...Darling v. Charleston Community Memorial Hospital set the precedent for jurisprudence regarding hospital liability at a time when there were no other established cases of hospital negligence at a corporate level. The basis of the suit claims that an athlete who was evaluated and treated for an orthopedic emergency by a non-specializing physician through the ER ultimately lost his leg due to corporate negligence. According to McWay (2016, 2010), corporate negligence “recognizes that a health care organization, such as a hospital, owes a duty directly to a patient with regard to care and treatment” (pg. 78). In this case, the hospital did not meet its duty to the patient for several reasons. The physician on call was not specialized and therefore...
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...1. Identify and explain the four elements of proof necessary for a plaintiff to prove a negligence case. To begin with, when people think of professional liability in healthcare, they usually think of medical practice, a form of negligence. Negligence by definition is known as one of the most common type of malpractice that exists in the healthcare industry. However, in order for a negligence case to be proven, four elements are necessary: Duty of Care, Breach of that duty, Injury and Causation, (J. W. Showalter, 2007). The first element, duty of care, requires all persons to conduct themselves as a reasonably prudent person would do similar circumstances. Generally, duty of care is a legal notion that states that people owe anyone around them or anyone who could be around them a duty to no to place them in situations of undue risk of harm. For example, physicians have a duty to protect patients from foreseeable dangers that could lead to any injury. In case of a surgery, they have a duty to make sure all equipment are in good condition, so it does not lead to injury while the procedure is done. They also have a duty to take preventive measures which create a safer environment. The second element, breach of that duty, requires expert testimony, which normally comes from the defendant’s fellow practitioners because they know the standards of practice best. For example, a specialist may testify about the standards for general practitioners if she is knowledgeable about...
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...daily basis. A well-developed disaster plan would have been instrumental in dealing with internal and external issues in such a large snow storm. Regardless of the weather, the hospital is still required to provide adequate care to its patients. Failure to do so raises several legal questions. There are at least three legal matters to be considered. First there are the legal considerations of Liability and Staffing. Was the hospital adequately staffed to provide a sufficient standard of care? In corporate negligence, it is the hospital that owes a legal duty directly to the patient. (Showalter, 2007, p. 136) The premise of this law states that hospital is responsible for providing a staffed facility, the equipment and safe environment needed to provide care for its patients. If violation to this law is the cause of injury, liability can be considered in regard to standard of care. (Showalter, 2007, p. 138) The second legal question is whether the hospital is Negligent. Negligence is defined as the failure to do what a reasonably, careful and prudent person would do under the same...
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...dosage of 10 times the stated dose by the manufacturer for two weeks caused the heart attack that ended Mr. Parker’s life. Dr. Green could argue that the dizzy spells were a sign of a medical condition that no matter what treatment she gave, the heart attack that ended Mr. Parker’s life could have happened and she did not cause it. In order to estimate the success of this claim I would need more information about pentamite and need the results of the autopsy. Finally the plaintiff must prove that damages were suffered by the loss of Mr. Parker. Dr. Green may be responsible for medical expenses incurred by treatment for the heart attack, lost wages, and pain and suffering if negligence is proven. It would be hard to argue that the loss of Mr. Parker’s life did not cause damages. The success proving negligence depends...
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...Before You Sue The Accountants Daniel J. Hurson Even if it looks like a strong case, be careful—there are some surprising defenses. IN THE WAKE OF the corporate accounting scandals that have dominated the business news for the last few years, as well as recurring announcements of large settlements in class action suits against major accounting firms, the prospect of a malpractice case against an accounting firm would at first glance seem attractive. Juries are presumably more predisposed to view accountants with renewed skepticism, when hardly a news cycle passes without some reference to accounting fraud, investigations, and the occasional large-scale debacles like the demise of Arthur Andersen, not to mention the high-profile criminal prosecutions that have recently gone to trial. Daniel J. Hurson, formerly Assistant Chief Litigation Counsel at the SEC, practices securities enforcement and accounting malpractice law in Washington, D.C. His website is www.hursonlaw.com. 25 26 The Practical Lawyer April 2006 Accountant malpractice litigation is a minefield of arcane judicial doctrines layered over pleading and discovery traps that can bury the best plaintiffs’ counsel. Indeed, among the players in these sagas, the accountants sometimes offer the best litigation target. The companies themselves have often tanked; the errant executives dismissed, awash in legal problems, and without insurance coverage; but the accountants (Andersen notwithstanding)...
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...2012 Identify and explain the four elements of proof necessary for a plaintiff to prove a negligence case The first element that a plaintiff must prove is that the defendant owed him or her legal duty of care. Generally, this duty of care is a legal notion that states that people owe anyone around them or anyone who could be around them a duty to not place them in situations of undue risk of harm. Proving this element will largely depend on the facts of the situation. After the plaintiff has proved that a legal duty of care existed, he or she must then prove that this duty was breached. Generally, courts will use the standard of a ‘reasonable person’ when it comes to this question. Specifically, this means that the judge or jury must view the facts of the situation and decide what a reasonable person would have done in a similar situation. If this reasonable person would have acted differently than the defendant, it’s likely that it will be found that the duty was breached. Causation is the most complicated element of negligence. It means that the plaintiff must prove that the defendant either directly or indirectly caused the injuries and damages suffered by the plaintiff because of the breach of the duty of care. This element has confused even the most respected legal minds over time, and its proof should not be taken lightly. Last, a plaintiff in a negligence case must prove a legally recognized harm, usually in the form of physical injury to a person or...
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...However, the plaintiff alleged, the defendant injured the right recurrent laryngeal nerve during surgery. The plaintiff’s voice reduced to a hoarse whisper because of the operation. The plaintiff sues for damages on four theories: specific negligence, breach of express warranty, res ipsa loquitur, and battery or trespass. An expert witness claimed the procedure of the surgery would be unusual to disrupt the laryngeal nerve during this type of surgery. The defendant testified that the plaintiff’s laryngeal nerve might have been extremely sensitive to this type of injury. Due to insufficient evidence on all four theories, the case was in favor of the defendant by directed verdict. The appeal court affirmed. Describe the advantages of incorporation as opposed to organization as a partnership....
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...JPMORGAN CHASE RADEGUNDA MOSHA BUSINESS LAW 1 PROF. AALIYAH MOHAMAD AUGUST 25, 2013. REFERENCE Constance E. Bagley. Seventh Edition. www.stimmel-laws.com/articles/torts.html www.cftc.gov Administrative agencies are agencies created by the legislative branch of government to administer laws pertaining to specific areas such as taxes, transportation and labor. The Securities Exchange Commission and the Commodities Future Trading Commission are independent agencies that are legally charged with regulating and providing guidelines for the trading and exchange of the goods, services within their respective jurisdictions. The security act of 1934 has fully empowered the Security exchange commission the power to discipline individuals and entities that are regulated in breach of industry rules and regulation. The Commodities Future Trading Commission on the other hand was created in 1974 to protect individuals, the public and industry players from manipulating, fraud and potentially abusive practices. The mission of Securities and Exchange Commissions is to protect investors, maintain fair, orderly and efficient markets and facilitate capital formation. Requiring public companies to disclose meaningful financial information to the public is an effective approach of the Security Exchange Commission takes in order to assure the security of...
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...discovered that there was a major flaw with the Pinto: in nearly all rear-end crash tests the car’s gas tank would burst into flames. The problem was reported, however, the sped-up production on the car meant that the machinery was already tooled when the defect was found and would add an extra $11 per car to correct the flaw. Ford officials calculated that the benefits derived from spending an extra $11 per car would amount to $49.5 million, whereas the costs would be $137 million (Satchi 3).1 Ford decided it would be more profitable to produce the Pinto with the defect rather than correct the flaw. When the case was brought to trial in 1978, the court awarded an unprecedented $137 million in damages, more than the normal amount for a negligence case (Satchi 3). The decision to award such an extravagant sum came from a desire on behalf of the court to punish Ford for its actions and to deter other companies from ignoring safety in favour of the bottom line. The decision to award the enormous damages is not without controversy, however. The damages awarded were for personal injuries, a tort case. Tort law is justified by what Aristotle calls corrective justice (Weinrib 74). According to Aristotle, when tort damages are awarded the purpose is to restore the balance of things to the state it was before the tort occurred (Aristotle 127). Cases of corrective justice should never be used to punish the defendant or deter others, as using corrective justice in this manner would create...
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...Case 0:05-cv-00668-RHK-JSM Document 61 Filed 02/07/2006 Page 1 of 14 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Stacy Lawton Guin, Plaintiff, v. Brazos Higher Education Service Corporation, Inc., Defendant. Civ. No. 05-668 (RHK/JSM) MEMORANDUM OPINION AND ORDER John H. Goolsby and Thomas J. Lyons Jr., Consumer Justice Center, Little Canada, Minnesota; Thomas J. Lyons, Lyons Law Firm, P.A., Little Canada, Minnesota, for Plaintiff. Courtney M. Rogers Reid and Matthew E. Johnson, Halleland Lewis Nilan & Johnson P.A., Minneapolis, Minnesota, for Defendant. INTRODUCTION Plaintiff Stacy Guin alleges that Defendant Brazos Higher Education Service Corporation, Inc. (“Brazos”) negligently allowed an employee to keep unencrypted nonpublic customer data on a laptop computer that was stolen from the employee’s home during a burglary on September 24, 2004. This matter comes before the Court on Brazos’s Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below, the Court will grant the Motion. BACKGROUND Case 0:05-cv-00668-RHK-JSM Document 61 Filed 02/07/2006 Page 2 of 14 Brazos, a non-profit corporation with headquarters located in Waco, Texas, originates and services student loans. (Villarrial Aff. ¶ 2.) Brazos has approximately 365 employees, including John Wright, who has worked as a financial analyst for the company since November 2003. (Villarrial Aff. ¶ 2; Wright Aff. ¶ 1.) Wright works...
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...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...
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...“A tort is a civil wrong for which the remedy is an action for unliquidated damages and which is not exclusively the breach of a contract, or the breach of a trust, or the breach of other merely equitable obligation”- Salmond The words ‘tort’ has originated from the Medieval Latin word ‘tortum’ which literally means injustice. But to be more specific, torts law is a vast branch of law which deals with civil wrongs like negligence (of different sorts), battery, harassment and trespass among others. In common parlance, torts may be described as the wing under which all claims pertaining to civil rights are brought and monetary compensation is awarded to right the people who have been hurt or their property damaged. Entering a property without...
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...against the perceived or feared deleterious effects of the corporation of health care practices. A person requires someone they can respect. An individual requires a person they can respect (http://www.ncbi.nlm.nih.gov/). 2. Determine how contract principle and breach of warranty apply to the health care setting. New and presumably better orthopedic implants are introduced to surgeons on a frequent basis. Pioneer surgeons will partner with manufacturers to develop new products and services. For an example, metal-on-metal hip joints were promoted as the choice for younger and active patients. Now some surgeons are facing premature revision surgery in confused individuals. The legal community that is energized by major, deep-pocketed corporate defendants and multiple claimants who claim to have suffered from a defective product. Product liability law dates back to English common law. The convergence of new product introduction,...
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...Assignment # 1- Law and Health Care Keisha Love Health Care Policy, Law and Ethics HSA515 Dr. Melody Princes-Kelley Thousand Oaks Campus January 23, 2012 1. Identify and explain the four elements of proof necessary for a plaintiff to prove a negligence case. A plaintiff suing for medical malpractice has the burden of proof to show the four elements necessary to prove negligence. The standard four-element account of negligence is duty of care, breach of duty, injury, and proximate cause. A person accused of malpractice can defend him or herself by showing that one of these elements is missing and/or by establishing an affirmative defense. “The existence of a duty of care exists because of the contractual relationship between the patient and the doctor, hospital, or other health care provider. When the physician-patient relationship is established, the physician has a duty to possess the medical knowledge required of a reasonably competent medical practitioner (health care provider) engaged in the same specialty. And possess the skills required of a reasonably competent health care practitioner engaged in the same specialty. Also exercise the care in the application of that knowledge and skill to be expected of a reasonably competent health care...
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...Alumina and BP Introduction Running a business does not come without the existence of liability risk and legal issues. The question posed is what are the liability risks that could lead to legal issues and how will such issues be handled. When legal issues are present in the business sector due to liability issues, more likely than not, others are affected both directly and indirectly by the situation. How the situations are resolved depends upon those involved and the complaint. BP and Alumina have faced such issues and, as discussed below, have had to resolve the issues present within their companies through legal processes. Legal Issues and Principles Present BP The impact of the BP oil spill of 2011 will be felt by residents of Louisiana, Mississippi, Alabama, Florida, and Texas for years to come. The effects of this devastating incident in the Gulf of Mexico disrupted the way of life for many individuals in that region. The Deepwater Horizon drilling rig exploded dumping an estimated total of five million barrels of oil into the Gulf this was the worst oil spill in history (Goguen, 2012). The legal issues that arise from this tragedy consist of economic loss, environmental damages, property damage, emotional distress, and exposure to harmful substances. According to Goguen (2012), “Thousands of businesses and workers in the Gulf region have filed lawsuits against BP, seeking repayment for profits and income that were lost because of the oil spill. These plaintiffs...
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