Negligence or Malpractice?
The burden of proof lies with the plaintiff. I have spent the last ten years as a paralegal and dealing with all kinds of cases. During those ten years, we represented plaintiffs and defendants. Courts have established criteria for determining whether actions were negligence or malpractice. The court in Pender v. Natchitoches Parish Hospital (2003) outlined six elements that assist in determining whether an action is negligence or malpractice. (Guido, p. 70). The six elements cited in Pender are as follows:
1. The injury is treatment-related or caused by a dereliction of professional skill.
2. Expert evidence is required to determine whether the appropriate standard of care was breached.
3. The act or omission involved an assessment of the patient’s condition.
4. The …show more content…
5. The injury occurred because the patient sought treatment.
6. The act or omission was unintentional.
(Guido, p. 70). To be successful in either a malpractice or negligence cause of action, the plaintiff must prove the following to establish liability on the defendant:
1. Duty owed to the patient.
2. Breach of the duty owed to the patient.
3. Foreseeability.
4. Causation.
5. Injury.
6. Damages.
(Guido, p. 70). Malpractice is negligence as it pertains to a professional person so the elements are the same. The only difference is the status of the person committing the action or failing to act. The duty of care that is owed has two distinct aspects: (1) it must first be shown that a duty was indeed owed the patient, and (2) the scope of that duty must be proven. (Guido, p. 70). Duty is created by a relationship and not by employment status. The second element of proof is the breach of
The burden of proof lies with the plaintiff. I have spent the last ten years as a paralegal and dealing with all kinds of cases. During those ten years, we represented plaintiffs and defendants. Courts have established criteria for determining whether actions were negligence or malpractice. The court in Pender v. Natchitoches Parish Hospital (2003) outlined six elements that assist in determining whether an action is negligence or malpractice. (Guido, p. 70). The six elements cited in Pender are as follows:
1. The injury is treatment-related or caused by a dereliction of professional skill.
2. Expert evidence is required to determine whether the appropriate standard of care was breached.
3. The act or omission involved an assessment of the patient’s condition.
4. The …show more content…
5. The injury occurred because the patient sought treatment.
6. The act or omission was unintentional.
(Guido, p. 70). To be successful in either a malpractice or negligence cause of action, the plaintiff must prove the following to establish liability on the defendant:
1. Duty owed to the patient.
2. Breach of the duty owed to the patient.
3. Foreseeability.
4. Causation.
5. Injury.
6. Damages.
(Guido, p. 70). Malpractice is negligence as it pertains to a professional person so the elements are the same. The only difference is the status of the person committing the action or failing to act. The duty of care that is owed has two distinct aspects: (1) it must first be shown that a duty was indeed owed the patient, and (2) the scope of that duty must be proven. (Guido, p. 70). Duty is created by a relationship and not by employment status. The second element of proof is the breach of