7/31/2019 2.05 Negligence & Medical Malpractice
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I-Le al Medicine
Capulong, MD
Negligence & Medical Malpractice
Dr. CapulongJanuary 27, 2012 jei
II-5
Negligence
want of care required by the circumstances.
Negligence is the failure to observe that degree of
care,precaution and vigilance which the circumstances justly
demandresulting in injury to another person.
The existence of negligence is determined by the behavior of
theperson in the situation.
How do we determine if a person acted in a negligent manner?What
is the standard of care?
That which an ordinary prudent man would exercise under thesame
circumstances.
MEDICAL MALPRACTICE
Any act or failure to act by a member of the medical
professionthat results to harm, injury, distress, prolonged
physical or mentalsuffering or the termination of life to a patient
while that patient isunder the care of that medical
professional
o Doctorso Nurseso Midwiveso Pharmacistso Dentistso Physical
Therapists
DUTYDuty to -
o Possess medical knowledgeo Possess the necessary skillso
Exercise careo Use sound medical judgment
It is the responsibility of every doctor to practice
medicineaccording to the ethical standards of his profession
Every member of the healthcare team should follow theethical
codes of their profession
Ordinary prudent man
Reasonably competent practitioner in the same class, acting
in
similar circumstances.
BREACH Bad or unskillful practice by a physician or other
professional in which the health or welfare of the patient
isinjured.
Failure of a professional to follow the accepted standards
ofpractice of his profession.
Failure to diagnose or misdiagnosis.
Failure to provide appropriate treatment. Unreasonable delay in
treatment
INJURY PROXIMATE CAUSATION
That cause, which, in natural and continuoussequence unbroken by
any efficient interveningcause, produces the injury and without
which theresult would not have occurred.
Failure to adhere to the standard of care
INJURY
But for the physicians conduct the patientwould not have been
injured.
Doctrine of Res Ipsa Loquitor
The thing speaks for itself The fact of occurrence of injury
raises the presumption of
negligence.
1. The patient was injured in a manner that would not
normallyoccur but for a breach of the applicable standard of
care;
2. He was injured by an agency or instrumentality within the
exclusive control of the defendant;
3. Other possible causes are sufficiently eliminated by
theevidence such that the jury could reasonably conclude thatthe
negligence was, more probably than not, that of thedefendant.
Doctrine of Vicarious Liability
Liability for the tort of another Secondary or indirect
liability
Employer becomes liable for the acts of an employee
Employee must be acting within the scope of their
responsibilities Employer Employee relationship must exist and
proven.
Captain of the Ship Doctrine
Assumes that the doctor is in complete control of everything
andeveryone in the OR.
Largely abandoned in other jurisdictions.
Borrowed Servant Doctrine
The physician borrows the nurses, med tech, residents etc.
employedby the hospital to help him provide medical care to his
patients.
Doctrine of Apparent Authority
Or Ostensible Agent Fixes liability when there is no
Employer-Employee relationship
Doctrine of Apparent Authority Or Ostensible Agent
