A Case Study on Forms of Negligence
A Case Study on Forms of Negligence
- Negligence of a professional person
- the surgeon who conducts a surgical procedure on the wrong body part
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Criminal Negligence
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- Reckless disregard for the safety of another.
- Willful indifference to injury that could follow an act.
© 2014 Jones and Bartlett Publishers
Forms of Negligence
- Malfeasance
- Execution of an unlawful or improper act, i.e., performing a partial-birth abortion when prohibited by law
- Misfeasance
- Improper performance of an act, i.e., wrong-sided surgery.
- Nonfeasance
- Failure to act when there is a duty to act, i.e., failing to prescribe medications that should have been under the circumstances
Degrees of Negligence
- Slight
- Minor deviation of what is expected under the circumstances.
- Ordinary Negligence
- Failure to do what a reasonably prudent person would or would not do.
- Gross Negligence
- Intention or wanton “omission of care” that would be proper to provide or the “commission of an act” that would be improper to perform.
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Elements of Negligence
- Duty to Use Due Care
- Standard of care
- Breach of Duty
- Injury/Actual Damages
- Proximate Cause/Causation
- Foreseeability
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I. Duty to Care
- Obligation to conform to a recognized standard of care.
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Standard of Care
- Describes the conduct expected of an individual in a given situation.
- Describes how a “reasonably prudent person” would or would not act under “similar circumstances”.
- Measuring stick for properly assessing actual conduct required of an individual.
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Reasonably Prudent Person
- A nonexistent – hypothetical person who is put forward as community ideal of what would be considered reasonable behavior.
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Similar Circumstances
- Circumstances at the time of the injury.
- Circumstances of the alleged wrongdoer/s at the time of injury.
- Age
- Physical condition
- Education & training
- Licenses held
- Mental capacity, etc.
Determining Standard
- Established by legislative enactment or administrative regulation.
- Adopted by the court from a legislative enactment or administrative regulation.
- Established by judicial decision.
- Applied to the facts of the case by the trial judge or jury, if there is no such enactment, regulation, or decision.
- courts often rely on the testimony of an expert witness as to the standard of care required.
Community v. National Standard
- Community Standard
- hometown standard (we want to do things our way).
- National Standard
- most currently accepted standard of care on a national basis.
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Case: Hiring Practices
- Nurse hired sight unseen over the telephone.
- The applicant falsely stated in an employee application that he was licensed as an LPN.
- His license was not verified by the employer.
- He had committed 56 criminal offenses of theft.
- He assaulted a resident & broke his leg.
Case: Hiring Practices
Duty
- Standard expected:
- The employer had a “duty” to validate the nurse’s professional license.
II. Breach of Duty
- Deviation from the recognized standard of care.
- Failure to adhere to an obligation.
- Failure to conform to or the departure from a required duty of care owed to a person.
- Occurs when
- a physician fails to respond to his/her on-call duties.
- an employer fails to adequately conduct a pre-employment check (e.g., licensure, background check).
