Law and Health Care- Proof of Negligence
Vickie Young
Dr. L. Forbes
Strayer University
January 22, 2012

Identify and explain the four elements of proof necessary for a plaintiff to prove a negligence case. 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 relative to the medical industry, it requires significant proof. The four elements that must be present to prove negligence are as follows: duty of care, breach of said duty, injury, and causation (Showalter, 2008, pg.47, para.1). Duty of care has been defined previously as the reasonable and expected behavior of one in a particular situation. It is somewhat of a given standard that is simply understood. If there is a breach of this expected behavior and there is injury to person or property, and the breach is shown to have caused the injury, then the person or persons, who did not perform or behave as expected, may be liable for the injuries it caused. The challenge for proving negligence in a medical arena is complex since the jury may not have the professional experience to understand what behavior is expected. A layman has no concept of what is a standard procedure to remove an appendix. These situations require a professional in the same field of expertise to share information and acknowledge if the procedure was performed in an acceptable or unacceptable manner. In order for the evidence to be complete, regardless of proving the doctor was negligent, there must also be some proof that the injury claimed was attributed to or the result of the negligent act (Showalter, 2008, pg.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 an “artificial person” under the law. There are many laws that apply to “persons” but because the corporation is not an individual or citizen certain parts of laws do not apply. There are amendments of the US Constitution that apply to “person”, such as the 5th and 14th amendments. Life, liberty, the pursuit of happiness and due process apply to a person; furthermore, no state can deny a person equal protection of the laws (Showalter, 2008, pg.93-94). There are also parts of these amendments that do not apply to the “corporate person” since they are not an individual who can obtain a license or a citizen who can cast a ballot and vote (Showalter, 2008, pg.92, para.2). A corporation is considered a legal entity with its own rights and responsibilities (Showalter, 2008, pg.92, para.3). There are situations where those who formed the corporation or own the corporation might be considered liable for acts of the corporation, but these are limited. Corporations are held to state laws where they are initially chartered. Some states allow a single person to create or incorporate a business, while other states have a requirement on the number of individuals who must join or partner in order to establish a corporation. These laws vary by state and corporations are held to comply with the laws of the state. Corporations can often shield its owners from personal liability based on the state statutes that apply. Explain the functions and responsibilities of the governing board of a healthcare corporation. The governing board of a healthcare corporation has many a varied responsibilities. Their obligations are to the corporation and include development of policy and strategic planning, the appointment of medical staff and upper level administration, establish the boundaries of clinical privileges, and to responsibly oversee the professional performance of administration as well as medical staff (Showalter, 2008, pg.97). The board often divides and assigns specific duties to committees made up of administration, local community business owners, and medical staff. An executive committee is a group whose obligation is assures the board’s policies are executed properly in the interim between board meetings. There are usually committees created to address finance, personnel, public relations, medical staff relations, continuing education, and possibly expansions and maintenance of the physical building and adjacent properties owned by the corporation (Showalter, 2008, pg.98). The committee makes recommendations and shares information with the board, who is representative of the governing body of the corporation. All administration, medical staff, and committee members are in essence, under management of the board.

References
Showalter, J. S. (2008). The Law of Healthcare Administration, (5th ed.). Chicago: Health Administrative Press The Free Dictionary-Legal Dictionary-negligence (n.a). Retrieved January 21, 2010, from http://legal-dictionary.thefreedictionary.com/NegligenceSkylight Health Care Systems, (2011), Board of directors, retrieved January 22, 2012 From http://www.skylight.com/skylight-healthcare-systems/board-of- directors/?Sec tion=About+Us&PageTitle=Board+of+Directors&MainSection=About+Us |