Hsa 515 Law and Health

Topics: Tort, Tort law, Law Pages: 5 (1411 words) Published: January 29, 2012
Assignment 1: Law and Healthcare

HSA515 Health Care Policy, Law and Ethics

Dr. Harold Griffin

January 22, 2012

Identify and explain the four elements of proof necessary for a plaintiff to prove a negligence case 

The first element that a plaintiff must prove is that the defendant owed him or her legal duty of care.  Generally, this duty of care is a legal notion that states that people owe anyone around them or anyone who could be around them a duty to not place them in situations of undue risk of harm.  Proving this element will largely depend on the facts of the situation. After the plaintiff has proved that a legal duty of care existed, he or she must then prove that this duty was breached.  Generally, courts will use the standard of a ‘reasonable person’ when it comes to this question.  Specifically, this means that the judge or jury must view the facts of the situation and decide what a reasonable person would have done in a similar situation.  If this reasonable person would have acted differently than the defendant, it’s likely that it will be found that the duty was breached. Causation is the most complicated element of negligence. It means that the plaintiff must prove that the defendant either directly or indirectly caused the injuries and damages suffered by the plaintiff because of the breach of the duty of care.  This element has confused even the most respected legal minds over time, and its proof should not be taken lightly. Last, a plaintiff in a negligence case must prove a legally recognized harm, usually in the form of physical injury to a person or to property. It is not enough that the defendant failed to exercise reasonable care. The failure to exercise reasonable care must result in actual damages to a person to whom the defendant owed a duty of care (FindLaw 2012). These damages can be actual costs such as medical expenses and lost income or intangible costs such as pain and suffering or loss of companionship.

Explain how the standard of care can be proven.  
A standard of care is a medical or psychological treatment guideline, and can be general or specific. It specifies appropriate treatment based on scientific evidence and collaboration between medical and/or psychological professionals involved in the treatment of a given condition. The medical malpractice plaintiff must establish the appropriate standard of care. In theory, establishing the standard of care and establishing the breach of that standard are legally separate. In reality, unless there is a factual question about what the defendant did, the proof of the standard of care also proves the defendant's breach. For example, assume that the defendant admits that she did not counsel the patient about prenatal testing. If the patient can establish that the standard of care was to offer this testing, the defendant breached the standard. If, however, the physician claims to have done the counseling, the patient will have to prove both that counseling was the standard of care and that the physician did not do the counseling. The most common legal definition of standard of care is how similarly qualified practitioners would have managed the patient's care under the same or similar circumstances. This is not simply what the majority of practitioners would have done. The courts recognize the respectable minority rule. This rule allows the practitioner to show that although the course of therapy followed was not the same as other practitioners would have followed, it is one that is accepted by a respectable minority of practitioners. (Respectable is used in both senses.) The jury is not bound to accept the majority standard of care. Jurors may decide that a minority standard is the proper standard and that a physician following the majority standard was negligent. In most medical malpractice cases, both the standard of care and its breach are established through the testimony of expert witnesses. There are...

References: FindLaw. (2012). Elements of a Negligence Case. Retrieved on January 22, 2012 from http://injury.findlaw.com/personal-injury/personal-injury-law/negligence/negligence-case-elements.html
Law Teacher. (2012). Introduction to Vicarious Liability. Retrieved on January 22, 2012 from http://www.lawteacher.net/tort-law/lecture-notes/vicarious-liability-lecture.php
Showalter, J. S. (2008). The law of healthcare administration (5th ed.). Chicago: Health
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