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

    • Reckless disregard for the safety of another.
    • Willful indifference to injury that could follow an act.




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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

  • 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).