1.0 Introduction
The tort of negligence is designed to give citizens of society protection from personal injury damages caused by negligent action of someone else. The reform of negligence adopted from the ‘Ipp Report’ in 2003, have gone too far in trying to decrease the number of negligence claims against professionals. Due to these reforms of 2003, citizens who have legitimate claim to compensation, are now left with less chance to hold a professional liable for the damage caused. The reforms, which now make up the current law, must be again reformed to balance the litigation in favour of no one and to make sure that there are fair and just outcomes in the courts. The Act in question is the Civil Liability Act 2003. Section 22 of this Act focuses on the Standard of care for professionals. This is the section that is in most need of reform, due to its excessive protection of professionals from liability.
2.0 Medicine and the Law of Negligence
2.1 History of Negligence and Medicine
One of the First principles used in this field of the law, was the Bolam principle. In the words of Mr Justice McNair, in his direction to the jury: “[a doctor] is not guilty of negligence if he has acted in accordance with the practice accepted as proper by responsible body of medical men skilled in that particular art …” Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view. This principle made in the House of Lords, was thought by many to apply in Australia. However, the in case of Rogers v Whitaker (1992) the six high court judges concluded that the Bolam principle was not the sole decider in the issue of if standard ...
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... own peer support, it will all be decided by a body who will determine is he/she did have peer support/made the standard of care outlined in s22. This will make sure that the decision on standard of care is fair, as it is with an expert body of opinion on the matter.
4.0 Conclusion
In summation, the reforms suggested by Justice Ipp in 2002 have gone too far in reducing personal injury claims. The 3rd recommendation of the report has protected professionals, especially those in the medical field extensively. Reforms should be introduced as discussed in order to bring the balance of litigation away from the defendant and should give the citizens of society more of a chance to claim for their damages caused by professionals. These changes reflect the current needs of society and would have legal backing far and wide all around Australia if they went ahead.
The appeal was heard in The NSW Supreme Court, Court of Appeal. The appellant appealed the issue of “blameless accidents” therefore providing new evidence, with the view that the preceding judge made an error recognising the content and scope of duty of care. He also noted the breach of duty of care and causation .
A dentist fits several children with braces. The children are regular patients of the dentist. The results for some of the patients turn out to be unacceptable and damaging. There are children who have developed gum infections due to improperly tightened braces. Some mistakenly had their permanent teeth removed, while others have misaligned bites. A local attorney becomes aware of these incidences, looks further into it, and realizes the dentist has not been properly trained and holds no legal license to practice dentistry or orthodontics. The attorney decides to act on behalf of the displeased patients and files a class action lawsuit. The attorney plans to prove the dentist negligent and guilty of dental malpractice by providing proof using the four D’s of negligence. The four D’s of negligence are duty, dereliction, direct cause and damages.
Explain the issue or dilemma using information from the readings in the book and other sources.
A series of events unfolded when George, running late for class, parked his car on a steep section on Arbutus drive and failed to remember to set the parking brake. The outcome of not remembering to set the parking brake caused many issues resulting in scrapping a Prius, breaking through fencing, people on the train sustaining injuries, and finally a truck that jack-knifed and caused a 42-car pileup. Could the parties that were injured, from George’s actions, be recovered from under the negligence theory? To understand if George is negligent, it is best to look at the legal issue, the required elements of negligence, the definition and explanation of each element of the case, and finally to draw a conclusion to determine if George is negligent.
The refinement of this definition has significant legal implications, as it broadens the scope of those who can sue within blameless accidents. Prior to this, such victims would also face being labelled with “fault”. Supporting the findings of Axiak, by establishing non-tortious conduct as separate from “fault”, similar, future cases are more likely to proceed despite the plaintiff’s contributory
Medical malpractice has become a controversial social issue. From a doctor’s standpoint, decisions and preventative actions can alter the medical malpractice lawsuits filed against them. In order to protect their career and professional life medical malpractice insurance is available. Medical professional liability insurance, sometimes known as medical malpractice insurance, is one type of professional liability insurance. “Professional liability refers to liability that arises from a failure to use due care and the standard of care expected from a person in a particular profession, in this case a doctor, dentist, nurse, hospital or other health-related organization” (Brandenburg, 2014).
Forrester, K., & Griffiths, D. (2010). Essentials of law for health professionals. Sydney: Mosby Elsevier. Retrieved from Google Books.
The act of medical responsibility originated in Rome and England dating back to the time of 2030 BC. The act states that a learned professional should always care with responsibility and care toward their profession. Around the year of 1200 AD, Roman law considered medical malpractice to be wrong and expanded their views about it all throughout Europe. It was said by the Code of Hammibal that if a person commits malpractice knowingly or unknowingly they would lose their job, hand, and an eye. Malpractice had also occurred throughout the U.S around the 19th century, due to the negligence of the state’s governments. Medical malpractice litigation has since been sustained for a century and a half by an interacting combination of 6 principal factors.” “Three of these factors are medical: the innovative pressures on American medicine, the spread of uniform standards, and the advent of medical malpractice liability insurance.” “Three are legal factors: contingent fees, citizen juries, and the nature of tort pleading in the United State.” (Mohr). The U.S is very familiar with malpractice b...
Medical malpractice cases are difficult for the families who have lost their loved one or have suffered from severe injuries. No one truly wins in complicated court hearings that consist of a team of litigation attorneys for both the defendant and plaintiff(s). During the trial, evidence supporting malpractice allegations have to be presented so that the court can make a decision if the physician was negligent resulting in malpractice, or if the injury was unavoidable due to the circumstances. In these types of tort cases, the physician is usually a defendant on trial trying to prove that he or she is innocent of the medical error, delay of treatment or procedure that caused the injury. The perfect example of being at fault for medical malpractice as a result of delaying a procedure is the case of Waverly family versus John Hopkins Health System Corporation. The victims were not compensated enough for the loss of their child’s normal life. Pozgar (2012) explained….
Negligence, as defined in Pearson’s Business Law in Canada, is an unintentional careless act or omission that causes injury to another. Negligence consists of four parts, of which the plaintiff has to prove to be able to have a successful lawsuit and potentially obtain compensation. First there is a duty of care: Who is one responsible for? Secondly there is breach of standard of care: What did the defendant do that was careless? Thirdly there is causation: Did the alleged careless act actually cause the harm? Fourthly there is damage: Did the plaintiff suffer a compensable type of harm as a result of the alleged negligent act? Therefore, the cause of action for Helen Happy’s lawsuit will be negligence, and she will be suing the warden of the Peace River Correctional Centre, attributable to vicarious liability. As well as, there will be a partial defense (shared blame) between the warden and the two employees, Ike Inkster and Melvin Melrose; whom where driving the standard Correction’s van.
The practitioners conduct is to be judged against the state of professional knowledge at the time of the matter concerned. The acceptable standard of care is assessed by the general practice of doctors in England and Wales and is usually defined by what would be a reasonable standard of care. However there are sometimes difficulties when assessing this as there are sometimes differences of opinions on the matter. This is known as the ‘Bolam test’. An action will not amount to negligence unless it is carried out without ordinary care.
That the negligence is a relatively new legal concept is evident in that it was in 1883 when the foundation of negligence law was laid in Heaven v Pender (1,2), and only as late as in 1932 were all of its essential components came into definitive and widely acceptable shape in decision of the famous case of Donoghue v Stevenson (2, 3). Ever since then, the legal responsibilities embedded in and the scope and categories of negligence have been so constantly evolving and being expanded, that it is hardly to be overlooked that its relevancy and application to medical malpractice have assumed a significant role in modern medico-legal issues and centred on the debate. Nevertheless, it is beyond dispute that the progression of conception of medical negligence and expansion of corresponding legal responsibility have always been intimately intertwined with and subject to the transforming interaction of public policy and values, social conditions and sentiment, and community expectations. Lack of precise legal definition as contract or property and fraught with subjective terminology as reasonability, rationality and responsibility, negligence law (4) inevitably depends on interpretation on every constituent factor, rendering it prone to influential force of variable, even subtle, contemporary social and political values, change of which, resulted from novel circumstances as social development and technology advance, gives rise to the uncertainty and changes to the negligence law since it emergence (5).
did owe a duty of care to Mrs. Donoghue, in that it was up to them to...
Mr. Gardiner (respondent) brought proceedings against Ms. Marien (appellant) in the New South Wales District Court (NSWDC). Respondent claimed negligence on the basis of the appellant’s failure to be vigilant. Handed down 31 January 2013.
Achutrao Haribhau Khodwa case and Spring Meadows Hospitals v. Harjot Ahluwalia are some illustrative cases where the Supreme Court has applied the ‘higher duty of care rule’ in deciding the negligence of the doctors. Recently the Supreme Court refrained to take a liberal approach in establishing medical negligence and emphasized on accountability and higher duty of care in medical profession in B. Jagadish v. State of A.P . In a historic judgment in Nizam’s Institute of Medical Sciences v. Prasanth S. Dhananka the Supreme Court held that “moreover, in a case involving medical negligence, once the initial burden has been discharged by the complainant by making out a case of negligence on the part of the hospital or doctor concerned, the onus then shifts on to the hospital or to the attending doctors and it is for the hospital to satisfy the Court that there was no lack of care or diligence”. In this case the Court awarded Rs. 1crore as compensation to the victim of medical