The Evolution of Law of Medical Negligence

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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). Back to the 19th century, legal liability was restricted to actions, or actus reus, causing “direct and immediate injury to the person or damage to property as in a case of trespass”. (2) Beyond such liable action, most of damage raised u... ... middle of paper ... ...vers R. Litigation and the medical indemnity crisis. J Law Med. 2004 Nov;12(2):178-87. 40. Kessler DP, Summerton N, Graham JR. Effects of the medical liability system in Australia, the UK, and the USA. Lancet. 2006 Jul 15;368(9531):240-6. 41. Ipp DA, Australia. Dept. of the T. Review of the law of negligence: final report. Canberra: Commonwealth of Australia; 2002. 42. Derrington HD. Theory of negligence advanced in the High Court of Australia. The Australian Law Journal. 2004;78:595-611. 43. Sullivan v Moody (2001) 207 CLR 562 44. Kalokerinos v Burnet (1996) unreported, NSWCA, BC9600037. 45. Young v Central Aboriginal Congress Inc [2008] NTSC 47. 46. Millenson ML. Pushing the profession: how the news media turned patient safety into a priority. Qual Saf Health Care. 2002 Mar;11(1):57-63. 47. Alcock v Chief Constable of South Yorkshire Police [1992] AC 310.

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