Law and Health Care- Proof of Negligence
Dr. L. Forbes
January 22, 2012
Identify and explain the four elements of proof necessary for a plaintiff to prove a
Negligence is defined as “conduct that falls below the standards of behavior established by law for the protection of others against unreasonable risk of harm. A person has acted negligently if he or she has departed from the conduct of a reasonably prudent person acting under similar circumstances” (Legal Dictionary,n.a.). This conduct is also referred to as “duty of care” (Showalter, 2008, pg.47, para.1). Though negligence is one of the most common types of lawsuits ...view middle of the document...
60, para.4). The injury doesn’t necessarily have to be solely caused by the negligence, but the plaintiff has to prove that the negligence was a possibly a significant consideration in the resulting injury. The determination of negligence is not black and white. The negligence may be proven to have caused only some part of the injury.
Explain how the standard of care can be proven.
In order to prove there was a breach of duty of care the standard of care must first be established. In medical cases there is usually the need for an expert witness to assist in establishing exactly what the standard of care would entail. This witness must be familiar with the local practice. This means the witness must understand the area and the medical standards there. This is sometimes referred to as a “locality rule” (Showalter, 2008, pg.54, para.3) because physicians in rural areas might not be held to the same standards as physicians practicing at a world renown medical center. This rule is somewhat more relaxed in current cases because the national standards are relatively the same for continuing education and policies and procedures in the health field. Another concern was also finding an expert witness in a particular area who would be willing to testify against a colleague (Showalter, 2008, pg.54, para.3). The witness must also be an expert in the field that is relevant to the case. A neurosurgeon would not be an acceptable expert witness in an obstetrics case. There would be more appropriate witnesses who would better understand the procedures and standards acceptable for obstetrics specialties.
Some states allow medical publications or published policies and procedures to lend credence to evidence the accepted standard of care. Hospital or clinic policies and procedures manuals, written and adopted by the facility, are often accredited by certain governmental agencies (Showalter, 2008, pg.56, para.4). These accredited agencies’ stamp of approval on the policies and procedures guidelines may allow these documents to be admissible as evidence to prove the standard of care, as well.
Explain the principle of “vicarious liability” (respondeat superior).
A physician or employer may be held liable for the negligent acts of others because the physician or facility has superiority or “say-so” over another person. For example, if a physician’s assistant (PA) is negligent and causes harm to a patient, the physician may be held liable for the damages or injury caused, because the physician oversees the PA. The professional person, employer or facility can be liable for the actions of the employees or those who should take direction from the physician or follow the set standards held by the facility’s policies and procedures, as the “respondeat superior” is the lead authority in what acceptable treatment is and what it is not (Showalter, 2008, pg.68, para.1).
Explain why a corporation is considered...