Chapter 6: Negligence

Three conditions must be present for res ipsa to apply:

1. The accident or injury must be of a type that normally would not occur without someone's negligence. 2. The defendant must have had sole control of the apparent cause of the accident or injury. 3. The plaintiff could not have contributed to the accident or injury. Res ipsa can be helpful in medical malpractice cases because it is sometimes impossible for patients to know the precise cause of their adverse outcome, particularly if they were anesthetized during the treatment.

There are three specific times at which the statute might begin, depending on the state's law and the particular circumstances:

1. When the alleged negligent treatment is rendered 2. When the patient discovers or should have discovered the alleged malpractice (the "discovery rule"). 3. When the treatment ends or, in a few states, when the physician- patient relationship ends

The Substandard Profession

A final aspect of duty concerns the profession itself. Physicians are usually judged by what other physicians would do under the circumstances; however, courts sometimes find the profession's own standard inadequate. In so doing, they have found negligence "as a matter of law" from the facts of the case. see Favalora v. Aetna Casualty & Surety Co (pg 209)

respondeat superior

a doctrine in the common law of agency that provides that a principal—the employer (superior)—is responsible for the actions of her agent done in the course of employment.

Duty

a legal obligation the defendant (the alleged tortfeasor) owes to the plaintiff.

Release

a negotiated settlement agreement signed by a patient following treatment may operate as a valid release and may bar a later suit for injuries arising from the same negligent act.

Exculpatory Contracts

a party forfeits in advance the right to sue; in other words, it is a release from liability for the other party's future negligence.

Res Ipsa Loquitur

a rule of law that even when there is no specific evidence of negligence, one is presumed to have been negligent if one had exclusive control of the cause of the accident or injury.

Honeywell v. Rogers

a student nurse assisted by a registered nurse (both of whom were hospital employees) had administered an injection ordered by the patient's attending physician, but she did so in a negligent manner that caused injury to the sciatic nerve. The order was written in the patient's chart at noon, and the injection was given at the time of discharge from the hospital, about 2 p.m. the same day. The physician was not present when this or any other injection was given during the ten days of the patient's stay, and he did not choose the individual who gave the drug. Although the hospital was held liable for the nurses' negligence under the respondeat superior doctrine, the physician was not because the student was not his employee and was not under his control at the time the injection was given.

Baird v. Sickler

a surgeon was held liable for the acts of a nurse anesthetist employed by the hospital. The court judged that the close relationship between the surgeon and the anesthetist resembled that of an employer and employee in that the former had the right of control over the latter.

assumption of risk

an affirmative defense that a defendant can raise in a negligence action; the doctrine under which individuals are barred from recovering damages for injuries sustained after voluntarily exposing themselves to known dangers.

Governmental Immunity / sovereign immunity

an ancient legal doctrine exempting the sovereign (monarch or governmental entity) from liability for wrongs.

Gilmore v. O'Sullivan

an obstetrician/gynecologist's negligence was alleged in the prenatal care and delivery of the plaintiffs' son. The court refused to permit the plaintiffs' expert to testify because he was not board certified in obstetrics/gynecology, there was no evidence of the number or types of maternity cases he had handled, he had not delivered a baby in more than 20 years, he had not performed surgery in 14 years, and he had pursued no research in or study of obstetrics/gynecology in recent years.

Hearsay

an out-of-court statement offered into evidence to prove the truth of the matter asserted in the statement.

The Neighborhood: Local, State, or National

aspect of duty compares the treatment in question with that used by physicians and surgeons "in the same neighborhood. neighborhood was considered to be the town or small region in which the physician practiced and similar areas elsewhere in the state or the nation. This principle is called the locality rule because it measures the standard of care in a given instance solely by the practices of other physicians in the same or a similar locality.

vicarious liability

attachment of responsibility to a person whose agent caused the plaintiff's injuries.

contributory negligence and comparative negligence

common-law doctrines relating to allocation of responsibility when the plaintiff was partially at fault. Contributory Negligence: Under this theory, if the patient failed to act as a reasonably prudent person would have done, and if the patient's negligence contributed in any way to the injury, she cannot recover damages for the physician's negligence. Comparative Negligence: Several theories of comparative negligence exist, but all attempt to compensate the injured party in some way despite the injured party's own negligence.

Expert Witnesses

experts are not limited to testifying about facts. They may express opinions about the nature and cause of a patient's illness or injury and whether the defendant treated it properly. Expert witnesses must have two qualifications. First, they must be familiar with the practice of medicine in the area in question. Second, expert witnesses must be professionally qualified. The basic requirement is knowledge of the standard practice involved in treating the patient's condition.

Structured settlements

financial arrangements that compensate the plaintiff through periodic payments rather than in the traditional form of a lump sum.

Strict Liability

imposes liability without any showing of negligence.

malpractice

improper, illegal, or negligent professional activity or treatment, especially by a medical practitioner, lawyer, or public official. The purpose of a malpractice trial is not to "convict" the defendant but to decide whether the plaintiff's loss is more likely than not the result of substandard conduct on the part of the defendant.

The Reasonable Physician

physicians are required to provide only "reasonable and ordinary" treatment.

Good Samaritan statutes

provide a defense if the physician has rendered aid at the scene of an accident. These statutes, which most states have in some form, commonly provide that a physician rendering emergency care will not be held liable for negligence unless she is grossly negligent or acts in a reckless manner. Most of these statutes do not require doctors to assist in emergencies but protect those who volunteer their aid.

Workers' Compensation Laws

provide a defense to an employed physician who is sued by fellow employees he treats in the course of their employment. In many states, workers' compensation laws are the exclusive remedy for employees, and a malpractice suit against the physician will not be permitted. Some courts, however, have allowed such suits.

Statutes of Limitation

specify a period during which lawsuits must be filed. The time allowed for malpractice actions—often, two years—is generally shorter than for other actions, although the statutory provisions vary greatly from state to state.

Standard of Care

the caution and prudence that a reasonable person would exercise under the circumstances or which are required by appropriate authority for such situations.

Henderson v. Mason

the defendant physician negligently failed to discover a small piece of steel embedded in the patient's eye. The steel was eventually discovered and removed by another physician. The court denied recovery because testimony showed that the patient would have suffered infection and loss of vision even if the defendant's diagnosis had been correct.

Public Policy

the general, well-settled, and usually unwritten sense of public opinion relating to the duties of citizens to one another; the common sense and common conscience of the citizenry as a whole that is applied to matters of public health, safety, and welfare.

Causation / proximate cause

the legal cause of the damages to the plaintiff; the cause that immediately precedes and produces the effect (as contrasted with a remote or an intermediate cause); the act or omission from which an injury results as a natural, direct, uninterrupted consequence and without which the injury would not have occurred.

school rule

the principle that healthcare practitioners are judged by the standards of their own branch of medicine. The school rule becomes significant in cases involving complementary and alternative medicine.

negligence

the unintentional failure to live up to accepted standards of behavior. Four elements are essential to a case alleging a negligent tort: (1) the duty of care, (2) breach of that duty, (3) injury, and (4) causation.

Byrne v. Boadle

Plaintiff Byrne was walking down the street when he was hit by a barrel of flour that had rolled out of the upper level of a warehouse owned by defendant Boadle. The precise negligent act or omission was never determined, but the court found Boadle responsible because barrels of flour do not fall out of buildings unless someone has been negligent. The fact that this one did so "spoke for itself."

Injury and Damages

Punitive damages are seldom awarded in negligence cases; the most common damages are called actual or compensatory damages.

Settlements

Rather than defend a tort case, if an individual or insurance company wants to resolve a case without trial, there are numerous options for designing a settlement agreement.

Loss of a Chance

Sometimes the nature of a disease means that a patient has virtually no chance of long-term survival, but an early diagnosis may prolong the patient's life or permit a slim chance of survival. Some jurisdictions have held that the defendant should not be liable if the patient more likely than not would have died anyway