6 negligence.doc - Cha 6 general principles of negligence...

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Cha 6: general principles of negligence Part 1: the legal meaning of the term “negligence” - Negligence= o Broader sense: branch of tort law made up of 6 elements o Narrower sense: one element of this cause of action => whether the defendant conduct breached the standard of care - Negligence refers to breach of the standard care that would be expected of a reasonable person in the circumstances o Liability in negligence depends on meeting the standards of their peers and profession, not on external legal principle - HP can be held accountable in negligence for any act that’s an aspect of their professional responsibility o Not just limited to intervention o Interviewing and assessing patient, diagnosing, taking history, design treatment plan, record keeping, referrals, failing to control/protect, hire train assign and supervise staf - Court recognize HP cant be expected to guarantee the outcome of the services provided nor are they held to have breached standard of care cuz decision in hindsight proved to be wrong o negligence vs errors in judgement: issue is whether the decision made was reasonable in light of all of the circumstance o Negligence vs competence: HP can be negligence but doest mean they’re incompetent Incompetent =individual is unable to meet the standards or discharge the responsibility of their profession Part 2: The elements of a negligence action - All negligent actions have the same constituent elements (no special treatment for HP) - Plaintif has the burden to prove the first 5, defendant has to prove the 6 th o Civil actions: standard of proof = “balance of probabilities” (which is most probably true) The six elements of a negligence action 1) Duty of care: is the defendant under any legal obligation to care for plantif’s interests and the nature of that obligation (any conduct that creates foreseeable risk of physical injury to platnif) Mustafic v Smith -phyisican gave Mustafic, a voluntary patient suspected of depression and anxiety, a day pass to leave the facility -mustafic went home, shot his two kids and committed suicide -wife sued the doc: breached the stands of care in issuing a day pass when no final diagnosis had been made - -trail judge: practitioners cant be held to a standard of infallibility

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