HL WEEK 6 - Chapter 6 General principles of Negligence...

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Chapter 6: General principles of Negligence Liability Overview Legal meanings of the term “negligence” Elements of a negligence action Customary practice Issues of fiscal restraint Criticisms of the adversarial system Part 1: The legal meaning of negligence Two meanings of negligence o Broad meaning- a branch of tort law (contains all 6 elements) o Narrow meaning- a breach of the standard of care ( one of the 6 elements) Negligence liability applies to the full range of professional conduct : interviewing patient, taking a history, designing a treatment plan, record keeping, making a referral, failing to control or protect a patient, hiring, training and supervising staf Not liable in negligence because the patient died, the operation fails or the decision was wrong, or in hinxdsight the decision that they made was wrong Because of this, negligence is the failure to exercise the standard of care that would be expected of a reasonable person in all the circumstances of the case in this sense negligence would change based on the occupation of the defendant (ie. The negligence would depend on the standards of the peers or profession and not on a legal principle) Negligence v. errors in judgement ( Mustafic case shows the diference between an error in judgement and negligence) o Mustafic v. smith (G) (psychopathic patient did not show homicidal or suicidal tendancies, so the doctor gave him a day pass to go home, and he killed kids and self. The court ruled that the doctor did not breach the SOC because of the evidence that the doctor had, and therefore he was not negligent.) Negligence v. incompetence Negligence: made in terms of a specific act, diagnosis, or other decision Incompetence: generally refers to situations in which an individual is viewed as unable to meet the standard, discharge responsibilities of his or her profession) Part 2: Elements of a negligence action All negligence involves the same elements, therefore, a negligence in the healthcare profession is the same as any other negligence action A) Introduction o Six elements of a negligence action: Duty of care Standard of care and its breach Causation Remoteness of damages Actual loss Prejudicial conduct 1
o The plaintif has the burden of proving the first five elements of a negligence action on a balance of probabilities o The defendant has the burden of proving the sixth element on a balance of probabilities o Duty of care As a matter of policy the court must decide whether the defendant is under the obligation to exercise care for the plaintifs interest, and determine the nature of the obligation The plaintif 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

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