accident theory can now afford. At present the law in many cases adopts a blunt approach which fails to take these insights into account. This is in the interests of neither the patient nor the doctor.
We have not been concerned with intentionally produced harm, which may quite uncontroversially merit blame. It is worth noting, though, that even in situations where blame is entirely appropriate, a strongly punitive response may not necessarily be the most effective method of dealing with the problem. There will, of course, be situations where a good case can be advanced for a strongly deterrent approach. An example of this is where punitive measures are used to deter the deliberate flouting of safety or environmental regulations by corporate actors. In these cases liability may be imposed on the corporation itself, which may be heavily fined, or there may be prosecution of individual managers or directors.
Child Homicide and the Law: Implications of the Judgements of the European Court of Human Rights in the Case of the Children Who Killed James Bulger
- Sula Wolff, R. Alexander A. McCall Smith
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- Child Psychology and Psychiatry Review / Volume 5 / Issue 3 / September 2000
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- 16 October 2000, pp. 133-138
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- September 2000
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The facts of the Bulger case and its legal consequences, in particular the judgements of the European Court of Human Rights (ECHR), are summarised. A review of the literature on child homicide indicates that this continues to be rare, can neither be predicted nor prevented, and suggests that the future outlook for such offenders may be good. The recommendations of a committee set up by Justice (1996) for changes in legislation and procedures concerning children who have killed, are congruent with the European Court's judgements, but still woefully at odds with public attitudes.
A Patient's Right to Know, Information Disclosure – the doctor and the law by Sheila Mclean Aldershot: Dartmouth Publishing, 199, vii + 178 + (index) 5pp (hardback £27.50).
- Alexander Mccall Smith
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- Journal:
- Legal Studies / Volume 10 / Issue 3 / December 1990
- Published online by Cambridge University Press:
- 02 January 2018, pp. 344-349
- Print publication:
- December 1990
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Allegations of Judicial Partiality and the Phillimore Report
- Alexander McCall-Smith
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- Journal:
- International & Comparative Law Quarterly / Volume 24 / Issue 4 / October 1975
- Published online by Cambridge University Press:
- 17 January 2008, pp. 862-870
- Print publication:
- October 1975
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