Negligence In Tort Law

Medical malpractice is a legal offense that occurs when a medical professional fails to perform his or her medical duties due to negligence, thereby causing injury or death to a patient. Therefore the purpose of this essay to highlight how medical practitioners can be negligent by not informing the patient about the inherent risk of the medical procedure such as in the case of Rogers v Whitaker [1992] (hereinafter Rogers). Additionally Cranley v Medical Board of Western Australia [1990] (hereinafter Cranley) will also be investigated to demonstrate how medical practitioners can be alleged to be found for conducting improper professional conduct, and why this improper conduct was overturned by the courts. Failure to disclose the inherent risk of a medical procedure

Negligence: Negligence is conduct that falls below the standards of behaviour established by law for the protection of others against unreasonable risk of harm. (Gayle, 2015) The core idea of negligence is that people should exercise reasonable care when they act by taking account of the potential harm that they might forcible cause harm to other people. (Fein man, M. 2011) Negligence can be defined as a failure to take reasonable care or steps to prevent loss or injury to another person.

Often doctors will try to act in beneficence but it is critical that they respect a patient’s autonomy. They have a duty to no do harm which can make it difficult if doctors and patients cannot come to an agreement on treatments. If a physician acts without consent then it can result in battery or negligence.

In many cases of negligence bad practice takes in place that are intentional for someone’s financial gain, but in other cases it could be the lack of communication. Many patients face misdiagnosis and treatment from their nurses or doctors and it leads into an unintentional commission. 34- year- old Kim Tutt was healthy and doctors informed her that she had three to six months to live due to jaw cancer. Tutt went ahead with the surgery to get the cancer removed from the left side of her chin to behind her right ear and replaced it with the fibula from her leg. She has children of the ages 10 and 12 years old and wanted to spend as much time that she could in their lives. Her surgery was taken place in July 2000 and in October of 2012 she was

“Medical malpractice claims and lawsuits deal with Improper, unskilled, or negligent treatment of a patient by a physician, dentist, nurse, pharmacist, or other health care professional. Negligence is the predominant theory of liability concerning allegations of medical malpractice, making this type of litigation part of Tort Law. Since the 1970s, medical malpractice has been a controversial social issue. Physicians have complained about the large number of malpractice suits and have urged legal reforms to curb large damage awards, whereas tort attorneys have argued that negligence suits are an effective way of compensating victims of negligence and of policing the medical profession. A person who alleges negligent medical malpractice

For instance, a physician might argue that the injuries were not the result of their medical care and that their care followed their medical professional standards. Alongside challenging the element of negligence, physicians might try to prove that the injuries the plaintiff endured were a result of their own negligence ("Defenses to Medical Malpractice", n.d.). For example, the injuries a patient receives can occur if they do not inform their physician their entire medical history. As a result, they can be prescribed medications or treatments that can cause adverse reactions or injury. This is especially true in instances where physicians may try unconventional forms of treatment to care for their

“To prove the causation element, the injured plaintiff must show a direct relationship between the alleged misconduct and the injury sustained from the misconduct.” (Morissette, 2014) Tammy Cleveland can show a legally sufficient relationship between the breach of duty and the injury that is is referred to as proximate causation. But for the fact Dr. Perry refused to check the vitals of Michael Cleveland he misdiagnosed him, which in turn caused his death. Dr. Perry can also be charged with negligence per se for “failing to obey the statute and adhering the standard of care expected of him as a doctor”. (Dudzik, 2015) He neglected his patient and the pleas from his family, ultimately shortening his life.

As such, in the Yolanda Pinnelas case, when the 21-year-old oncology patient who was administered IV Mitomycin to treat her anal cancer and developed necrosis to the hand after. In malpractice cases the burden is on the Plaintiff to prove the four elements of the claim, namely duty, breach, damages and proximate cause. According to Westrick (2014b), the four elements must be proven to arrive at a successful claim. Duty is the responsibility of healthcare provider to treat and care for patients. Breach is a failure in treatment or neglect of care.

Name That Liability The name of the responsibility is negligence due to falls of patients in intensive care unit. The liability may occur due to the medical staff that forget to put the brakes on the beds, put in a low position, the call light within reach and personnel items easily reach to every patient. These falls can bring a lot of injuries to patients and fractures (loss of continuity of bone tissue. It ranges from a small crack to total bone fracture displacement of the two ends of the bone fracture), trauma to the skull and face (injuries to the skull and face are especially important, since the intensity of the shock can affect the central nervous system (CNS), located within the cranial cavity), trauma to the extremities (as a result

However, in the case that a malpractice suit goes to court, victims can only receive compensation from the healthcare professional’s liability insurance if and only if some form of actual medical error was made and if said error has been documented or is physically provable in some way, which can be extremely difficult and perhaps even impossible under certain

Yet, for a patient, under or over diagnosis becomes problematic when it results in inappropriate treatment based on diagnosis. Clients, however are not the only ones affected by misdiagnosis. As Kirk and Kutchins conferred, “by focusing only on the presumed benefits to clients, clinicians avoid confronting the broad ethical implications that emanate from the practice of misdiagnosis.” (P. 232. 1988). These implications have ethical and practical consequences that are not limited to clients only, but also directly and indirectly affect others, such as clinicians, professional organizations, policymakers, third party payers, taxpayers and the government (1988).

Liability Issues Primarily, Caring Memorial Hospital will be held liable in this malpractice case under the premise of respondeat superior. “Under respondeat superior an employer is liable for the negligent act or omission of any employee acting within the course and scope of his employment” (Thornton, 2010, para. 2). The risk manager Susan Post, JD and the quality assurance director Amy Green were both aware of the potential for increased risk on the Oncology unit. They had been making observations several months prior to incident that related to deficiencies in staffing and safety standards. Per, ASCO and ONS (2012) new staff are required to demonstrate competency and receive comprehensive chemotherapy education.

1. What are the elements of negligence? Define and discuss each. The elements of a negligence case consist of duty, breach of duty, causation and damages.

Patients have a right to complain about the doctor's refusal to the Management. Provision of Treatment requires patient’s choice and informed consent. Even if a patient has signed a general consent clause, the patient can still refuse medical treatment or procedures. However, in exceptional or emergency situations a doctor may be legally justified in performing surgery or providing treatment without the patient's consent. The patient should be competent and capable of making such a decision to give a consent.

Tort of negligence is the failure to act as a reasonable person to exercise the standard of care required by the law and resulting in damage to the party to whom the duty was owed. To prove negligence, the claimant must show that the defendant causing the damage was not only the actual cause of damage. He also show that the proximate cause of the damage. Proximity is the legal relationship between the parties from which the law will attribute a duty of care. And to prove negligence the type of the damage that occurred must have been foreseeable.