negligence.docx - HEALTHCARE LAW u2013 WEEK 6 GENERAL...

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HEALTHCARE LAW – WEEK 6: GENERAL PRINCIPLES OF NEGLIGENCEPart 1: The Legal Meaning of Negligence-Two meanings of negligenceoBroad meaning – a branch of tort law oNarrow meaning – one of the elements of negligence care:a breach of the standard of care. -Negligence liability applies to the full range of professional conductoCannot BE HELDliable in negligence because the patient dies, the operation fails, or the decision was wrong-Negligence is the failure to exercise the standard of care expected of a reasonable person in all the circumstances of thecase. (Negligence = careless or substandard care)-Negligence v. errors in judgmentoMustafic v. Smith (G). the trial judge concluded that practitioners cannot be held to the standard of infallibility a diagnostic mistake/error cannot be held liable in negligence if they’ve exercised reasonable standard of careM’s conduct was not foreseeable (no evidence of suicidal/homicidal tendencies)NO LIABILITY – CLASSIC ERROR IN JUDGEMENT-Negligence v. incompetenceoNegligence = allegations are framed in term of a specific act, diagnosis or decisionoIncompetence = used to refer to an individual who is unable to meet standards, or discharge the responsibilities of his or her profession
Part 2: Elements of a Negligence Action (a) Introduction-All negligence actions involve the same 6 issues: o1. duty of care;2. standard of care and its breach;3. Causationo4. remoteness of damages; o5. actual loss; and6. prejudicial conduct. -The plaintiff has the burden of proving the first 5 elementsof a negligence action on a balance of probabilities-The defendant has the burden of proving the SIXTH elementon a balance of probabilities. Duty of Care -The plaintiff must prove that the defendant owed him or her a legal obligation to exercise reasonable care for his or her benefit-A duty will generally arise in any circumstances in which the defendant’s conduct creates a foreseeable risk of injury to the plaintif-The relationship between health professionals and their patients gives rise to a duty to exercise reasonable care in the provision of all servicesand care-Wrongful positive acts v. failures to act.

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