The Four Elements of Negligence
In order to prove fault in personal injury/malpractice cases, attorneys must prove the existence of Tort.
Tort is defined as an act that is committed by one party and ends up causing harm to another. Most legal cases involving Tort are due to negligence vs intentional harm.
Examples of Negligent Tort may be-
- negligence that causes a person to be injured in an automobile accident
- as a result of medical malpractice
- or as a result of another person’s wrongdoing
There are limited ways an attorney can prove negligence. What follows is a brief introduction to the legal premises we work from in proving the existence of Negligent Tort, The Four Elements Of Negligence.
The Four Elements of Negligence Are Duty, Breach of Duty, Damages, and Causation.
With regard to duty,
an individual has a duty to behave in a responsible manner
- the driver of an automobile has a duty to stop at red lights and stop signs
- a pharmaceutical company has a duty to provide safe products to its customers
- a landlord has a duty to maintain his property in a manner that makes it safe for renters
- a doctor has a duty to provide a minimum acceptable level of care, i.e. prescribe blood pressure medicine for someone with high blood pressure, order an x-ray if a fracture is suspected, etc.
- a nurse has a duty to administer the correct medications at the right time and dose or to monitor a patient and alert a physician if the patient becomes unstable
With regard to breach of duty,
a plaintiff must prove that the defendant breached his duty to behave in a responsible or professional manner. The plaintiff does this by articulating the duty of the defendant, as in the examples above, and then showing how the defendant deviated from the duty, i.e.:
- the driver of an automobile did not stop at a red light or ran through a stop sign, therefore breaching his duty to stop at red lights or stop signs
- A pharmaceutical company placed a drug on the market even though trials showed there were some unacceptable side effects, therefore breaching its duty to provide safe products to its customers
- A landlord did not repair a gas leak in a heating device or did not repair broken stairs, therefore breaching his duty to maintain rental property in a safe condition
- A doctor knew the patient had unacceptably high blood pressure but did not prescribe medication to address it or a doctor did not order an ankle x-ray of a person who came into the emergency room with a badly swollen ankle that could be a fracture. The doctor in both cases breached his duty to address and treat the patients’ presenting symptoms.
- A nurse who gives double the dose of medication has breached her duty to administer the appropriate dose of medication.
With regard to damages and causation,
the plaintiff must prove that there were injuries or damages which arose from the breach of duty by the defendant. For example:
- The driver of the automobile ran a stop light or stop sign and broadsided another car that was lawfully crossing the intersection, causing the other driver to have a concussion and broken ribs. The concussion and broken ribs are the damages.
- The side effects of a drug – for instance Xarelto – cause gastrointestinal bleeding and there is no antidote for it. The GI Bleed is the injury or damage.
- The gas leak in the rental property caused the renter to go into a coma and develop brain damage. The coma is the injury caused by the breach of duty. A renter fell through a broken step, causing a broken tibia. The broken tibia is the injury, or damage, caused by the failure of the owner to maintain repairs.
- The patient who did not receive appropriate blood pressure medicine subsequently had a stroke due to elevated blood pressure. The stroke is the injury or damage. Or, the person whose ankle was not x-rayed developed a bone infection when the broken bone wasn’t treated appropriately. The bone infection is the injury or damage.
- The patient who received double the dose of medication went into respiratory arrest caused by the overdose. The respiratory arrest is the damage or injury.
If any of these elements are missing, there is no case.
For instance, with regard to duty:
- a passenger in the automobile does not have a duty to stop at the stop sign since he wasn’t driving.
- A pharmaceutical company does not have a duty to prevent a customer from taking too much medication since it has no control over that issue
- The landlord of a rental property does not have a duty to pick up a banana peel inside someone’s apartment that caused them to slip and fall since that was an action performed by the renter
- A doctor does not have a duty to prescribe blood pressure medication if the patient initially presented with stable blood pressure readings (but developed the stroke after he took some cocaine after seeing the doctor). A doctor does not have a duty to order an ankle x-ray if the patient does not present with signs and symptoms that would warrant the doctor to be suspicious of a broken bone (i.e. no trauma, pain or swelling).
- A nurse who administers medication does not have a duty to prevent the patient from taking an overdose of medication at home since she has no control over that situation.
If counsel can prove that the defendant did not have a duty to the plaintiff, there basically is no case, even if there are damages.
Or, if counsel can prove that the defendant did not breach his duty (i.e. the doctor prescribed the appropriate blood pressure medications but the patient still had a stroke), there is no case.
A careful review of the medicals by our expert LNC’s can help the attorney identify documentation that will clarify specific case facts related to each of The Four Elements of Negligence.
NPUSA Legal Nurse Consultants are experienced in reviewing medical records for defense and plaintiff alike. Contact us by email here, or give us a call at 504-236-5435. Initial consultations are complimentary.