Clinical Negligence Claim Paper

This research paper is being submitted on December 8, 2011, for Mara Pehkonen’s M230 Medical Law and Ethics Course.

Treatment without consent - Charlotte, the nurse on duty, had forced James into getting the injections therefore causing him emotional distress. Treating a competent patient who has validly refused treatment could constitute an assault or battery. The legal provisions supporting a competent patients’ right to refuse treatment in Australia can be found in both legislation throughout all the States and common law. The Australian Charter of Healthcare Rights is also a helpful source of guidance as it reinforces the common law position that is based upon the principle of patient autonomy. The High Court of Australia first articulated the principle or refusal of treatment in Marion’s case, stating that a legally competent person has a right “to choose what occurs with respect to his or her own person.” Under the NSW Health Patient Charter, consent in regard to an operation, procedure or treatment is both a specific legal requirement and an accepted part of good medical practice. Medical practitioners are also expected to clearly explain proposed treatment, and adequately inform their patients on significant risks and alternatives associated with the treatment.Failure to do this could result in legal action for assault and battery against a practitioner who performs the procedure. Charlotte made no effort to explain or gain a consent from James.

There are three elements that must be present for an act or omission to be negligent; (1) The defendant owed a duty of care towards the plaintiff; (2) The defendant breached the duty of care by an act or omission; (3) The plaintiff must suffer damage as a result - be it physical, emotional or financial. The court might decide that Freddy (the plaintiff) was owed a duty of care by Elvis (the defendant) if they find that what happened to Freddy was in the realm of reasonable forseeability - any harm that could be caused to a 'neighbour' by Elvis' actions that he could reasonably have expected to happen. The 'neighbour principle' was established in the case of Donoghue v. Stevenson (1932).

Medical malpractice lawsuits are an extremely serious topic and have affected numerous patients, doctors, and hospitals across the country. Medical malpractice is defined as “improper, unskilled or negligent treatment of a patient by a physician, dentist, nurse, pharmacist, or other health care professional” (Medical malpractice, n.d.). If a doctor acts negligent and causes harm to a patient, malpractice lawsuits arise. Negligence is the concept of the liability concerning claims of medical malpractice, making this type of litigation part of tort law. Tort law provides that one person may litigate negligence to recover damages for personal injury. Negligence laws are designed to deter careless behavior and also to

The courts have generally supported NHS decisions about rationing. Critically analyse this statement with reference to the judicial reviews of NHS decisions not to pay for a treatment.

The NHS Litigation Authority is now responsible for claims of clinical negligence, with trusts in England belonging to the Clinical Negligence Scheme for Trusts (CNST) run by the NHSLA; with the current structure providing indemnity for all those employed by the NHS; whereby ‘NHS employers are ordinarily responsible for the negligent acts of their employees where these occur in the course of the NHS employment’ (NHSLA, 2011). It could be argued that because doctors are no longer individually liable for their actions, this could invoke a reduced standard of care. In spite of this, Towse & Danzon (1999) suggest that with the assumption that an employer is at a better position to mitigate risk than its employees; this move to ‘enterprise liability’ should further improve deterrence. Tappan (2005) adds that adopting enterprise liability helps deterrence by giving hospitals incentives to gather data and eliminate errors; and due to the heightened financial risk, to identify and deal with doctors providing inefficient treatment. This is supported by NHS policy, which states that if it is deemed appropriate to do so, a Trust may ‘take disciplinary action against the individual responsible for the negligence which caused the harm’ (NHS, 2005). Since the NHSLA also provides incentives, such as discounts ‘to hospitals that achieve certain

Over the last 15 years or so a number of cases concerning patient care and safety have come to light prompting investigations and inquiries that have led to changes in the way care is delivered. These include inquiries at Winterbourne View hospital, Mid-Staffordshire hospital(Mid staffs) and Harold shipman to name a few.

A second issue is malpractice. Malpractice issues are always present in an unstable environment where patients will seek to remedy an incident if they feel they have been harmed (Hamric, 2009). It is important to always act in a reasonable way as a health care clinician but unfortunately there are always those who are negligent in their actions as practitioners.

Relevant law: Standard of care requires the defendant to do what an ‘ordinary, reasonable and prudent’ person would do.[4 Civil Law (Wrongs) Act 2002 ACT S42]4 If the government’s omission is so

This essay will argue that the decision reached in Cattanach v Melchior [2003] was the correct one. Supporting this argument is the courts departure from the principles established in McFarlane v Tayside Health Board [1999].Additionally, Cattanach extends itself by attempting to address and give legal clarity to the idea of compensable harm in relation to negligence of medical practitioners. This has ultimately led to Cattanach establishing a positive framework, previously not recognised by the courts, to award damages for the torts of wrongful birth and wrongful life. Finally, the reaction to Cattanach on the judicial and executive branches of government have had significant impact on shaping public policy in relation to these complex issues.

Below is the memorandum for the negligence action regarding our client, Mr. Ragnarr Loobrok. To succeed in a claim of negligence, it must be proven that, on the balance of probabilities, that a duty of care was owed by the State of Victoria to prevent him from getting arrested once his bail conditions had been formally changed.

While it obviously is in the interest of everyone that medical staff take their job very seriously, it seems critical to prosecute medical staff for mistakes that lead to the death of patients. Certainly, doctors and medicals do not want their patients to be hurt by their negligence, yet, the medical profession is under immense pressure and needs certainty that their mistakes will not lead to criminalisation. Although gross negligence falls within manslaughter rather than murder, a medical’s career is ruined if convicted of manslaughter. The test for gross negligence was set out in R v Adamako where the defendant owes a duty of care towards the victim but has breached this duty and therefore caused the death of the victim in such a grossly negligent manner that it amounts to criminal behaviour. The question what exactly is so grossly negligent that it amounts to criminal behaviour is hard to define and is decided by the jury.

It is human nature to make mistakes; however, mistakes that cause harm to someone else could be considered negligence. In the case with Mr. Benson in the Neighborhood Newspaper article, a mistake was made that was irreversible. He went into the hospital to have his leg amputated, and the doctor amputated the wrong leg. The question is was the doctor negligent in his practice? Is the amputation of the wrong leg considered to be malpractice on the doctor’s part? This paper will differentiate between negligence, gross negligence, and malpractice. After differentiating between these terms, it will be determined if the doctor operating on Mr. Benson was considered to be negligent, gross negligent or was this mistake malpractice.

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

In Gregg v Scott, Mr. Malcolm Gregg (‘the claimant’), the House of Lords examined the law of negligence in the area of personal injury. In order for the claimant to have a successful claim in court, the onus to shifts to the claimant to demonstrate that a duty of care owed by the doctor, there was a breach of that duty, an injury was sustained, and the negligence on behalf of the doctor Dr. Andrew Scott (‘defendant’) was a cause of the ‘injury’. If these elements are not satisfied, the claimant may lose its entitlement to full compensation.