Negligence (criminal and civil) and malpractise

Negligence action (tort of negligence) - Civil negligence action for damages

Negligence is established on the basis of:
· Precedents (previously decided cases)
· Admissible and available evidence
o E.g. Testimony of expert witnesses
· The court relies on an objective test of what a reasonable doctor should have done/not have done
o Peer professional opinion has a role

Patients must satisfy the statutory threshold levels for negligence claims:
· Apply to claims for damages for pain and suffering
· Don’t apply to economic losses à ensures trivial claims don’t go to court
· Impairment level must be assessed by an approved medical practitioner:
o Significant physical injury threshold – 5%
o Significant psychiatric injury threshold – 10%

Plaintiff must establish, on the balance of probabilities, that:
· The defendant (doctor/health care provider) owed a duty of care
· The defendant failed to meet the standard of reasonable care
· The breach caused the plaintiff’s injuries
· The injury/loss was reasonably forseeable

Causation – defendant’s acts/omissions must have caused the injury:
· Negligence was a necessary condition of the occurrence of the harm (factual causation)
· It is appropriate for the scope of the negligent person’s liability to extend to the harm which has been caused (scope of liability)

This is the less serious category of negligence:
· Lower level of negligent conduct
· Is a matter of compensation

Involuntary manslaughter - Criminal

· Person is killed due to grossly negligent act/omission
· An act is deemed dangerous by the reasonable man test
o Objective test – what a reasonable person would do in the same situation
· The prosecution must prove beyond a reasonable doubt, that the accused was aware of the unjustifiable risks of their behaviour, and yet he/she continued to pursue this behaviour

Negligent manslaughter - Criminal prosecution for manslaughter

The plaintiff must prove beyond a reasonable doubt that:
· The accused owed a duty of care to his/her victim
· His/her conduct involved a significant departure from the standard of reasonable care expected
· There was a high risk that death might follow

This is the more serious category of negligence:
· There is such disregard for the life and safety of others that it amounts to a crime against the State

Professional misconduct

· Must demonstrate a degree of negligence that lies between the civil and criminal standards

Professional misconduct includes:
· Conduct of a health practitioner in their practise that is of a lesser standard than the public and the practitioner’s peers are entitled to receive from a reasonable competent health practitioner of that kind
· Professional performance that is of a lesser standard that that which the registered health practitioner’s peers may reasonably expect from them
· Providing a person with health services that are unnecessary, excessive or no reasonably required for that individual’s well-being
· Attempting to influence or influencing the provision of health services in a way that may compromise patient care
· Failure to act as a health practitioner when required to do so under and Act or regulation
· A finding of guilt of:
o An offence where the practitioner’s suitability to continue to practise is likely to be affected by a finding of guilt, or where it is not in the public interest to allow the health practitioner to continue to practise due to the finding of guilt
o An offence under this, or any other, Act or regulations
· Contravention (an act which violates a law, treaty or agreement made by the individual) or failure to comply with a condition imposed on the registration of the health practitioner by or under an Act
· The breach of an agreement made under an Act between a health practitioner and the board that registered the practitioner

Sources: Law notes from last year, MPBV website
-Rushmi