Free Essay

Proof of Negligence

In: Business and Management

Submitted By scarlett2012
Words 1320
Pages 6
Law and Health Care- Proof of Negligence
Vickie Young
Dr. L. Forbes
Strayer University
January 22, 2012

Identify and explain the four elements of proof necessary for a plaintiff to prove a negligence case. Negligence is defined as “conduct that falls below the standards of behavior established by law for the protection of others against unreasonable risk of harm. A person has acted negligently if he or she has departed from the conduct of a reasonably prudent person acting under similar circumstances” (Legal Dictionary,n.a.). This conduct is also referred to as “duty of care” (Showalter, 2008, pg.47, para.1). Though negligence is one of the most common types of lawsuits relative to the medical industry, it requires significant proof. The four elements that must be present to prove negligence are as follows: duty of care, breach of said duty, injury, and causation (Showalter, 2008, pg.47, para.1). Duty of care has been defined previously as the reasonable and expected behavior of one in a particular situation. It is somewhat of a given standard that is simply understood. If there is a breach of this expected behavior and there is injury to person or property, and the breach is shown to have caused the injury, then the person or persons, who did not perform or behave as expected, may be liable for the injuries it caused. The challenge for proving negligence in a medical arena is complex since the jury may not have the professional experience to understand what behavior is expected. A layman has no concept of what is a standard procedure to remove an appendix. These situations require a professional in the same field of expertise to share information and acknowledge if the procedure was performed in an acceptable or unacceptable manner. In order for the evidence to be complete, regardless of proving the doctor was negligent, there must also be some proof that the injury claimed was attributed to or the result of the negligent act (Showalter, 2008, pg.60, para.4). The injury doesn’t necessarily have to be solely caused by the negligence, but the plaintiff has to prove that the negligence was a possibly a significant consideration in the resulting injury. The determination of negligence is not black and white. The negligence may be proven to have caused only some part of the injury. Explain how the standard of care can be proven. In order to prove there was a breach of duty of care the standard of care must first be established. In medical cases there is usually the need for an expert witness to assist in establishing exactly what the standard of care would entail. This witness must be familiar with the local practice. This means the witness must understand the area and the medical standards there. This is sometimes referred to as a “locality rule” (Showalter, 2008, pg.54, para.3) because physicians in rural areas might not be held to the same standards as physicians practicing at a world renown medical center. This rule is somewhat more relaxed in current cases because the national standards are relatively the same for continuing education and policies and procedures in the health field. Another concern was also finding an expert witness in a particular area who would be willing to testify against a colleague (Showalter, 2008, pg.54, para.3). The witness must also be an expert in the field that is relevant to the case. A neurosurgeon would not be an acceptable expert witness in an obstetrics case. There would be more appropriate witnesses who would better understand the procedures and standards acceptable for obstetrics specialties. Some states allow medical publications or published policies and procedures to lend credence to evidence the accepted standard of care. Hospital or clinic policies and procedures manuals, written and adopted by the facility, are often accredited by certain governmental agencies (Showalter, 2008, pg.56, para.4). These accredited agencies’ stamp of approval on the policies and procedures guidelines may allow these documents to be admissible as evidence to prove the standard of care, as well. Explain the principle of “vicarious liability” (respondeat superior). A physician or employer may be held liable for the negligent acts of others because the physician or facility has superiority or “say-so” over another person. For example, if a physician’s assistant (PA) is negligent and causes harm to a patient, the physician may be held liable for the damages or injury caused, because the physician oversees the PA. The professional person, employer or facility can be liable for the actions of the employees or those who should take direction from the physician or follow the set standards held by the facility’s policies and procedures, as the “respondeat superior” is the lead authority in what acceptable treatment is and what it is not (Showalter, 2008, pg.68, para.1). Explain why a corporation is considered an “artificial person” under the law. There are many laws that apply to “persons” but because the corporation is not an individual or citizen certain parts of laws do not apply. There are amendments of the US Constitution that apply to “person”, such as the 5th and 14th amendments. Life, liberty, the pursuit of happiness and due process apply to a person; furthermore, no state can deny a person equal protection of the laws (Showalter, 2008, pg.93-94). There are also parts of these amendments that do not apply to the “corporate person” since they are not an individual who can obtain a license or a citizen who can cast a ballot and vote (Showalter, 2008, pg.92, para.2). A corporation is considered a legal entity with its own rights and responsibilities (Showalter, 2008, pg.92, para.3). There are situations where those who formed the corporation or own the corporation might be considered liable for acts of the corporation, but these are limited. Corporations are held to state laws where they are initially chartered. Some states allow a single person to create or incorporate a business, while other states have a requirement on the number of individuals who must join or partner in order to establish a corporation. These laws vary by state and corporations are held to comply with the laws of the state. Corporations can often shield its owners from personal liability based on the state statutes that apply. Explain the functions and responsibilities of the governing board of a healthcare corporation. The governing board of a healthcare corporation has many a varied responsibilities. Their obligations are to the corporation and include development of policy and strategic planning, the appointment of medical staff and upper level administration, establish the boundaries of clinical privileges, and to responsibly oversee the professional performance of administration as well as medical staff (Showalter, 2008, pg.97). The board often divides and assigns specific duties to committees made up of administration, local community business owners, and medical staff. An executive committee is a group whose obligation is assures the board’s policies are executed properly in the interim between board meetings. There are usually committees created to address finance, personnel, public relations, medical staff relations, continuing education, and possibly expansions and maintenance of the physical building and adjacent properties owned by the corporation (Showalter, 2008, pg.98). The committee makes recommendations and shares information with the board, who is representative of the governing body of the corporation. All administration, medical staff, and committee members are in essence, under management of the board.

References
Showalter, J. S. (2008). The Law of Healthcare Administration, (5th ed.). Chicago: Health Administrative Press The Free Dictionary-Legal Dictionary-negligence (n.a). Retrieved January 21, 2010, from http://legal-dictionary.thefreedictionary.com/NegligenceSkylight Health Care Systems, (2011), Board of directors, retrieved January 22, 2012 From http://www.skylight.com/skylight-healthcare-systems/board-of- directors/?Sec tion=About+Us&PageTitle=Board+of+Directors&MainSection=About+Us |…...

Similar Documents

Premium Essay

Negligence

...NEGLIGENCE The elements of negligence are set forth in the case of Carr v. Union Pac. R.R. Co., ____S.W.3d____, 2011 WL 4489982 (Tex. App.-Houston [4th District] 2011 no pet.), as follows: Elements: 1. The existence of a legal duty; 2. Breach of a legal duty; 3. Proximate causation, and; 4. Damages. Factual Background: This suit arises out of a train derailment occurring across the road from the Carr’s residence. The derailment caused one railcar to derail and spill the contents, methyl isobutyl ketone, a colorless chemical used primarily as a solvent. The Carr’s noticed the smell of the chemical and immediately complained of headaches, congestion, and runny noses. At the Trial Court level the Carr’s failed to provide expert testimony as a link between the chemical spill and the physical symptoms the Carr’s had experienced . The Suit: The trial court granted a no-evidence summary judgment in favor of the Appellee, Union Pacific Rail Road. The Appellants, (the Carr’s, et.al), failed to meet two of the four elements of negligence. The Appellants appealed, arguing that expert testimony is not required. The District court disagreed, reasoning that summary judgment was “proper because the Plaintiffs have not presented any expert witness testimony on the issues of proximate cause and damages”. The Appellate Decision: The Trial court decision was affirmed. SUDDEN EMERGENCY The elements of the rule of non-liability known as sudden emergency are set......

Words: 983 - Pages: 4

Premium Essay

Negligence

...How to Avoid 4 Common Negligence Mistakes on Torts Essays Wednesday, December 5, 2012 California Bar Applicants, Welcome to the latest issue of our California Bar Exam newsletter. For those of you preparing for the February 2013 exam or looking ahead to the July 2013 California bar exam, we consider the following in this issue: • Important Upcoming California Bar Exam Dates • Recent BarReviewSolutions.com California Bar Exam News & Announcements • California Bar Exam Essays In-Depth: How to Avoid Common Mistakes with Negligence on Torts Essays • California Bar Exam Newsletter Discount Important Upcoming California Bar Exam Dates ________________________________________ • Final Filing Deadline for February 2013 Exam: January 15, 2013 • California Bar Exam: February 26-28, 2013 Recent BarReviewSolutions.com California Bar Exam News & Announcements ________________________________________ A few spots remain for our February 2013 Ultimate program via Expedited Scheduling. Begin today... Just starting a February 2013 review or thinking ahead to the July 2013 California bar exam? Start your review off on the right track with our FREE Improve Your Bar Review Guide (2013 Edition). Obtain your copy today... For repeaters, July 2012 Assessments are now available. Sign-up today and learn from your prior exam mistakes as you prepare for an upcoming exam... California Bar Exam Essays In-Depth: How to Avoid Common Mistakes with Negligence on Torts......

Words: 1105 - Pages: 5

Premium Essay

Negligence

...It is human nature to make mistakes; however, mistakes that cause harm to someone else could be considered negligence. In the case with Mr. Benson in the Neighborhood Newspaper article, a mistake was made that was irreversible. He went into the hospital to have his leg amputated, and the doctor amputated the wrong leg. The question is was the doctor negligent in his practice? Is the amputation of the wrong leg considered to be malpractice on the doctor’s part? This paper will differentiate between negligence, gross negligence, and malpractice. After differentiating between these terms, it will be determined if the doctor operating on Mr. Benson was considered to be negligent, gross negligent or was this mistake malpractice. To determine if the doctor who operated on Mr. Benson was negligent, the term negligent has to be defined. According to the Journal of Legal Nurse Consulting (2007), negligence is defined as the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation, any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly, or willfully disregardful of others’ rights. In Mr. Benson’s case, the doctor would be considered to be negligent. The surgeon did not act in the same way another surgeon, in the same practice would have acted. For some reason, not all the measures were taken to......

Words: 332 - Pages: 2

Premium Essay

Negligence

...What is negligence? Negligence is the breach of a legal duty of care which causes loss or injury to the person to whom the duty is owned. There are three elements of an actionable negligence: 1. duty of care 2. breach of duty 3. damages resulting from that breach 1) Duty of care • Relational Proximity (neighbour = someone affected by your act) • Forseeability (any considerations that ought to reduce the scope of duty of care) • Whether is all circumstances it is fair, just and reasonable to impose a duty of care. Duty of Care? 1. Was the defendant careless/negligent? 2. Did he act like a reasonable man? 3. What did he omit to do? • Where D should have interceded for P protection e.g. motorist's duty to control passengers so that they do not cause injury to other road users. • Where D omitted to observe the rules of the road 4. Does a duty of care exist? • We have to ask ourselves is a duty of care owed to the person who we can reasonably foresee will be injured by our acts or omissions. • Duty of Care not only applies to acts and omissions but also to words/statements • A duty could arise that due to a careless statement it leads to economic loss. • e.g a special relationship of trust and advice in a professional capacity • Plantiff (Prosecutor....claim damages) • Defendant (person who caused the damage or......

Words: 793 - Pages: 4

Premium Essay

Negligence

... Examples of Contributory and Comparative Negligence Contributory Negligence Janet Klein's car collides with Bill Hutchinson’s car. Janet sues Bill, claiming injuries caused by Bill’s negligence. Bill claims that Janet’s own negligence contributed to causing the accident. Contributory negligence would completely bar Janet’s claim, even though Bill is partly at fault, too. Comparative Negligence Dr. Turner malpractices, but the patient makes the situation worse by failing to take the prescribed medication. The jury decides the harm was caused 75% by the doctor and 25% by the patient. In such a case, the doctor would pay the patient 75% of her damages. Under comparative negligence, the party at fault pays the percentage damages he or she causes. Modified Comparative Negligence Some states create additional requirements if the plaintiff is partly at fault. These states require that the defendant’s fault meet a minimum threshold before the defendant has to pay anything. A common threshold might be requiring that defendant’s fault be greater than plaintiff’s. Example In the Dr. Turner case we just looked at, the doctor's negligence was greater than the patient’s negligence. The threshold is met and Dr. Turner pays 75% of damages. However, if the jury found the doctor 40% at fault and the patient 60% at fault, Dr. Turner would pay nothing because the threshold was not met. An Example of Assumption of Risk in a Medical Context Dr. Miller explains to Steve Cassidy the......

Words: 1081 - Pages: 5

Premium Essay

Negligence

...NEGLIGENCE – DUTY AND PROXIMATE CAUSE STANDARD NEGLIGENCE Negligence is the most common tort liability. Contrasted with intentional torts where there is a desire by the actor to cause some harmful result, negligence occurs without a desire to cause a harmful result by contact, but nonetheless does cause harm to the person being injured even without the desire. Simply put, negligence is conduct, and not a state of mind. It usually is associated with accidents or carelessness. An accident may be unavoidable if the occurrence was not intended and which, under all the circumstances, could not have been foreseen or prevented by the exercise of “reasonable” precautions. The central premise of negligence is that we all are members of a collective society that depend on a social order for the good of the community and to promote commerce. How members of the social community conduct themselves will impact other members both for the good and sometimes for the bad. Essentially, this is a “limited duty” all members have to other members to be “reasonably” careful in their conduct to avoid injury to others. When the duty implicit in the circumstances is breached and injury to another occurs, the injured person may recover damages to compensate them for their harm by proving that the conduct of the person causing the harm was negligent. Negligence rules attempt to strike a balance between properly compensating people for their injuries and protecting society and its members from......

Words: 3700 - Pages: 15

Premium Essay

Negligence

...Law of Negligence Introduction The requirement of the law of negligence is that individuals’ conduct should conform to certain standards of behavior (Steininger, B., & Koziol, 2005). When the actions of a person violate these standards, it is required by the law that they compensate the victim on their failure to conform to the standards. The law is under torts and its appearance dates back to 1932 in a case of Donoghue vs. Stevenson (Baudouin, 2010). In the case at hand involving Emma a girl who sustained injuries as a result of flying debris and the SCL Company, the law is applicable in several dimensions. There indeed exists a cause of action against SCL Company as discussed in details in the essay below. To start with, the case passes an impartial test by ascertaining the foreseeability of the eminence of harm not only to Emma but to any other person. As presented in Jolly vs. Sutton (2000), the council owed a duty to the young boy for negligence of removing the old boat from the flats (Baudouin, 2010). It was thus evident that the presence of the boat near the flats presented a threat of life to the young children around that vicinity. The municipal was thus responsible for the injury that the boy suffered. It was thus ruled that the municipal had to reimburse for the injuries sustained by the boy. Applied in the case at hand, the SCL Company owed a duty to Emma because it was their duty to ensure that the roof tiles are tightly fitted to prevent them from......

Words: 2073 - Pages: 9

Free Essay

Negligence

...| | ASSIGNMENT COVER SHEET(adapted for LAW1100 major essay submission purposes) | UNITCode: LAW1100TITLE: Legal Framework I | NAME OF STUDENT (PRINT CLEARLY) fisher shane FAMILY NAME FIRST NAME | STUDENT ID. NO.10104032 | NAME OF LECTURER (PRINT CLEARLY)brad moore | DUE DATE18/4/2011 | Topic of assignmentDuty of Care IN THE LAW OF NEGLIGENCE | Group or tutorial (if applicable)      | Courselegal framework 1100 | Campusmt lawley | I certify that the attached assignment is my own work and that any material drawn from other sources has been acknowledged. Copyright in assignments remains my property. I grant permission to the University to make copies of assignments for assessment, review and/or record keeping purposes. I note that the University reserves the right to check my assignment for plagiarism. Should the reproduction of all or part of an assignment be required by the University for any purpose other than those mentioned above, appropriate authorisation will be sought from me on the relevant form. | OR, if submitting this paper electronically as per instructions for the unit, place an ‘X’ in the box below to indicate that you have read this form and filled it in completely and that you certify as above. Please include this page in/with your submission. Any electronic responses to this submission will be sent to your ECU email address (or, where relevant, the digital dropbox for the Blackboard site for LAW1100).Agreement X ...

Words: 3381 - Pages: 14

Free Essay

Negligence

...Nursing Negligence When one visits the doctor, the intended purpose is to regain health. Unfortunately, it’s not always like that. Cases of medical malpractice occur every day. Health is fragile, there are numerous of simple mistakes that can have a lifelong impact which can destroy innocent lives. The term malpractice in the healthcare field originally consisted only of negligence words from a physician. In the past, there was a distinct division between a nurse and a physician. Nurses use to work with a defined framework. Instead of treating symptoms or diagnosing patients, nurses would simply wait for a physicians order then implement it. As time passed, the role of a nurse has changed. Some nurses in hospitals and clinics have assumed responsibilities of a physician such as the actual examination and treatment of a patient. Nurses take on these roles often without any supervision of a physician which causes more and more nurses to be named as defendants in malpractice lawsuits (Nursing Negligence, 2006, October 17, p.1). When nurses exceed their scope of practice, they violate their nursing license (Fremgen, 2002, p. 137). Many individuals immediately associate medical negligence with a physician but, nurse negligence is far more common than people think. Nurses are often responsible for filling out information on a patients chart, administering a patient’s medicine, taking vital signs and recording them accurately. Clearly, there are many duties that a nurse must...

Words: 1087 - Pages: 5

Free Essay

Negligence

...Negligence Latasha Adegboruwa University of Phoenix Health Law and ethics HCS/478 Lynda White April 18, 2011 Negligence “Registered nurses have more professional accountability than at any other time in the history of nursing. As a result, nurses must confront the fact that they now owe a higher duty of care to their patients, and by extension, are more exposed to civil claims for negligence than ever before”(Weld and Bibb, 2009, p 2). “Negligence is described as failure to use such care as a reasonable prudent and careful person would use under similar circumstances” (Weld and Bibb, 2009, p3). Common examples of negligence are malnutrition, inadequate hydration, physical injury was done, and it was the result of the nurse’s care or lack thereof. There are five main elements in a nursing negligence case and all five elements have to be proven for a case to be valid 1. The nurse had a duty to perform. 2. The appropriate care was not apparent in the situation. 3. There was a breach of violation of care 3. There was injury proven to result from the nurse’s negligence and 5. There is proof that damages occurred as a direct result of the situation. (Avery, 2009). Gross negligence is a more serious form of negligence and goes further than carelessness. While regular negligence is seen as a person falling below the standard of care, gross negligence is seen as complete failure to show care and in fact implies recklessness or a willful disregard for the......

Words: 1167 - Pages: 5

Premium Essay

Negligence

...The five elements of negligence that apply to the case of Mr. Margrieter V. New Hotel Monteleone, Inc are Duty, breach, cause in effect, proximal cause and harm (damage suffered as a proximal result of the defendant’s breach of duty). Duty refers to an obligation one has to another party. If duty “constrains and channels behavior in a socially responsible way” (Owen, 2007), then the Hotel Menteloene has a duty to take reasonable measures to protect its guests from harm. Breach, an improper act or omission, can also be viewed as an element that exists in this case. The hotel did not provide adequate security, as it did not replace the security personnel that had called in sick. It is particularly a breach if the hotel has determined that security is necessary to protect the property and its guests. It provided one employee to monitor the rear door, but the employee is not reported to have experience in security. Evidence of lack of security at exits and entrances, As well as lack of camera security monitoring and alarms are all actions that created a situation in which Mr. Margrieter could be abducted without notice, as could any other guest. Cause in Fact refers to the direct cause of one party’s action leading to the harm of another. If the lack of adequate security has led to Mr. Margrieter’s injuries, then cause in fact can be shown. Two men unlocked his hotel room door with a key. If this is the case, then cause in fact does exist. It...

Words: 852 - Pages: 4

Premium Essay

Negligence

...The five elements of negligence that apply to the case of Mr. Margrieter V. New Hotel Monteleone, Inc are Duty, breach, cause in effect, proximal cause and harm (damage suffered as a proximal result of the defendant’s breach of duty). Duty refers to an obligation one has to another party. If duty “constrains and channels behavior in a socially responsible way” (Owen, 2007), then the Hotel Menteloene has a duty to take reasonable measures to protect its guests from harm. Breach, an improper act or omission, can also be viewed as an element that exists in this case. The hotel did not provide adequate security, as it did not replace the security personnel that had called in sick. It is particularly a breach if the hotel has determined that security is necessary to protect the property and its guests. It provided one employee to monitor the rear door, but the employee is not reported to have experience in security. Evidence of lack of security at exits and entrances, As well as lack of camera security monitoring and alarms are all actions that created a situation in which Mr. Margrieter could be abducted without notice, as could any other guest. Cause in Fact refers to the direct cause of one party’s action leading to the harm of another. If the lack of adequate security has led to Mr. Margrieter’s injuries, then cause in fact can be shown. Two men unlocked his hotel room door with a key. If this is the case, then cause in fact does exist. It...

Words: 787 - Pages: 4

Premium Essay

Negligence

...Negligence Telisha Winbush HCS/478 6/7/2015 Barbara Scheibe Negligence In the simulation, the Neighborhood 2.0, season 3 episode 7, Mr. Joseph Benson has had the wrong leg amputated in surgery and wakes up in terror when he discovers what has happened. The newspaper claims that Mr. Benson was affected by negligence. However, that is only partially accurate; there is a distinct difference between negligence and malpractice and I believe that this is a case of malpractice. Nurses need to act on ethical and legal principles to protect themselves from legal implications. In keeping with these corrective actions, nurses also need to make sure that their documentation is accurate. Negligence and Malpractice Negligence as defined by Wacker-Guido, is “a general term that denotes conduct lacking in due care” (2010) and it is defined by the Oxford English Dictionary as the “Lack of attention to what ought to be done; failure to take proper or necessary care of a thing or person; lack of necessary or reasonable care in doing something; carelessness” (“Negligence,” 2015). The Oxford English Dictionary defines malpractice as, “treatment given by a member of the medical profession that departs from a generally accepted standard of practice and results in injury to the patient, through negligence, ignorance, lack of skill, or malicious intent” (“Malpractice,” 2015). According to Wacker- Guido (2010), the definition of malpractice is “any......

Words: 1340 - Pages: 6

Free Essay

Negligence

...or death to someone and could be considered negligence. A case of possible negligence has been identified at the Neighborhood Hospital. A patient went in for a leg amputation and the wrong leg was amputated. Unfortunately, this error is not reversible for the patient. In this situation the physician and staff involved during the surgery would be considered negligent. There are specific processes and policies that each facility takes to ensure mistakes like this do not happen such as: taking a time out in the operating room prior to the surgery and marking the site that they will be operating on. All staff in the operating room must participate in the time out. During the time out the patient is identified as the correct patient, the correct surgery will be performed, surgical consent is signed, and the site is marked that they will be operating on. It is obvious in this case that the appropriate steps were not taken by the physician or surgical staff. Was the physician, staff or both responsible for the error? Could this become a malpractice case? With our scenario it is difficult to determine whether this would be considered negligence, gross negligence, or malpractice. We have very little information and facts about the case therefore it is hard to determine which one would apply to this case. In the ever-changing health care world it is critical for nurses to be familiar with terms such as negligence, gross negligence, and malpractice. There have been cases......

Words: 1283 - Pages: 6

Premium Essay

Negligence

...Negligence is conduct which falls below the standard established by law for the protection of others. In other words, every individual is responsible, not only for his or her results of stubborn acts, but also for the injury one may have caused to another by wanting ordinary care in the management of his or her property. To prove negligence, there are four elements used. (1)Duty of care (2) Breach of Duty of Care (3) Causation and (4) Damages. (1) Duty of care, which is an element of a cause of action for negligence, is the existence of a duty to use due care toward an interest of another that enjoys legal protection against unintentional invasion. (2) Breach of duty of care is the next element which says that the plaintiff, in this case, Ms. Warren, is required to show not only that the defendant owed her a duty of care, but also that he had breached his duty of care to the her (3) Causation is the third element to prove negligence and that is when the plaintiff, Ms. Warren, must show or prove that there is a causal connection between the negligent conduct and the resulting injury. Moreover, to determine this, Ms. Warren has to prove that without the defendents negligence towards the plaintiff, she would not have sustained the loss. Lastly (4) Damages, which is the element in which when the plaintiff, Ms. Warren, must be able to indicate that she sustained actual loss or damage resulting from negligence...

Words: 252 - Pages: 2