Negligence, Cause & Effect
Whether you are injured in a car accident, on the ski slopes or following a medical procedure, human nature is such that we want to find someone to blame, someone to compensate us for our misfortune. This area of law is known as the law of torts. And while this may sound like the name of a fancy cake, it is actually all about one individual being harmed by the conduct of another individual.
In this article we provide you with a brief overview of how a claim for damages, based on the wrong done by another, is established. There are three specific factors that a claimant must establish in order to be compensated. The claimant must establish that
1. The wrongdoer owed him/her a duty of care.
2. In carrying out that duty, the wrongdoer failed to exercise such care and skills as might be expected in the circumstances.
3. The breach by the wrongdoer was in fact the cause of the damages.
If any one of these elements is missing, the claim will fail, regardless of the extent of the damages suffered.
The following medical malpractice cases help illustrate these factors.
– 11:15 p.m. E experiences a burning sensation in his chest.
– 11:55 p.m. E arrives at the emergency and is now unable to move his legs and he has no sensation in his chest. The doctors are all in surgery and the nurses treat him for a heart attack.
– 12:30 p.m. Dr. S is informed about E’s condition, however he refuses to see him since he is not the doctor on call.
– 2:00 a.m. Dr. B finally sees E. He diagnoses heart trouble, he does not record the possible diagnoses.
– 8:00 a.m. Dr. S sees E and comes to the same conclusion.
– Following day – Dr. B consults with a neurologist, who immediately diagnoses a spinal cord problem. E is taken by ambulance to nearest big hospital.
– E is permanently paralyzed from the waist down as well as his right arm and hand.
The trial judge found that Drs. S and B owed E a duty of care and that they should have diagnosed the problem as being a neurological one. He found that the breaches of this duty of care were inexcusable and deplorable. However, E’s case was dismissed because the medical evidence established that the rupture which led to the spinal damage, had been a congenital problem and that E’s paralysis was complete before either doctor ever saw him.
H’s family doctor diagnosed his symptoms as Crohn’s disease. He did no tests to confirm this diagnosis. Eight years later, H developed colon cancer. H sued the doctor.
The trial judge found that the doctor owed H a duty of care and that he failed in that duty. The judge concluded that the minimum standard, when faced with H’s symptoms, would have been to obtain a firm diagnosis which he did not do. The medical evidence established that the cancer was the result of a benign polyp, which could have been removed had it been discovered earlier. Since H had proven all three elements he won his case and was awarded substantial damages.
Similar circumstances, very different results.Share