tort law in healthcare essay

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Introduction

Within the intricate tapestry of law, torts occupy a significant space, representing civil wrongs that inflict harm upon an individual. Among the diverse landscape of tortious acts, a prominent category emerges in the healthcare realm: medical malpractice. This tort absorbs the concept of negligence, where a healthcare provider’s deviation from the expected standard of care results in patient harm. In other words, it embodies the failure to act with the prudence and skill that a reasonably competent healthcare professional would demonstrate in similar circumstances. Here we begin to dissect the legal framework surrounding negligence within the healthcare context and meticulously navigate the definitions of duty, breach, causation, and damages, elucidating the elements necessary to establish a successful claim.

Learning Objectives

• Explain the requirements to prove a tort by negligence, known in healthcare as medical malpractice
• Explain issues related to proof of medical malpractice
• Develop business implications related to medical malpractice

What is a tort?

A tort is a civil wrong committed upon an individual or as typically termed in healthcare, medical malpractice which falls under the legal doctrine of negligence .  Strict liability (like medically defective products) is a legal doctrine that causes someone to be liable for the damages their actions or product causes regardless of fault. Tort liability is determined by the premises that: (1) one individual should not intentionally injure another person or their property. (2) Everyone should exercise reasonable care and caution in the conduct of their affairs. The main difference between intentional torts and negligence is intent which is present in intentional torts but not in negligence.

Negligence is a lesser form of fault than intentional torts, so damages in negligence cases are limited to actual damages, not punitive damages. It can be carelessness resulting from a deviation from the standard of care. Unlike the intentional tort, negligence rests on a spectrum of lesser faults. Negligence claims are generally restricted to the redress of “actual damages,” as opposed to the punitive damages reserved for more egregious misconduct. At its core, it stems from a failure to uphold a requisite standard of care, resulting in foreseeable harm.

Table 1. Types of Negligence

Proof of Negligence

Proof of negligence is determined by four elements: duty, breach, causation, and damages.

• Duty: The defendant has a duty or obligation to act reasonably to avoid harming others. This duty is based on the relationship between the defendant and the plaintiff. Did a physician-patient relationship exist?
• Breach: The defendant breached their duty of care by failing to act reasonably. This means that the defendant did not take the precautions that a reasonable person would have taken in the same situation. This is a deviation from the standard of care or failure to adhere to an obligation. Did the physician fail to meet the standard of care?
• Causation: The defendant’s breach of duty must have caused the plaintiff’s injuries. This means that the plaintiff’s injuries would not have happened if the defendant had not breached their duty. Did the physician fail to meet the standard of care?
• Damages: The plaintiff must have suffered actual damages (foreseeable injury) as a result of the defendant’s negligence. This means that the plaintiff must have suffered some type of financial or physical loss. Did the patient incur actual damages as a result of the breach?

In addition to these four elements, other factors, including the patient’s age, health, and medical history, as well as the severity of the patient’s injuries, may affect the liability of a physician in a negligence case. Furthermore, strong incentives are provided to take reasonable care and prevent injury.

To determine negligence, the first question is whether or not a duty is owed. This is established by the fact that the actions of a tortfeasor can lead to a foreseeable risk of injury (Perry & Thompson, 2017). Examples of tortfeasors include a driver, doctor, landlord, babysitter, business, etc. Regular citizens are not required to assist someone in foreseeable danger unless they create the danger. For example, if a child is drowning, you do not have a legal duty to save the child unless you have a duty to protect the child, such as a parent, lifeguard, or caregiver, or if you created the danger by allowing a hose to drain water filling a public area.

• In a negligence lawsuit, the plaintiff must demonstrate the defendant owed him or her a duty of care .
• The duty of care can be highly specific or applied more generally to the public.
• If the court decides that the defendant did not meet his or her duty of care, the defendant can be found in “breach of duty of care.”

1. The Carrol Owing Rule

To determine whether or not standard duty or reasonable care is provided depends on the circumstances. In the case  United States v. Carrol Towing  United States v. Carrol Towing , the judge determined negligence by using an algebraic function of three variables: if the probability is called P; the injury is L; and the burden is B; liability depends upon whether B is less than L multiplied by P. B<PL Using this equation, the expected benefit should exceed the cost and reduce the probability of an accident (Perry & Thompson, 2017). Healthcare providers may be sued for negligence if an individual is injured when the provider fails to exercise the appropriate standard of care. However, the claimant must show:

• a duty existed for the provider to conform to a certain standard of care,
• the provider breached that duty of care,
• the claimant sustained actual loss or damage from the conduct or omission by the provider, and
• that the loss or damage suffered was proximately caused by the provider’s breach of duty.

In general, duty is always owed under

• Common law (duty owed by provider): reasonably foreseeable plaintiff
• Statutory duty (mandated by laws such as the EMTALA )

2. Standard of Care

Typically, the standards of care have been determined by asking what a similar individual would do in this circumstance. For physicians, the nature of medicine requires a comparison with similar skill sets of similar physicians. To determine the standard of care, courts need to determine two key items:

• The skill and knowledge ordinarily possessed by a reasonably competent practitioner in the same medical specialty.  This means that the court will consider the level of training, experience, and knowledge that is typically possessed by other doctors in the same specialty as the defendant doctor.
• The degree of care and skill that a reasonably prudent practitioner would exercise under the same or similar circumstances.  This means that the court will consider the specific facts and circumstances of the case, such as the patient’s condition, the risks and benefits of the treatment, and the available alternatives.

3. Location

An additional consideration of the court when determining what a “reasonable physician” would do is the locality. Previous courts used a strict locality standard in medical malpractice cases, but recently courts have moved away from this standard due to the difficulty of getting local physicians to testify against other local physicians and the increasing nationalization of the medical community. This meant that the standard of care was set by the practices of other doctors in the same community as the defendant doctor. However, several factors have led recent courts to move away from the strict locality standard. One factor is the difficulty of getting local physicians to testify against other local physicians. Another factor is that the medical community is becoming increasingly national and specialized. This means that the practices of doctors in one community may not be the same as the practices of doctors in another community. Additionally, in smaller communities, specialists may be limited, and the standard of care for that specialty should be reviewed by the same type of specialist; however, this may not be true in all states.

The second element in a negligent action is proof of breach of duty. Once duty has been established and a party fails to provide reasonable care, which may include taking a particular action or not doing some other action, a breach is proven. Typically, medical expert testimony is used to prove medical malpractice. The expert must be able to show that the physician departed from the standard of care. There are cases where experts are not necessary to prove breach of care. For example, an injured patient can claim negligence per se . With this argument, a plaintiff must show that the statute was violated and that the violation was an actual and proximate cause of the accident. An example would be an ER provider refusing a critically ill patient, directly violating the EMTALA .

Additionally, accreditation bodies and regulatory standards can specify standards of treatment. These are referred to as “never events” or “adverse events.” To better prevent their occurrence, the [pb_glossary id="394"]National Quality Forum [/pb_glossary] has published a list of “Serious Reportable Events” (“SRE”s). The list of serious reportable events, or “never events,” includes:

• Wrong patient
• Wrong procedure
• Retention of foreign body
• Postoperative death
• Patient death associated with contaminated drug or device
• Death or serious injury associated with the use of a device
• Death or serious injury associated with IV air embolism
• Discharge of patient who is unable to make decisions (to an unauthorized person)
• Death or serious injury associated with patient elopement (disappearance)
• Patient suicide, self-harm, or attempted suicide resulting in injury
• Patient death or serious injury associated with a medication error
• Patient death or serious injury associated with unsafe administration of blood products
• Maternal death or serious injury associated with labor or delivery in a low-risk pregnancy
• Death or serious injury of a neonate associated with labor or delivery in a low-risk pregnancy
• Patient death or serious injury associated with a fall
• Any Stage 3, Stage 4, and unstageable pressure ulcers acquired after admission
• Artificial insemination with the wrong donor sperm or the wrong egg
• Patient death or serious injury resulting from the irretrievable loss of an irreplaceable biological specimen
• Patient death or serious injury resulting from failure to follow up or communicate laboratory, pathology, or radiology test results
• Patient or staff death or serious injury associated with an electric shock
• Incident where a system designated for oxygen or other gas to be delivered to a patient contains no gas, the wrong gas, or is contaminated by toxic substances
• Patient or staff death or serious injury associated with a burn incurred from any source
• Patient death or serious injury associated with the use of physical restraints or bedrails while being cared for
• Death or serious injury of a patient or staff associated with the introduction of a metallic object into the MRI area
• Any care ordered by or provided by someone impersonating a physician, nurse, pharmacist, or other licensed healthcare provider
• Abduction of a patient
• Sexual abuse/assault on a patient or staff member
• Death or serious injury of a patient or staff member resulting from a physical assault (i.e., battery)

Additionally, plaintiffs can prove breach without evidence of a deviation from the standard of care if it satisfies res ipsa loquitur , Latine for “the thing speaks for itself. res ipsa loquitur Three elements are needed to show res ipsa loquitur, which include:

• The accident generally would not have occurred unless negligence was provided.
• Harm was under the exclusive control of the defendant.

What defense is needed to prove breach?

• Expert Testimony
• Negligence per se
• Serious reportable events
• Res Ipsa Loquitur

C. Causation

The second element in a negligent action is causation . It is a necessary element of many legal claims, including negligence, product liability, and intentional torts. There are two main types of causation in law:

• Factual causation, also known as actual causation, meaning “but for” breach of duty, the injury would not have occurred.
• Proximate causation means the injury must be a foreseeable outcome.

However, causation can be difficult to prove, especially in cases where harm could be the result of many causes. The burden of proof rests on the plaintiff. Proof of causation includes expert testimony and is most difficult to prove in the medical context. If the defendant can show that the injury would likely have happened regardless of their direct care, the defendant is not liable. Meaning the outcome was inevitable.

Analougus duty is used to describe the relationship between causation and duty of care. To determine if an analogous duty already exists, the following are needed:

• Foreseeability

Arguments in favor of the existence of an analogous duty in causation:

• The law of torts is based on the principle of fairness. It is unfair to allow someone to cause harm to another person without any legal liability.
• The concept of analogous duty is already used in other areas of law, such as the law of negligence.
• There is a growing trend in the law to recognize the importance of preventing harm, even if there is no explicit duty of care.

Arguments against the existence of an analogous duty in causation:

• The law of torts is based on the principle of fault. It is unfair to hold someone liable for harm that they did not intend to cause.
• The concept of analogous duty is too vague and uncertain. It would be difficult to apply it in practice.
• The law of torts should not be used to create new duties of care. This would lead to increased litigation and uncertainty.

Table 2. Negligence Defenses

The final element of proof of negligence is to show damages suffered as a result of the breach of duty by the defendant. This can be as straightforward as economic salary loss, pain/suffering, or death. Reform attempts have been made to limit the amount of pain and suffering damages awarded in tort litigation. The purpose of tort litigation is to compensate victims for injuries incurred by the fault of another party. Victims typically hire attorneys to collect damages, and attorneys are compensated through a contingent fee system, which means they receive a percentage of the recovery. Contingent fees make the legal system accessible to all, regardless of their ability to pay. However, some people believe that contingent fees are unfair when the injuries are very substantial and liability is easily established. For example, in a case where a victim is awarded $15 million for the loss of two legs, it may be difficult to justify an attorney’s fee of $5 million.

1. Compensatory Damages

Compensatory damages are intended to compensate the victim for their actual losses, such as medical expenses, lost wages, and pain and suffering. They are meant to make the victim whole as if the injury had never happened. Compensatory damages can be awarded in a variety of cases, including personal injury, property damage, and wrongful death. The amount of compensatory damages awarded will vary depending on the specific facts of the case. No amount of money can replace an arm, eye, or life, but monetary damages can help with the costs of damage to property or hospital bills. Experts use life expectancy tables to compute compensatory damages with a degree of accuracy.

2. Punitive Damages

Punitive damages are intended to punish the defendant for their wrongful conduct and to deter others from engaging in similar behavior. They are not meant to compensate the victim for their losses. Punitive damages are not awarded in all cases. They are typically only awarded in cases where the defendant’s conduct was particularly egregious, such as in cases of intentional torts or gross negligence. Punitive damages can be subject to limitations. Courts suggest that these damages cannot exceed a 10:1 ratio with the initial award amount. Many states have been more aggressive with punitive damage limits for personal injuries, with fixed caps starting at $250,000 in some states and up to $10,000,000 in others.

3. Limitation of Damages

Limitation of damages refers to laws that restrict the amount of damages that can be awarded in certain types of cases. These laws are often put in place to protect defendants from excessive liability. Limitation of damages laws can vary from state to state. Some states have no limitations on damages, while others have strict limits on the amount of damages that can be awarded. Limitation cap amounts can range from $250,000 to $800,000; however, all make exceptions for cases involving death and serious injuries like the loss of a limb during surgery. Cases that provide these exceptions either permit a higher damage cap or eliminate the cap altogether. Few states have placed damage caps for personal injury claims.

Malpractice

Malpractice is a type of negligence that occurs when a hospital or professional, such as a doctor, lawyer, or accountant, fails to provide the care that a reasonably competent professional would have provided in the same circumstances. Malpractice can result in harm to the patient or death, and it can lead to a lawsuit. Four elements must be proven to establish medical malpractice:

• The healthcare professional has a duty of care to the patient.
• The healthcare professional breached that duty of care.
• The patient suffered damages as a result of the breach.
• The damages were caused by the breach of duty.

In medical malpractice cases, even though the standard of care is determined by experts, the question of whether negligence occurred is ultimately decided by a jury. In many cases, juries find that liability exists, even when members of the profession contend that the care provided was reasonable.

UAE Medica Liability & Malpractice Law Explained [ YouTube ] 2015 by Lex Animata Law Visualizaed | Hesham Elrafei

The number of malpractice suits against doctors and hospitals has increased rapidly in recent years, and the size of the verdicts has also increased. This has had a significant impact on the practice of medicine and the cost of malpractice insurance. Many doctors have been unable to obtain adequate malpractice insurance coverage, and some have been reluctant to attempt medical procedures that could result in a malpractice suit. As a result, many doctors are practicing defensive medicine, which is more costly. Malpractice cases against lawyers have also increased significantly, but the impact on the cost of legal services is not as great as it is on medical services. Malpractice litigation against accountants is another area of growing significance.

Defensive medicine is the practice of ordering tests or procedures that are not strictly necessary to protect oneself from a malpractice lawsuit. Defensive medicine can be costly for both patients and healthcare providers. The cost of malpractice insurance has increased significantly in recent years, which has passed on costs to patients through higher medical bills. Some doctors have changed their practice patterns in response to the threat of malpractice lawsuits. For example, some doctors may be less likely to perform risky procedures or to admit patients who are considered to be high-risk. Additionally, some states have had a shortage of specific specialties due to the costs associated with malpractice insurance for those providers.

Strict Liability

In tort law, strict liability  is a legal doctrine that holds someone responsible for the harm they cause, even if they did not intend to cause harm or were not negligent. This doctrine is based on the idea that certain activities are inherently dangerous and that the people who engage in these activities should be held responsible for the harm that they cause, regardless of their intentions or level of care. The law of strict liability began with owning dangerous animals and has since expanded to include other types of activities, such as the manufacturing of fireworks, toxic chemicals, and explosives. In healthcare, this can extend to defective medical products and equipment. These activities are also considered to be inherently dangerous, and the people who engage in them should be held responsible for the harm that they cause. Under strict liability, the plaintiff does not need to prove that the defendant was negligent. Instead, the plaintiff only needs to prove that the defendant engaged in the dangerous activity, that the activity caused the harm, and that the plaintiff suffered damages. This means that even if the defendant took all reasonable precautions, they can still be held liable for the harm caused by their dangerous activity.

Restatement (Third) of Torts shows product liability through three avenues: manufacturing defect, design defect, and warning defect. The Restatement of the Law (Third) of Torts is a multi-volume treatise on tort law published by the American Law Institute (ALI). It is a revision of the Restatement of the Law of Torts, published in 1934. The Third Restatement is still under development, but it has been published in several volumes, including:

• Liability for Physical and Emotional Harm (2010/2012)
• Apportionment of Liability (2000)
• Products Liability (1998)
• Liability for Economic Harm (2020)

The Third Restatement is a comprehensive and authoritative source of tort law. It is used by judges, lawyers, and scholars to interpret and apply tort law. The Third Restatement also guides legislators and policymakers who are considering changes to tort law. The Third Restatement has been criticized by some for being too complex and for departing from traditional tort principles. However, it is still considered to be an important work of legal scholarship. The Restatement (Third) of Torts 47 is a section that deals with the issue of emotional harm. It provides that a plaintiff may recover for emotional harm alone if the harm is severe and the defendant’s conduct is extreme and outrageous. This is a significant departure from the traditional rule, which required plaintiffs to prove that they had also suffered physical harm to recover for emotional harm. The Restatement (Third) of Torts 47 has been cited by courts in several cases, and it is likely to have a significant impact on the law of emotional harm.

A plaintiff must show that medical products depart from the intended design to prove a manufacturing defect. A design defect is determined by providing an alternative design that provides similar benefits but a lower risk of harm. A warning defect is a product defect that occurs when the manufacturer fails to provide adequate warnings about the dangers of using the product. examples include:

• A power tool that does not have any safety instructions.
• A children’s toy that does not have a choking hazard warning.
• A medication that does not have a warning about its side effects.
• A car that does not have a warning about its blind spots.
• A lawnmower that does not have a warning about the dangers of operating it near children.

Intentional Torts

Intentional torts involve (1) interference with the personal freedom of an individual, (2) interference with property rights, (3) interference with economic relations, and (4) wrongful communications.

• Battery is defined as the harmful touching of someone without their consent.
• False imprisonment is the unlawful physical restraint of a patient. For example, when a patient is locked in a room and not permitted to leave.
• Invasion of privacy which occurs with improper disclosure of medical treatment information and violations protected under HIPAA. All patients have a right to the reasonable expectation of privacy. Other circumstances also exist outside of the medical industry, including phone tapping and the use of photos or images without permission.
• Mental Distress is a tort that occurs when someone intentionally or recklessly causes another person severe emotional distress. It can be caused by the high-pressure tactics of collection agencies, including violent cursing and accusations of dishonesty. However, it is not a tort when someone simply insists on their legal rights, even if they know that it will cause emotional distress.

Table 3. Theory of Liability

In a tort case, the plaintiff must prove that the defendant’s actions were negligent and that the negligence caused the plaintiff’s injuries. The defendant can then raise an affirmative defense to try to avoid liability. The two main affirmative defenses in tort law are the assumption of risk and contributory/comparative negligence.

• Contributory/comparative negligence is a defense that applies when the plaintiff’s own negligence contributed to their injuries. Awards to the plaintiff may be reduced or eliminated if the defendant can show that the plaintiff was negligent. For example, if a patient is noncompliant with treatment (medication regimes).
• Assumption of risk is a defense that applies when the plaintiff voluntarily and knowingly exposes themselves to the risk of harm. For example, if a person signs a waiver before participating in a dangerous activity, they may be assuming the risk of injury. For medical malpractice, the assumption of risk is more closely related to the doctrine of informed consent.

The defendant has the burden of proof for affirmative defenses. This means that the defendant is responsible for proving that the defense applies. The concept of informed informed consent consent is related to the assumption of risk. Informed consent means that the plaintiff voluntarily agrees to an activity after being fully informed of the risks involved. If the plaintiff does not give informed consent, they may be able to recover damages even if they assumed the risk of injury. Finally, tort claims may be dismissed if they are not filed within the time of the statute of limitations. The statute of limitations is a law that sets a time limit on how long after an injury a person can file a lawsuit. If a lawsuit is not filed within the statute of limitations, it will be dismissed. The following must be disclosed for informed consent to be effective:

                a. The diagnosis

                b. What the recommended treatment is, and its purpose

                c. Benefits and risks of this treatment

                d. What alternatives are available, including no treatment

                e. Benefits and risks of alternatives

Informed consent shields the medical personnel from liability concerning procedures described in the consent, or if an unexpected circumstance is addressed and the patient is unable to be consulted. An example is life-saving measures during surgery.

Key Takeaways

• A tort is a civil wrongdoing. When a medical provider’s actions or inactions fail to meet the medical standard of care, their behavior constitutes medical negligence. If their medical negligence causes their patient to suffer an injury, it becomes medical malpractice.
• Proof of negligence requires four elements: duty, breach, causation, and damages.
• The Learned Hand Rule: B<PL (B=burden, P=probability, L=injury)
• Standards of care are defined as the actions a similar individual would do in that circumstance.
• Defenses for tort include contributory negligence, assumption of risk, informed consent, and statute of limitations.
• Correlation does not equal causation.
• Types of damages: compensatory (actual losses) and punitive (punishment wrongful for conduct)
• Strict Liability is a legal doctrine that holds someone responsible for the harm they cause, even if they did not intend to cause harm or were not negligent.
• Intentional torts are willful wrongdoings that interfere with an individual’s freedom or rights.
• Morgan, J. F. (2019). Business Law, 6th ed., BVT Publishing.
• National Quality Forum. (2011). Serious Reportable Events In Healthcare—2011 Update: A Consensus Report. https://www.qualityforum.org/Topics/SREs/List_of_SREs.aspx
• Perry, J. E. & Thompson, D. B. (2017). Law and ethics in the business of healthcare. West Academic Publishing.
• Pozgar, G. D. (2021). Legal and Ethical Essentials of Health Care Administration (3rd ed.) Jones & Bartlett Learning

when a medical professional deviates from the standard of care, thereby causing injury to a patient

when a physician does not follow customary treatment guidelines, the liability of the physician is determined by applying negligence

liability which does not depend on actual negligence or intent to harm

A person acts with purpose when they intend to cause a particular result.

is a person or entity that commits a tort

A specific legal obligation to not harm others or their property.

159 F.2d 169 (2nd Cir 1947).

Id. at 173.

The Emergency Medical Treatment and Active Labor Act (EMTALA) is a federal law enacted by the United States Congress in 1986 as part of the Consolidated Omnibus Budget Reconciliation Act. Hospitals are required to provide this screening and treatment in a non-discriminatory manner, meaning they cannot turn away patients based on their ability to pay or any other discriminatory factor.

Failure to take reasonable care

is a doctrine in US law whereby an act is considered negligent because it violates a statute. The doctrine is effectively a form of strict liability. Negligence per se means greater liability than contributory negligence.

National Quality Forum, Serious Reportable Events In Healthcare—2011 Update: A Consensus Report (2011), available at https://‌www.‌quality‌forum.‌org/‌Work‌Area/‌linkit.‌aspx?‌Link‌Identifier=‌id&‌Item‌ID=‌6‌9‌5‌7‌3.

a legal doctrine that doesn't require proof of breach

the relationship between an act or omission resulting in harm

refers to whether the act or omission was a necessary condition for the harm to occur. In other words, would the harm have happened anyway, even if the act or omission had not occurred?

refers to whether the act or omission was a foreseeable consequence of the harm. In other words, was the harm a reasonably likely result of the act or omission?

having a similar relationship to something else

Was the harm a reasonably foreseeable consequence of DF acts? Foreseeability at this stage is “foreseeability of the plaintiff as a victim” as opposed to foresee-ability of the injury itself which is dealt with in remoteness

Were the two parties closely enough related that it would be appropriate to engage duty of care – does there exist a relationship such that there is a proximate connection?

an intentional act that puts another person in reasonable apprehension of imminent harmful or offensive contact. No physical contact or injury is required

is the harmful touching of someone without their consent or unlawful physical restraint, which may lead to false imprisonment

unjustified restraint of a person

is a tort that occurs when someone intrudes upon another person's reasonable expectation of privacy.

is an invasion of a person’s peace of mind by insults or other indignities or by outrageous conduct

is also a legal requirement, ensuring patients and research subjects the right to make informed decisions about their own bodies and health

Legal Fundamentals of Healthcare Law Copyright © 2024 by Tiffany Jackman is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License , except where otherwise noted.

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Tort Law in Healthcare

Tort is defined as a civil wrong, other than a breach of contract, which can be committed against a person or property either real or personal. A tort could be an injury or harm to another that amounts to a civil wrong. The court can provide a remedy in the form of an action for damages they occur. Negligence is a civil wrong or a personnel wrong. Negligence is a tort, it is the accidental commission and omission of an act that a careful person would or would not perform under any given situations.

Tort law’s primary purpose is to give relief to any injured parties for harms that may be caused by others. Torts impose liabilities on the responsible party that cause the harm. Torts allow a shift in the concern or burden of loss of the party that was injured.

There are three general categories: intentional torts which is intentionally harming a person, negligent tort which is accidentally harming a person by making a mistake, and strict liability tort which is the liability for making and selling products that are broke and cause harm.

If the defendant knew that he or she were committing a wrong that harmed another person, this would result through his or her actions or omissions. Negligent torts happen when the defendant’s actions were unsafe. Lastly strict liability torts do not rely on the degree of care that the defendant used but are more focused on whether a certain result or harm had manifested.

Proficient in: Medical Malpractice

“ Ok, let me say I’m extremely satisfy with the result while it was a last minute thing. I really enjoy the effort put in. ”

With intentional torts, the act must be intentional, not just a careless act. The most common intentional tort in healthcare is forcing unwanted care on a patient. The care may benefit the patient’s health, but if the patient refuses, the physician cannot force the care. Another form of intentional torts is battery. Battery is unconsented touching and only occurs if there is physical contact. Battery claims against healthcare providers are based on attacks. One particular case involved a patient who became pregnant while being romantically involved with her physician. She allowed him to examine her to confirm the pregnancy, but he then repeatedly forced a metal instrument into her uterus, causing a miscarriage. The patient claimed wrongful abortion and this was considered battery.

With negligent tort, a doctor must perform certain duties. The three duties are: determining whether to take the case, determining the treatment to give, and effectively administrating the treatment to the patient. In any of the duties are not performed correctly, there is negligence to the patient. Black’s Law dictionary defines negligence as “conduct, whether action or omission”. One example of negligent tort is the case of State of Haryana and Ors V. Smt. Santra. A woman who already had many children had chosen to have a sterilization surgery. Smt Santra performed the operation, only operating on the right fallopian tube and not operating on the left. The woman later became pregnant and gave birth to another child.

Strict liability tort is causing damage to life, limb, or property without having to prove intent or negligence. An example of strict liability in prescription drugs is with the company Merk. In 1999 Merk released a new non-steroidal anti-inflammatory drug called Vioxx. This drug proved to be horrible for the patients who took it as they suffered from strokes, heart attacks, and death. Merk denied that the drug had any link to these problems, but the University of Michigan Medical School did a study proving the correlation between Vioxx and an increased risk of heart attack and stroke. Merk then changed the label warning patients of the potential risks. Another study was done in 2004 that confirmed the drug was linked to severe cardiovascular problems. After the study, Merk was forced to do a global recall, but by this time, roughly 25 million people in the U.S. alone were taking the drug. Individuals taking Vioxx could sue Merk under strict liability, with no need to prove negligence.

There are four elements to negligence: duty to care, breach of duty, injury, and causation. The plaintiff must present these elements to recover any damages caused by negligence. These elements have to be presented in this order. First is duty to care, the plaintiff has to prove that there was an existing relationship between him or herself and the defendant. The definition of duty to care is a legal obligation of care, performance, or observance imposed on one to safeguard the rights of others. Breach of Duty is after duty of care. The plaintiff in this element must show that there was a breach of duty due to the failure of complying with the standard of care that is required. Injury is next after breach of duty. For this element there has to be injury or actual damage done to the plaintiff. Without this harm or injury then there isn’t any liability. Lastly, the fourth and final element to create a case for negligence is called causation or proximate cause. For this element to be considered negligent the defendant action that were negligent would have to cause the plaintiff harm.

In tort law the injured or affected party can seek compensations for their damages. The victim can attempt to obtain economic and noneconomic losses. The defendant or victim can seek lost income and medical bills that may have piled up due to an injury that may have happened from negligence. Also, a victim can seek compensation for any mental stress, pain, and suffering. This is known as a noneconomic damage.

Torts came about because in the 1970s and 1980s a medical malpractice crisis had occurred in The United States. During that time, an increase of medical malpractice claims were filed, as well the size of awards made in medical malpractice actions. A total of 14,000 malpractices were made against physicians in 1975, awarding $171,000 on average for these cases. This had caused a chain reaction because of the medical malpractice claims and their jury awards for the victims. Premiums had gone up from 100% to 750%. The increase in premiums, and the loss of private insurance companies resulted in physicians leaving practices or even retiring from their own practice of medicine. A tort reform was needed because of these factors that made premiums go up.

Tort reform was created to decrease insurance premiums for consumers. Since insurance premiums would decrease, in return it would increase the number of practicing physicians and lower the costs of healthcare for consumer. This would result in a dramatic improvement for all available healthcare. The arguments made for tort reform inspired state legislatures all around the country in the mid 1980s. Since then tort reform for malpractice has been widely accepted.

More recent tort reform, also known as the second generation of tort reform, is alternative dispute resolution (ADR). The ADR refers to all disputes of resolution techniques that assist plaintiffs and defendant work out conflicts out side of the courtroom. A perk of ARD is that it is more suited to conflicting events than is the tort system. Patients can only be compensated by litigation who are harmed by negligence. Alternate dispute resolution can reach patients who are experiencing adverse events due to negligence or not. Several hospitals have accepted a new program called early apology. This program lets physicians and hospital administrators contact the injured patient and express their sympathy to the patients about conflicting events. The purpose of that program is to protect the relationship between the physicians and patients and creates dialogue. The event could have been a simple complication, which would be relayed to the patient who then can save time and put all of their efforts in healing rather than pursue litigation. If the adverse events happened because the physicians was at fault then both parties could save time and money that would have been wasted on contentious litigation.

A woman was paralyzed due to negligence at the University of Cincinnati. Cynthia Adae was transported to the Clinton Memorial Hospital on June 28th, 2006. Cynthia had complained of right shoulder pain and was having limited range of motion of her right upper extremity as well as a cough and fever. The doctors that were on duty at that time came to a conclusion that Cynthia could have an infection or thyroid abnormality. They were considering doing a spinal tap but ended up not doing it. After Cynthia had gotten a series of blood work done, Cynthia was discharged the next day without knowing her results. The blood tests showed that Cynthia was suffering from an infection and the doctors were notified on July 2nd 2006, but they failed to advise the patient of the test results and no action was further taken. On July 1st 2006 she was admitted to the hospital again and then discharged once more without a diagnosis of her condition. Four days later Cynthia returned back to the hospital and it turned out she had a epidural abscess. Unfortunately, Cynthia had developed a progressive paraplegia which is weakness of her upper and lower extremities, slurred speech, and acute renal failure. Due to negligence of the hospital, Cynthia had suffered significant injuries, and is now permanently physically disabled at 50 years old. Since then she had to undergo several dangerous and painful diagnostic and therapeutic procedures, which caused Cynthia physical and mental distress.

Experts have incurred such expenses and loses, but she will suffer severe pain and disability for the remainder of her life. The University of Cincinnati was sued by Cyntia Adae and her attorneys for $2.3 million.

In many states, caps have been set on the damages that victims can receive. These can be umbrella caps, which limit economic and non-economic damages, or it may just be a cap on non-economic damages. California’s Medical Injury Compensation Reform Act of 1975 set a cap on non-economic damages. The cap is $250,000, which has never been adjusted for inflation. When there are caps set, lawyers who work on a contingency fee basis are less likely to take medical cases. Since the lawyer would receive a percentage of the winnings, and not a lump sum, they will only receive a percentage of the capped winnings. In the states where caps have been implemented, malpractice insurance premiums have dropped due to the decreased rate of litigation. Some states also implement pre-suit litigation procedures to decrease the number of lawsuits. This requires those who claim negligence to make a preliminary showing of negligence to a board before pursuing a lawsuit.

A survey done in 2008 asked physicians about their beliefs towards malpractice risk. It found that 68% of physicians in five states with the highest malpractice reported ordering tests or consultations to try and avoid a risk of malpractice, not because they felt the test was necessary. In five states with the lowest malpractice reported, still 64% of the physicians reported doing the same.

Tort law in healthcare is necessary to assure patients receive the best care. It ensures the doctors are not intentionally or non-intentionally negligent towards their patients. It protects the patients if doctors are negligent. However, it also makes doctors more scared for their jobs and can make them request tests and other procedures just to cover their bases rather than feeling it is the right thing to do for the patients. This is a topic that will continuously be brought up and may change through the years and through different generations as the topic of healthcare is currently at the forefront of political discussions.

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Quality and Risk

Medical Malpractice: An Introduction to Tort Law Part I: Legal Basis of Malpractice Law

Timothy E. Paterick, MD, JD, MBA

December 8, 2021

This introduction to tort law is written in four parts, with each part building conceptual thinking on the prior manuscript. After a thorough introduction to basic nomenclature and concepts, the series ends with real cases that reinforce the building block concepts of negligence law and its impact on practicing physicians. Taken together, the four parts give the non-lawyer practicing physician an in-depth discussion of medical negligence law that will impact his or her daily practice of medicine.

This article is the first of four parts.

It is prudent for every physician to understand tort law and the foundations of medical negligence, because medical negligence is the most common basis for a medical malpractice action. The term malpractice refers to any professional misconduct that arises from an unreasonable lack of care, skill, or judgment in carrying out professional or fiduciary duties. The term medical malpractice is used because it is the common and traditional term used in claims alleging medical negligence by healthcare professionals.

Medical negligence is a breach of a physician’s duty to behave reasonably and prudently under the circumstances that causes a foreseeable harm to another.

Medical negligence is the most common basis for a medical malpractice action imposing liability upon a physician. Medical negligence is a breach of a physician’s duty to behave reasonably and prudently under the circumstances that causes a foreseeable harm to another. For a successful lawsuit under the theory of negligence, an injured patient must prove, by the preponderance of the evidence, each of the following essential elements: duty; breach of duty; causation; and damages. Under the preponderance standard, the burden of proof is met when the party with the burden convinces the fact finder that there is greater than a 50% chance that the claim is true.

The cases in this series of articles reinforce the importance of understanding the concepts detailed in each part. Case studies are offered to allow the reader to experience real-world clinical cases with the legal impact of “missteps” in clinical care.

The physician–patient relationship is an example of what is known as a fiduciary relationship. The fiduciary relationship is characterized by expectations of trust and confidence by a vulnerable party (patient) in the other party (physician), who holds herself/himself out as possessing specialized knowledge, expertise, and experience. The fiduciary nature of the physician–patient relationship is fundamental to equalizing the asymmetry in knowledge between a physician and patient.

It is crucial for every physician to understand the foundations of medical negligence, because medical negligence is the most common basis for a medical malpractice action.

Negligence is carelessness. Ordinary human behavior is fraught with careless actions, most of which causes no or little harm, so as to be forgiven or forgotten. Ordinary negligence is the failure to exercise that degree of medical care, skill and judgment that a careful, prudent physician would have exercised under similar circumstances.

Black letter laws are well-established rules that are certain and no longer disputable. Legal practice teaches that certainty does not exist. Black letter laws are a “legal fiction.”

A number of strategies for avoiding errors, surviving allegations of negligence and limiting liability have been proposed. The medical and legal literature is voluminous on this topic, but there are no fail-safe strategies or schemes to avoid medical errors or limit liability.

Legal Concepts

The following legal concepts underlie medical malpractice cases and judgments:

The foundation of tort law is to rectify a wrong done to a person by providing relief, customarily by awarding monetary damages as restitution.

The fiduciary relationship is characterized by expectations of trust and confidence by a vulnerable party (patient) in the other party (physician) who holds herself or himself out as possessing specialized knowledge, expertise, and experience.

For a lawsuit to be successful under the theory of negligence, an injured patient must prove, by the preponderance of the evidence, each of the following essential elements: duty; breach of duty; causation; and damages.

Under the preponderance standard, the burden of proof is met when the party with the burden convinces the fact finder that there is greater than a 50% chance that the claim is true.

Duty requires that a physician possess and bring to bear on the patient’s behalf that degree of knowledge, skill, and medical care that would be exercised by a reasonable and prudent physician under similar circumstances.

Under breach of duty, the plaintiff alleges the physician failed to act in accordance with the applicable standard of care and did not comply, and hence breached, the requisite duty.

The plaintiff must establish that a causal connection (nexus) exists between the alleged negligent act or omission and the resulting injury or harm. This connection is referred to as the proximate cause .

Damages encompass the actual loss to the interests of the patient caused by the physician’s breach of the standard of care.

Common law is case law: rules and standards applied to a set of facts by appellate court decisions in specific cases.

Statutory law is law made by the legislature of any given state that is intended to codify (arrange laws and rules into a systematic code) case law or create new law.

Negligence per se (on its face obvious to all observers) is behavior that can be said without vacillation or hesitation that no careful person would have committed.

Allegation of Malpractice in a Case of Malignant Melanoma

This short case illustrates the need for all physicians to appreciate the importance of understanding tort law.

It was an ordinary day at the Middlesex County Superior Court. In courtroom 3B, Dr. K. Lane faced charges of medical malpractice. Lane was a Harvard-trained dermatologist with 31 years of clinical experience, and this was his first encounter with the justice system. That day he was being questioned about two office visits and a telephone call that had taken place five years earlier.

JA was an actor who had been referred to him by her internist about a dark warty nodule a quarter-inch wide on her left leg. Lane shaved off the top of the nodule for a biopsy. The pathology report came back with a diagnosis of malignant melanoma. At a follow-up appointment, Lane told the actor that the growth would need to be completely removed; including a 2-cm margin of healthy skin beyond the lesion. Lane worried about metastasis and recommended immediate surgery. JA balked, because the incision would be three inches across and would be disfiguring, affecting her acting career as she often appeared in swimsuit scenes. She had a friend, also an actor, who had received an erroneous cancer diagnosis and undergone unnecessary surgery. Lane and JA compromised and agreed to remove the remaining visible tumor with only a 1/2-inch excision. Lane agreed to have a second pathologist review the biopsy.

To Lane’s surprise, the new tissue specimen was found to contain no cancer. The second pathologist reviewed the first specimen and concluded the first specimen did not reveal cancer, saying, “I doubt this is melanoma, but I cannot completely rule it out.” Lane and JA spoke over the telephone to go over the new findings.

None of this was in dispute; what was in dispute was what happened during the phone call. According to JA, Lane told her she did not have melanoma after all—the second opinion revealed no further surgery was indicated or needed. Lane recalled the phone conversation differently. “I (Lane) indicated to JA that the second opinion could not be certain the lesion was benign. I explained it would be safest to proceed with surgery allowing for two-centimeter margins.” JA was furious with the initial wrong diagnosis, and she did not want further surgery. Then Lane recommended close and careful follow-up. She refused follow-up and refused to pay his bill.

Two years later the growth reappeared, and the biopsy revealed deeply invasive melanoma. A complete excision, she was told, should have been done the first time. At this time the cancer had spread to her lymph nodes and lungs. After a year of chemotherapy and radiation she had a seizure. The melanoma has spread to her brain. Shortly thereafter JA died. Before she died, she had hired a malpractice attorney. Three years later, on behalf of JA’s children, the attorney stood up in the courtroom and called Lane as his first witness.

Malpractice suits are a feared, exasperating, and possible event for every practicing physician. The average physician in a high-risk practice (e.g., surgery) may be sued as often as every five years. Although many suits are dropped or won by the defendant in court, the cost of defense is high and the emotional toll often is exorbitant. The jurisprudential system seems irrational to most physicians. Providing medical care is complex and has the potential for any of a thousand missteps. This complexity should motivate every practicing physician to become familiar with the landscape of medical negligence law. Let’s start now.

Tort law covers most civil lawsuits. A civil lawsuit is the court-based process through which Person A can seek to hold Person B liable for harm or a wrongful act. The foundation of tort law is to rectify a wrong done to a person by providing relief, customarily by awarding monetary damages as restitution. The original intent of tort law was to provide full compensation for proven harms.

Medical malpractice law in the United States made a transition in the 20th century. World War II, on the heels of Franklin Roosevelt’s New Deal, brought unprecedented social change. The GI Bill allowed a large subset of society to pursue college and professional school education. This created more critical thinking among the populace, which led to supplanting an aging judiciary with a younger judiciary, who had a fair compensatory-based mentality. New critically thinking juries had the desire and the freedom to compensate harmed plaintiffs adequately.(1)

These post–World War II social and educational changes worked together with the following legal transformations:

The locality rule, which protects small town physicians from potentially unfair medical malpractice charges, on the premise that it would be unfair to hold these doctors to the same standard of care as big city experts, was abolished.

Charitable immunity, the legal doctrine that holds that a charitable organization is not liable under tort law, was limited or abolished.

There was a change from contributory negligence (i.e., failure of an injured plaintiff to act prudently, considered to be a contributory factor in the injury suffered, that could potentially preclude the compensation recovered from the defendant) to comparable negligence (comparative negligence states that when an accident occurs, the negligence of each party and compensatory award is based upon their respective contribution to the harm).

The development of informed consent—which stated patients have the right to receive information and ask questions about recommended treatments so they can make well-considered decisions about their care—negated the assumption of risk by patients.

Statutes of limitations—a statute prescribing a period of time limitation for bringing certain kinds of legal action—were relaxed.

Effective discovery rules—the formal process of exchanging information between parties about the evidence they will present and the witnesses they will use—were adopted.

There are fewer long-term doctor–patient relationships.

Innovations in medical technology, along with a surge in medical marketing, led to unrealistic patient expectations.

Several well-publicized large medical malpractice awards were reported across a wide swath of the United States.

These changes combined to create the new medical malpractice world that physicians confronted regarding allegations of negligence.(1)

Understanding the Fiduciary Nature of the Physician–Patient Relationship

To appreciate the underpinning of medical negligence law, it is critical for every physician to understand the establishment and nature of the physician–patient relationship. (2) The physician–patient relationship is an example of what is known as a fiduciary relationship.(2) The fiduciary relationship is characterized by expectations of trust and confidence by a vulnerable party (patient) in the other party (physician) who holds herself or himself out as possessing specialized knowledge, expertise, and experience. Society, through laws and codes of professional ethics, imposes upon the party (physician) in whom the vulnerable party (patient) entrusts this faith and confidence an obligation to act solely in the interests of the vulnerable party, and to use their (physician) expertise only so as to promote the other party’s (patient) interests and well-being. The fiduciary nature of the physician–patient relationship is fundamental to equalizing the asymmetry in knowledge between a physician and patient.(2,3)

Therefore, despite health policy discussions about the appropriateness of individual physicians taking into account the costs of medical procedures and treatments to a health plan or society, such considerations cannot, as a matter of prevailing law, properly influence a physician’s decision whether or not to offer or recommend such procedures and treatments to patients when necessary or appropriate to diagnose or treat medical conditions. The fiduciary duty that a physician owes a patient flows from the physician–patient relationship.(4)

Medical Negligence Resulting from Medical Malpractice Allegations

It is crucial for every physician to understand the foundations of medical negligence, because medical negligence is the most common basis for a medical malpractice action. The term malpractice refers to any professional misconduct that comprises an unreasonable lack of care, skill, or judgment in carrying out professional or fiduciary duties. The term medical malpractice is used because it is the common and traditional term used in claims alleging medical negligence by healthcare professionals.(5)

Medical negligence is the most common basis for a medical malpractice action imposing liability upon a physician. In their attempt to understand the underpinning of medical malpractice,(5) it is essential and prudent that readers have a firm understanding of each element necessary to prove negligence in a court of law.

Part II of this article will discuss the four elements of duty, breach of duty, causation, and damages.

Sunstein CR. The Second Bill of Rights: FDR’s Unfinished Revolution – And Why We Need It More Than Ever. Basic Books; 2006.

Paterick Z, Paterick TE, Patel N., The physician fiduciary: understanding trusteeship and leadership amid the US health care system. Br J Gen Pract.  2018;68(674):430

Paterick TJ, Carson GV, Allen MC, Paterick TE. Medical informed consent: general considerations for physicians. Mayo Clin Proc. 2008;83:313-319.

Hall M. Law, medicine, and trust. Stanford Law Review. 2002;55:​463-527.

Keeton WP. Prosser and Keeton on Torts. 5th ed. West Group, 2004.

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5.4: Laws, Torts, Malpractice, and Disciplinary Actions

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• Ernstmeyer & Christman (Eds.)
• Chippewa Valley Technical College via OpenRN

In addition to following standards of care, nurses must also follow related federal and state laws. Criminal law is a system of laws that punishes individuals who commit crimes. Crimes are classified as felonies, misdemeanors, and infractions. Conviction for a crime requires evidence to show the defendant is guilty beyond a shadow of doubt. This means the prosecution must convince a jury there is no reasonable explanation other than guilty that can come from the evidence presented at trial. See Figure 5.1 [1] for an illustration of a criminal case being tried in front of a jury. Civil law focuses on the rights, responsibilities, and legal relationships between private citizens, and involves compensation to the injured party. A person bringing the lawsuit is called the plaintiff , and the parties named in the lawsuit are called defendants . [2]

Civil law includes torts. A tort is an act of commission or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability. Tort law exists to compensate clients injured by negligent practice, provide corrective judgment, and deter negligence with consequences of action or inaction. [3]

Two categories of torts affecting nursing practice are intentional torts and unintentional torts. Intentional torts are wrongs that the defendant knew (or should have known) would be caused by their actions. Examples of intentional torts include assault, battery, false imprisonment, slander, libel, and breach of privacy or client confidentiality. Unintentional torts occur when the defendant’s actions or inactions were unreasonably unsafe. Unintentional torts can result from acts of commission (i.e., doing something a reasonable nurse would not have done) or omission (i.e., failing to do something a reasonable nurse would do). Examples of torts affecting nursing practice are discussed in further detail in the following subsections. [4]

Assault and Battery

Assault and battery are intentional torts. Assault is defined as intentionally putting another person in reasonable apprehension of an imminent harmful or offensive contact. Battery is defined as intentional causation of harmful or offensive contact with another person without that person’s consent. Physical harm does not need to occur in order to be charged with assault or battery. Battery convictions are typically misdemeanors but can be felonies if serious bodily harm occurs. [5]

An example related to assault and battery in health care is the patient’s right to refuse treatment. For example, a hospitalized patient can refuse to take prescribed medication. If a nurse forcibly administers medication without a patient’s consent, it could be ruled assault or battery in a court of law. However, forcible administration of a medication based on a provider’s order may be justified in an emergency situation to prevent imminent harm to oneself or others. [6]

False Imprisonment

False imprisonment is an intentional tort. False imprisonment is defined as an act of restraining another person and causing that person to be confined in a bounded area. An example of possible false imprisonment in health care is the use of restraints. See Figure 5.2 [7] for an image of a simulated client in full physical medical restraints. Restraints can be physical, chemical, or verbal. Nurses must vigilantly follow agency policies related to the use of physical restraints and monitor clients who are restrained. Chemical restraints include administration of PRN medications such as benzodiazepines and require clear documentation supporting their use. Verbal threats to keep an individual in an inpatient environment can also qualify as false imprisonment and should be avoided. Additional information regarding the use of restraints is discussed in the “ Patient Rights ” section.

Privacy and Confidentiality

Breaching privacy and confidentiality are intentional torts. Confidentiality is the right of an individual to have personal, identifiable medical information, referred to as protected health information, kept private. Protected Health Information (PHI) is defined as individually identifiable health information, including demographic data, that relates to the individual’s past, present, or future physical or mental health or condition; the provision of health care to the individual; and the past, present, or future payment for the provision of health care to the individual. [8]

Confidentiality is a right protected by the Health Insurance Portability and Accountability Act (HIPAA) . HIPAA was enacted in 1996 and was prompted by the need to ensure privacy and protection of personal health records in an environment of electronic medical records and third-party insurance payers. There are two main sections of HIPAA law: the Privacy Rule and the Security Rule. The Privacy Rule addresses the use and disclosure of individuals’ health information. The Security Rule sets national standards for protecting the confidentiality, integrity, and availability of electronically protected health information. HIPAA regulations extend beyond medical records and apply to client information shared with others. Therefore, all types of client information and data should be shared only with health care team members who are actively providing care to them. For example, when applying HIPAA to mental health inpatient settings, nurses may not answer in the affirmative if someone calls and asks if an individual has been admitted to the unit. [9] See Figure 5.3 [10] for a depiction of confidentiality.

There are specific circumstances in which HIPAA does not apply. For example, nurses have a duty to warn and protect, are mandated reporters of suspected abuse or neglect, and are required to share specific information reported by minors with authorities or their parents.

Duty to Warn and Protect

Most states have laws regarding the duty to protect third parties from potential life threats. Nurses and other mental health professionals have a duty to warn and protect third parties when they may be in danger from a patient. This duty falls outside of HIPAA regulations. This includes assessing and predicting the patient’s threat of violence towards another person or groups of people and taking action to protect the identified victims. [11]

Mandatory Reporting of Suspected Abuse or Neglect

HIPAA does not apply to reporting the suspected neglect or abuse of children, adults at risk, or older adults. Many states require health professionals to report suspected neglect or abuse. State laws vary, but they generally include a definition of abuse, a list of people required to report abuse, and the government agency designated to receive and investigate the reports. Nurses and other health professionals are referred to as mandated reporters because they are required by state law to report suspected neglect or abuse of children, adults at risk, and the elderly. Adults at risk are adults who have a physical or mental condition that impairs their ability to care for their own needs.

For example, in Wisconsin, suspected neglect or abuse is reported to Child Protective Services (CPS), Adult Protective Services, or law enforcement. Nurses should be aware of the country or state agencies to whom they should report suspected abuse. See the following box for additional information.

Read additional information about signs of child and elder abuse in the “ Trauma, Abuse, and Violence ” chapter.

Read more about protective services in your state. Here are links to Wisconsin’s Child Protective Services and Adult Protective Services .

Find resources in your area for reporting suspected child abuse at ChildHelp National Child Abuse Hotline or elder abuse at the National Adult Protective Services Association website .

Conditional Confidentiality for Minors

“Conditional confidentiality” applies to minors under the age of 18. State laws determine what information is considered confidential and what requires reporting to law enforcement or Child Protective Services, such as child abuse, gunshot or stabbing wounds, sexually transmitted infections, abortions, suicidal ideation, and homicidal ideation. Some state laws make it optional for clinicians to inform parents/guardians if their child is seeking services related to sexual health care, substance use, or mental health care. Nurses should be aware of the state laws affecting the confidentiality of child and adolescent care in the state in which they are practicing. [12]

View the Wisconsin Department of Health Services’ Client Rights for Minors .

Slander and Libel

Slander and libel are intentional torts. Defamation of character occurs when an individual makes negative, malicious, and false remarks about another person to damage their reputation. Slander is spoken defamation and libel is written defamation. Nurses must take care in their oral communication and documentation to avoid defaming clients or coworkers. [13]

Fraud is an intentional tort that occurs when an individual is deceived for personal gain. A nurse may be charged with fraud for documenting interventions not performed or for altering documentation to cover up an error. Fraud can result in civil and criminal charges, as well as suspension or revocation of a nurse’s license. [14]

Negligence and Malpractice

Negligence and malpractice are unintentional torts. Negligence is the failure to exercise the ordinary care a reasonable person would use in similar circumstances. Wisconsin civil jury instruction states, “A person is not using ordinary care and is negligent, if the person, without intending to do harm, does something (or fails to do something) that a reasonable person would recognize as creating an unreasonable risk of injury or damage to a person or property.” Malpractice is a specific term used for negligence committed by a health professional with a license.

Elements of Malpractice

Clients bringing a malpractice lawsuit must be able to demonstrate to the court that their interests were harmed. Most malpractice lawsuits name physicians or hospitals as defendants, although nurses can be individually named. Employers can be held liable for the actions of their employees.

Malpractice lawsuits are concerned with the legal obligations nurses have to their patients to adhere to current standards of practice. These legal obligations are referred to as the duty of reasonable care. Nurses are required to adhere to standards of practice when providing care to patients they have been assigned. This includes following organizational policies and procedures, maintaining clinical competency, and confining their activities to the authorized scope of practice as defined by their state’s Nurse Practice Act. Nurses also have a legal duty to be physically, mentally, and morally fit for practice. When nurses do not meet these professional obligations, they are said to have breached their duties to patients. [15]

All of the following elements must be established in a court of law to prove malpractice [16] :

• Duty: A nurse-client relationship exists.
• Breach: The standard of care was not met and harm was a foreseeable consequence of the action or inaction.
• Cause: Injury was caused by the nurse’s breach.
• Harm: Injury resulted in damages.

In the work environment, a duty is created when the nurse accepts responsibility for a patient and establishes a nurse-patient relationship. This generally occurs during inpatient care upon acceptance of a handoff report from another nurse. Outside the work environment, a nurse-patient relationship is created when the nurse volunteers services. Mandatory reporting and duty to warn and protect are additional examples of a nurse’s duty. [17]

Breach of Duty

The second element of malpractice is breach of duty. After a plaintiff has established the first element in a malpractice suit (i.e., the nurse owed a duty to the plaintiff), the plaintiff must demonstrate that the nurse breached that duty by failing to comply with the duty of reasonable care. To demonstrate that a nurse breached their duty to a patient, the plaintiff must prove the nurse deviated from acceptable standards of practice. The plaintiff must establish how a reasonably prudent nurse in the same or similar circumstances would act and then show how the defendant nurse departed from that standard of practice. The plaintiff must claim the nurse did something a reasonably prudent nurse would not have done (an act of commission) or failed to do something a reasonable nurse would have done (an act of omission). [18]

Experts are needed during court hearings to explain things outside the knowledge of non-nurse jurors. In reaching their opinions, experts review many materials, including the state’s Nurse Practice Act and organizational policies, to determine whether the nurse adhered to them. To qualify as a nurse expert, the person testifying must have relevant experience, education, skill, and knowledge. Medical malpractice trials take place primarily in state courts, so experts are deemed qualified based on state requirements. [19]

The third element of malpractice is cause. After the plaintiff has established that the nurse owed a duty to a patient and then breached that duty, they must then demonstrate that damages or harm were caused by that breach. Plaintiffs cannot prevail by only demonstrating the nurse departed from acceptable standards of practice, but also must prove that such departures were the cause of any injuries. Additionally, nurses are held accountable for foreseeability, meaning a nurse of ordinary skill, care, and diligence could anticipate the risk of harm of departing from standards of practice in similar circumstances. [20]

Plaintiffs must be able to link the defendant’s acts or omissions to the harm for which they are seeking compensation. This requires expert testimony from a physician because it requires a medical diagnosis. Unlike criminal cases, where the standard of proof is “beyond reasonable doubt,” the elements of a malpractice lawsuit must be proven by a “preponderance of evidence.” Expert testimony is required to demonstrate “medical certainty” that the nurse’s breach was the cause of an actual injury. [21]

The fourth element of malpractice is harm. In a civil lawsuit, after a plaintiff has established the nurse owed a duty to the patient, breached that duty, and injury was caused by the nurse’s breach, they must prove the injury resulted in damages. They request compensation for what they have lost. [22]

There are several types of injuries for which patients or their representatives seek compensation. Injuries can be physical, emotional, financial, professional, marital, or any combination of these. Physical injuries include loss of function, disfigurement, physical or mental impairment, exacerbation of prior medical problems, the need for additional medical care, and death. Economic injuries can include lost wages, additional medical expenses, rehabilitation, durable medical expenses, the need for architectural changes to one’s home, the loss of earning capacity, the need to hire people to perform tasks the plaintiff can no longer do, and the loss of financial support. Emotional injuries can include psychological damage, emotional distress, or other forms of mental suffering. [23]

Determining the specific amount a plaintiff needs can require expert witness testimony from a person known as a life care planner who is trained in analyzing and evaluating medical costs, as well as the subjective determination of a jury. Damages fall into several categories, including compensatory (economic) damages, noneconomic damages, and punitive damages. [24]

Implications for Nurses

Nurses defending themselves against allegations of professional malpractice must demonstrate that their actions conformed with accepted standards of practice. They must convince a jury they acted as a reasonably prudent nurse would have in the same or similar circumstances. Nurses should follow these practices to avoid allegations of malpractice [25] :

• Practice according to current standards of practice.
• Adhere to organizational policies and procedures. The standard of practice is to adhere to agency policy. Failing to do so creates an assumption of departure from standards.
• Document in a manner that permits accurate reconstruction of patient assessments and the sequence of events, especially when notifying providers regarding clinical concerns.
• Maintain competence through continuing education, participation in professional conferences, membership in professional organizations, and subscriptions to professional journals.
• When using an interpreter, ensure that properly trained interpreters are used and document the name of the interpreter. The use of family, friends, or other untrained interpreters is unsafe practice and is not consistent with acceptable standards of practice.
• Maintain professional boundaries. Personal relationships with patients or their families can be red flags for juries and can be viewed as evidence of departure from professional standards.
• Engage the chain of command with patient concerns and pursuing concerns to resolution.

Read more about actual nursing malpractice cases in the “ Frequent Allegations and SBON Investigations ” section of the “Legal Implications” chapter in Open RN Nursing Management and Professional Concepts .

Disciplinary Action by the Board of Nursing

In addition to being held liable in a court of law, nurses can have their licenses suspended or revoked by the State Board of Nursing (SBON) for unsafe nursing practice. The SBON governs nursing practice according to that state’s Nurse Practice Act to protect the public through licensure, education, legislation, and discipline. A nursing license is a contract between the state and the nurse in which the licensee agrees to provide nursing care according to that state’s Nurse Practice Act. Deviation from the Nurse Practice Act is a breach of contract that can lead to limited or revoked licensure. Nurses must practice according to the Nurse Practice Act of the state in which they are providing client care. [26]

A nurse may be named in a board licensing complaint called an allegation. Allegations can be directly related to a nurse’s clinical responsibilities, or they can be nonclinical (such as operating a vehicle under the influence of a substance, exhibiting unprofessional behavior, or committing billing fraud). A complaint can be filed against a nurse by anyone, such as a patient, a patient’s family member, a colleague, or an employer. It can also be filed anonymously. After a complaint is filed, the SBON follows a disciplinary process that includes investigation, proceedings, board actions, and enforcement. The process can take months or years to resolve, and it can be costly to hire legal representation. [27]

Disciplinary actions by the SBON may include the following [28] :

• Reprimand: The licensee receives a public warning for a violation.
• Limitation of License: The licensee has conditions or requirements imposed upon their license, their scope of practice, or both.
• Suspension: The license is completely and absolutely withdrawn and withheld for a period of time, including all rights, privileges, and authority previously conferred by the credential.
• Revocation: The license is completely and absolutely terminated, as well as all rights, privileges, and authority previously conferred by the credential.
• Administrative Warning: A warning is issued if the violation is of a minor nature, or a first occurrence and the warning will adequately protect the public. The issuance of an administrative warning is public information but the reason for issuance is not.
• Remedial Education Order: A remedial education order is issued when there is reason to believe that the deficiency can be corrected with remedial education, while sufficiently protecting the public.

Find and review your state’s Nurse Practice Act .

• “ Courtroom Trial with Judge, Jury - Vector Image ” designed by WannaPik is licensed under CC0 ↵
• Brous, E. (2019). The elements of a nursing malpractice case, part 1: Duty. American Journal of Nursing, 119 (7), 64–67. https://doi.org/10.1097/01.NAJ.0000569476.17357.f5 ↵
• Wis. JI—Civil 1005. (2016). https://wilawlibrary.gov/jury/civil/instruction.php?n=1005 ↵
• Fry, S. T. (1989). The role of caring in a theory of nursing ethics. Hypatia, 4 (2), 87-103. https://doi.org/10.1111/j.1527-2001.1989.tb00575.x ↵
• “ PinelRestaint.jpg ” by James Heilman, MD is licensed under CC BY-SA 4.0 ↵
• “ Concept of Data Privacy And Policy Illustration” by Delesign Graphics at Iconscout is licensed under CC BY 4.0 ↵
• Nurses Service Organization and CNA Financial. (2020, June). Nurse professional liability exposure claim report (4th ed.). https://www.nso.com/Learning/Artifacts/Claim-Reports/Minimizing-Risk-Achieving-Excellence ↵
• This work is a derivative of StatPearls by Teoli and Ghassemzadeh and is licensed under CC BY 4.0 ↵
• American Nurses Association. (2012). Position statement: Reduction of patient restraint and seclusion in health care settings. https://www.nursingworld.org/practice-policy/nursing-excellence/official-position-statements/id/reduction-of-patient-restraint-and-seclusion-in-health-care-settings/ ↵

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Three Essays on Torts

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These essays champion tort scholarship that puts the judges at centre stage: what they do, how they understand their role, the heterogeneous reasons they give for their decisions, and their constitutional responsibility to identify and articulate the ‘living’ and ‘evolving’ common law. This is ‘reflexive tort scholarship’. Reflexive tort scholars seek dialogue with Bench and Bar. Their approach is very different from the currently fashionable academic search for ‘Grand Theories’ that descriptively assert that tort law is fundamentally ‘all about one thing’, a unifying idea that alone explains and justifies the whole of tort law. The book illustrates the advantages and pay-offs of the reflexive style of scholarship by showing how it illuminates various key features of tort law. Essay 2 identifies a principle of tort law (the ‘cooperative principle’) that is latent in the cases and that vindicates the value of collaborative human arrangements. Identifying this principle calls into question, in disputes between commercial parties, the reasoning used to support one of the most entrenched lines of authority in tort law—that based on the famous case of Hedley Byrne v Heller . Essay 3 deploys the reflexive method to argue that the iconic ‘but-for’ test of factual causation is inadequate and narrower than the concept actually utilised in the cases. Application of the method also prompts a reassessment of the ‘scope of duty’ concept and of the appropriate characterisation of the much-discussed decision in SAAMCO . These essays clearly demonstrate the value of scholarship that ‘takes the judges seriously’.

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Home — Essay Samples — Law, Crime & Punishment — Tort Law — The Significance of Tort Law as the Way of Solving Insurance and Healthcare Issues

The Significance of Tort Law as The Way of Solving Insurance and Healthcare Issues

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Published: Jan 29, 2019

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• Psychiatr Psychol Law
• v.25(5); 2018

‘Recognisable Psychiatric Injury’ and Tortious Compensability for Pure Mental Harm Claims in Negligence Saadati v Moorhead [2017] 1 SCR 543(McLachlin CJ and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ)

Ian freckelton.

a Barrister, Professorial Fellow in Law and Psychiatry, University of Melbourne;

b Adjunct Professor of Forensic Medicine, Monash University, Australia;

c Lecturer, RMIT University, Melbourne, Australia

Since at least 1970, one of the constraints upon compensability for pure mental harm at common law has been that a plaintiff must have suffered not just adverse psychological consequences from negligence but a ‘recognisable psychiatric illness’. In a powerful unanimous decision, the Supreme Court of Canada in Saadati v Moorhead [2017] 1 SCR 543 has controversially removed this requirement. This paper reviews the reasoning in the decision and considers its ramifications, concluding that while it is likely to extend the liability of defendants, this will occur only in a small cross-section of cases where a plaintiff exhibits significant symptomatology of a mental disorder albeit falling short of sufficient for an unequivocal diagnosis within the meaning DSM-5 or ICD-10. It notes that in the post-Ipp reforms in Australia, a ‘recognised psychiatric illness’ has been statutorily enshrined as a prerequisite to recovery by plaintiffs, so statutory law reform would be required to implement the Saadati decision. While it welcomes the contribution of the Saadati approach to reducing the law’s discrimination against mental (as opposed to physical) injuries, it calls for close scrutiny of the actual effects of the Saadati decision.

“... there is no legally cognizable right to happiness.”Saadati v Moorhead [2017] 1 SCR 543 at [37]

Introduction

Internationally, the law has wrestled with the fear of opening floodgates or indeterminacy of litigation in relation to claims brought for mental injury, where that is the sole basis for the claims – namely, where there is no physical injury sustained (‘pure mental injury claims’). Different systems at times have required a combination of ‘nervous shock’; 1 physical proximity to a traumatic incident; 2 consanguinity with the primary person injured or killed; 3 that the plaintiff/claimant be a person of ordinary robustness or normal fortitude; 4 and that the person suffer a recognised or recognisable psychiatric illness. 5

All of these requirements for pure mental harm claims have been over and above those demanded of plaintiffs claiming ‘only’ a physical injury or a physical injury with mental harm sequelae. This has led to a concern that the additional requirements for pure mental injury litigation are oppressive, discriminatory and lacking in conceptual justification. Echoes of Windeyer J’s apt statement that law on psychiatric harm was ‘marching with medicine though in the rear and limping a little’ 6 continue to be heard today, with David Schwartz recently describing the law of mental harm as ‘still limping’. 7 Forster and Engel have critiqued criticised the current statutory requirements for further having magnified the distinction between physical and psychiatric injury. 8 Similar sentiments have been expressed in the United Kingdom, with Nolan describing the state of the law governing psychiatric injury as ‘overly complex and inconsistent’, leading to the drawing of ‘arbitrary distinctions’. 9

The 2017 decision of the Canadian Supreme Court in Saadati v Moorhead 10 is a landmark innovation for international jurisprudence in the area. It is a bold jurisprudential experiment. The principal contribution of the Saadati decision lies in its removal at common law of the need for proof by a claimant of a ‘recognisable psychiatric illness’. For jurisdictions outside Canada, the question arises whether Saadati should be followed by the courts or by the formulation by legislatures of statutory requirements for compensability that remove the threshold requirement for proof of the sustaining of a recognisable mental illness.

This paper reviews the reasoning of the Canadian Supreme Court in Saadati and explores the practical and conceptual repercussions of the decision. It notes that the notion of ‘recognised psychiatric illness’ has been statutorily enshrined in a number of jurisdictions in Australia in the post-Ipp reforms and reflects on the opportunity that Australia and other countries have to learn from the ‘ Saadati experiment’.

On 6 July 2005, Mohsen Saadati was driving a tractor-truck in British Columbia. It was struck by a vehicle driven by Mr Moorhead (‘the second accident’). Mr Saadati’s truck sustained significant damage, but he appeared at the time not to have been injured. He went to a nearby hospital but was not admitted for observation.

A complicating factor was that the 2005 accident was the second in a series of five motor vehicle collisions involving Mr Saadati between 2003 and 2009. He had suffered chronic pain since the first accident, which was later aggravated by the third accident (which occurred later in 2005). In 2007, Mr Saadati sued in negligence for the second accident, seeking damages for non-pecuniary loss and past income loss. Two further accidents followed in 2008 and 2009. In 2010, he was declared mentally incompetent and his action was continued by a litigation guardian.

The trial judge found that the second accident caused Mr Saadati psychological injuries, including personality change and cognitive difficulties. The basis for the finding was not an identified medical cause or expert evidence but arose from the testimony of friends and family members of Mr Saadati about the differences in him before and after the 2005 accident: ‘Once a funny, energetic, and charming individual, he had become sullen and prone to mood swings. Historically close relationships with family and friends had deteriorated. He complained of headaches’. 11 The trial judge also found that the mental injury caused by the second accident was indivisible from any injury caused by the third accident and awarded him $C100,000 for non-pecuniary damages.

The British Columbia Court of Appeal allowed an appeal by the defendants, finding that the trial judge had erred in law by awarding damages for mental injury where Mr Saadati had not proved a medically recognised psychiatric or psychological illness or condition. It held that such an illness or condition must be demonstrated by expert medical opinion evidence 12 and that there was an additional error in the trial judge making a decision on a basis neither pleaded nor argued for by Mr Saadati.

The Supreme Court Decision

The Supreme Court of Canada in a decision of Brown J, agreed with by McLachlin CJ and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Rowe JJ, allowed the appeal by Mr Saadati. It held that in claims for negligently caused mental injury, it is generally sufficient that the pleadings allege some form of such an injury. It found that this requirement had been satisfied by a broadly based claim for injuries and evidence from a psychiatrist who diagnosed Mr Saadati with mental disorders, as well as final submissions for Mr Saadati which contended amongst other things that if the court did not accept a proven concussion:

[T]he evidence still shows that the Plaintiff suffered from a change in mood/personality, memory loss, and cognitive difficulties as a result of the July 5 2005 accident.

If not caused by a concussion, then it must be caused by something. The only logical conclusion is that these were caused by a psychological reaction to the accident, new pains, or an aggravation of old pains. 13

The Court held that the many allegations of a psychological/emotional/psychiatric reaction in the oral and written closing submissions for Mr Saadati, combined with the broad heads of damage claimed in the pleadings, provided ample evidence to the defendants of the claim they needed to answer. This meant that there had been no breach of procedural fairness.

The Court reviewed the history of recovery for negligently caused mental harm, commenting that: ‘The early common law’s posture towards claims for negligently caused mental harm was one of suspicion and sometimes outright hostility, and was “virtually programmed to entrench primitive suspicions and prejudices about ‘invisible’, intangible harm”. … Mental injury was seen as “not derived through the senses, but [as] a product of the imagination”’. 14 It noted that while the absolute bar to recovery for mental injury absent physical injury (‘pure mental injury’) was eventually lifted, the suspicion which originally impelled the bar persisted, and barriers additional to those existing for physical injuries were created, such as those articulated by Lord Wilberforce in McLoughlin v O’Brian : 15 nervous shock and ‘the class of persons whose claims should be recognized (often referred to as relational proximity), the proximity of such persons to the accident (locational, or geographical proximity), and the means by which the “shock” is caused (temporal proximity)’. The Court noted that in Tame v New South Wales 16 the Australian High Court took a different path from that in England, preferring a more flexible foreseeability of harm test.

However, it observed that Canadian law had forged its own distinctive path in the area, (like Australia) not adopting the primary/secondary victim distinction 17 or McLoughlin v O’Brian’s disaggregated proximity analysis. 18 Rather, recoverability for mental injury came to be viewed as depending upon:

the claimant satisfying the criteria applicable to any successful action in negligence – that is, upon the claimant proving a duty of care, a breach, damage, and a legal and factual causal relationship between the breach and the damage. Each of these elements can pose a significant hurdle: not all claimants alleging mental injury will be in a relationship of proximity with defendants necessary to ground a duty of care; not all conduct resulting in mental harm will breach the standard of care; not all mental disturbances will amount to true ‘damage’ qualifying as mental injury, which is ‘serious and prolonged’ and rises above the ordinary emotional disturbances that will occasionally afflict any member of civil society without violating his or her right to be free of negligently caused mental injury; and not all mental injury is caused, in fact or in law, by the defendant’s negligent conduct. 19

The Court emphasised that it identified the elements of the cause of action of negligence as furnishing ‘principled and sufficient barriers to unmeritorious or trivial claims for negligently caused mental injury’. 20 It rejected the proposition that the courts should require something more is founded on policy, as against legal principle:

more particularly, on a collection of concerns regarding claims for mental injury (including those advanced in this appeal by the intervener Insurance Bureau of Canada) founded upon dubious perceptions of, and postures towards, psychiatry and mental illness in general: that mental illness is ‘subjective’ or otherwise easily feigned or exaggerated; and that the law should not provide compensation for ‘trivial matters’ but should foster the growth of ‘tough hides not easily pierced by emotional responses’. 21

It identified as notorious that those with mental illness, including that caused by mental injury, face stigma ‘often unjustly and unnecessarily impeding their participation, so far as possible, in civil society. While tort law does not exist to abolish misguided prejudices, it should not seek to perpetuate them’. 22 Rather than resorting to imposition of additional barriers to compensability for mental harm, the Court rejected that a dual standard should exist, classifying as ‘dubious’ ‘perceptions of, and postures towards, psychiatry and mental illness in general: that mental illness is “subjective” or otherwise easily feigned or exaggerated; and that the law should not provide compensation for “trivial matters” but should foster the growth of “tough hides not easily pierced by emotional responses”’. 23

The Court classified concerns about subjectivity of symptoms or feigned or exaggerated claims of mental injury as questions of fact best entrusted to the ‘good sense of triers of fact’ – like most matters of credibility. 24

It noted that the obligation on the part of a plaintiff to establish that they have sustained a ‘recognisable psychiatric illness’ had its origins in a speech by Lord Denning MR in 1970:

In English law no damages are awarded for grief or sorrow caused by a person’s death. No damages are to be given for the worry about the children, or for the financial strain or stress, or the difficulties of adjusting to a new life. Damages are, however, recoverable for nervous shock, or, to put it in medical terms, for a recognisable psychiatric illness caused by the breach of duty by the defendant. 25

The Court noted that a range of expressions to a similar effect have been used by courts – ‘genuine’, ‘recognised’, ‘recognisable’ and ‘positive’. 26 However, it found that it has been far from clear whether Lord Denning intended to impose upon claimants the burden of showing a positive psychiatric diagnosis. In practice, these requirements have manifested in the vesting in the discipline of psychiatry the identification and naming of the law’s boundaries for recoverability, generally by reference to disorders recognised and identified in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (‘DSM’) or the World Health Association’s International Statistical Classification of Diseases and Related Health Problems (‘ICD’). The Court held that confining compensable mental injury to conditions that are identifiable by such tools is ‘inherently suspect as a matter of legal methodology’:

[T]here is no necessary relationship between reasonably foreseeable mental injury and a diagnostic classification scheme. As Thomas J. observed in van Soest (at para. 100), a negligent defendant need only be shown to have foreseen injury , and not a particular psychiatric illness that comes with its own label. In other words, the trier of fact’s inquiry should be directed to the level of harm that the claimant’s particular symptoms represent, not to whether a label could be attached to them. Downloading the task of assessing legally recoverable mental injury to the DSM and ICD therefore imports an arbitrary control mechanism upon recovery for mental injury, conditioning recovery not upon any legally principled basis directed to the alleged injury , but upon conformity with a legally irrelevant classification scheme designed to facilitate identification of particular conditions. 27

It denounced as rationalisations resort to the DSM or the ICD to foster objectivity, certainty and predictability of outcomes and to prevent indeterminate liability, an issue raised by the Australian High Court in Tame v New South Wales. 28 It categorised as overstated the proposition that the requirement of a psychiatric diagnosis provides objectivity, certainty or predictability, noting the fact that diagnoses can be controversial within the profession of psychiatry and that they are in ongoing flux – as to their existence and their criteria. It concluded that:

Rather than fostering objectivity, certainty and predictability of outcomes, then, tethering determinations of legal liability to these iterative diagnostic tools relegates the law of negligence to following a sometimes meandering path as it is cleared by the cutting edge of au courant thinking in modern psychiatry – wherever it may lead, or from wherever it may retreat. 29

In terms of the indeterminacy issue, it held that robust application of the elements of the cause of action of negligence should be sufficient to address concerns – in particular, the proximity analysis within the duty of care framework (which focuses on the relationship between the parties), and the remoteness inquiry (which asks whether the harm is too unrelated to the wrongful conduct to hold the defendant fairly liable). It concluded that the forms of constraint imposed by negligence law on claimants alleging physical injury would be sufficiently effective also in relation to unworthy claims for mental injury – ‘It is therefore not only undesirable, but unnecessary to distort negligence law by applying the mechanism of a diagnostic threshold for proving mental injury’. 30

The Court affirmed previous authority, 31 highlighting the elusiveness of the arbitrary delineation between mental and physical injury and held that to require a particular classificatory label accords unequal, namely less, protection to victims of mental injury without any principled justification.

However, the Court acknowledged that mental injury has distinctive characteristics – in particular, it is not always as readily demonstrable as physical injury. The Court noted that it is not open for claimants to recover for ‘mere psychological upset’ as it does not bear the ‘requisite degree of disturbance’. It accepted that while expert evidence on the issue is not required as a matter of law, it will often have the potential to assist in determining whether or not a mental injury has been established:

In assessing whether the claimant has succeeded, it will often be important to consider, for example, how seriously the claimant’s cognitive functions and participation in daily activities were impaired, the length of such impairment and the nature and effect of any treatment. … To the extent that claimants do not adduce relevant expert evidence to assist triers of fact in applying these and any other relevant considerations, they run a risk of being found to have fallen short. 32

Thus, the Court held that while a lack of a diagnosis is not on its own dispositive, it is a consideration that the trier of fact can choose to weigh against evidence supporting the existence of a mental injury.

This led the Court to find no fault with the trial judge’s conclusion that the accident caused Mr Saadati to suffer psychological injuries, including personality change and cognitive difficulties such as slowed speech leading to a deterioration of his close personal relationships with his family and friends. It found that his symptoms fitted well within the parameters of mental injury and that, while there was no expert testimony associating them with a condition identified in the DSM or ICD, ‘what matters is substance – meaning, those symptoms – and not the label. And, the evidence accepted by the trial judge clearly showed a serious and prolonged disruption that transcended ordinary emotional upset or distress’. 33

The decision of the Supreme Court of Canada in Saadati is extremely important internationally in relation to the compensability of ‘mental injury’ or ‘pure psychiatric injury’. It follows logically from its decision in Mustapha and constitutes a substantive acceptance of the arguments made in academic analyses by Mulheron and Bélanger-Hardy. 34

When juxtaposed with the decision of the Australian High Court in Tame v New South Wales , 35 which rejected the existence of the preconditions for the plaintiffs’ recovery of nervous shock, physical proximity, consanguinity and ‘ordinary robustness/normal fortitude’ (the last of which has been reinstituted in the statutory jurisdictions), 36 it constitutes ‘the next step’ in aligning recovery for mental injury with recovery for physical injury harm. In principle, the removal of the discrimination against mental disorders in this area of tort law is to be applauded. What is more difficult is appreciation of when and how the decision will liberalise the availability of compensation for pure mental harm plaintiffs.

The most significant characteristic of the decision is its rejection of the conceptual legitimacy or need for the imposition of a distinction between physical and mental injury. In particular, it rejected the defendant's argument that a failure to give adequate recognition to the distinction would generate indeterminate liability for those found to have breached their duty of care. There is much to be said in favour of the need to reduce or even eliminate discrimination in tort law against mental injury. However, it is inescapable that there is the distinction between physical and mental injuries that the latter can be difficult to prove. This creates challenges for plaintiffs. 37 The associated problem is the contentious issue of the potential for plaintiffs to exaggerate or even fabricate mental injury symptomatology, especially in relation to post-traumatic stress disorder. Forster and Engel have acknowledged this concern but correctly contend that diagnosing psychiatric injury is not dissimilar to diagnosing some physical conditions (such as back pain) in that patients need to be asked to relate symptoms to their medical practitioners and those reports in turn need to be evaluated. 38 Further, compensation can be sought for a number of other intangible harms such as pain and suffering, loss of enjoyment of life and loss of reputation without imposing as high limitations as apply to psychiatric injury claims. 39

The Canadian Supreme Court has pronounced itself sanguine that the orthodox fetters on compensability, if applied rigorously – proximity and remoteness – will be adequate to protect against what it has described as ‘unworthy claims’. 40 It has accepted that generally expert evidence will be highly relevant, but found that in determining whether a claimant has proven a mental injury, expert opinions are not required as a matter of law: “Where a psychiatric diagnosis is unavailable, it remains open to a trier of fact to find on other evidence adduced by the claimant that he or she has proven on a balance of probabilities the occurrence of mental injury”. And, of course, it also remains open to the defendant, in rebutting a claim, to call expert evidence establishing that the accident cannot have caused any mental injury, or at least any mental injury known to psychiatry. 41

There is a lengthy jurisprudence about recoverability for conditions falling short of ‘recognised psychiatric injuries’. An example is the dictum by Windeyer J in Mount Isa Mines v Pusey 42 that ‘Sorrow does not sound in damages. A plaintiff in an action of negligence cannot recover damages for a “shock”, however grievous, which was no more than an immediate emotional response to a distressing experience sudden, severe and saddening’. 43

The Canadian Supreme Court in Saadati maintained an adverse stance against plaintiffs recovering for ‘mere’ upset, affirming the Mustapha position that there must be the suffering of a disturbance that is ‘serious and prolonged’ and rises above ‘ordinary annoyances, anxieties and fears’ that are part of living in civil society. It postulated that evidence can be adduced about the seriousness of impairment of a claimant’s cognitive functions and participation in daily activities, the length of such impairment and the nature and effect of any treatment provided to the claimant/plaintiff. Thus the discrimen of a diagnosed DSM or ICD disorder is removed, and the focus shifts to the impairment (as against the label attributed) suffered, its duration and any treatment provided.

The difficult question is as to the extent of the difference that this recalibration of tortious liability for mental injury makes. The answer is probably relatively little. Generally a claim will be buttressed by expert evidence from a psychiatrist and perhaps a psychologist, focussing upon the deleterious impact of a breach of duty, and generally providing a diagnosis and a prognosis in light of treatment provided. It will be a rare claim that succeeds without expert evidence, although the factual matrix of Saadati provides an example. It remains unlikely that the requisite mental injury will be found when the injury is relatively transient or when it is no more than grief, distress or upset. How courts after Saadati will differentiate between mental injuries that rise ‘above the ordinary annoyances, anxieties, and fears that come with living in civil society’ and others which do not remains to be seen. 44

The Saadati decision though becomes important where the claim is that the life of the claimant has been significantly impaired and yet the diagnostic process establishes no more than symptoms of a mental disorder within the terms of the DSM or the ICD, those symptoms falling short of what is required for diagnosis of the disorder. This is likely to occur especially in the context of post-traumatic stress disorder, adjustment disorders and, to a lesser extent, anxiety disorders and mood disorders. It appears that Saadati opens a door (which had previously been closed) to such claims but that they will relatively rarely succeed on the basis of sufficient disturbance and impairment not being able to be proved.

The Recognised Psychiatric Illness Requirement in Australia

Under the post-Ipp reforms there is statutory recognition of the ‘recognised psychiatric illness’ requirement in the formulation of the duty. The Ipp report recommended in 2002 that there be no liability for pure mental harm unless it consists of a recognised psychiatric illness 45 and observed that:

[T]he lack of suitable forensic criteria of mental illness is a serious cause of dissatisfaction with the current law amongst various interested groups. For this reason, the Panel recommends that a panel of experts, including experts in forensic psychiatry and psychology, be appointed to develop a set of guidelines, for use in legal contexts, for the assessing whether a person has suffered a recognised psychiatric illness. These guidelines should be given formally recognised status. 46

As a result, legislative provisions were introduced into a number of jurisdictions to require foreseeability of a ‘recognised mental illness’. For instance, s 72 of the Wrongs Act 1958 (Vic) provides that:

A person (the defendant) does not owe a duty to another person (the plaintiff) not to cause the plaintiff pure mental harm unless the defendant foresaw or ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken. 47

In addition, under s 75:

A court cannot make an award of damages for economic loss for mental harm resulting from negligence unless the harm consists of a recognised psychiatric illness. 48

Thus, the prerequisite of ‘recognised psychiatric illness’, which is not relevantly different from ‘recognisable psychiatric illness’, is statutorily enshrined in a number of Australian jurisdictions. Following Saadati would require statutory amendments overturning the Ipp report recommendations, for which there is unlikely to be political appetite.

In a number of Australian jurisdictions, if Saadati were applied, there are some additional considerations. In Victoria, for instance, impairment of at least 10% under the terms of the fourth edition of the American Guides to Permanent Impairment needs to be established by the plaintiff in a pure psychiatric injury case (as opposed to 5% for physical injuries) in order to bring an action in the County Court or the Supreme Court. 49 A stated aspiration of the system and of the post-Ipp reforms was to reduce the incidence of small claims brought by plaintiffs. 50 Reaching the required level of impairment in the absence of a DSM or ICD diagnosis is highly unlikely (although technically possible) – the percentile requirement is burdensome.

Rachael Mulheron has argued in favour of removing the ‘recognised psychiatric injury’ threshold, contending that the need for the threshold should be rethought, as strict reliance on medical criteria is legally and medically problematic. 51 Mulheron contends that usual negligence elements apply in legal proceedings; hence the imposition of a duty of care is not automatic. 52 Further, lesser damage equates to lesser damages , but this does not necessarily mean that all injuries would be compensated. 53 For instance, minor and transient upsets that are part of life should not be compensable, such as being trapped in a hospital lift 54 or an incorrect diagnosis of coeliac disease affecting enjoyment of life. 55 Finally, to some extent, civil procedure obligations of practitioners would also assist to prevent the bringing of frivolous claims. 56

Hafeez-Baig and English assert that the court in Saadati shied away from creating a workable test. Thus, they advocate for the clarification and interpretation of the test to broaden the number of deserving claimants it captures. 57 In their view, Saadati rests on plaintiffs demonstrating a compensable ‘serious and prolonged’ illness, yet this requires trial judges to bear the burden of making such an assessment. 58 Hafeez-Baig and English stress the necessity of finding a middle ground between ordinary grief, sorrow and emotion on the one hand and a high threshold of ‘recognised psychiatric illness’ on the other. Their proposal is to retain the threshold yardstick because it creates an objective standard but to broaden the entry point to allow claims that do not presently satisfy the DSM or ICD criteria. 59

Louise Bélanger-Hardy acknowledges that the ‘recognised psychiatric illness’ threshold has assisted to maintain predictability in compensation, but argues that consideration ought to be given to broader issues of access to justice and fairness. 60 Bélanger-Hardy proposes the removal of all barriers to mental harm claims to bring recovery of compensation in psychiatric claims in line with other torts, including general negligence and intentional torts. 61 The requirement for plaintiffs to demonstrate a ‘serious and prolonged’ illness and imposition of a ‘no compensation for mere upsets’ preclusion would assist to minimise fears of indeterminate liability. 62

Donal Nolan identifies that a potential path for reform is to equate physical and psychiatric injury, an advantage of this being simplicity, combined with the recognition by the law that psychiatric injury is equally devastating as physical injury. 63 However, courts may continue to give recognition to policy concerns by strictly applying the foreseeability test which may ultimately lead to the same restrictions. In Victoria, at the very least, consideration ought to be given to lowering the thresholds to equate psychiatric injury with physical injury – currently a discrepancy exists as the legislation requires a plaintiff only to satisfy a significant injury of permanent impairment of ‘more than 5 per cent’ of the whole person. 64

An alternative avenue for reform is to have regard to the compensation framework operating in other Australian jurisdictions. In South Australia and Queensland, recovery is permitted by reference to a spectrum. Queensland uses a sliding scale between 0 and 100 to allocate a point value for injuries. 65 The point value then determines the level of compensation payable. In South Australia, a point value between 0 and 60 is applied. 66 In South Australia, claimants are first required to show they have sustained an injury warranting non-economic loss damages. 67 Next, the court assesses severity of injury, and compensation is determined pursuant to the sliding scale. Scaled measures of damages for non-economic loss arguably yield fairer awards of damages than ‘significant injury thresholds’ because they do not automatically eliminate the awarding of damages for all smaller claims. 68 Jurisdictions such as Queensland and South Australia arguably present exemplar models that the Victorian jurisdiction could emulate. Were Saadati to be applied in Victoria, it might enable some additional, relatively low-level claims but is unlikely to lead to indeterminate liability, given plaintiffs will have an ongoing requirement to satisfy standard elements of negligence, including a compensable injury. Post- Saadati jurisprudence suggests that not all claims for psychiatric harm or emotional distress will succeed if they do not satisfy a level of compensable injury. 69

Concluding Observations

The Saadati decision is a significant landmark in aligning somatic and mental injuries. For plaintiffs in Canada, there is an important easing of what is a somewhat arbitrary constraint on compensability which is dependent upon the latest labelling vogue within psychiatry – the Supreme Court was very pointed about the changing fashions in psychiatry in relation to matters such as homosexuality and the criteria for PTSD. However, the spectre of floodgates and indeterminacy has not been wholly banished internationally by the decision. Whether reasonable foreseeability, proximity and remoteness are sufficient safeguards against the challenges of identification of embellishment and fabrication of diffuse psychiatric symptomatology, which always has a significant basis in patient self-report, remains to be seen. Canada will now function as a psycho-legal laboratory for the remainder of the common-law world to identify whether unmeritorious cases choke the system and whether plaintiffs with pathology falling short of conditions recognised by the principal texts of psychiatric nosology succeed in law where they have failed to satisfy psychiatrists that they have unequivocally established mental disorders. Jurisdictions such as the United Kingdom and Australia have the opportunity to observe and learn from the jurisprudence that evolves in the aftermath of the ‘ Saadati experiment’.

1 Victorian Railway Commissioners v Coultas (1888) 13 App Cas 222; Dulieu v White [1901] 2 KB 669.

2 M oun t Isa Mines v Pusey (1970) 125 CLR 383.

3 Jaensch v Coffey (1985) 155 CLR 549. In England, the House of Lords permitted recovery of damages in similar circumstances in McLoughlin v O’Brian [1983] 1 AC 410.

4 Tame v NSW; Annetts v Australian Stations P/L (2002) 211 CLR 317.

5 Annetts v Australian Stations P/L 329. Gleeson CJ stated, ‘save in exceptional circumstances, a person is not liable, in negligence, for being a cause of distress, alarm, fear, anxiety, annoyance, or despondency, without any resulting recognised psychiatric illness’.

6 Mount Isa Mines Ltd v Pusey (n 2) 395.

7 D Schwartz, ‘Still Limping: The Ongoing Development of the Law on Pure Psychiatric Injury’ (2017) 138 Precedent 32.

8 C Forster and J Engel, ‘Reinforcing Historic Distinctions Between Mental and Physical Injury: The Impact of the Civil Liability Reforms’ (2012) 19(3) Journal of Law and Medicine 593, 608; I Freckelton, ‘Employers’ Liability for Bullying-Induced Psychiatric Injuries’ (2008) 16 Journal of Law and Medicine 9; I Freckelton, ‘Employers’ Responsibilities for Foreseeable Psychiatric Injuries’ (2008) 15(1) Psychiatry, Psychology and Law 17.

9 D Nolan, ‘Psychiatric Injury at the Crossroads’ (2004) Journal of Personal Injury Law 1, 17. See also P Handford, ‘Psychiatric Injury Resulting from Medical Negligence’ (2002) 10 Tort Law Review 38; D Butler, ‘An Assessment of Competing Policy Considerations in Cases of Psychiatric Injury Resulting from Negligence’ (2002) 10 Torts Law Journal 13; N Mullany, ‘English Psychiatric Injury Law: Chronically Depressing’ (1999) 115 Law Quarterly Review 30.

10 [2017] 1 SCR 543.

11 Saadati v Moorhead [2017] 1 SCR 543 at [5].

12 Saadati v Moorhead (2015) 390 DLR (4 th ) 63.

13 Saadati v Moorhead [2017] 1 SCR 543 at [11].

14 Saadati v Moorhead [2017] 1 SCR 543 at [14].

15 [1983] 1 AC 410 at [419]–[421].

16 (2001) 211 CLR 317.

17 The Australian legal provisions depart from the British position where victims who have sustained mental harm are categorised as either a ‘primary victim’ or a ‘secondary victim’: Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, 407. In the United Kingdom, primary victims are individuals who have developed psychiatric conditions associated with physical bodily harm, whereas secondary victims have sustained pure mental harm as a result of witnessing the death or injury of another individual.

18 In McLoughlin v O’Brian [1983] 1 AC 410, the plaintiff sustained nervous shock after being informed her husband and three children had been involved in a serious accident. Mrs McLoughlin received the news hours after the occurrence of the accident and away from the scene. Mrs McLoughlin in satisfying Lord Wilberforce’s test for recovery of damages, consisting of: (1) the need for a close familial relationship; (2) temporal and physical proximity to persons involved in the accident; and (3) the means by which the shock is caused.

19 Saadati v Moorhead [2017] 1 SCR 543 at [19], applying Mustapha v Culligan of Canada Ltd [2008] 2 SCR 114.

20 Saadati v Moorhead [2017] 1 SCR 543 at [21].

21 Saadati v Moorhead [2017] 1 SCR 543 at [21].

22 Saadati v Moorhead [2017] 1 SCR 543 at [21].

23 Saadati v Moorhead [2017] 1 SCR 543 at [21].

24 Saadati v Moorhead [2017] 1 SCR 543 at [22].

25 Hinz v Berry [1970] 2 QB 40 at [42].

26 See R Mulheron, ‘Rewriting the Requirement for a “Recognized Psychiatric Injury” in Negligence Claims’ (2012) 32(1) Oxford J ournal of Leg al Stud ies 77.

27 Saadati v Moorhead [2017] 1 SCR 543 at [31].

28 (2002) 211 CLR 317 at [193]–[194].

29 Saadati v Moorhead [2017] 1 SCR 543 at [33].

30 Saadati v Moorhead [2017] 1 SCR 543 at [34].

31 In particular, Mustapha v Culligan of Canada Ltd [2008] 2 SCR 114 at [8].

32 Saadati v Moorhead [2017] 1 SCR 543 at [38].

33 Saadati v Moorhead [2017] 1 SCR 543 at [40].

34 L Bélanger-Hardy, ‘Reconsidering the “Recognizable Psychiatric Illness” Requirement in Canadian Negligence Law’ (2013) 38 Queen’s LJ 583; L Bélanger-Hardy, ‘Thresholds of Actionable Mental Harm in Negligence: A Policy-based Analysis’ (2013) 36 Dalhousie Law Journal 103; P Handford, ‘The Brave New World of Psychiatric Injury in Canada’ (2018) 25(3) Tort Law Review 136.

35 (2002) 211 CLR 317 at [193]–[194].

36 Civil Law (Wrongs) Act 2002 (ACT) s 34; Civil Liability Act 2002 (NSW) s 32; Civil Liability Act 1936 (SA) s 33; Civil Liability Act 2002 (Tas) s 34; Civil Liability Act 2002 (WA) s 5S; Wrongs Act 1958 (Vic) s 72. The common law continues to apply in Queensland and the Northern Territory.

37 This very issue was acknowledged by the Ipp Panel at the time of making recommendations for the implementation of statutory reforms pertaining to mental harm: Panel of Eminent Persons to Review the Law of Negligence, Review of the Law of Negligence Report , Second Report, Canberra, October 2002 (‘ Ipp Report ’) 135. The report states: ‘the existence and extent of mental harm may be difficult to diagnose objectively and to prove for legal purposes’ at [135].

38 Forster and Engel [n 8] 49.

39 Forster and Engel [n 8] 49.

40 Saadati v Moorhead [2017] 1 SCR 543 at [2], [34].

41 Saadati v Moorhead [2017] 1 SCR 543 at [38].

42 (1970) 125 CLR 383.

43 See further Lynch v Knight and Wife (1 86 1) 81HL347 at [ 6 1]–[62]; D Mendelson, ‘The Defendants’ Liability for Negligently Caused Nervous Shock – Quo Vadis?’ (1192) 18 Monash University Law Review 16.

44 See P Dabiran-Zohoory, ‘Saadati v Moorhead’ (20 November 2017) McGill Journal of Law and Health < https://mjlh.mcgill.ca/2017/11/20/saadati-v-moorhead-2017-scc-28/ >.

45 DA Ipp, P Cane, D Sheldon and I Macintosh, Review of the Law of Negligence (September 2002) < https://static.treasury.gov.au/uploads/sites/1/2017/06/R2002-001_Law_Neg_Final.pdf > para 9.28, recommendation no 34.

46 DA Ipp, P Cane, D Sheldon and I Macintosh, Review of the Law of Negligence (September 2002) < https://static.treasury.gov.au/uploads/sites/1/2017/06/R2002-001_Law_Neg_Final.pdf > para 9.7.

47 See also Civil Law (Wrongs) Act 2002 (ACT) s 34; Civil Liability Act 2002 (NSW) s 32; Civil Liability Act 1936 (SA) 33; Civil Liability Act 2002 (Tas) s 34, Civil Liability Act 2002 (WA) s 5S.

48 See also Civil Law (Wrongs) Act 2002 (ACT) s 35; Civil Liability Act 2002 (NSW) s 31; Civil Liability Act 1936 (SA) s 53(3); Civil Liability Act 2002 (Tas) s 33; Civil Liability Act 2002 (WA) s 5T.

49 In Victoria, in order to recover damages for non-economic loss (comprising pain and suffering, loss of amenity of life and loss of enjoyment of life), plaintiffs are required to satisfy a ‘significant injury’ threshold: Wrongs Act 1958 (Vic) s 28LF. The legislation stipulates that ‘in the case of psychiatric injury, impairment of 10 per cent or more’ must be satisfied: Wrongs Act 1958 (Vic) s 28LB.

50 At the time of implementation, former Victorian Premier Steve Bracks explained that imposition of thresholds would reduce damages in small claims of $50,000 or less and thus alleviate the pressure on businesses and professionals concerned about facing successive minor claims: Victoria, Parliamentary Debates , Legislative Assembly, 21 May 2003, 1782 (Steve Bracks, Premier).

51 Mulheron (n 26) 87. Mulheron explains that the diagnostic classifications were not intended for legal or forensic use but for research and clinical diagnostic purposes.

52 Mulheron (n 26) 108–109.

53 Mulheron (n 26) 109.

54 Reilly v Merseyside HA (1994) 23 BMLR 26 (CA).

55 Younger v Dorset and Somerset HA [2006] Lloyd’s Rep Med 489 (Southampton CC).

56 Younger v Dorset and Somerset HA (n 54). See the overarching obligations in the Civil Procedure Act 2010 (Vic) ss 16–26.

57 MJ Hafeez-Baig and J English, ‘Re-thinking the Requirement for a “Recognisable Psychiatric Illness” in the Law of Negligence’ (2017) 25(2) Tort Law Review 92.

58 Hafeez-Baig and English (n 56) 97.

59 Hafeez-Baig and English (n 56) 97–98.

60 Bélanger-Hardy, ‘Thresholds of Actionable Mental Harm in Negligence’ (n 34) 103.

61 Bélanger-Hardy, ‘Thresholds of Actionable Mental Harm in Negligence’ (n 34) 124–25.

62 Bélanger-Hardy, ‘Thresholds of Actionable Mental Harm in Negligence’ (n 34) 125–31.

63 Nolan (n 9) 12.

64 Wrongs Act 1958 (Vic) s 28LB.

65 Civil Liability Act 2003 (Qld) s 61. See also A Stickley, ‘Scale of General Damages – Civil Liability Regulation 2003’ (2004) 25(1) Queensland Lawyer 9.

66 Civil Liability Act 1936 (SA) s 52(2).

67 Civil Liability Act 1936 (SA) s 3.

68 Civil Liability Act 1936 (SA) s 52(1). In South Australia, a claimant is only required to demonstrate their ability to lead a normal life was significantly impaired by the injury for a period of at least seven days or that their medical expenses meet the minimum prescribed threshold.

69 See, eg, MacKenzie v John Doe , 2018 BCSC 104 at [123] (Maisonville J), where no evidence was adduced with respect to the plaintiff’s mood fluctuations and irritability having a medical cause apart from the plaintiff’s testimony: ‘I appreciate that with pain will come some mood irritability; however, there has been no expert evidence called connecting this to the accident. Consequently, on a balance of probabilities, I do not find that the plaintiff has proven this aspect. I accept that the plaintiff has mood and irritability problems, but not to the extent that they are a psychological injury. Nor was this seriously pressed’.

Medical Negligence and Its Basic Characteristics Essay

Duty of care, breach of the duty of care, harm resulted from the breach, reference list.

Medical negligence may be regarded as substandard health care provided by a clinician that directly causes a patient’s physical, emotional, or financial damages. It involves various unprofessionally handled activities that lead to tortious claims and even criminal liabilities. Incorrect treatment, wrongful diagnosis, and surgical mistakes are among the most common types of medical negligence. At the same time, in order to sue the defendant, the pursuer should prove that medical negligence has occurred. There are the following essential characteristics of medical negligence that will be examined and analyzed in this paper:

• The defendant owed the duty of care to the plaintiff;
• The duty of care should be breached;
• The breach directly caused the plaintiff’s damage.

Regarded as a noble occupation, the medical profession helps in maintaining health and preserving life. In general, a patient approaches a particular medical setting or a health care provider on the basis of its/his reputation. Attending a hospital, an individual traditionally has two-fold expectations – first of all, doctors and other clinical staff are expected to deliver the most appropriate health care with all their experience and competency. Moreover, they are responsible for non-maleficence: any patient should not be harmed in any manner because of carelessness, reckless attitude, or negligence. It goes without saying that a medical professional cannot be physically ready all the time to save patients/ However, he should use all specific skills and knowledge in the most suitable manner considering the interest of every person entrusted his life.

When the law mandates the duty of care and carefulness, carelessness may lead to the breach of this duty, or medical negligence. It is based on the tortious principle of general negligence and was propounded by Lord Atkin in the case of Donoghue V. Stevenson in 1932. 1 According to the case’s materials, Mrs May Donoghue met her friend at the Wellmeadow Café on August 26, 1928, who bought her an ice cream and a bottle of ginger beer for an iced drink. The bottle was dark opaque – thus, its content was invisible. After Mrs Donoghue had drunk and poured over an ice cream most of the beer, she noticed a part of a decomposed snail that was in a bottle. 2 After several days, the pursuer became sick and was diagnosed with shock and severe gastroenteritis.

Later, Mrs Donoghue decided to take legal action against the beer manufacturer Mr Stevenson even if her chances to succeed were considerably limited. She did not have any legal contract with Mr Stevenson to sue him for its breach, did not buy the drink by herself, and could not prove that the manufacturer knew that the beer was defective. Thus, the argument of Mrs Donoghue was dismissed by the Scottish Court of Session, Second Division that stated that the manufacturer did not owe a duty of care to his consumers. However, the pursuer has managed to address the House of Lord with an appeal, and in 1932, Lord Atkin established a decision that may be regarded as the foundation of modern negligence law. According to it, a manufacturer owes a duty of care to customers and is responsible for the quality of his products.

At the same time, the characteristics of negligence in relation to the duty of care were later updated through the Caparo Industries v Dickman [1990] 2 AC 605 case. It has established the Caparo test in order to identify negligence. 3 It includes three parts: if the pursuer’s harm is caused by the defender’s actions it should be reasonably foreseeable, imposing liability should be just and fair, and there should be proximity between parties. The unforeseeable responsibility was also reflected in the Goodwill v BPAS [1996] 2 All ER 161 case. The claimant could not prove the defendant’s negligence after being pregnant from a man with a vasectomy arranged by the defendant as a direct impact on the pursuer’s state was not proved. 4

In turn, medical negligence may be defined as “the breach of a legal duty to take care of a person who is suffering from illness and results in damage, undesired by the defendant to the plaintiff”. 5 In other words, it constitutes a medical practitioner’s omission or failure to act that falls below the standards of health care delivery and leads to the patient’s considerable injury or even death. Although such incidents should never happen, they remain prevalent – according to the Press Association, more than 1000 patients in England have suffered from medical negligence and related mistakes in the past four years. 6 In general, when the defender fails to perform in a way a similarly trained health care provider would do, the pursuer may become a victim of negligence.

At the same time, medical negligence differs from general negligence in relation to the law regardless of similarities in their basic structures. Thus, in general negligence, the breach of duty occurs when a defender does not achieve a particular standard on the basis of the actions of a “reasonable person.” The concept of reasonableness is an artificial objective standard adopted by the law to determine the breach of a duty that involves the ignorance of the defendant’s realities in a specific situation. In turn, medical negligence implies the breach of a duty of care when a medical specialist acts not like a reasonable health care provider taking into consideration the situation’s realities.

In addition, medical negligence differs from medical malpractice even if these terms are frequently used as synonyms. Medical negligence does not include any element of intent – instead, it involves an omission or mistake made by a medical provider that results in a patient’s harm. In the case of negligence, a health care specialist does not commit his actions knowing that it may cause harm or with an intention to injure a patient. In turn, medical malpractice always involves intent, however, in a slightly different meaning in comparison with commonly accepted one. In the case of medical malpractice, the intent is an act or omission known by a health care provider as potentially harmful. 7

In other words, a clinician is aware that his actions are not related to the health care delivery of the most appropriate quality and he may fail causing harm to a patient. It goes without saying that he does not want to harm the patient intentionally but he acts realizing the risk of the patient’s injury or even death.

However, in order to form a legal claim and establish the occurrence of medical negligence, it should be approved that a medical professional owed a duty of care to a patient, a breach of this duty has occurred, and the patient’s injury directly results from the practitioner’s actions. As a matter of fact, all health care specialists who provide treatment to patients entering a specific doctor-patient relationship owe an obligation or a duty of care to them. 8 When patients are registered in a hospital for receiving treatment, a duty of care should be necessarily implied. Moreover, it is a civil right of any patient to receive full information concerning treatment from health care providers. 9 Thus, a doctor-patient relationship may be regarded as a contract due to payment of fee, informed consent, and providing treatment.

As previously mentioned, all medical professionals who are responsible for the diagnosis and treatment of a particular patient are covered by the duty of care to him or her. On the one hand, senior health care providers may be vicariously liable for the negligence of junior health carers. At the same time, if a mistake was made by any specialist who was not directly involved in health care delivery, he or she still owes the patient a duty of care and will be legally responsible for negligence. On the basis of a considerably extreme view, medical practitioners’ duty of care “ought not to be limited only to the patients under their direct management but to be extended to any patient whom they come across in their professional environment”. 10 In this way, health care providers are responsible for the appropriate treatment of all patients within clinical premises. For instance, ambulance services owe patients the duty of care and are legally responsible for the breach if it results in the patient’s harm. 11 This approach helps minimize both direct and vicarious liability of clinicians.

Finally, for a legal claim, the pursuer should prove the case’s aspects on the balance of probability. In fact, the tort of the negligence of the common law is based on a rule of causation. 12 In other words, in the case of medical negligence, the fact that the patient’s harm is a direct consequence of a health care provider’s actions should be proved. An exception exists for ambiguous causation which means that harm may be caused by multiple reasons.

Proving a health care provider breached his duty of care may be regarded as one of the most resource-intensive and difficult parts of the case related to medical negligence. 13 To be precise, the pursuer should prove that the defendant failed to act according to the most appropriate practices for his field, and any reasonable medical specialist of the same field would have acted differently in the same situation. 14 For instance, in order to prove the breach, an injury lawyer may consult with another expert in the same field of medicine and get testimony that the standards of care were not followed. In other words, the fact that a competent health care provider would not have done the same and the mistake occurred should be proved.

The main challenge of proving the breach is in subjectivity that cannot be regarded as negligence even if a patient’s outcome is not ideal. For example, in the case of a rare disorder, several physicians may determine different diagnoses trying to identify the reason for a patient’s condition. In general, the most typical breaches of duty that presuppose the defendant’s liability include:

• Prescribing the wrong medication or giving dangerous doses even if the medication is right;
• Making the wrongful conception or determining the wrong diagnosis that a competent and reasonable doctor would not have made;
• Performing unnecessary procedures deliberately;
• Making surgical mistakes that a competent health care provider could avoid following the best practices and the standards of care.

In the case of medical negligence, it is not enough to prove that a medical professional has breached the duty of care and made a mistake. It is essential to prove that the patient suffered legally-recognized harm directly caused by the doctor’s actions. Although the pursuer tends to determine the likelihood of causation in his favor, the direct impact of the breach should be proved. 15 At the same time – the plea of res ipsa loquitur should be also available – in other words, it is not necessary to prove negligence when damages caused by this negligence are obvious and may be easily observed. These damages may be physical, such as reduced quality or quantity of life or disfigurement, emotional, and financial in nature. When medical negligence is proved in accordance with its basic characteristics, a remedy for a pursuer should be available.

As previously mentioned, a health care provider owes the duty of care to all patients in a medical setting regardless of the absence of direct interaction. At the same time, the duty may be owed to non-patients if they are affected by the clinician’s mistake that caused harm. In MacFarlane and Another v Tayside Health Board : HL 21 Oct 1999, the McFarlanes sued the medical facility responsible for negligence. 16 After a vasectomy operation determined by the couple’s unwillingness to have more than four children they have already had, Mr McFarlane was negligently advised by the health board that contraceptives were not necessary anymore. Relied on this wrongful recommendation, Mr and Mrs McFarlane became the parents of their fifth child. Although the child was loved, welcomed, and accepted, parents claimed damages connected with pregnancy and birth and financial costs related to her raising.

The Lord Ordinary of the Outer House initially rejected both claims stating that pregnancy could not be regarded as physical injury and the benefits of parenthood were more substantial than financial losses. However, his decision was dismissed by the Court of Appeal that relied on conventional negligence principles and did not find any reason on the basis of which the liability of the board could be denied. Wrongful conception was defined as negligence and an infringement of the McFarlanes’ family planning right, and both claims were approved.

Medical negligence occurs only when the plaintiff’s harm is directly caused by the defendant’s actions. In the case of non-patients that may emotionally suffer from medical negligence, there should be several rules followed. First of all, if the defender’s breach causes a traumatic event, it should be observed by the plaintiff immediately. In addition, the condition of the plaintiff should differ from shock caused by the observance of a traumatic event. Thus, in the Taylor v Somerset Area Health Authority (1993) 16 BMLR 63 case, the pursuer’s claim was not approved. 17 Mrs Taylor was distressed and shocked after knowing that her husband died as a result of a medical specialist’s negligence. However, her emotional damages cannot be classified as the consequence of the defendant’s actions. In addition, a hospital owes the duty of care to non-patients only if they are in an identifiable at-risk group. 18

In the Sion v Hampstead Health Authority [1994] EWCA Civ 26 case, the claimant sued the hospital for a psychiatric injury he had received while remaining at his heavily injured son’s bed whose condition was wrongfully diagnosed. 19 The claim was not approved and the appeal was subsequently dismissed as well – the direct impact of clinicians’ actions on the claimant’s state was not proved. In other words, he was injured by his son’s deterioration that was generally expected. In addition, this case cannot pass the Caparo test – the pursuer’s harm was not reasonably foreseeable and there was no proximity between parties. At the same time, the pursuer’s claim was approved in the Page v Smith [1996] AC 155 case. 20 The claimant’s physical injury was reasonably foreseeable and was caused by the defender’s negligence.

Adejumo O A and Adejumo O A, ‘Legal Perspectives on Liability for Medical Negligence and Malpractices in Nigeria’ (2020) 34(44) The Pan African Medical Journal 1.

Bryden D and Storey I, ‘Duty of Care and Medical Negligence’ (2011) 11(4) Continuing Education in Anaesthesia, Critical Care & Pain 124.

Byrne P, ‘ NHS ‘Never Events’ a Disgrace, Says Patients Association ’ ( BBC News , 2016). Web.

• Caparo Industries v Dickman [1990] 2 AC 605.

Cheluvappa R and Selvendran S, ‘Medical Negligence – Key Cases and Application of Legislation’ (2020) 57 Annals of Medicine Surgery 205.

• Donoghue v Stevenson [1932] AC 562.
• Goodwill v BPAS [1996] 2 All ER 161.
• Kent v Griffiths (No 3) [2001] QB 36.
• MacFarlane and Another v Tayside Health Board : HL 1999.

Nilegaonkar S and Kulkarni P, ‘Medical Negligence’ (2019) 40 Indian Journal of Medical and Paediatric Oncology 552.

Oyebode F, ‘Clinical Errors and Medical Negligence’ (2013) 22(4) Medical Principles and Practice 323.

• Page v Smith [1996] AC 155.
• Palmer v Tees Health Authority [1999] Lloyd’s Rep Med 351 CA.

Shali S, ‘Medical Negligence in India: Current Issues and Ethics’ (2017) 3(6) International Journal of Advance Research, Ideas and Innovations in Technology 798.

• Sidaway v. Board of Governors of the Bethlem Royal Hospital [1985] AC 871.
• Sion v Hampstead Health Authority [1994] EWCA Civ 26.

Steel S and Ibbetson D, ‘More Grief on Uncertain Causation in Tort’ (2011) 70(2) The Cambridge Law Journal 451.

• Taylor v Somerset Area Health Authority (1993) 16 BMLR 63.
• Wilsher v Essex Area Health Authority [1987] QB 730.
• Oludamilola Adebola Adejumo and Oluseyi Ademola Adejumo, ‘Legal Perspectives on Liability for Medical Negligence and Malpractices in Nigeria’ (2020) 34(44) The Pan African Medical Journal 1.
• Sonia Shali, ‘Medical Negligence in India: Current Issues and Ethics’ (2017) 3(6) International Journal of Advance Research, Ideas and Innovations in Technology 798.
• Peter Byrne, ‘NHS ‘Never Events’ a Disgrace, Says Patients Association’ ( BBC News , 2016).
• Sujit Nilegaonkar and Padmaj Kulkarni, ‘Medical Negligence’ (2019) 40 Indian Journal of Medical and Paediatric Oncology 552.
• Rajkumar Cheluvappa and Selwyn Selvendran, ‘Medical Negligence – Key Cases and Application of Legislation’ (2020) 57 Annals of Medicine Surgery 205.
• Oludamilola Adebola Adejumo and Oluseyi Ademola Adejumo, ‘Legal Perspectives on Liability for Medical Negligence and Malpractices in Nigeria’ (2020) 34(44) The Pan African Medical Journal 2.
• Sandy Steel and David Ibbetson, ‘More Grief on Uncertain Causation in Tort’ (2011) 70(2) The Cambridge Law Journal 451.
• Daniele Bryden and Ian Storey, ‘Duty of Care and Medical Negligence’ (2011) 11(4) Continuing Education in Anaesthesia, Critical Care & Pain 124.
• Femi Oyebode, ‘Clinical Errors and Medical Negligence’ (2013) 22(4) Medical Principles and Practice 323.
• Chicago (A-D)
• Chicago (N-B)

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NCBE Announces National Mean for February 2024 MBE

MADISON, WISCONSIN, April 2, 2024— The National Conference of Bar Examiners (NCBE) announced today that the national mean scaled score for the February 2024 Multistate Bar Examination (MBE) was 131.8, an increase of more than 0.6 points compared to the February 2023 mean of 131.1. The MBE, one of three sections that make up the bar exam in most US jurisdictions, consists of 200 multiple-choice questions answered over six hours. 

19,496 examinees took the February 2024 MBE, an increase of approximately 1.4% compared to the 19,228 examinees who sat for the exam in February 2023. This increase continues a return toward pre-pandemic examinee numbers that began with last February’s administration.

Approximately 72% of February 2024 examinees were likely repeat test takers and approximately 28% were likely taking the exam for the first time, roughly the same proportion of repeat and first-time test takers as February 2023. [1] All groups of examinees saw performance increases compared to February 2023, with the greatest increase for first-time takers. 

NCBE Director of Assessment and Research Rosemary Reshetar, EdD, commented: “These numbers reflect a continuation of the trend that began last February: we are moving back toward pre-Covid numbers in terms of both the mean and the examinee count. We will likely see an increase in pass rates compared to last February, but we are also still seeing the  effects of the pandemic on examinees who were in law school in 2020, 2021, and 2022.” 

Reliability for the February 2024 exam was 0.93, slightly higher than the reliability for the February 2023 exam and consistent with the 5-year average for February administrations. (Reliability is an indicator of the consistency of a set of examination scores, with a maximum value of 1.0.)

Jurisdictions begin releasing their February 2024 results this week; bar examination pass rates  as reported by jurisdictions are available on the NCBE website. Many jurisdictions are still in the process of grading the written components of the bar exam; once this process is completed, bar exam scores will be calculated and passing decisions reported by those jurisdictions.

More information about the MBE and bar passage rates can be found in the following Bar Examiner  articles:

• The MBE Mean and Bar Passage Predictions
• When the Mean Misleads: Understanding Bar Exam Score Distributions
• Why are February Bar Exam Pass Rates Lower than July Pass Rates?

[1] The first-time and repeat MBE-based test taker information calculated by NCBE is an approximation based on the NCBE Number and biographic data, which has not been used consistently in all jurisdictions across time. Prior to 2022, approximately 10% of examinees could not be tracked with certainty by NCBE as either first-time or repeat takers due to a lack of sufficient biographic information.

About the National Conference of Bar Examiners

The National Conference of Bar Examiners (NCBE), headquartered in Madison, Wisconsin, is a not-for-profit corporation founded in 1931. NCBE promotes fairness, integrity, and best practices in bar admissions for the benefit and protection of the public, in pursuit of its vision of a competent, ethical, and diverse legal profession. Best known for developing bar exam content used by 54 US jurisdictions, NCBE serves admission authorities, courts, the legal education community, and candidates by providing high-quality assessment products, services, and research; character investigations; and informational and educational resources and programs.  In 2026, NCBE will launch the next generation of the bar examination, ensuring that the exam continues to test the knowledge, skills, and abilities required for competent entry-level legal practice in a changing profession.  For more information, visit the NCBE website at  https://www.ncbex.org .

About the Multistate Bar Examination

The Multistate Bar Examination (MBE) is a six-hour, 200-question multiple-choice examination developed by NCBE and administered by user jurisdictions as part of the bar examination, typically given twice each year. The purpose of the MBE is to assess the extent to which an examinee can apply fundamental legal principles and legal reasoning to analyze given fact patterns. The subjects tested on the MBE are Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts. In addition to assessing examinee knowledge and skills, the MBE is used to equate the bar exam.  Equating is a statistical procedure used for most large-scale standardized tests to ensure that exam scores retain the same meaning across administrations and over time.  More information about the MBE is available on the NCBE website at  https://www.ncbex.org/exams/mbe/.

About the Uniform Bar Examination

The UBE is a two-day bar examination composed of the Multistate Essay Examination (MEE), two Multistate Performance Test (MPT) tasks, and the Multistate Bar Examination (MBE). It is uniformly administered, graded, and scored and results in a portable score that can be transferred to other UBE jurisdictions. More information about the UBE is available on the NCBE website at  https://www.ncbex.org/exams/ube/ . 41 US jurisdictions currently participate in the UBE, and more than 45,000 examinees took the UBE in 2023.  

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