Negligence Claims Of Compensation System

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

This essay will briefly explain negligence and its elements and will further critically analyse the UK compensation culture and discuss whether it exist, or whether it is a perception created by the media. This essay will further discuss whether the UK laws encourage people to blame and claim and what the UK law has done to prevent an increase in the compensation culture.

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

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.

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.

Just across the Tasman Sea is New Zealand who provides a straight-forward system of distributive justice through a ‘no-fault’ compensation system that is funded through general taxation and an employer levy. Under the system, patients are compensated for medical injuries within weeks and in turn surrender their right to sue for damages for personal injury. Similarly, their medical malpractice system punishes under-diagnosis which provides an incentive for practitioners to take more care rather than acting controversially.

Moving to a no fault compensation medical injury system. A fault based tort system is highly unfair to the plaintiffs who fail to establish that the negligence caused the injury/harm. This results in plaintiff receiving no compensation. An example of this is the Edigar vs Johnston case in the supreme court of Canada, where even after

The role of an expert in a civil litigation trial is to offer evidence to prove a case. Expert witnesses are individuals who have special knowledge, training, or experience that qualifies them to offer expert opinions pertinent to the issues in the case. In a negligence lawsuit, involving a car crash an individual that reconstructs accidents would be a qualified expert. They could offer their opinion on several aspects of the accident. A person who has been in multiple car accidents in their life, would not qualify as an expert witness.

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

Having stated some of the main features of the protocols and how they are likely to improve the issues discussed in chapter 2 and 3, it is important to note that although Pre-Action Protocols are widely used and followed in other areas of the law in Scotland their adoption is voluntary. Further, unlike in England, there is no statutory basis for Pre-Action Protocols in Scotland, thus failure to adhere to the terms of the protocols have no repercussions. However, evidence documented by the APIL presents a compelling argument that the protocols should be made mandatory in order to increase their effectiveness in overcoming the challenges of the process by which clinical negligence disputes as handled as mentioned above.

The tort of false imprisonment is a form of trespass to person, which is committed directly by the voluntary conduct of one person subjects to another to total restraint of freedom of movement without lawful justification.

The scenario is a horrendous string of coincidences that resulted in a tragedy. However, every party carries some responsibility for the eventual double amputation. This paper examines each of the parties, their possible liability and how that is covered by negligence law.

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.

The ‘but for’ test and ‘balance of probabilities’ are used to determine whether the negligent act was the cause of injury. The ‘but for’ test is ideal for cases like Barnett where ‘but for’ the negligence of the doctor the claimant would have died because of the irreversible implications of ingesting arsenic. More complex cases require the ‘balance of probabilities’ to illustrate the chance of recovery and the diminished prospects as demonstrated in Wilsher where the injury could have been sustained from multiple causes. The House was unable to delegate liability due to unclear evidence preventing causal link between any of the five possible causations proving inconclusive. Fairchild provides a special rule which prevents patients being

Perhaps the greatest insight provided by my colleague's discussion is the deconstruction of the process by which the concept of negligence did ultimately emerge as a new tort standard. Here, the discussion illustrates the challenge before a judicial body when a legal conflict appears to bring about a new and previously unforeseen point of contention. In this case, as my colleague highlights so effectively, the charge of fraud would be the only theretofore existent way of legally addressing liability for a business or organization such as the defendant in this case. The great insight provided by my colleague is in acknowledgement of the exhaustive review of existing legal documents engaged by the ruling parties and arguing parties. This process demonstrates well that even where no precedent existing for what would become the charge of negligence,