- Professional negligence – Whenever the conduct of a professional while in the process or as a result of rendering services create circumstance that lead to the death of another individual, then that professional has committed negligent homicide. A doctor, for example, may fail to follow standards of hygiene expected by society and his professional peers. When this breech of professional conduct causes a deadly infection in a patient, it can be argued that the doctor’s negligence in providing sanitary conditions creates circumstances that lead to the patient’s death. The doctor lacks malice and intent but is otherwise responsible due to his negligence.
- Vehicular negligence – recklessness in the operation of any motor vehicle from cars to boats and plane can result in the accidental death of others. Even if the operator is not director involved in the physical act that kills the victim, he or she may have created dangerous circumstances that caused the accidental killing. There are additional penalties and a high assumption of mens rea or “guilty mind” if the individual knowingly operated the motor vehicle with a suspended or expired license or failed to take adequate precautions. For example, in New York State, the operator of a vehicle that kills a person while carrying over eighteen tons of hazardous materials can be changes with a class D felony. The operator of a vehicle that kills an individual while driving with a suspended license will be charged with Vehicular manslaughter in the first degree, which is a class C felony.
- Intoxication – excessive intoxication may lead to an increase in reckless behavior, which in turn, can potentially create a hazardous situation for others. These circumstances ultimately result in the unlawful killing of the victim, but there is a low assumption of mens rea as the accused frequently lacks the malice and intent to harm the victim. The individual may be found negligent if his intoxicated state contributed to unsafe circumstances, as his recklessness is assumed to be atypical behavior and a deviation from the conduct of a “reasonable person.”
What is Gross Negligence?
Gross negligence is a severe lack of due diligence on the part of the defendant that represents a lack of concern for the likelihood that injuries will result. The distinction here is that the defendant’s conduct is exceptionally below the conduct of a “reasonable person.” In a case involving gross negligence, punitive damages may be awarded in addition to general and special damages.
What are the limitations on gross negligence?
Generally speaking, healthcare professionals and law enforcement are protected from liability when dealing with emergencies another other job functions.
In most states, health officials and employees are protected against criminal or civil liability except for “wanton and willful misconduct”
– Healthcare professionals that respond to life threatening emergencies
– First responders at emergencies
– School nurses and professionals that administer medication and immunizations to pupils
Still, healthcare workers are expected to know the risks of administering aid or medication under the direction of others. They may be found guilty of negligence if they knowingly administer drugs that could cause serious harm. Additionally, in times of disaster, there are several statues that protect relief workers and those that provide shelter to the displaced. Contact a negligence lawyer to acquire legal advice and assistance.
How does it differ from willful and wanton conduct?
Willful and wanton conduct implies that the damages are intentional while behaving recklessly. In this case, the defendant’s actions constitute a conscious disregard for his or her safety and the safety of others. This differs from gross negligence in that the assumption is that the damages are unintentional, but caused by a willful disregard for the safety of others. In both cases, the defendant has acted recklessly without regard for the well-being of others. Any action on the part of the plaintiff that contributed to his or her injury is not willful and wanton conduct but rather gross negligence.
What is an example of gross negligence?
A building owner with knowledge of the fire code but willfully refuses to provide fire extinguishers and adequate fire exits will be found guilty of gross negligence on top of other charges should bodily harm or property destruction happen as a result of a lack of safety precautions in an unsafe environment. A “reasonable person” would follow the fire code and abide by it to protect the well being of both him and others that rely in the safety of the establishment. This example would be willful and wanton conduct if the defendant had perhaps locked employee exits during a fire emergency.
RES IPSA LOQUITOR; WHAT IS THIS?
Res Ipsa Loquitor is a legal doctrine that essentially means, "The thing speaks for itself." As discussed in the section for negligence cases, res ipsa loquitor is often asserted in negligence actions when there is no other way that the injury could have occurred unless it was caused by the defendant's negligence.
This is often the case in medical malpractice suits because of a number of reasons which include the medical professional's expertise in dealing with the matter; the availability and awareness of the patients previous medical history including allergies, prior treatment, etc; and often the sedation of the patient at the time that the medical malpractice occurs. Although these examples are inclusive they are not exclusive and there are other factors. Due to the fact that it is more probable than not that the medical professional is in full control of the instrumentalities of a medical procedure the doctrine of res ipsa loquitor is often used by the plaintiff in these medical negligence cases. Contact a medical malpractice lawyer to acquire legal advice and assistance.
YBARRA V. SPANGARD
A perfect example of the liability of medical professionals can be shown in the case of Ybarra v. Spangard, 25 Cal.2d 486, 154 P.2d 687 (Cal.1944). In this action the Ybarra, plaintiff, was injured when he went in for a routine appendectomy and came out of surgery with a sharp pain in his neck and shoulder that eventually led to paralysis. The plaintiff sued based on res ipsa loquitor and the trial court granted a non-suit. The plaintiff appealed.
On appeal the defendant's, the physicians and nurses, claimed that it was impossible to determine who was actually at fault in the matter because they were all working as a team on the surgery and one sole tortfeasor could not be pinpointed. In finding for the plaintiff the court asserted that res ipsa loquitor does not require that one individual be at fault. The court claimed that the issue was whether the defendant had the right of control and not necessarily actual control. It was concluded that while undergoing a medical operation all parties involved, and in control over the patient may be held liable.
Thinking about it in a logical way the court reached a common sense conclusion that if there can be no liability if there is more than one tortfeasor then it would be in the best interests of those medical professionals involved to deny wrongdoing so as to escape liability.
WHY IS THIS CASE IMPORTANT?
This case is important in that it shows the "cut and dry" mentality that is taken by the legal system when confronted with medical negligence cases. If you go into surgery for one thing and come out in a worse condition then you entered then there is a presumption that it is the fault of those medical professionals who acted upon your person. This, however, is only a presumption and it is still the duty of the plaintiff to prove every element of the case.