Standard of Care Law
Standard of care law refers to the legal obligation of individuals or professionals to act with the same level of skill, care, and diligence as a reasonable person or professional in similar circumstances. This standard is used to assess whether a person has met their duty of care and can be applied in various legal contexts, such as negligence cases or professional malpractice claims.
7 Key excerpts on "Standard of Care Law"
eBook - ePub- Janice Richardson, Erika Rackley, Janice Richardson, Erika Rackley(Authors)
- 2012(Publication Date)
- Routledge(Publisher)
...Chapter 7 The Standard of Care in Medical Negligence – Still Reasonably Troublesome? José Miola Introduction Once it has been established that a duty of care is owed by one person to another, the legal obligation is eponymous in nature: there is a duty to take care. The ‘standard of care’ is the name given to the legal test that determines whether that duty has been discharged in an adequate manner. Some refer to this middle prong in the elements that go to make up negligence as ‘breach of duty’, since if the defendant’s conduct falls below the standard of care required by law then she is said to have breached the duty to take care. The standard of care can thus be said to be the crux of negligence, as it is the part that concerns the actual behaviour of the defendant towards the claimant. Needless to say, how one person acts in relation to another – and indeed how the law allows people to act towards each other – has serious policy consequences that can be relevant to feminist discourse (Conaghan 1996b; Peppin 1996). Not least, in the professional setting, it can set the paradigms of the power in the relationship between service provider and the person seeking to access that service. Nowhere can this have more serious ramifications than in the provision of medical treatment, where a relationship that gives power to the professional at the expense of the patient means that the former may have effective control over the body of the latter. Furthermore, women have traditionally been under-represented in the upper echelons of the medical profession, so female doctors may feel that they are at a disadvantage with a legal definition that, as we shall see, defines reasonableness in the actions of a professional’s peer group. Thus women may find a lack of empathy from (mostly male) judges and (mostly male) senior doctors in their role as both doctor and patient. This chapter considers feminist critiques of the law relating to the standard of care...
eBook - ePub- Graham Stephenson, Graham Stephenson(Authors)
- 2012(Publication Date)
- Routledge-Cavendish(Publisher)
...In this context, the word is being used to signify that this is something that the reasonable person would have done in these circumstances. STANDARD OF CARE The standard of care is based on what the reasonable person would or would not do in the particular circumstances. The starting point for any discussion is traditionally the brief statement of Alderson B in Blyth v Birmingham Waterworks Co: 1 Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. The reasonable man is clearly an abstraction designed, some would argue, to enable a judge to hide his subjective view, which it must be, behind a cloak of objectivity and thus appear impartial towards the parties to the case. One of the leading statements on the reasonable man is that of Lord Macmillan in Glasgow Corporation v Muir : 2 My Lords, the degree of care for the safety of others which the law requires human beings to observe in the conduct of their affairs varies according to the circumstances. There is no absolute standard, but it may be said generally that the degree of care required varies directly with the risk involved. Those who engage in operations inherently dangerous must take precautions which are not required of persons engaged in the ordinary routine of daily life. It is, no doubt, true that in every act which an individual performs there is present potentiality of injury to others. All things are possible, and, indeed, it has become proverbial that the unexpected always happens, but, while the precept alterum non laudere requires us to abstain from intentionally injuring others, it does not impose liability for every injury which our conduct may occasion. In Scotland, at any rate, it has never been a maxim of the law that a man acts at his peril...
eBook - ePub- Sanmeet Kaur Dua, Chris Turner(Authors)
- 2019(Publication Date)
- Routledge(Publisher)
...3 Negligence: breach of duty AIMS AND OBJECTIVES After reading this chapter you should be able to: ■ Identify the relevant measure of care applicable to non-professionals and professionals ■ Explain and apply the general standard of care ■ Explain and apply the standard of care applicable to professionals, particularly doctors ■ Identify the factors used in determining whether a defendant has fallen below the standard of care appropriate to the duty owed ■ Critically analyse the concepts of standard of care and breach of duty of care ■ Identify the appropriate standard of care in factual situations ■ Apply the factors for determining breach to factual situations in order to establish if a breach has occurred 3.1 The standard of care and the ‘reasonable man’ test 3.1.1 The standard of care We have already seen how negligence occurs where a person owing a duty of care to another person breaches that duty and causes damage which is not too remote a consequence of the breach of duty. Breach of duty, the second element of negligence, actually refers to the standard of care that is appropriate to the duty owed. A breach of duty simply occurs when the party owing the particular duty falls below the standard of behaviour that is required by the particular duty in question. The judge in the case will determine the standard of care and whether or not the defendant’s behaviour has fallen below that standard according to established tests. While the standard of care in any situation is a question of law, whether or not the defendant has fallen below the standard is a question of fact that will be determined by reference to all of the circumstances of the case. The standard of care required is generally measured according to an objective method of testing...
eBook - ePubMedical Law Handbook
The Epidemiologically Based Needs Assessment Reviews, Low Back Pain - Second Series
- Raj Mohindra, Alison Davies(Authors)
- 2017(Publication Date)
- CRC Press(Publisher)
...If what actually happened falls below what should have happened, then the Court can conclude that a breach of the duty of care has occurred. Note how the standard of care is a question of law. 10.1.5 The advent of an adverse outcome alone does not establish the existence of breach of the duty of care. Risks materialise in medical practice even when the utmost skill and attention is deployed. The reason for the principle of the breach of the duty of care is to distinguish those situa tions where an adverse outcome is simply the chance materialisation of an existing risk from those situations where there the adverse outcome results because due skill and attention was not deployed. Whitehouse v Jordan [1980] 1 All ER 650, HL P’s mother was in the late stages of labour. She was attended by D. D undertook a trial of forceps prior to delivering P by caesarean section. P suffered significant brain damage. P sued by her mother as best friend claiming that the trial of forceps was negligently undertaken. Held: D not liable. 10.1.6 The measure of the standard of care (i.e. what should have been done) is an objective question, and the answer should not depend upon the perspective from which the question is viewed. The standard of care is considered further in sections 10.3 and 10.4. 10.1.7 The idea of reasonableness is used to import this objectivity into the idea of the standard of care. This word ‘reasonable’ is not used in the everyday sense of being sensible. Here the term means ordinary, everyday, around the middle of the normal curve. It does not imply ideas of averaging, and it eschews the idea of extremes – but it does import an objective element. 10.2 THE REASONABLE PERSON STANDARD 10.2.1 The reasonable person standard is an elastic concept that adapts to the situa tion faced by the Court. It will consider all the circumstances of the case before deciding which reasonable person standard yardstick is applicable in that case...
eBook - ePubClinical Guidelines and the Law
Negligence, Discretion, and Judgement
- Brian Hurwitz(Author)
- 2018(Publication Date)
- CRC Press(Publisher)
...This is the standard of medical care required by law. Breach of duty The duty of care is imposed by law and its standard is determined by the courts after hearing expert evidence. Since a doctor’s duty of care consists of an obligation to provide a fair and reasonable standard of care and competence, breach of this standard consists in providing treatment that falls below such reasonable standard. Reasonable standard What is a reasonable standard of care? In UK law the standard of treatment a doctor generally owes to a patient derives from the case of Bolam v Friern Hospital Management Committee (1957). In the words of Mr Justice McNair: ‘the test is the standard of the ordinary skilled man exercising and professing to have that special skill.’ 11 Doctors are required to act in a manner judged reasonable and proper by a body of other responsible doctors. Judge McNair stated: ‘A doctor will not be guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.’ 11 This is what has become known as the ‘Bolam test’. Expert testimony helps the courts to ascertain what is accepted and proper practice in specific cases; and this generally ensures that professionally generated standards are applied, rather than standards originating from elsewhere. 12 Although questions of breach of duty are decided primarily on the basis of expert medical evidence, Lord Bridge in another case, Sidaway (1985), in applying the Bolam test did not accept that this involved: ‘... the necessity “to hand over to the medical profession the entire question of the scope of this duty... including the question of whether there has been a breach of that duty”. Of course, if there is a conflict of evidence whether a responsible body of medical opinion approves... in a particular case, the judge will have to resolve that conflict.’ 13 Expert medical evidence is therefore not always conclusive...
eBook - ePubTorts
QuickStudy Laminated Reference Guide
- (Author)
- 2018(Publication Date)
- QuickStudy Reference Guides(Publisher)
...duty of care OBJECTIVE STANDARD Reasonable, ordinary, prudent person Physical characteristics considered Average mental ability (mental disabilities not considered) Knowledge of average community member imputed Lighting a match can cause a fire; oil spilled on a garage floor is slippery; a power tool turned on must be handled with care Professionals Skill, knowledge, and care of a practitioner in a similar community Shipowner has no duty to warn of latent defects which should be obvious or anticipated by skilled stevedore Specialist standard—superior knowledge Medical malpractice Modern view is to apply a national standard; some jurisdictions maintain a “locality rule” which judges physicians by the knowledge of those practicing in the same or a similar community Standard of care (majority rule): What the average qualified physician would do in a particular situation Determined by the care customarily provided by other physicians in the same area and within the same practice field Must be established through expert testimony Conventional RPP standard will be applied for cases where there is no need for an expert (i.e., cutting off the wrong limb or gross negligence) Specialists are held to a higher standard—that of a specialist in a particular situation Nurses: Standard for nurses of similar practice Pharmacists Majority rule: No duty to warn of side effects Minority rule (Florida rule): Duty to warn of side. effects Emergency care: Some states have special statutes that protect physicians from liability when acting in an emergency situation Respectable minority standard: The action is acceptable if a respectable minority uses that technique Informed consent doctrine Requirement that patient be provided with enough information to make an informed decision regarding medical treatment Disclosure of all material risks, including degree of side effects and mortality...
eBook - ePub- Timon Hughes-Davies, Nathan Tamblyn(Authors)
- 2019(Publication Date)
- Routledge(Publisher)
...The defendant claimed that another car had cut in suddenly in front of the bus. The court held that the defendant had not proved that they had not been negligent and gave judgment for the claimant. 76 [1988] RTR 298. The Privy Council overruled this judgment. Establishing res ipsa loquitor did not reverse the formal burden of proof. It was merely a way of describing a state of evidence from which negligence could be inferred, without requiring the claimant to establish the exact way in which the accident was caused. Points to review The duty of care is a duty to take reasonable care to prevent foreseeable harm. The test of reasonableness is an objective standard, measured by reference to an ordinary person. Children are expected to exercise less care than adults. Professionals are judged by the standard of an ordinary member of the profession. A person carrying out a role which requires professional experise is not negligent if he or she acts in accordance with a practice accepted as proper by a responsible body of professional opinion. The defendant should take into account any foreseeable vulnerability or disability of the claimants. The law takes all the circumstances into account. Taking it further Nolan, D. ‘Varying the Standard of Care in Negligence’ (2013) 72(3) Cambridge LJ 651–688 A consideration of the objective standard applied in English law, which examines the case for varying the standard in some circumstances. The author argues that this could be an alternative to using the duty of care as a control mechanism. Goudkamp, J. and Ihuoma, M. ‘A Tour of the Tort of Negligence’ (2016) 32 J Professional Negligence 137–152 This considers the objective standard of care applied in negligence, and whether it should be applied in the cases of adults who are suffering from mental disorders, such as the defendant in Dunnage v Randall...
