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Negligence Cases

Posted by attorney Edward Dowling

There are many types of Negligence cases, but the following are the most common types.

1. Personal Injury

2. Malpractice Cases

a) Medical Malpractice

b) Dental Malpractice

c) Legal Malpractice

d) Malpractice of other Professionals ( Accountants, Architects, Engineers, and others )

3. Product Liability

1.Personal Injury

Personal Injury cases come in many varieties, although the most common is from car accidents ( see previous article " What to do if you get into a car accident )

Other types include:injuries on the job( usually these start out as a worker’s compensation case but then also become a personal injury case against a third party defendant – a defendant other than the employer, that partially or fully caused the injury), slip and fall injuries( on ice or snow, potholes, slippery liquid in a supermarket etc )

2. Malpractice Cases

a) and b) Medical and Dental Malpractice Cases

These types of cases generally involve a Deviation from the Standard of Care Ordinarily Practised in the Community of Doctors or Dentists where the malpractice occurred. Although this standard can be quite complex depending on the number of and type of alternative treatments available for a particular patient’s condition, generally it means what course of treatment would a Doctor or Dentist of reasonable competence have done knowing the same information and having the same patient’s condition as the Doctor or Dentist accused of the malpractice.

Malpractice can be either sins of omission( failing to do something that should have been done ) or sins of commission ( doing something that should not have done or doing something that should have been done but doing it incorrectly). Thus malpractice can be a failure to diagnose a patient’s condition properly, or failure to diagnose at all. It can also be choosing to perform the wrong procedure ( such as performing right away a more drastic procedure such as surgery instead of a more conservative procedure such as physical or cognitive therapy or prescribing medication) or performing the right procedure improperly. It can also be failure to obtain Informed Consent from the patient. Informed consent means the doctor informing the patient about the possible and likely outcomes of the surgery or other procedure, including the positive and negative outcomes or risks. Usually after the doctor explains the procedure and its’ possible consequences he gives the patient a form to sign which states that the patient was properly informed and that the patient consents to the performance of the procedure. It should be noted that just because the surgery or other procedure did not succeed or some complication or problem resulted despite the fact that the procedure is generally successful( for example in 95 % of the patients and only results in failure or a problem in 5% of the patients ), does not establish that there was malpractice committed on the particular patient. Malpractice is usually proven with the testimony of other Doctor(s) or Dentist(s). This is difficult to prove because Doctors and Dentists many times have a difference of opinion as to whether malpractice was committed since there may be more than one appropriate procedure to perform. Additionally many Doctor(s) and Dentists) are reluctant to testify against their colleagues for the very understandable human reason that they would not want someone to testify against them if they were accused of malpractice.

c) and d) Legal Malpractice and Malpractice of other Professionals

Similar concepts of malpractice and the appropriate standard of care in the community applies to Attorneys and other Professionals. Therefore see the discussion above regarding Doctors and Dentists since a discussion of other Professionals liability is way beyond the scope of this article.

3. Products Liability

Products liability is a complex and extensive subject and a full discussion is way beyond the scope of this article. Many treatises have been written on the subject. However the general jist of Product Liability is that a company or companies ( manufacturers and resellers ) can be liable for placing an unreasonably dangerous defective product on the market if the person using the product, through no fault of their own, is injured as a result.

A product can be defective in many ways, but generally is defective either in its design or its manufacture. A company can also be liable for failure to provide adequate warnings in their products’ instructions or on labels on the product itself that are required by law. However it should be noted that a company generally will not be held liable at all or at least only partially liable if the user of the product failed to use the product according to the instructions or used it for a purpose for which it was not intended, or for failure to heed the warnings in the instructions or on the labels on the product or attempted to repair or modify the product in such a way as to void any warranty there may be on the product and thus is injured as a result of his own actions. An example of unauthorized modification of a product would be removing a safety guard ( contrary to the warnings in the instructions or on the labels of the product ) from an industrial buzz saw or a protective guard from a lawn mower.

Watch for future articles on Criminal and Civil Law.

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