Benson as negligence. Keeping in mind the definitions of negligence, gross-negligence and malpractice, I would have to argue that Mr. Benson’s case is one of malpractice. The defining fact that Mr. Benson was injured at the hands of a medical professional makes this an issue of malpractice rather than negligence. Mr. Benson’s injury was a direct result of a medical professional failing to act in “accordance with the prevailing professional standards” (Guido, p.93). The circumstances surrounding how the incorrect extremity was amputated was not clearly identified, but the doctrine of res ipsa loquitor – “the thing speaks for itself” – can be applied in this instance (Guido, 2010).
Law Chapelton v Barry Urban District Council shows that unsigned exclusion clauses need to be clearly defined to a reasonable person. Another case highlighting the need for exclusions to be clearly informed to the other party is the case of Causer v Browne. As for the case of White v John Warwick & Co Ltd the court held that the company providing defective product is liable for their negligence. If reasonably sufficient notice is given as to the existence of an exemption clause, then it is accepted by the courts that that clause becomes parts of the contract. The case that set this dictum, and which laid our the guidelines for testing the reasonableness and sufficiency of the notice
These can include medical bills, property damage cost of repair, and even loss of pay. Punitive damages are not intended to compensate the injured for losses, but as a punishment for the wrong doer and to deter them from committing this act again, or prevent the same negligence in the future. The four elements of a negligence action that must exist for a plaintiff to win a negligence action are duty, breach of duty, causation, and damages/injury. The plaintiff must prove all of these elements in order to be successful in a negligence claim. The first element, Duty, can be looked at almost like the Golden Rule.
A. Root Cause Analysis A Root Cause Analysis is an organized process used to determine the processes that lead to sentinel events. A sentinel event is defined by Cherry & Jacob as “an unexpected occurrence involving patient death or serious physical or psychologic injury or the risk thereof.” (Cherry & Jacob, 2011, p. 444) The objective of a Root Cause Analysis is to identify the factors which caused the sentinel event and to identify flaws in the system which can be corrected in order to prevent a repeat of the event in the future. A RCA is not used to blame individuals, and is not applicable when the event is intentional, or caused by negligence or a criminal act. RCA focuses on failures in the system that can be corrected. (Huber & Ogirnc, 2014) Before beginning the Root Cause Analysis, a multidisciplinary team is selected to review the events involved in the sentinel event.
Element Two– Breach of Duty EXPLANATION: This is an action below an acceptable level of responsibilty or inaction of this responsibility can result in a breach of that required duty and may result in lawsuits from negligence, especially in a professional capacity (Professional negligence). Under Tort, negligence will need to be proved, to do this it has to be established whether such duty exist and if the duty was
It is the failure to exercise reasonable care and skill” (Gibson & Fraser, 2013) A Duty of Care: This is a duty owned by one person who is called “defendant” to another who is called “plaintiff”. Its basis is the relationship between defendant and plaintiff and the foreseeability of damage or loss. Foreseeability is a test for duty of care, answering question whether a reasonable person (in plaintiff’s position) would have predicted that there was a real danger of the probability of injury. “The reasonable person is someone of normal intelligence, credited with such perception of the surrounding circumstances and such knowledge of other
Torts Outline Geistfeld—Spring 2005 1) Intentional Torts a) Battery: i) Elements (1) A acts, (2) Intending to cause (a) Harmful contact with P or (b) Contact with P that is offensive and (dignitary harm—not always recognized) (3) A’s act causes such contact. ii) Difference between battery and negligence—negligence is when the D has wrong the P by failing to take sufficient care to avoid harming her. iii) Intent: will have to rely on circumstantial evidence, since mental states are not observable. (1) First issue is motive, but it generally does not matter, since why you did it is not relevant. We’re thinking about rules that govern interactions—objective rather than subjective standard.
If this person does not follow the standard of care and someone suffers harm or loss as a result then the individual has been negligent. If someone has a duty of care towards another person and does not exercise an appropriate standard of care in all circumstances, then the duty of care has been breached. If someone can prove that you did something you should not have done, or failed to do something that you should have done, which resulted in an injury, then you have breached your duty of care and could be sued. Duty of care is hard to define because there is no legal definition, although it is a legal obligation. It is an idea based on the legal concept of negligence.
Generally, the Actus Reus must be voluntary and deliberate and if involuntary, he is not at fault. For example, actions carried by reflex or through a spasm are involuntary and therefore the defendant is not at fault. On the other hand, failing to act when there is a duty to do so can lead to fault. The Prosecution must prove that there is a link between the defendant’s act and the end result in order to prove that he is a fault. Factual Causation and the De minimus Rule uses the ‘But For test’.
The question is how we establish liability in in tort. Tort consists of an act or omission (failure to do something) by the defendant which causes damage to the plaintiff. The