...It is human nature to make mistakes; however, mistakes that cause harm to someone else could be considered negligence. In the case with Mr. Benson in the Neighborhood Newspaper article, a mistake was made that was irreversible. He went into the hospital to have his leg amputated, and the doctor amputated the wrong leg. The question is was the doctor negligent in his practice? Is the amputation of the wrong leg considered to be malpractice on the doctor’s part? This paper will differentiate between negligence, gross negligence, and malpractice. After differentiating between these terms, it will be determined if the doctor operating on Mr. Benson was considered to be negligent, gross negligent or was this mistake malpractice. To determine if the doctor who operated on Mr. Benson was negligent, the term negligent has to be defined. According to the Journal of Legal Nurse Consulting (2007), negligence is defined as the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation, any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly, or willfully disregardful of others’ rights. In Mr. Benson’s case, the doctor would be considered to be negligent. The surgeon did not act in the same way another surgeon, in the same practice would have acted. For some reason, not all the measures were taken to ensure...
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...Negligence is conduct which falls below the standard established by law for the protection of others. In other words, every individual is responsible, not only for his or her results of stubborn acts, but also for the injury one may have caused to another by wanting ordinary care in the management of his or her property. To prove negligence, there are four elements used. (1)Duty of care (2) Breach of Duty of Care (3) Causation and (4) Damages. (1) Duty of care, which is an element of a cause of action for negligence, is the existence of a duty to use due care toward an interest of another that enjoys legal protection against unintentional invasion. (2) Breach of duty of care is the next element which says that the plaintiff, in this case, Ms. Warren, is required to show not only that the defendant owed her a duty of care, but also that he had breached his duty of care to the her (3) Causation is the third element to prove negligence and that is when the plaintiff, Ms. Warren, must show or prove that there is a causal connection between the negligent conduct and the resulting injury. Moreover, to determine this, Ms. Warren has to prove that without the defendents negligence towards the plaintiff, she would not have sustained the loss. Lastly (4) Damages, which is the element in which when the plaintiff, Ms. Warren, must be able to indicate that she sustained actual loss or damage resulting from...
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...Law of Negligence Introduction The requirement of the law of negligence is that individuals’ conduct should conform to certain standards of behavior (Steininger, B., & Koziol, 2005). When the actions of a person violate these standards, it is required by the law that they compensate the victim on their failure to conform to the standards. The law is under torts and its appearance dates back to 1932 in a case of Donoghue vs. Stevenson (Baudouin, 2010). In the case at hand involving Emma a girl who sustained injuries as a result of flying debris and the SCL Company, the law is applicable in several dimensions. There indeed exists a cause of action against SCL Company as discussed in details in the essay below. To start with, the case passes an impartial test by ascertaining the foreseeability of the eminence of harm not only to Emma but to any other person. As presented in Jolly vs. Sutton (2000), the council owed a duty to the young boy for negligence of removing the old boat from the flats (Baudouin, 2010). It was thus evident that the presence of the boat near the flats presented a threat of life to the young children around that vicinity. The municipal was thus responsible for the injury that the boy suffered. It was thus ruled that the municipal had to reimburse for the injuries sustained by the boy. Applied in the case at hand, the SCL Company owed a duty to Emma because it was their duty to ensure that the roof tiles are tightly fitted to prevent them from slipping...
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...Negligence Latasha Adegboruwa University of Phoenix Health Law and ethics HCS/478 Lynda White April 18, 2011 Negligence “Registered nurses have more professional accountability than at any other time in the history of nursing. As a result, nurses must confront the fact that they now owe a higher duty of care to their patients, and by extension, are more exposed to civil claims for negligence than ever before”(Weld and Bibb, 2009, p 2). “Negligence is described as failure to use such care as a reasonable prudent and careful person would use under similar circumstances” (Weld and Bibb, 2009, p3). Common examples of negligence are malnutrition, inadequate hydration, physical injury was done, and it was the result of the nurse’s care or lack thereof. There are five main elements in a nursing negligence case and all five elements have to be proven for a case to be valid 1. The nurse had a duty to perform. 2. The appropriate care was not apparent in the situation. 3. There was a breach of violation of care 3. There was injury proven to result from the nurse’s negligence and 5. There is proof that damages occurred as a direct result of the situation. (Avery, 2009). Gross negligence is a more serious form of negligence and goes further than carelessness. While regular negligence is seen as a person falling below the standard of care, gross negligence is seen as complete failure to show care and in fact implies recklessness or a willful disregard for the safety...
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...| | ASSIGNMENT COVER SHEET(adapted for LAW1100 major essay submission purposes) | UNITCode: LAW1100TITLE: Legal Framework I | NAME OF STUDENT (PRINT CLEARLY) fisher shane FAMILY NAME FIRST NAME | STUDENT ID. NO.10104032 | NAME OF LECTURER (PRINT CLEARLY)brad moore | DUE DATE18/4/2011 | Topic of assignmentDuty of Care IN THE LAW OF NEGLIGENCE | Group or tutorial (if applicable) | Courselegal framework 1100 | Campusmt lawley | I certify that the attached assignment is my own work and that any material drawn from other sources has been acknowledged. Copyright in assignments remains my property. I grant permission to the University to make copies of assignments for assessment, review and/or record keeping purposes. I note that the University reserves the right to check my assignment for plagiarism. Should the reproduction of all or part of an assignment be required by the University for any purpose other than those mentioned above, appropriate authorisation will be sought from me on the relevant form. | OR, if submitting this paper electronically as per instructions for the unit, place an ‘X’ in the box below to indicate that you have read this form and filled it in completely and that you certify as above. Please include this page in/with your submission. Any electronic responses to this submission will be sent to your ECU email address (or, where relevant, the digital dropbox for the Blackboard site for LAW1100).Agreement X ...
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...NEGLIGENCE – DUTY AND PROXIMATE CAUSE STANDARD NEGLIGENCE Negligence is the most common tort liability. Contrasted with intentional torts where there is a desire by the actor to cause some harmful result, negligence occurs without a desire to cause a harmful result by contact, but nonetheless does cause harm to the person being injured even without the desire. Simply put, negligence is conduct, and not a state of mind. It usually is associated with accidents or carelessness. An accident may be unavoidable if the occurrence was not intended and which, under all the circumstances, could not have been foreseen or prevented by the exercise of “reasonable” precautions. The central premise of negligence is that we all are members of a collective society that depend on a social order for the good of the community and to promote commerce. How members of the social community conduct themselves will impact other members both for the good and sometimes for the bad. Essentially, this is a “limited duty” all members have to other members to be “reasonably” careful in their conduct to avoid injury to others. When the duty implicit in the circumstances is breached and injury to another occurs, the injured person may recover damages to compensate them for their harm by proving that the conduct of the person causing the harm was negligent. Negligence rules attempt to strike a balance between properly compensating people for their injuries and protecting society and its members from frivolous...
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...Hospital Negligence LaTonya Jefferson HCS 478 September 26, 2011 Negligence is defined as conduct lacking in due care and is equated with carelessness (Guido, 2010). An act can be considered negligent if it is a deviation from the standard of care that a reasonable person would do or what they would not do. At the Neighborhood Hospital, negligence has been cited due to the wrong limb being amputated on a patient. We will look at negligence vs. malpractice and whether the circumstances presented indicates negligence, as well as whether or not there is a case to pursue malpractice. As stated above, negligence is an injury that is caused by carelessness, but the injury is not intended. Gross negligence is caused when someone deliberately acts in a way in which they know or should know will cause harm (LaMance, 2011). For healthcare professionals, any act of negligence can be a basis for a malpractice lawsuit. According to Guido (2010), to be liable for malpractice, the person committing the wrong must be a professional whose misconduct, lack of skill, or fidelity in duties results in injury, suffering, or death due to carelessness or lack of foresight. In a court of law, in order to prove negligence or malpractice, the plaintiff (the injured party) must be able to prove certain elements to establish liability (Guido, 2010). These include duty owed the patient, breach of duty owed the patient, forseeability, causation, injury, and damages. Duty of care involves...
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...IMPACT OF NEGLIGENCE In the law of negligence and damages the acts of both the claimant and the defendant take part in the case whether it’s both their faults or it’s once recklessness. In the normal cause of events, the defendant is liable if they owed a duty of care, breached that duty and cause a loss or damage. In some cases a negligent defendant will not be liable for any loss or damage if the claimant acted unreasonably in the situation. In the case of McKew v Holland the defendant’s negligence caused an injury to the claimant’s leg that weakened it. When later attempting to go down a steep staircase without a handrail or assistance, the claimant broke his ankle in the same leg. It is possible that the disability ay produce a situation in which further injury is caused. In such case the second injury fits into the chain of causation. However if the person acts unreasonably, this behaviour is novus actus interveniens (new act intervening) then the chain of causation is broken and new injuries will be seen as caused by the claimants own conduct and not by the first negligence caused by the defendant. However when the claimants response is not sufficiently unreasonable than the chain of causation is not broken. In the case of Wieland v Cyril Lord Carpets (1969) the defendant negligence caused an injury to the claimant’s neck that needed of wearing a surgical collar. The claimant also wore bifocals and the collar inhibited the normal compensator movement of her head to...
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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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...Elements of Negligence Negligence claims are successful if the plaintiff can be able to prove all the elements required for a successful action in a court of law. Failure to prove all the elements will result to the suit being defeated on the grounds of insufficiency of evidence. A plaintiff has got to: a). Prove a duty of care. This is outlined in the case of Donoghue v Stevenson [1932] UKHL 100, [1932] SC (HL) 31 which set precedent of fault principle in Common law. b). Breach of duty. A plaintiff must show that the defendant knowingly exposed the plaintiff to a loss or risk that is substantial. This should include overlooking acts that a reasonable person would have done to avert the risk but the defendant failed to do. This is illustrated in the case of Bolton v Stone 1 K.B. 201 (C.A. 1950). c). Factual Causation or Direct Cause. The plaintiff must show that the defendant’s omissions and acts directly caused the damages or losses that were suffered. d). Harm. Even if a plaintiff can successfully prove all the above, he has to prove that he suffered some harm as a result of the defendants negligence. The negligence must have caused a pecuniary injury. Case against the Hotel The hotel owed a duty of care to all its customers. Provision of security by the hotel justifies this point. Clients are not asked to provide their own security by the hotel. The hotel breached this duty by failing to realize that intruders got into the hotel and unlocked the hotel room doors...
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...Negligence, Gross Negligence, or Malpractice Lesli Sherwin, RN HCS/478 Health Law and Ethics May 11th, 2015 Lynda White ADN, BS Negligence, Gross Negligence, or Malpractice Malpractice includes both negligence and gross negligence. Malpractice is a tort in which a person who claims a practice in some profession fails in their duty, lacks in their skill to the extent that it causes damage to their client or patient. Negligence and gross negligence are both forms of malpractice. Simple ordinary negligence is the lack of performing in a manner consistent with standards of practice including omissions in practice, and failure to provide care that any other reasonable prudent nurse would provide. The Elements that a plaintiff must prove to win their negligence claim include breach of duty, causation, and damages (Weiler, 1995). If they cannot prove there was a breach in all three of these things, then the plaintiff will lose the case. Gross Negligence, is negligence on a grand scale. It borders reckless behaviors and culpability. It is most simply explained in terms of degree of negligence, or the severity of the negligence is worse than simple or ordinary negligence. Gross negligence can be very subjective and is used in extreme cases that might have ended with manslaughter charges or something of the like. Could the event or act have been controlled by the practitioner? If the answer is yes, then it is probably neglect. If the act was purposeful and the practitioner understood...
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...Overview of Negligence COLLAPSE Overview of Negligence We started our journey into negligence with Winterbottom v Wright (1842) 10 M &W 109. In that case the plaintiff Winterbottom was working for the Postmaster General as a driver of mail coach supplied by the Postmaster and the defendant Wright was contracted by the Postmaster to maintain the coach in a safe state. One day the plaintiff was in the coach when it collapsed and suffered injuries as result. He tried to sue the defendant in negligence but was unsuccessful. The court held that the defendant already owed a duty of care in contract, it could not also have a duty of care in tort. This case took place during the infancy of the industrialisation in the 19th century when it was in public interest to encourage innovation and technology. Similar social engineering also saw the courts in that era shield employers from actions of injured workers which would explain why the plaintiff did not sue the Postmaster. But the main reason why negligence had such a limited application was because the courts were wary of the potential of allowing unlimited actions. Heaven v Pender (1883) 11 QBD 503 took place some 40 years after Winterbottom. This is an important case because this is where Brett MR tried to establish the general principles of duty of care and expand the concept to be applied in all situations. However the court instead found for the injured plaintiff based on a duty of care owed by an occupier of land...
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...Introduction Negligence Negligence occurs if someone suffers harm, and the person who causes such harm does so through carelessness. For example, Mr Harley, a blind man tripped over a long-handled hammer which had been left near a hole in the pavement. The House of Lords held that the Electricity Board whose workmen had dug the hole, had failed to consider that blind people might be passers by. A reasonable man would have foreseen this and taken the necessary precautions. The Board had fallen below the standard of the reasonable man. The Court therefore awarded Mr Haley damages in negligence (Haley v London Electricity Board [1964]). Types of negligence...
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...Critical analysis of negligence and present legal scenario Abstract- The goal of this topic is to set out clearly what critical analysis is in general and how it plays itself out in variety of domains. Critical analysis too refers to critical thinking. The danger of misunderstanding and misapplication is touched in this topic the aim of this topic is to identify a coherent legal response to a particular casual problem of “negligence” in critical analysis it is important to identify the focus of the assignment .critical begins with identify your own point to view Introduction The motto to look for negligence as a cause of action under the Law of Torts .conduct negligence is cause of the harm to plaintiff where as plaintiff was harmed or damaged. The concept of negligence comes from the liability for wrongful acts of others .There are many more important...
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...A lawsuit was brought against Tim Clancy by Dianna Goad to recover damages from Clancy’s alleged negligence. While driving, Clancy fell asleep behind the wheel of his pickup truck, crossed the dividing line toward oncoming traffic, and collided with Dianna Goad and her motorcycle (Cheeseman, 2016). This accident severed Dianna’s leg above the knee, caused her to remain in a coma for two weeks, and cost her $368,000 in medical expenses alone (Cheeseman, 2016). In order to determine if Clancy was negligent, one must prove that Clancy owed and breached the duty of care, damages/injuries, and that Clancy was the actual cause (Cheeseman, 2016). Goad must be successful in proving Clancy’s negligence; otherwise, the case will be dismissed. According...
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