Essay on "Traditional Negligence and Res Ipsa Loquitur"

Essay 3 pages (1018 words) Sources: 5

[EXCERPT] . . . .

Traditional negligence and Res IPSA loquitur are present to serve the same purpose and inform about negligence that has occurred. It should be noted that both these terms differ from medical malpractice that is usually done on purpose and it causes a significant amount of harm to the patient. The first case of Res IPSA Loquitur occurred in California in the year 1863. The case was basically that a barrel of flour rolled out of the window and went on to damage a pedestrian. The pedestrian then sued the owner of the warehouse that made the flour and in court presented the evidence that spoke for itself. (Prosser 1949) From then on, Res Ipsa loquitor has been used to talk about cases and negligence that do not need further proof to explain the fault. In these cases, the mistake is quite visible. On the other hand, in traditional negligence, the mistake or error isn't always so obvious. A major difference between traditional negligence theory and res ipsa loquitur are the evidence required to prove the accusation. In the former case, the patient must prove that there was duty owed to him and that there was a breach in that duty. He must also prove that the injury occurred because the duty was not followed and it resulted in the damage to the patient. An example of traditional negligence theory is of Dingle v Belin in 1999 when the surgeon, Lenox Dingle left the surgery after removing the gall bladder and his resident dissected and clipped the common bile duct instead of the cystic duct. (Bal & Brenner, 2010)

Student 2

Res ipsa loquitur and traditional negligence theory differ in the way the patient tries to accuse of the injury caused. It should be noted that res ipsa loquitur is an approach that involves inference and assumptions by the court. For instance, in Douglas v. Bussaberger, res ipsa loquitur was allowed against the defendant surgeon and the drug maker even though the defendant could not state the actual cause of her paralysis in lower limbs after a stomach surgery. This is an understood fact that a stomach surgery would not cause motor loss unless negligence has occurred. The patient did not need further proof and the mere facts were sufficient for the jury to accept whose fault it is. On the other hand, in traditional negligence requires proof and can usually be directed towards a single person. An example of this would be if a doctor on duty fails to provide a tetanus shot after a person with a roadside injury comes in. The negligence would be on that medical worker because providing the shot was his duty and he failed to carry it out.

Question 2

Student 1

The legal basis of Doctrine of respondeat superior and vicarious responsibility applies to the employees in a health care facility when the employee commits a civil wrong while employed in that service. It should be noted that even though the employer did not do anything wrong, he will be held responsible… READ MORE

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