In order to establish liability for damage, the courts analyze the following four elements each of which is defined below: In order to be awarded compensation by the courts, a plaintiff must prove all four, namely that the defendant had a duty to the plaintiff, that it was breached, and that that breach was the proximate cause of the loss or harm to the plaintiff. The most general duty under tort law is to exercise 'reasonable care' to avoid harm to others. A person has this obligation duty to all other persons at all times.
Hire Writer Thus the courts rely on what is reasonable among the profession. In determining what is reasonable for a nurse in any circumstances the courts will consider whether the nurse acted in accordance with general and accepted practice.
Generally if they have acted in accordance with general and accepted practice then the nurse will not be negligent. In the Dunne case the Chief justice as expressed this If an allegation of negligence against a medical practitioner is based on proof that he deviated from a general and accepted practice, that will not establish negligence unless it is also proved that the course he did take was one which no medical practitioner of like specialisation and skill would have followed had he been taking ordinary care required from a person of his qualifications If a medical practitioner charged with negligence defends his conduct by establishing that he followed a practice which was general, and hich was approved of by his colleagues of similar specialisation and skill, he cannot escape liability if in reply the plaintiff establishes that such practice has inherent defects which ought to be obvious to any person giving the matter due consideration.
A number of points might be noted in relation to these principles: In the case of a professional that is evidence of fellow members of the profession. These principles have been upheld by the Irish courts on a number of occasions Example: This man had been admitted to a psychiatric hospital suffering from depression and was discharged after nine days.
It was claimed that the discharge procedure was not properly conducted. This procedure in relation to a patient suffering from depression involved consideration of the potential risk of suicidal traits. An expert witness concluded that the hospital notes did not appear to show a proper assessment of risk had been undertaken prior to discharge.
Apart from one note there was no evidence that staff carried out a suicide risk assessment. Another expert was of the view that it was not sufficient to ask the patient about suicide especially when there were some pointers towards suicidal thoughts. Expert witnesses said that in relation to suicide assessment there were two schools of thought.
One school believed that the process of suicide risk assessment must be a formal one consisting of consistent and continuous inquiry into the mental state of the patient. The discharge must be as a result of an informed decision accompanied by the risk assessment The second school of thought expressed a more informal approach, including discussion with other healthcare professional involved in care and employing a checklist approach.
The practice in many parts of Ireland was of the more informal nature and if the patient did not bring up the issue then it was not followed by further questions. The court in deciding the question applied the principles stated in the Dunne case. The test applied then was whether the defendant acted with ordinary care of an equally competent practitioner as to the administration of a general practice approved by a substantial amount of practitioners of like skill and specialisation.
The principles in the Dunne case state that a difference of opinion is no grounds to establish liability. Applying these principles to the case the court held: It was not up to the judge to decide which of two schools of thought —the formal or informal — was to be preferred.
It was however inherent in both that the risk of suicide in a patient with depression was assessed prior to discharge. In this instance the court accepted that the procedure was not incorrect but the question arose as to whether it was carried out in a manner that accorded with general and approved practice.
The court held that there was no indication that the assessment had been carried out, as was good practice and noted in the patients clinical notes.
There was no evidence then that the patient was in firm remission. The court held the defendant negligent in not having carried out an assessment And, if he had carried out an assessment, it would have been inadequate or inadequately considered.
There are a number of points that might be made in relation to this judgement-there were two aspects of the care of this patient that led the court to consider the defendants negligent:Essays; Case Study of Negligence; In such case the courts will use a “balance of probabilities’ test in determining causation.
* Remoteness of damage (reasonable foreseeable test, the test is objective) would a reasonable person have foreseen the damage? * Assessment of damages: the aim of damages is to compensate the plaintiff for the. This is not an example of the work written by our professional essay writers.
In order for a claim of tortuous liability in negligence to be actionable, primarily, certain fundamental pre-requisites need to be established in each case respectively.
Free negligence papers, essays, and research papers. Negligence in Nursing: The Legal Aspects - “The definition of a health professional is a person who works to protect and improve people’s health by the diagnosis and treatment of illness to bring about a complete recovery from mental, physical and social perspectives, either directly or indirectly (Kurban, , pg.
).”. Jan 11, · Negligence, or carelessness, is considered the most important tort of all, and is used to determine whether or not the defendant can be held liable for carelessly causing the plaintiff to suffer a loss or injury (McInnes et al.
). Torts and Negligence Essay. to be spilled across the parking lot.
Nick Ateen, standing inside of Yogurt World, flicked his recently-smoked cigarette butt out the door, onto the gas, causing an . This paper examines several types of professional liability with regard to engineering activities and products and its relation to the concepts of professional negligence and product liability as defined in law, particularly in the United States.
Elements of tort liability discussed in this paper reflect societal expectations for engineering practice and engineering products.