Posted: April 2nd, 2015

Negligence

Introduction

Negligence means the failure to exercise the required standard of care any reasonable person ought to have exercised. Negligence can not exist where there is no duty of care owed by the defendant to the plaintiff. It essentially means that the cause of action in cases related to negligence is based on the fact that a person has failed to execute his/her duties by exercising duty of care or that person has executed it negligently.Actions of individuals are watched by the existence of a duty of care. In the health care dealings, the respective individuals entrusted with responsibilities and duties to handle the sick, owe them a duty of care. The duty of care in this case can either be under Common Law or under a Statute (Emanuel, 2012).

The main point in this case is to make sure that professionals in health care maintain high standards of care in executing their duties. Any errors occasioned during the execution of their duties may lead to fatal results. The breach of this duty may occasion irreparable damages. In an event that court finds that the surgical errors were as a result of negligence, the plaintiff is awarded damages but they are sometimes not commensurate to the loss experienced. The surgical negligence mentioned here above lies under three categories. It could be negligence, gross negligence or malpractice. Though there are situations whereby both malpractice and negligence are used interchangeably, they are both very distinct and they contain different elements (Mujawar & Girish, 2012).

Differences between negligence, gross negligence and malpractice

There are notable differences between negligence and gross negligence. In cases of negligence as it is afore mentioned, the breach of a duty of care is the main key element. Gross negligence looks for more than a mere breach of the duty of care or carelessness. In the words used in health care practice, the existence of negligence means that the guilty party has failed to meet the expected standards of care in that profession. On the other hand, gross negligence means that the guilty party has willingly or recklessly failed to demonstrate any care and that implies that human safety was endangered due to the said acts (Emanuel, 2012).

Gross negligence covers cases which are grave and the guilty person has acted in total disregard of human safety. It is a violation of other people’s safety rights in entirety. The liable party of gross negligence rarely has a defense. To be held liable of malpractice it must be proved that lack of skill or any other misconduct was evidenced resulting to injury, death of any other sort of unnecessary pain and suffering. The test in ascertaining whether a person is guilty of a malpractice is to show that the guilty party failed to observe the guidelines that a person of the same profession should have observed in the given circumstances. A malpractice may be committed as a result of negligence. It is also termed as professional negligence. It is essential to note that it is not all types of malpractice can be classified as negligence. It is not easy to differentiate the three. In a situation where any has occurred it is advisable to review all the facts (Lupo & Kenneth, 1977).

The case in the neighborhood hospital has valid facts which can be placed in negligence, gross negligence and malpractice. For the doctor who amputated the patient’s wrong leg, there are many factors to be put in consideration. The doctor owed the patient a duty of care which he/she breached. There is an automatic breach of the duty of care. The tort committed in this case is not through omission but through acting negligently. In other words, professional negligence has been occasioned, and the patient has suffered serious injuries. In this situation, negligence is evident from the surface of the facts. The amputation of the wrong leg has caused irreparable damage to the patient. There is a clear indication that the doctor acted in complete disregard of the human being safety and there seems to be no defense available for his actions. The doctor would have observed due diligence and exercised reasonable amount of care in making sure that irreparable injury is not occasioned. The acts of amputating the wrong foot is part of malpractice. Professionally, the doctor has breached his duty of care and it is clear that any doctor of his/her class with the same skills would not commit such acts of negligence (Mujawar & Girish, 2012).

From the foregoing discussion, it is evident that the amputation of the patient’s wrong leg occasioned pain and suffering to the patient. Due to the gross negligence of the doctor, the patient can seek damages in a court of law. The prosecution of the doctor may lead to imprisonment and other penalties such as cancelation of the practicing certificate of the doctor. The rationale for finding doctor to have breached many duties and the suggested punishment is based on two points. To start with, the penalty awarded is supposed to be severe so as to promote deterrence. The medical profession is directly involved with the safety of human life and any reckless acts could be highly costly. Secondly, the wrong leg of the victim was lost and that loss is grave hence fairness would dictate that he gets high amount of damages (Lupo & Kenneth, 1977).

The documentation of different events in the course day to day practice of the medical profession is very important. Documentation helps in providing evidence since the victim details are recorded and doctor who attends him/her. This assists highly in making sure that the right party is sued instead of letting the entire hospital suffer the burden of one doctor’s negligence. There is a possibility of the hospital being held vicariously liable but there is personal prosecution for the doctor who amputated the patient. Being a nurse in the said circumstances I would know my obligations and try to observe them accordingly. Ethically, I would maintain consistent communication with my patients. I would also address my mind to practices and legal guidelines so as to avoid any breach. I would avoid committing acts in breach of regulations and guidelines. Observance of due diligence when handling patients would be my priority (Emanuel, 2012).

Conclusion

The above discussed article has clearly shown the distinctions between negligence, gross negligence and malpractice. The three are clearly distinguishable in instances whereby facts are clear but there is a possibility that a person can commit all of them. The regulations which govern medical practitioners expressly prohibit the three. In the set of facts given, the hospital management and the Staff of the Neighboring hospital who carried out the operation will be held liable. The hospital will be held vicariously liable for the actions of the doctor. The claim by the victim will be damages for negligence.