Loss Of Chance Is An Alternative Cause Of Action

Negligence is the failure to do something. Many medical cases are filed as medical malpractice suits, “medical malpractice is professional misconduct. Malpractice differs from negligence because it is performed by a license medical professional” (Flight 2). The case of Horton V. Niagara Falls Memorial Medical Center can be used as a primary example where negligence, “failure to take reasonable precautions to protect others from the risk of harm” (Flight 33), is visible.

The tort of negligence was established with the leading case of Donoghue v Stevenson (1932) . Donoghue got sick from having a drink in a café after finding a snail in the bottle. Around this time, there was no route for litigation due to no contractual association. The only contractual commitment was with Donoghue’s friend who bought the drink and the café owner. Lord Atkin quoted the Bible’s principle of

“A factor, by itself, may not be sufficient to cause injury but if, with other factors, it materially contributes to causing injury, it is clearly a cause of injury.”. This quote, stated by Lord Salmon in McGhee v National Coal Board is an example of the difficulty that can arise when determining if a defendant had materially contributed to the plaintiff 's injury when the medical evidence is inconclusive. It is argued that the material contribution test has changed the path of the law and as we will see when analysing both McGhee and Fairchild, it has blurred the distinction between legal and factual causation.

malpractice and negligence. The Darling's (Plaintiff) felt that the hospital, nursing staff and emergency room doctor all played an important part in the Plaintiff losing his leg due to neglect.

The approach can be seen even more controversially in the 2004 case of Chester v Afshar6, which Charles Foster has made his comment on as mentioned. This case involved a doctor’s clinical negligent failure to warn a patient about the risk inherent in a medical procedure. There exists a need for the patient’s consent to medical treatment to be fully informed. The complication with respect to causation arose because the patient admitted that she would have still undergone the surgery even if she had been warned about the risks of paralysis which unfortunately materialized during the

The claimant went to the second defendant’s hospital to receive an operation which through negligence blinded him in his right eye. In addition, the claimant developed post-traumatic stress disorder, a specific phobia of Afro-Caribbean people with paranoid elaboration and an enduring personality change. The first defendant was held responsible for the physical injuries and the psychological trauma, and the hospital would compensate the rest, considering the failed operation did not obliterate the consequences of the first. Applying Baker v Willoughby, the court found that the second injury does not supersede the first one, so Arearose remained liable for their breach of duty towards the claimant. However the hospital was held liable for any increase in harm to Mr Rahman and would compensate the rest. The damages would be apportioned between the defendants, assessing their responsibility by reference to the extent to which their negligence had contributed to the claimant's total

There are a number of aspects to consider in regards to changing the required standard of care in the Northern Territory as recommended by the ““panel of eminent persons”. From an economic and litigation perspective there has been a sharp decline in the number of negligence cases since the recommendations were adopted in other jurisdictions. However, this may not be as a result of bringing certainty to Torts Law. In fact, the recommendations may have made negligence claims even more restrictive.

The main idea of the law of negligence is to ensure that people exercise reasonable care when they act by measuring the potential harm that may foreseeably cause harm to other people. Negligence is the principal trigger for liability to ascend in matters that deal with the loss of property of personal injury. Therefore, a person cannot be liable for something unless they have been found negligent or have contributed to the loss of property or injury to the plaintiff (Stuhmcke, 2005). There is more to

Nowadays, the public is aware of legal issues and organized information is available through the internet. As a result, medical litigation claims have been rapidly increasing. Most claims against nurses are due to medical negligence (Tay, 2001).

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.

Negligence means the breach of a legal duty to care. In wider sense it means carelessness in a matter in which law mandates carefulness. Negligence is a predominant theory of liability concerning allegations of medical malpractice. Medical malpractice occurs when a health-care provider deviates from the recognized “standard of care” in the treatment of a patient. The “standard of care” is defined as what a reasonably prudent medical provider would or would not have done under the same or similar circumstances. Persons who offer medical advice and treatment implicitly state that they have the skill to decide whether to take a case, to decide the treatment, and to administer that treatment. This is know as implied undertaking

Chief Justice Cardazo from America stated ‘Recovery of economic loss in the absence of physical damage or per-sonal injury would expose defendants to liability in an in-determinante time to an indeterminante class.’

Negligence is defined as “the breach of a legal duty of care which causes loss or injury to the person to whom the duty is owed”. (Keenan,

The topic identified is based on negligence. “Negligence” means failure to exercise reasonable care and skill.

A claimant suffering injury must demonstrate on the balance of probabilities that the defendant 's tort caused the injury or loss. The claimant must then demonstrate that there is more than a fifty percent likelihood of the cause being the breach of duty of the defendant. If there are multiple causes then the burden of proof is impossible to discharge. This has often left claimants uncompensated for an obvious breach of duty.