Standard of Care Law

7 Key excerpts on "Standard of Care Law"

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  eBook - ePub

  Rediscovering the Law of Negligence

  • Allan Beever(Author)
  • 2007(Publication Date)
  • Hart Publishing

    (Publisher)

  3

  The Standard of Care

  THE STANDARD OF care in negligence law is crucial, not merely as a determinant of liability, but because it is of primary importance in elucidating the concept of negligence. If a defendant performs an action that falls below the standard of care, then he is said to be negligent. Conversely, if the defendant does not fall below the standard of care, then he cannot be found negligent. Moreover, while the duty of care tells us to whom one owes care, and remoteness tell us in respect of which injuries one owes care, the standard of care tells us what having care means.

  It may seem peculiar to discuss the standard of care before the duty of care. After all, this means that ‘breach of duty’ is explored before ‘duty’ itself. But that is not inappropriate. A defendant acts negligently if he creates an unreasonable risk of injury to someone, but that someone need not be the claimant. Accordingly, it is possible for a defendant to be negligent but not owe a duty of care to the claimant. This was most famously the case in

  Palsgraf v Long Island Railroad Co.1

  In terms of the negligence enquiry, then, it is possible for the claimant to be able to prove that the defendant was in ‘breach of duty’, although she cannot show that the defendant owed her a duty of care. In other words, ‘breach of duty’ is shorthand for breach of the standard of care, not for breach of the duty of care. The standard of care, then, is not parasitic on duty, and it is not irrational to discuss it first.2 Moreover, as we will see, it is impossible to understand the duty of care without prior examination of the standard of care.

  This chapter is divided into five parts. The first examines when it is appropriate to apply the standard of care. The answer is that the standard of care is applied only to defendants who have manifested their will in action. I argue that this is so because corrective justice is a form of moral responsibility, and moral responsibility can be predicated only of actors in respect of their actions. The second part of the chapter explores the objective standard and the way in which it is sometimes adjusted. It rejects policy-based justifications of the objective standard and insists instead that the standard is designed to do justice between the parties. Moreover, it maintains that the standard is sometimes adjusted in order to preserve equality between the parties by reflecting relevant features of the relationship between the parties. The third part of the chapter examines the issue of reasonable care and unreasonable risk. I explore both the ‘utilitarian’ and corrective justice approaches to this question and conclude that the corrective justice model best captures the law of the Commonwealth, in particular the leading English cases. I also consider some problematic cases. Accordingly, the first three sections of this chapter establish that the standard of care stage of the negligence enquiry is best understood an instantiation of corrective justice.

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  Principles of Tort Law

  • Rachael Mulheron(Author)
  • 2020(Publication Date)
  • Cambridge University Press

    (Publisher)

  The synonymous phrases of ‘ordinary care’, ‘proper care’, or ‘prudent care’ were all used in Bolton v Stone to describe the standard which the law expects of D. That ordinary careful adult has traditionally been equated to the person ‘on the top of the Clapham omnibus’ (per Bolam v Friern Hosp Management Committee 3 ). What the law of negligence does not impose upon D is a requirement that he meet a standard of perfection – a level of conduct which is so unattainably high that breach is inevitable because 1 [1932] AC 562 (HL) 580 (emphasis added). 2 [1951] AC 850 (HL), with quotes respectively at 863 (Lord Oaksey), 865 (Lord Reid), and 868 (Lord Radcliffe). 3 [1957] 1 WLR 582 (QB) 586 (McNair J). 289 Introduction even reasonable conduct could not satisfy such a standard. The reality is that mistakes, errors of judgment, and acts and omissions falling short of perfection commonly do occur in any endeav-our of life – but they do not represent breach or negligence unless they fall below what would be expected of a reasonable person in D’s position. As the Privy Council endorsed in Hamilton v Papakura DC (NZ) , 4 the law does not impose ‘an unattainable standard that guarantees against all harm and all circumstances’. There is an important distinction to be drawn here, as the Court of Appeal noted in Barrie v Cardiff CC 5 : ‘The standard of care is a question of law; but whether or not, in any given case, that standard has been attained is a question of fact for the judge to decide, having regard to all the circumstances of the case.’ It follows that any error in setting the standard of care too high (or too low) will be an appealable error of law – and, in that regard, first-instance courts must resist the temptation to set the bar too high . Additionally, if a first-instance court takes into account a characteristic or circumstance which is legally irrelevant to the question of standard, that will be an error of law too.

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  Legal Issues in Social Work, Counseling, and Mental Health

  Guidelines for Clinical Practice in Psychotherapy

  • Robert G. Madden(Author)
  • 1998(Publication Date)
  • SAGE Publications, Inc

    (Publisher)

  The issue involves the technology-forcing role of the judiciary discussed in Chapter 1. Wiener compared the customary standard with the accepted practice standard. The customary practice standard compares the ac-tions of the professional with the normative practices customarily used by other professionals. The normative or accepted practice standard is based on the practices approved by the profession, not necessarily those customarily followed by its members (pp. 407-409). If the purpose of the tort system is to continually raise the bar for evaluating the perfor-mance of professionals, the normative standard accomplishes this goal. The problem is that it may result in unfair findings of liability against an individual practitioner as the price of holding the profession to a new standard. An example of setting a standard of care is needed to clarify this process. The most well-known medical malpractice suit that considered standard of care issues is Helling v. Carey (1974). In this case, a woman consulted with two ophthalmologists in 1959. They prescribed contact lenses for her nearsightedness. In 1968, one of the eye doctors gave her a glaucoma test and found that the woman suffered from the disease and had experienced loss of some vision as a result. The woman sued the doctors for failure to conduct a glaucoma screening test at the time of her initial prescription. Expert testimony for the doctors established that due to the low incidence of glaucoma in her age group, it was not customary practice to administer the test routinely. The court found that 116 LEGAL ISSUES IN MENTAL HEALTH because the test was harmless and inexpensive, there should have been a duty to perform it on all patients. When a court acts to set a standard outside of customary practice, it does so as a result of a lack of published standards by the profession.

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  Unlocking Torts

  • Sanmeet Kaur Dua, Chris Turner(Authors)
  • 2019(Publication Date)
  • Routledge

    (Publisher)

  9. In what ways has Bolitho not really made any inroad on the Bolam test?

  10. What criticisms can be made of the test used for establishing the standard of care owed by professionals?

  ACTIVITY

  Applying the law Consider how the courts would determine whether there was a breach in the following situations:

  1. Harold is a gynaecologist who when called by midwives because of a difficult birth nevertheless persuades the midwives to continue. The baby dies during delivery. Certain doctors suggest that only a Caesarean section delivery was appropriate in the case but Harold states that, even if he had attended he would not have carried out a Caesarean and other doctors say that they would have reacted similarly.

  2. During a forceps delivery of Martha’s baby, Harold, an inexperienced doctor who has never performed a forceps delivery before, damages the baby’s head so badly that the baby suffers almost total brain damage and dies.

  SAMPLE ESSAY QUESTION

  ‘The rules governing breach of duty are inconsistently applied so that they have the potential to be unfair to either party.’ Discuss the accuracy of the above statement.

  KEY FACTS

  The standard of care of professionals	Case
  A breach of duty occurs where a person falls below the standard of care appropriate to the duty he owes.
  The standard of care is usually that appropriate to the ‘reasonable man’.	Blyth v Birmingham Waterworks [1856]
  But the standard appropriate to professionals is judged according to the standards of a competent body of professional opinion.	Bolam v Friern Hospital Management Committee [1957]
  This is because the ‘reasonable man’ does not share those skills.
  And all aspects of medicine are tested against this rule, including even complementary medicine. The disclosure of information which must be tested against is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.

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  Tort Law in Bangladesh

  Applications and Challenges

  • Sakif Alam(Author)
  • 2021(Publication Date)
  • Routledge India

    (Publisher)

  50

  5.2.2 Skill

  Thirdly, in addition to moral qualities and knowledge, the reasonable person may also have skill, which is a superior ability, unbeknown to others in society, to undertake certain activities due to experience and training.51 If he possesses skill, the standard of care expected of him would be like that of others with similar skills. For example, the reasonable person must operate his vehicle like other competent drivers, and the failure to do so – even on account of his minority status – will not displace liability.52 Moreover, if he is a doctor or engineer, he will be held to the same standard as other doctors or engineers.53

  If the reasonable person does not have a particular set of skills, but is involved in an activity that otherwise requires it, the standard of care expected of him is like that of others who have that skill. For example, if he is driving, but does not have a license or does not know how to drive, he will be judged as though he has a license and knows how to drive like other competent drivers. This also means that if he is practising medicine or engineering, he will be judged as though he has the knowledge of being a doctor or an engineer even if he has never gone to school to study that field of academia.54

  The problem, however, arises when it concerns the liability of a beginner. For example, a 38-year-old, who has been driving since the age of 18, will have more driving-experience than a 19-year-old who has only been driving for two weeks; thus, is the novice’s liability lesser because of his inexperience? While this issue is contentious, it is important to understand that the beginner, since he is involved in an “adult activity,” will be treated like an adult, but the standard of care expected of him will be less than that which is expected of an experienced driver.55 Therefore, regarding the novice, the question would be “would a reasonable person act similarly in similar circumstances”; whereas, in reference to the experienced-driver, it would be “would a reasonable person who has similar experience

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  Torts, Egalitarianism and Distributive Justice

  • Tsachi Keren-Paz(Author)
  • 2018(Publication Date)
  • Routledge

    (Publisher)

  Arguably, a suggestion to incorporate egalitarianism into the standard of care analysis, for all its normative worth, deviates too far from existing tort law and, therefore, should be opposed on that ground alone. This charge will be termed ‘the incongruity challenge’. The first response to this challenge is that the claim defended here is essentially a normative one, while claims of incongruity are applicable mainly, if not only, with regard to positive theories. For the reasons stated above, the standard of care analysis should be attuned to the demands of egalitarianism, and to the extent that it is not so to a sufficient degree, it should be reformulated to correct this failing. It should be noticed, however, that the suggestion put forward here does not dramatically deviate from existing tort law. While it does represent an extension of existing tendencies, its adoption would be more akin to evolution than to revolution. Moreover, adopting a more egalitarian standard of care fits well with, and is supported by, the modern tendency in several jurisdictions to incorporate public values (such as equality) into private law doctrines. Furthermore, the practice of tort law (as opposed to judicial rhetoric) already shows sensitivity to egalitarian considerations in the realm of negligence law, and therefore the adoption of the suggested rule is also supported on the grounds of judicial sincerity.

  A. Standard of Care

  1. The Definition of Standard of Care can Contain Egalitarian Considerations The first point to be observed is that the test for the standard of care is by nature flexible and amenable, so that it has the capacity to include egalitarian concerns. The test (which varies from one jurisdiction to another) is broad enough conceptually and rhetorically to embrace egalitarian considerations. The test used by courts can quite easily incorporate egalitarianism. It goes without saying that whenever the reasonable person is used by courts to characterize the standard of care,100 that definition can be filled with egalitarian content. The reasonable person is as capable of being homo distributus as she is capable of being homo economicus. If the standard of care is defined as what a reasonable person would do, and if a reasonable person is expected to prevent some, but not other, harms from affecting her neighbours, nothing stops that reasonable person from adjusting her level of care to the relative position and status of the parties and taking into account the real burden that prevention and accident costs would have for them. Courts are ready to admit that the standard of care is normative rather than empirical, that the reasonable person is the court, and that the court sets the required standard of care.101

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  Critical Care Obstetrics

  • Luis D. Pacheco, Michael R. Foley, George R. Saade, Gary A. Dildy, Michael A. Belfort, Luis D. Pacheco, Michael R. Foley, George R. Saade, Gary A. Dildy, Michael A. Belfort(Authors)
  • 2018(Publication Date)
  • Wiley-Blackwell

    (Publisher)

  The standard of care for a nurse is different from that of a physician in many respects. For example, nurses have a separate licensing board and are usually, if not always, employees of the hospital or physician’s office. As such, the respondiate superior doctrine usually applies to nurses so long as they work within the scope of their employment. The respondiate superior doctrine means simply that the employer and/or hospital are potentially liable for the acts of the nurse.

  To establish the standard of care for the nurse, one approach is to use the jury instruction for the Standard of Care for nurses (Table 61.4 ) as a foundation to show any lack of compliance with accepted standards of care [13] .

  Table 61.4

  Model jury instruction for the duty of the nurse.

  Source: Ref. [13] .

  [A/An] [type of nurse] is negligent if [he/she] fails to use the level of skill, knowledge, and care in diagnosis and treatment that other reasonably careful [type of nurse] would use in similar circumstances. This level of skill, knowledge, and care is sometimes referred to as “the standard of care.”

  [You must determine the level of skill, knowledge, and care that other reasonably careful [type of nurse] would use in similar circumstances, based only on the testimony of the expert witness [including [name of defendant]} who have testified in this case.]

  Let’s break it down to illustrate the use of this jury instruction. For example, a registered nurse is negligent if she fails to use the level of skill, knowledge, and care in diagnosis and treatment that other reasonable and careful nurses would use in the same or similar circumstances. To establish nursing compliance with the standard of care, one would begin the analysis with the state’s Nurse Practice Act. Other places to investigate would include but are not limited to the standards established by national or state nursing organizations as well as relevant hospital policies and procedures. These will typically show what is required of the nurse in a given circumstance. By the time this textbook is published, all hospitals should be conducting critical care and/or emergency drills as a condition of reappointment for physicians or for maintaining a nurse’s hospital employment.

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