A Brief Note On Causation And Remoteness Within The Common Law Tort Of Negligence

The issue in this case as it relates to the Kentucky tort of negligence is governed by rules or principles established by the courts. The elements of negligence are a duty the defendant owes to the plaintiff, a breach of that duty by the defendant, a causal connection between the breach and the plaintiff's injury, and actual injury. In the absence of any one of these elements, no cause of action for negligence will lie.

The Tort of Negligence put the claimant in the position to prove that the defendant owed to them a duty of care, the defendant breached that duty and the claimant must have suffered damages as result of that breach (Donoghue v Stevenson [1932] AC562).

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

In 2009, the Affordable Care Act passed a provision that expanded Medicare coverage to include certain individuals with diseases caused by environmental health hazards (EHH). While there are many potential diseases caused by environmental health hazards, the legislation intended to cover people who developed asbestos related disease (ARD) following exposure in a vermiculite mine in Libby, Montana.1 The provision was included in the ACA with the help of Senator Baucus of Montana, who had a role in writing the health care law.2 The goal was to increase benefits for this new category of Medicare-eligible individuals. The three components of the legislation were the expansion of Medicare benefits, the development of a pilot program, and the initiation of grants to establish screening programs for the early detection of diseases caused by environmental health hazards.1

Several questions were raised by the defendant after his trial, which resulted in him filing an appeal of his conviction. Although he admitted to shooting Mr. Villella, Kusmider alleged that there was negligence upon the EMT’s for failing to properly restrain Mr. Villella while being transported to the hospital. During the trial, “a pathologist testified that Mr. Villella’s death was caused by the gunshot wound to his throat, however, the wound could have been survivable (Brody & Acker, 2010, p.116). The issue of proximate causation came about during Kusmider v. State (1984). Judge Johnstone “precluded Kusmider from pursuing the issue of proximate cause before the jury as he ruled that negligent failure to provide approximate medical assistance could not interrupt the proximate causation” (Kusmider v. State, 1984).

For a plaintiff to triumph a claim of medical malpractice for negligence, four elements must be established. The first element is proving the defendant owed a duty of care to the plaintiff. The second is to show that the defendant breached the duty to the plaintiff. The third is to show that the plaintiff was harmed and experienced damages. Finally, the fourth is to show that the plaintiff was harmed by the actions of the defendant (Greenberg, 2009).

However, in this case, the plaintiff did claim that defendants be held strictly liable and negligent because the dangers of the asbestos through maintenance was foreseeable when used in conjunction with their products. But the Corrigan explains in his opinion that by recognizing such claims by the plaintiff would provide an unprecedented expansion of strict products liability. While in California manufacturers are held strictly liable for a defect in the product. Yet, it has never been held that this responsibility extends to preventing injuries that would be used in conjunction with the defendants product. The dangerous features in question were not an integral part of the product’s design. Therefore through this fact, Corrigan had asserted that to decide for the plaintiff would not further the purposes of strict liability, nor would it serve public policy by requiring manufacturers to warn about the dangerous propensities of products they do not design, make or sell.

Negligence is the most common type of liability case that healthcare organization face. It often occurs when a person fails to hold up to the accepted standards of behavior. There are four elements essential to proving negligence: 1. a duty of care, Duty is a legal obligation the defendant owes to the plaintiff. In a negligence case the duty is most commonly expressed as a general obligation to act with care in other words to conduct oneself as a reasonably prudent person would do in similar circumstances. 2. Breach of that duty: A breach of duty occurs when one person or company has a duty of care toward another person or company, but fails to live up to that standard.  A person may be liable for negligence in a personal injury case if his breach of duty caused another person’s injuries. Once the duty has been established, the plaintiff must show that it was breached by presenting evidence of the facts of the case and testimony from expert witness which is usually the same witness who established the duty in the beginning. 3. injury: Damage or harm

Mr. Ortiz states that the claimant did not provide a history of being injured at work and never indicated to him that he had injuries associated with the injuries associated with the claim. He said the claimant never exhibited any physical complications when he performed his job. He stated, “I never saw nothing wrong with him.”

If cancer is developed from a radiation exposure on the job, the workers ' compensation law would cover it. However, the contamination resulted in hysteria and fear in Silkwood in which she required medical treatment and examination. The Workers ' Compensation Act required reimbursement for medical attention from job-related accidents (Walsh p 496). Silkwood had missed time from work during testing, and she incurred medical expense which was respectfully for paid by Kerr-McGee. But even if she had not, work time loss and medical expense are not necessary requisites to finding an injury is exclusively covered by workers ' compensation.

When considering Amin’s injuries, the question becomes whether he sustained the injuries water-skiing or whether they were as a result of negligence. To establish causation the test of “but for” Bob and Patrick’s actions would Amin have sustained an injury has application. The type of damage that Amin sustained is not too remote in this instance. However, there is a presumption that Amin may have contributed to the risk as he was intoxicated.

In order to receive compensation for medical injuries claimants are required to prove that the medical injury was caused due to the negligence of the medical professional against whom the claim is made. Compensation would only be awarded if the claimant is able to successfully prove their claim in accordance with the legal tests used by the judiciary when determining the liability of the medical professional.

This causation is identified with the ‘but for’ test, in other words, ‘but for the defendant’s breach of duty would the damage or injury have occurred?’ the main case would be Barnett v Chelsea and Kensington Hospital Management Committee, 1968, where the husband of the claimant went to the hospital due to strong stomach pain and vomiting. He was sent home after the Accident and Emergency department refused to examine him. After five hours, he died due to arsenic poisoning. The hospital owed the man duty of care and were also in breach after refusing to examine him. However, they were not liable as even if they had conducted the examinations the man would have died prior the results and treatment. Meaning that he would have died if the breach was or was not present, as their breach did not cause him to die.

Torts of negligence are breaches of duty that results to injury to another person to whom the duty breached is owed. Like all other torts, the requirements for this are duty, breach of duty by the defendant, causation and injury(Stuhmcke and Corporation.E 2001). However, this form of tort differs from intentional tort as regards the manner the duty is breached. In torts of negligence, duties are breached by negligence and not by intent. Negligence is conduct that falls below the standard of care established by law for the protection of others against unreasonable risk of harm(Stuhmcke and Corporation.E 2001). The standard measure of negligence is the universal reasonable person standard. The assumption in this case is that a reasonable

Claimant, on the balance of probabilities (51% or more), must prove that the negligence was a result of the injury, to establish causation. If this is successful, the claimant will be entitled to full compensation. If on balance of probability is 49% or less, the patient will not be entitled to damages. The issue in court was the difficulty to rely on the accuracy of the probability as evidentiary basis.