Traditional Negligence and Res Ipsa

Traditional negligence and Res IPSA loquitur are present to serve the same purpose and inform about negligence that has occurred. It should be noted that both these terms differ from medical malpractice that is usually done on purpose and it causes a significant amount of harm to the patient. The first case of Res IPSA Loquitur occurred in California in the year 1863. The case was basically that a barrel of flour rolled out of the window and went on to damage a pedestrian. The pedestrian then sued the owner of the warehouse that made the flour and in court presented the evidence that spoke for itself. (Prosser 1949) From then on, Res Ipsa loquitor has been used to talk about cases and negligence that do not need further proof to explain the fault. In these cases, the mistake is quite visible. On the other hand, in traditional negligence, the mistake or error isn't always so obvious. A major difference between traditional negligence theory and res ipsa loquitur are the evidence required to prove the accusation. In the former case, the patient must prove that there was duty owed to him and that there was a breach in that duty. He must also prove that the injury occurred because the duty was not followed and it resulted in the damage to the patient. An example of traditional negligence theory is of Dingle v Belin in 1999 when the surgeon, Lenox Dingle left the surgery after removing the gall bladder and his resident dissected and clipped the common bile duct instead of the cystic duct. (Bal & Brenner, 2010)

Student 2

Res ipsa loquitur and traditional negligence theory differ in the way the patient tries to accuse of the injury caused. It should be noted that res ipsa loquitur is an approach that involves inference and assumptions by the court. For instance, in Douglas v. Bussaberger, res ipsa loquitur was allowed against the defendant surgeon and the drug maker even though the defendant could not state the actual cause of her paralysis in lower limbs after a stomach surgery. This is an understood fact that a stomach surgery would not cause motor loss unless negligence has occurred. The patient did not need further proof and the mere facts were sufficient for the jury to accept whose fault it is. On the other hand, in traditional negligence requires proof and can usually be directed towards a single person. An example of this would be if a doctor on duty fails to provide a tetanus shot after a person with a roadside injury comes in. The negligence would be on that medical worker because providing the shot was his duty and he failed to carry it out.

Question 2

Student 1

The legal basis of Doctrine of respondeat superior and vicarious responsibility applies to the employees in a health care facility when the employee commits a civil wrong while employed in that service. It should be noted that even though the employer did not do anything wrong, he will be held responsible for this act as well. (Regan & Regan, 2002) All the health care workers are surely part of some form of administration or a unit. Contrastingly, this law will not be applied to private practices because in those cases, only the direct health care worker is considered responsible. This brings us to the idea of shared responsibility of a certain situation. This doctrine can be applied to the administration because at the end of the day it is the administration that overlooks the hiring of the medical workers. Under the major principles of vicarious liability, one person can be held responsible because of a negligence caused by someone else. (Larson, 2005)

Student 2

Vicarious liability most commonly occurs when the accused carries out an action with in employment. The person who does the mistake which could either be a nurse or a doctor does so to pursue the employer's interest. Because the employer and the employee shared the same duty and interest, eventually they also share the responsibility. Due to this reason, we see that the doctrine of respondeat superior and vicarious liability is applied to the administration. Therefore we see that whenever a doctor or a surgeon does some form of negligence, the hospital has to incur the penalties along with the person who caused the negligence. Furthermore, it is up to the administration to deal with the negligent afterwards. Many administrations go on to fire the person or to put them on some sort of probation. The control over the employee is an important aspect that the court looks over in such cases.