Negligence refers to failure to exercise the required standard of care that any reasonable person ought to have exercised in a given situation. Negligence cannot exist where there is no duty of care that is owed by the defendant to the plaintiff. It means that the cause of action in cases related to negligence is based on the fact that a person has failed to execute his or her duties by exercising duty of care, or that person has executed it negligently. Actions of individuals are watched by the existence of a duty of care. In the health care dealings, the respective individuals entrusted with responsibilities and duties to handle the sick owe them a duty of care. In this case, the duty of care can either be under Common Law or a Statute (Emanuel, 2012).
In this case, the main point is to make sure that professionals in health care maintain high standards of care in executing their duties. Any errors occasioned during the execution of their duties may lead to fatal results. The breach of this duty may occasion irreparable damages. If the court finds that the surgical errors happened as a result of negligence, then the plaintiff is awarded damages. However, the damages are sometimes not commensurate to the loss experienced. The surgical negligence can be classified in three categories. It could be negligence, gross negligence, or malpractice. Though there are situations whereby malpractice and negligence are used interchangeably, they are exceptionally distinct. Thus, they contain different elements (Mujawar & Girish, 2012).
Differences between negligence, gross negligence and malpractice
There are notable differences between negligence and gross negligence. In cases of negligence, breach of a duty of care is the main element. Gross negligence looks for more than a mere breach of the duty of care or carelessness. In health care terms, the existence of negligence means that the guilty party has failed to meet the expected standards of care within that profession. On the other hand, gross negligence means that the guilty party has willingly or recklessly failed to demonstrate any care. This implies that human safety was endangered due to the said acts (Emanuel, 2012).
Gross negligence covers cases that are grave, and the guilty person has acted in total disregard of human safety. It is a violation of other people’s safety rights in entirety. The liable party of gross negligence rarely has a defense. To be held liable of malpractice, it should be proved that lack of skill or any other misconduct was evidenced leading to injury, death, or any other unnecessary pain and suffering. There is a test in ascertaining whether a person is guilty of malpractice. In this case, one has to show that the guilty party failed to observe the guidelines that a person of the same profession should have observed under the given circumstances. A malpractice may be committed as a result of negligence. This is also termed as professional negligence. It is essential to note that it is not all types of malpractice that can be classified as negligence. It is not easy to differentiate the three categories of negligence. In a situation where any form of negligence has occurred, it is advisable to review all the facts (Lupo & Kenneth, 1977).
The case in the neighborhood hospital has valid facts that can be placed in negligence, gross negligence, and malpractice. For the doctor who amputated the patient’s wrong leg, there are many factors to be considered. The doctor owed the patient a duty of care, which he or she breached. There is an automatic breach of the duty of care. The tort committed in this case is not through omission, but through acting negligently. In other words, professional negligence has been occasioned, and the patient has suffered serious injuries. In this situation, negligence is evident from the surface of the facts. The amputation of the wrong leg has caused irreparable damage to the patient. There is a clear indication that the doctor acted in complete disregard of human safety, and there seems to be no defense available for his actions. The doctor would have observed due diligence and exercised reasonable care in ensuring that irreparable injury is not occasioned. The acts of amputating the wrong foot is part of malpractice. Professionally, the doctor has breached his duty of care, and it is clear that any doctor of his or her class, and with the same skills, would not commit such acts of negligence (Mujawar & Girish, 2012).
It is evident that the amputation of the patient’s wrong leg occasioned pain and suffering to the patient. The patient can seek damages in a court of law due to the gross negligence of the doctor. The prosecution of the doctor may lead to imprisonment and other penalties such as cancellation of the practicing license. The rationale for finding a doctor to have breached many duties and the suggested punishment are based on two points. The penalty awarded is supposed to be severe to promote deterrence. First, the medical profession is directly involved with the safety of human life, and any reckless acts can be highly costly. Secondly, the wrong leg of the victim was lost, and that loss is grave. Therefore, fairness would dictate that the victim gets high amount of damages (Lupo & Kenneth, 1977).
The documentation of different events in the course of day-to-day practice of the medical profession is extremely beneficial. Documentation helps in providing evidence because the victim’s details are recorded together with those of the doctor who attends to the victim. This assists in ensuring that the right party is sued instead of allowing the entire hospital to suffer the burden of one doctor’s negligence. There is a possibility of the hospital being held vicariously liable. However, there is personal prosecution for the doctor who amputated the patient. Being a nurse in such circumstances, I would know my obligations and try to observe them accordingly. Ethically, I would maintain consistent communication with my patients. I would also address my mind to practices and legal guidelines in order to avoid any breach. I would avoid committing acts that breach the regulations and guidelines provided. Observance of due diligence, when handling patients, would be my priority (Emanuel, 2012).
The article has clearly shown the distinctions between negligence, gross negligence, and malpractice. The three aspects are clearly distinguishable in instances whereby facts are clear. Nevertheless, there is a possibility that a person can commit all of them in one action. The regulations that govern medical practitioners expressly prohibit the three scenarios from happening. In the set of facts provided, the hospital management and the staff of the neighboring hospital that carried out the operation will be held liable. The hospital will be held vicariously liable for the actions of the doctor. The victim will claim damages for negligence.
Emanuel, E. J. (2012). Where are the health care cost savings? JAMA, 307(1): 39-40.
Lupo, T. & Kenneth, G. (1977). A Modern Approach to the Legal Malpractice Tort. Indiana Law Journal: 52(3), Web.
Mujawar, N, & Girish, M. (2012). Is knowledge of medicolegal issues concordant with heightened risk among doctors? Indian Med Assoc., 110(1): 19-21.