AAOS Bulletin - October, 2005

Medical-legal terms defined: Negligence

By David D. Teuscher, MD

Most of us have heard the term “negligence” used as a legal allegation and thought it similar to the definition of beauty as “in the eye of the beholder.” The truth is that negligence is a well-defined concept in legal proceedings that apply to our professional and personal activities. In the substantive rules that govern the practice of law, negligence is the most common substantive rule.

Four essential elements are needed for a charge of negligence: duty, breach of duty, causation and damages. It is the obligation of the plaintiff to establish that each is present and applicable to the defendant and the injury. If the defendant can establish that any one of these elements is absent, negligence is eliminated and there is no liability.

To establish duty, the court must be convinced that the defendant owed a duty to the plaintiff. The applicable standard of care must be established, as something that the defendant should have or should not have done. In a case of negligence per se, the standard of care may be a statute, regulation or rule of professional organization.

Breach of duty is established when it can be shown that the defendant acted contrary to, or in violation of, the standard of care. This is typically an evidentiary matter, with conflicts decided by the fact-finder, most commonly a jury.

Causation can be either factual or legal depending on venue. Factual causation can also be called “but for” causation. An example would be but for the breach of duty by the defendant, there would be no or substantially less injury to the plaintiff. Legal causation has also been termed “proximate cause” and is based upon a policy or scope of liability determination made by the court or jury. Courts will draw a legal bright line beyond which they will not impose liability even if the defendant’s conduct was factually responsible for injury.

Damages must be established by the plaintiff by proving that the injury can be redressed by monetary compensation. Two types of damages are economic and noneconomic. Economic losses can be objectively measured and include past and future lost wages and medical care costs. Noneconomic damages are subjective and cannot be qualified; they include pain and suffering, loss of consortium and disfigurement.

Without a duty to the patient, a deviation from the standard of care, causation by the defendant, and damages that can be compensated financially, there is no negligence.

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