Chapter 6 Negligence

imissyou419's version from 2017-11-28 03:05


Question Answer
Negligence broad meaninga branch of tort law
Negligence narrow meaninga breach of the standard of care
Negligence liability applies tofull range of professional conduct;
not limited to the intervention itself but can stem from: interviewing and assessing a patient, diagnosing the problem, taking a history, designing a treatment plan, record keeping, making a referral, failing to control/protect a patient, hiring/training/assignment/supervising staff
Are you liable in negligence because the patient dies, the operation fails, or the decision was wrong?No
Negligence definitionfailure to exercise the standard of care expected of a reasonable person in all circumstances of the case (careless or substandard care)
Negligence vs. errors in judgementNot liable for errors in judgement
Negligence vs. incompetenceNegligence applies to A specific act, diagnosis or other decision;
Incompetence refers to individuals who are viewed as being unable to meet the standards, or discharge the responsibilities, of his/her profession. Result in being disciplined by one's college or professional regulatory body and/or being fired for cause without notice by one's employer


Question Answer
What are the 6 elements of a negligence action?1. duty of care, 2. standard of care and its breach, 3. causation, 4. remoteness of damages, 5. actual loss, 6. prejudicial conduct
Who has the burden of proving the first 5 elements of negligence and on what?plaintiff, on a balance of probabilities
Who has the burden of proving the 6th element of negligence and on what?defendant, on a balance of probabilities
Duty of carePlaintiff must prove that the defendant owed him a legal obligation to exercise reasonable care for his benefit.
A duty will generally arise in any circumstance in which the defendant's conduct creates a foreseeable risk of injury to the plaintiff.
The relationship between health professionals and their patients give rise to a duty to exercise reasonable care in the provision of all services and care.

Wrongful positive acts vs. failures to act. While a broad duty of care in negligence was imposed for wrongful positive acts, traditionally no duty of care was imposed for failing to act for the benefit of another (i.e. no duty to treat, rescue, render aid or control - no need to take affirmative action)
Standard of care and its breachhealth professionals must meet the standard of care expected of a reasonable professional colleague (i.e. a neurosurgeon is held to the standard of care of a reasonable neurosurgeon).
Courts rely on expert witnesses to provide evidence on the appropriate standard of care and whether it was breached.
The standard of care is based on the state of practice and knowledge at the time the defendant acted and NOT at the time of trial
Vast majority of negligence claims against health professionals turn onwhether they breached the standard of care
Causationplaintiff must prove that the defendant's NEGLIGENT conduct was A cause of his/her injuries (does not need to prove it is a major cause)
Remoteness of damagesPlaintiff must prove that his/her losses are not too remote and too far removed from the defendant's negligence to be recoverable. Recovery is usually limited to losses that are a foreseeable result of the defendant's negligent act
Actual lossThe plaintiff must suffer losses that are recognized as being recoverable.
Provincial legislation now permits the dependents of a deceased person to recover for: the economic losses that they suffered as a result of the wrongful death; and their loss of care, guidance, and companionship
What is not recoverable in common law?death, grief, nervous shock
Prejudicial conductIf the defendant can prove that the plaintiff was contributorily negligent or voluntarily assumed the risks, the damages will be reduced and denied recovery respectively


Question Answer
Customary practicewell-established approach, technique, process, or procedure that has been widely accepted within a trade, industry or profession
Who has the burden of proving the customary practice exist?the party relying on customary practice
Breach of a customary practice provides ____ of negligence, whereas compliance provides ____ of reasonablenesssome evidence, some evidence
When would a court reject a customary practice?patently unsafe or fraught with risk. A customary practice based on complex scientific or technical evidence cannot be rejected in the absence of expert evidence


Question Answer
Standard of care expected in an era of fiscal restraintcourts have been reluctant to lower the standard of care required for practitioners based on the claim they are underfounded
Can governments be held liable in negligence for financial decisions that result in overcrowding, wait lists, and selective funding?No. Budgetary and resource allocation decisions are policy matters for which the government is accountable to the electorate and not the courts


Question Answer
What is the relative amount of injured patients being compensated?a small percentage. The process is slow, administrative and legal cost high
Why are patients at a disadvantage for negligence claims?Technical nature of the evidence, difficulty and cost of obtaining relevant hospital and medical records.
Difficult finding expert witnesses to criticize their colleagues, particularly in areas in which there is a very small pool of specialists.
CMPA has virtually unlimited funds and has traditionally refused to settle any but the most obvious cases.
Cost of litigation medical malpractice cases deters lawyers from taking even meritorious claims on a contingency-fee basis, unless the potential damage award is very substantial
What does the adversial system do to the professionalUndermines health professionals' morale, adversely affects treatment decisions, discourages practicing in certain fields, and inhibits effective communication b/w health professionals and their patients.
No evidence that the system encourages health professionals to exercise greater care, or weed out negligent, unfit, or incompetent practitioners
No fault medical practice planproposed