Negligence Law Report 8K

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Medical Negligence Law

Report

4/26/2014

Table of Contents

TOC o “1-3” h z u Introduction on LAW PAGEREF _Toc386279468 h 3Standard of Care in Medical Negligence Cases PAGEREF _Toc386279469 h 4Negligence Law PAGEREF _Toc386279470 h 7Significance of Law PAGEREF _Toc386279471 h 9Civil law PAGEREF _Toc386279472 h 11Comparison between Australian and US Law in relation to an Aspect of Medical Negligence PAGEREF _Toc386279473 h 12Conclusion PAGEREF _Toc386279474 h 16Reference PAGEREF _Toc386279475 h 16

Introduction on LAWWe are discussing this topic about the different types of laws and the different aspects it brings to the society. The related term has many things to offer to the society but all the aspects can’t be given on a single report. So we will discuss about some limited topics in this report and lament some views over it. But the first thing comes first as we have to do the proper introduction part on behalf of the given topic i.e. the law (Beaman, 2011). We at first have to deal with the proper knowledge and justification about the law and to have some proper sense about what law actually is. Actually in this case, the term law doesn’t belong any particular definition, we can search overall but we can’t find a systematic definition about the topic but to have some ideas gathered on the mind. The ideas that have been generated on the mind is about, law is a specialized set of rules and regulations that have been created and implied on the society by the proper authority to help restore the chained behavior of the citizen in order to build the superior civilization (Beckmann, 1996). The governing body of a society enforced to abide by these rules and regulations. One more thing comes out of the term, that the creation of law and the creators. So we come to know that the legislatures create the law via the legislative procedure, executives creates laws via decrees and regulations or the judges also create or made the addition via binding procedure. There are also the publics who have the rights to make the addition to the laws or rules and regulations and to do that they individually have to take the proper procedures. Like, they have to go through the legally binding contracts, excluding the normal court procedures but the inclusion of the arbitration agreements. The main inspiration behind the law is the constitution and it is not important that the constitution should be on a written basis; rather it can be unwritten also. So the influence factor is derived from the constitutional portion and the gathered codes from the laws are encoded therein in this very basis. Laws are there in the various stages and steps of the society and it act differently on the basis of these stages. The various aspects of stages present in a working field of law is economics, political and social i.e. the society. These different stages have the different sorts of laws and according to the field they act differently, i.e. the activities of the laws can be seen and identified typically and can clearly observe the working activities (Beckmann, 1996). One more thing can be seen in that particular facility of society, that is the multiple characteristics of people can be inter-connected via these law procedures. As been told like that, about the various fields and various parts of laws, there can be observes a clear distinction about the law and there is also the distinction made to avoid the complexity and systematic follow up of the term. So for an example the distinction made by the civil law jurisdiction can include the canon and socialist law and in result of that the central bodies or the legislature who supposed to be the creator as well as the keeper of the laws codifies and consolidates their laws as per the requirements (Danzon, 1980). And naturally there is also the existence of common laws which are amended by the judges and implied through the binding procedures. So these types of laws, basically the judge made binding precedents of laws are accepted by the common people naturally through their various aspects. As we are discussing about the laws, so I think we need to have some knowledge as well in the field of it ancient part also. We call it the ancient part as in it is one of the parts of the history and this type of law is called the religious laws. One type of situation is called as the secular matter and it is some type of case that involving the religion. It is still present in the some religious or religion based countries like the Islamic, some religious communities like Jewish etc. so this type of laws i.e. the religious laws have the significant roles played in this aspect or field of religion (Corfield, L., Granne, I. and Latimer-Sayer, W. 2009). Civil law is also very important in every nation. The term civil refers that it refers something which is related to the civilian. Nin every nation the civil people have also responsibility to do. They have to also bind themselves in a proper law. In hospital besides civil law it has also to be noticed how properly the law should be followed. The main thing of any hospital authority is that they should have a good board of governors who can take decision, make some ideas about the rules and regulation. They should utilize the law according to the needs. The authority is also responsible for taking care of the patients. There has been a law to check the licensed of the doctor. The doctor should be well qualified and they should have moral value in them. In many case it has been seen that doctors are not going to the hospital at a regular basis, besides they are running a private business outside. In that case hospital can take action against the guilty doctor. So basic maintaining of law is very important in hospital.

Standard of Care in Medical Negligence CasesTo know the standards and the proper care that is required in this kind of cases, we at first need to be introduced with medical negligence and the cases regarding this (Danzon, 1980). So the first thing is to know what exactly the medical negligence is. Medical negligence is also known as professional medical malpractice by the improper actions taken by the healthcare professional/s, in result of that the required treatment method falls below the standard of treatment according to the medical boards and level. This causes the vital or critical damage as the outcome as in example or else to be said properly in reality the patient got typically injured or this caused the death of the patient. These cases are the result of the medical errors, i.e. the error actions taken by the medical practitioners which results in the critical damages. The involvements of the laws are there in this field as it varies through the different countries, as the different countries have the different types of jurisdictions (Ding, 2012). So this is clear that different places bring in the difference in aspects in standards of medical practices. These medical malpractices have the bad effects as we told in the above discussion and due to the bad effects this costs the huge lump sum amount and as well as the proper methods of fulfilling the compensations based on the different jurisdictions rules and guidelines (Manning, 2007). So to avoid those or decrease the cost of lump sums or compensations, the medical practitioners can have the privilege to apply for the Professional Liability Insurance. They can obtain it to reduce the risks and cost of the lawsuit that can be filed against them (Chapleau and Pons, 2007). We have the records regarding this case and it can be seen in the numerous occasions this situation or this kind of incidence had happened. For the record suggests, over 195000 people had died due to the medical negligence in the United States of America and it is found in an yearly survey that represents (Meadow, W. and Lantos, 1996). Over the years there are countless number of events that are occurred involving the patient safety and over the multiple numbers of healthcare institutes and hospitalizations. Such medical errors including the hospital costs are assessed a huge amount that has been process during the entire time period. In some year the toll goes to such a height that it can never be assumed and also astonished the critics after viewing the vast increasing number of the toll. These cases are involving around the medical practitioners and among them the doctor are held liable in most of the cases (Meadow, 2002). The patient party is often called as the plaintiff and they have the supporting roles for the patients as they get ill or have their life risks during the situation or during the terms of treatments. Often they played the role of the executor of the body of questioning the administrators in against the doctor who held liable for the medical negligence. They are the one who file the wrongful death suit for the diseased patient’s estate. The person liable to take the care of the diseased patient is often called as the healthcare provider. The healthcare providers are those who are referred as the physicians and the physicians are referred to the term as any healthcare specialist from the dentists, therapists to the nurses. But they all can’t be protected from the actions taken against them by the negligence acts, if they found guilty on the services they provided to the patient and the plaintiffs (Padfield, 1993).

In this topic we are to help create the report on the basis of the standard of care needed and maintained in the case study of the medical negligence. In the above portion we came to know the various aspects and fields of medical negligence and also come to know the fact that what medical negligence really is and also what are the results it brings as an effect. After the introduction on medical negligence it is useful and required to know about the elements of cases that involves into this kind of incidence (Rowell, 1999). So it is important to learn about the cases it develops and to create the proper report on the basis of that.

Mostly the medical negligence case consists of the cases brought by the plaintiffs and it is all about the raising of claims against the medical malpractice or the negligence. So in order to do that, some required elements or criteria should be established by the plaintiffs to raise their claim properly and strongly to the authority. Here we are going to discuss four various aspects which are to be maintained by the plaintiffs and these four aspects will reported on a point basis and are further discussed (Rowell, 1999).

Number one is to the identification of the legal duty. The identification is made and identified whenever the healthcare organisation or the health service provider agrees to provide the proper care for the patient or granted the hospitalization of the patient (Schockemoehl, 1983).

Number two is to understand and identify the breach of the duty. The plaintiffs have to look into the matter and recognize that particular situation when the healthcare provider unable to provide the proper or required service as per the quality standards towards the patient’s condition (Annas, 1993).

Number three is to done some research based on the given information. Further examination is needed to do this (Stahl, 2004). That means the proper actions should be taken to know if that breach of service is the reason liable for the constant downfall of the patient’s condition or more pathetically the death of the patient. So this breach of service is to be examined properly and should be held responsible if the proper disorders found or happens to be the cause of injury.

Number four is the last step that is the basic requirement for the case, which is the damage or loss. Without the pecuniary or the emotional loss or damage there is no claim that can be made from the authority or the medical administration (Teff, 1998). We need to keep in the mind that damage is the basis of the claim. No claims can be made if the damage didn’t happen in spite of the negligence shown by the medical practitioners or the service providers. Another noticeable fact us also there as the death of a patient can be happened whether there is no negligence observed by the medical team or the doctors due to the fatal diseases the patient was suffering. We can see many instance of this type of death or injuries (Emmons, 1786). In some cases the claims for the compensation can be made and that is based on the other several situations and the proper investigations are needed in those cases. If the compensation is a valid claim then it can be obtained or otherwise it is eliminated.

Due to these cases i.e. the bad effects of the medical negligence cases it is mandatory to obey by and maintain some standard of care during the hospitalization or undertaking the service to cure a patient (Garner, 1997). As the life of a human id needless to say, priceless and no compensations or claims can brought back this type of loss. So the need of the proper care taken in this field is no mention to say is necessary and efficient. Some of the brief discussion is done by us in order to help identify the learners to know that standards as for the practice purpose as well as the knowledge purpose.

In the medical malpractice case we discussed about whether the patients are treated accordingly or not by the medical practitioners (Kerns, 2007). Any kind of medical negligence is always measured with the medical standard of care, whether the standards of services were there or not during the treatment and the measurement of harms caused by it to the patient. So the legal measuring sticks are there to harm the medical malpractice types of cases. So in order to give the standard of care related views, we first need to know what actually the standard of care in the medical issues is (Zigrosser, C. and Gaehde, 1965). A medical standard is the thing which defines, another competent and skilled healthcare professional coming from the same background and the same medical community would have provided his/her services on the same typical level of case and in result whether it goes to the case of malfunction or not (Klaus, M. and Fanaroff, 1993). So this is the definition and I think after knowing the definition, it is cleared that how the standard is measured and how it is implied on the level of care during the service terms. The healthcare service is often associated with that quality of standards and maintained by that way to check whether the claim can be made on a proper basis or not. There is the medical malpractice lawsuit where it is stated that there should be the involvement of qualified expert cum medical witness (Shivers, 1986). That person will be liable to go through the investigation on whether the medical standards are met during the treatment or service under the given circumstances and also to determine how the doctor played the role behind the plaintiff’s unexpected loss or injuries. In many countries there are the particular rules they applied to help better the situation as in those law suits they mentioned that the plaintiffs can also appoint the help of the experts who has the knowledge on the same field or the same type of situation to measure up the standards taken or not and to support creating the claim on the basis of that (Shivers, 1986). As an alternative with other contemporary nations, Australia has a brief flirtation with contract law in the 19th century. Though, jurisprudence sat hardly with unequal doctor-patient relationship, patients are not be expected to understand medical nomenclature or esoteric regimen and diagnosis. In addition, in the 19th century US physicians hesitated at the thought of being held in the same regard as tradesmen. Therefore, the course of medical negligence in the USA contrasts with the British experience, where it is difficult to hold on to one conception through time. Within modern history, I would argue that there are at least six distinct periods. Each period offers different notions of what negligence has meant in the past and hints how different it may be again, in the future. During the 18th century until the mid-19th century, patients had a commanding role: they had a great deal of control over diagnosis, the law governing negligence claims, and the contractual process between patient and doctor. Then from the mid-19th century to the end of that century doctors began to gain the upper hand through advances in diagnosis, knowledge, skill, technical innovation, and, particularly, professionalization. However, patients retained the upper hand in law—medical negligence was viewed very much under the light of a trade contract. 

So these are the standards related issues that are to be taken care of and the different aspects are also there based on the different countries jurisdictions. All the aspects are discussed and reported on the division basis as to help the readers to understand well (Walsh, B., Jamison, S. and Walsh, 2009).

Negligence Law

Due to the piecemeal development of the civil liability under different forms of action little thoughts were given by the different lawyers to the real existence of any principle having the various examples of liability (Beven, 1908). In the latter half of the eighteenth century Madison in his Commentaries on the Laws of Australia describes trespass on the case as a universal remedy which is taken into account for the wrongs and injustices without force as he thought only in terms of action, not of the substantial grounds for allowing the action (Campbell, 1878). The authors were only told to discuss about the actual situations where the liability actually exists and to expose the correct type of action. As Mitchell points out that in the article that it has a heading An Action upon the case of Negligence, many other examples are included which is said to be a negligence towards law and no attempt have been taken to rationalize the examples on a brief history of negligence ( Brisbane Authority v Taylor, 1996). For preexisting relationship, liability is associated with the assumption of an obligation by promise and this is the basis for the contractual law. But it was not good until a good deal more than the obligation idea or its duty is to play same role in the development of the medical negligence liability (Cohn, A. and Knopf, 1981). Every man has the responsibility not to give any harm to the neighbor therefore when a man hurt by the other person though the behavior is not expected by that person it actually negligence the law. The motion is that liability in negligence is based on the existence of a duty taken by the defender to the claimer was slow to take hold of the defender, but by the early part of the nineteenth century damages are done by the negligence of the activity done in doing something similar to the duty which the law casts on it (Hamilton, 1904). One common example is that a father bought a gun from a shop for his son. The defendant told him that it was made by a repudiated gun maker though it was not proved when it has been fired and an injury was caused. The father claim was that because of the fraud done by the shop maker but the shop maker refused to found any liability of the basis of the conduct of a contractual duty owed to the third party. The father wants to use this case as an authority to support the claim. The judges of the court are impressed by the form and it has been written that imposing liability in the case which would lead to countless extensions in the scope of the duty allied to this was a concern for the proper limits of liability in the contractual basis (Harrington, 2002). Once a contractual settings was held to give rise to a duty which extends the parties to the contract. It seems odd that the common law would allow a claim by the citizen injured by the rash driving by traveling through the train, but it is not a claim by the coachman. It is quite surprising that the display of the tortuous liability is compared with the contractual liability was a challenge. There is an exception where it has to be developed to the general rule of no liability in tort which results as the potential liability to the articles which is more dangerous in themselves .In the other case a plaintiff is injured by having a hair wash which was sold to her husband but it has been used by the defendant (Keeton, R., Seavey, W. and Keeton, 1969). The case was not fraudulent nor did the case into the exception of the general rule. The husband went to hold her wife in the court and it was stated that the action was not according to the contract. The action was not on the contract and hence there is no guarantee arises rather than the action of the case which brought the unskillfulness and the negligence in the manufacture of where the person who used it was injured. This is a deliberate attempt to clarify the law for the liability of the damaged products which bought it the common law at a normal explanation of the duty of care (Linden, 1972). Another example is that suppose a man is driving along a road it is his duty to ride in such a way such that the other person should not get injured so it is also the duty of a man to do which will injure the house of some other people. It is the effect of decision but it has no application in this case. The existence of the duty of care is the main need for a successful claim in negligence. If the duty of care is not present the failure of taking care do not give rise to liability. The duty can give the rise of different situations (Phillips, 1997). In the passage of time the situations where the care is recognized moved from one place to another from the context of the leading case. There is a limitation on the scope of liability. The early stages are seen in the grant. In the past 70 years there been there is an extension of the tort of negligence as the duty situations have been multiplied. A physical injury is caused by the act of a n individual so it is safe to the general view of the existence of the duty of a care. The extensions of liability into different types has proved to be confusing where the loss suffered is totally economical and psychiatric or the negligence is of omission despite of the positive act (Saunders, T. and Wright, 1898). There must be a close link between the claimer and the defendant in accordance with the claimant injury and the defendant duty of care. The base of causation has sought out different principles which are well illustrated by the product liability cases. It must be formed that the defendant negligible conduct was the real cause of the claimant loss, in the sense that the loss is not occurred for the negligence (Shearman, T. and Redfield, 1870). The concept of negligence law developed under the British law. As we all know, that the common law of the English has imposed long liability for the wrongful acts of others, therefore, negligence did not appear as an independent cause of action until the eighteenth century. Legal liability for a failure to act is the other concept that has emerged at the same time and the original liability for failing the act was imposed on such who have undertook to perform many services and given a promise to pass the care and the skill in performing that particular service. This particular promise is to exercise care whether implied or express, have to form the modern concept of “duty”. For instance- innkeepers were asked to provide duty to protect the security and safety of their guests. Therefore, one of the most essential concepts in the negligence law is the “reasonable person”, which generally provides the standard by which a conduct of the person is rectified. The concept of the negligence law differentiates the negligence law from intentional torts such as Assault and Battery. The concept of the negligence passed from the Great Britain to the United States as each state which is generally adopted the natural law of Great Britain. Therefore, there are many of the essential developments in the negligence law but the basic concept remains the same from the eighteenth century. The hypothetical reasonable person provides an objective by which the conduct of others is judged. In law, the reasonable person is not an average person or a typical person but a composite of the community’s judgment as to how the typical community member should behave in situations that might pose a threat of harm to the public. Even though the majority of people in the community may behave in a certain way by which it does not establish the standard of conduct of the reasonable person. For instance, a majority of people in a community may jay-walk, but jaywalking may still fall below the community’s standards of safe conduct. Therefore, in actual knowledge the law also considers most people to have same knowledge, ability and experience to distinguish as the hypothetical reasonable person. Also, a person cannot deny his knowledge of normal facts which is commonly known in the community.

Significance of LawThe law of Tort has been resulted in legislation which has been passed by the jurisdiction of Australia implementing the recommendations which has been reported by the medical practitioners. The report is all about the crisis in medical field (Benda-Beckmann, F., Benda-Beckmann, K. and Eckert, 2009). The reports have an impact on the liability of the health professionals in medical negligence. There is no liability for the risks to be undertaken. Presumptions and the obvious reductions for the negligence reduce the liability of defendants. Apologies can be made with no admission of legal liability as a result it reduces the actions of liability. There is a protection for the Samaritans even though the report has been made against the medical negligence (Davidson, 2004). The period of limitations have been amended. The provisions which are related to the mental harm have been reintroduced for the direct preparation of fortitude. The significance suggests that the analysis after being made has certain limitations and the court has evaluated the civil liability reforms as compared with the general law (Kavanagh v Akhtar ,1998). It has been the limit for the damages which the individuals have undergone when they have the limitations of the liability of the health experts in terms of negligence actions. The concept of law is that all the individuals are abiding by the rules and conditions of law. The medical negligence in US has developed greatly in these years and the cases are brought out to the state laws. The legal system actually bridges the gap between the claimant and the defendant. The law also brings out the negotiations among the different parties. The law also solves the disputes of both the parties in an efficient way (Fehrenbacher, 1978). The law signifies that a duty is to be followed by the health profe3ssionals irrespective the condition of the patients. The health experts could not breach of the duty assigned to him, any injury caused due to some incidents and the damages of the patients should be recovered in terms of monetary loss and also from the physical loss (J. B., 1893). The health professional takes the responsibility for the degree of care to be maintained by the medical practitioners for the patients. In the US medical malpractice starts in the year 1800s and it has a great impact on the career of the health experts (Postema, 2001). In US medical malpractice law has been traditionally under the rule of the government for getting the money only the heath experts do not serve the patients which results in an injury or pain then the court give the order to pay a compensation to the patients. Damages occur can be accordance with the economic loss and it costs the future of the health experts as a bang (Rogers, 1995). The health experts have their insurance so that they are protected from any negligence in practices. In some cases the insurance policy can be considered as a condition given by the hospital. The law signifies that medical malpractice is an act of omission of the responsibility taken by the doctor towards the patients and proper care is not taken by the health professionals with the patients of the hospital. They do not follow the rules and agreements of the hospital (Salacuse, 2010). It causes an injury to the patients. Tort is a law which solves the problems of civil wrongs and the criminal duties. The reasonable standard view is a legal fiction is created so that the law has a standard for reference of the conduct in the similar stances. The aspect can arise that in the context of those the assistance of volunteer to others are injured. The Samaritans laws vary in the jurisdiction of the laws and it is protected from the liability and the situations of protection (Salacuse, 2010). A proper law is very important in every nation. Law can perform on different functions. The one of the most important thing is it saves us from criminal offence. In the society those people want to harm us, law gives them proper punishment. It also allows the nation provide the permission of making goods. Besides it has lots of effects on our life. Now the point comes what are the import ants of law in the medical center or in the hospitals. In Australia and United States of America the government is very well conscious about the law which has been implementing in the hospitals. First of all why law is very important