Reading the above opinions and expecially the last written by somebody apprently in the healthcare industry, I still think this is a non-case. Reasons:
1. The professional standard of care in malpractice case is not the usually used reasonably prudent person standard. Here the duty of a doctor-patient relationship is not in quetion. Once the doctor undertook you as a patient he should provide reasonble standard of care. But what is the standard? Unlike in common negligence case, medical malpractice requires standard of care often less than the reasonable person standard of care. Note, it is not how the average doctor treated the patitent but much much less than that. Almost half of the doctors today are below average but they don't necessarily commit negeligence. As in Walski v. Tiesenga (1978), the doctor operated to remove thyroid, accidentally damaged a nearby nerve that resulted in permanent loss of voice. The trial court entered directed verdict for the defendant doctor, which was affirmed by both Illinois Appeal Court and the state Supreme Court. Even in the case there was expert who witnessed the operation and testified that it was common knowledge in doctors that they should protect the nerves first before removing the thyroid but the defendant did not follow that procedure. The defendant, however, was able to raise a defense that he was always doing the way he did and that, as a matter of law, was the standard of care the court viewed. Here, the emergency doctor could also raises a defense that they ALWAYS practice the same way and I have no doubt a directed verdict will be entered for the defendant. The Walski court is not in minority. in 1993, a similar case was decided the same way (Sinclair v Block, PA). The court said as long as the standard of care was reputable it would be relieve the defendant, simply because there is more than one standard or practice. To say one doctor or most doctors treating the same way and the defendant doing otherwise is immaterial in courts.
2. Unlike intentional torts, in negligence case the plaintiff has to show legal cognizable harm. Here, the real harm might be mental distress and some physical pain and courts are reluctant to consider since they are easily to feign and hard to measure. Here, the hu*****and's taking day off and mother cancelling tickets are not to be considered harm.
3. The most important issue here is causation. It is really hard to prove. To prove cause in fact, the plaintiff has to porve but for the doctor's conduct the surgery would have been avoided, or, the doctor's negligence was the substantial factor to the surgery. What if the doctor testifies that regardless what he did a surgery is inevitable? Note, the operating doctor would be reluctant to testify against his colleague for their own protections. That raised the proximate cause or legal cause as well. Is the surgery foreseeable? If it is not foreseeable then there is no proximate cause EVEN IF the cause in fact is established.
That being said, if I were to represent the victim I would search medical standards fixed by Joint Commission on Accreditation of Hospitals in 2000, to see whether similar situation and related stardard can be found. That would pursuade the court a little better.
PS, emotional distress would be easier to win than negligence because of the special relationship between doctor-patients.
1. The professional standard of care in malpractice case is not the usually used reasonably prudent person standard. Here the duty of a doctor-patient relationship is not in quetion. Once the doctor undertook you as a patient he should provide reasonble standard of care. But what is the standard? Unlike in common negligence case, medical malpractice requires standard of care often less than the reasonable person standard of care. Note, it is not how the average doctor treated the patitent but much much less than that. Almost half of the doctors today are below average but they don't necessarily commit negeligence. As in Walski v. Tiesenga (1978), the doctor operated to remove thyroid, accidentally damaged a nearby nerve that resulted in permanent loss of voice. The trial court entered directed verdict for the defendant doctor, which was affirmed by both Illinois Appeal Court and the state Supreme Court. Even in the case there was expert who witnessed the operation and testified that it was common knowledge in doctors that they should protect the nerves first before removing the thyroid but the defendant did not follow that procedure. The defendant, however, was able to raise a defense that he was always doing the way he did and that, as a matter of law, was the standard of care the court viewed. Here, the emergency doctor could also raises a defense that they ALWAYS practice the same way and I have no doubt a directed verdict will be entered for the defendant. The Walski court is not in minority. in 1993, a similar case was decided the same way (Sinclair v Block, PA). The court said as long as the standard of care was reputable it would be relieve the defendant, simply because there is more than one standard or practice. To say one doctor or most doctors treating the same way and the defendant doing otherwise is immaterial in courts.
2. Unlike intentional torts, in negligence case the plaintiff has to show legal cognizable harm. Here, the real harm might be mental distress and some physical pain and courts are reluctant to consider since they are easily to feign and hard to measure. Here, the hu*****and's taking day off and mother cancelling tickets are not to be considered harm.
3. The most important issue here is causation. It is really hard to prove. To prove cause in fact, the plaintiff has to porve but for the doctor's conduct the surgery would have been avoided, or, the doctor's negligence was the substantial factor to the surgery. What if the doctor testifies that regardless what he did a surgery is inevitable? Note, the operating doctor would be reluctant to testify against his colleague for their own protections. That raised the proximate cause or legal cause as well. Is the surgery foreseeable? If it is not foreseeable then there is no proximate cause EVEN IF the cause in fact is established.
That being said, if I were to represent the victim I would search medical standards fixed by Joint Commission on Accreditation of Hospitals in 2000, to see whether similar situation and related stardard can be found. That would pursuade the court a little better.
PS, emotional distress would be easier to win than negligence because of the special relationship between doctor-patients.
選擇“Disable on www.wenxuecity.com”
選擇“don't run on pages on this domain”
