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In professional negligence the most challenging and arduous is medical negligence, which consists of various claims. Medical negligence will usually involve doctors and other medical practitioners. In medical negligence the claimant is allowed to bring a personal injury claim to a court which has the jurisdiction under adversarial system. However it is evident from reported cases that medical negligence claims were mostly unsuccessful. The reason lies on the notion of the burden of proof, which cast a heavy burden on the plaintiff according to the fault system. In medical negligence claims, plaintiffs will more often than not, find it very difficult to discharge their burden of proof. In most countries, professional negligence claims are recommended to be dealt with by way of mediation under Alternative Dispute resolution (ADR). Mediation is believed to be easier than litigation and is less complicated. Malaysia is among those countries which has enhanced significantly the utility of ADR. This paper will endeavour to address the problems in proving medical negligence cases by using one of the strongest tools of ADR which is mediation.

The law as to the legal liability for medical negligence is evolving in its own individual way in Fiji, drawing upon English and Australian authorities. As yet claims have not been made in the courts by reference to the important constitutional “right of every person to health, and to the conditions and facilities necessary to good health, and to health care services, including reproductive health care.” However, it is apparent that significant sums of damages are available to persons who are proved to have suffered loss by virtue of a breach of duty of care on the part of medical practitioners. Awards of damages are rising in order to provide plaintiffs with adequate compensation for harm that they have suffered from medical negligence. While vicarious liability will generally lie for a hospital where negligence takes place, it will be rare for contributory negligence to lead to a reduction in damages.

It is trite law, in context of medical negligence, that the onus of establishing civil liability on the doctor’s part lies with the patient and liability must be established on a preponderance of probabilities. It is to be noted that, should the plaintiff be unable to prove his/her case on a preponderance of probabilities, judgment will be given in favour of the defendant; a court may, however, also order absolution fromthe instance. In delict, the plaintiff bears the onus to prove a wrongful act/omission on the part of the physician, as well as the element of fault (in the form of negligence) and that the act or omission caused him to suffer damages or personal injury. Where a defendant raises a special defence such as consent, contributory negligence or prescription, the onus of proof will be on the defendant. Generally, however, the application of the maxim of res ipsa loquitur is treated by the courts as a particular form of inferential reason, requiring careful scrutiny and giving rise to an inference of negligence rather than a presumption of negligence. The South African courts thus far have been reluctant to apply the maxim to cases of medical negligence, despite persuasive legal arguments that have been put forward that the maxim should be applied in specific circumstances with regard to the proof of medical negligence. In this respect general principles for the effective application of the maxim in cases of medical negligence, are, inter alia, that principles of procedural equality and constitutional considerations dictate that the maxim be applied in cases of medical negligence. It is for this reason that the present judgment under discussion (in tandem with s 27 of the Constitution) is instructive, despite the majority judgment of the Appellate Division (as it wasthen) in 1924, in Van Wyk v Lewis (supra), where it was held that the maxim does not find application in cases of medical negligence.

Medical malpractice is an increasingly generic term to describe professional negligence that occurs in the course of medical care. Whereas traditionally, allegations of medical malpractice were almost always directed at physicians, medical groups, or hospitals, the causes of action based in medical malpractice are now regularly and increasingly addressed to advance practice providers, such as physician assistants, nurse anesthetists, nurse practitioners, and nurse midwives, as well as pharmacists and other allied health professionals. The process of litigation, the applicable standards of care, the various potential applicable legal doctrines, and the calculation of damages are fundamental to the litigation process. This topic is further addressed in Chap. 5.

Ulipristal acetate (Esmya©) has been hailed the new wonder drug with regard to the medical management of uterine fibroids, and many postulate that it will remove the need for surgical treatment in the future. While the results from the PEARL studies are certainly promising and its amenorrhoeic rates and reduction in fibroid size are unquestionable, there is still a paucity of data with regard to its long-term effects, the effects on its usage prior to surgery and its variable efficacy in different ethnic populations. To facilitate our knowledge further, independent studies with clear outcome measures evaluating the long-term effects of the drug in a wider, more representative, ethnic minority population as well as assessing its true cost-effectiveness compared to surgery are needed. The aim of this article is to review the historical aspects with regard to the management of uterine fibroids to gain an understanding of where we are now and to evaluate the wider use of ulipristal acetate, both its benefits and limitations and postulate where to go in the future in order to allow our women to make safe and informed choices regarding their treatment options.

Recent High Court and Supreme Court judgments have awarded large compensations for complications arising out of intravenous treatment. Extravasation of fluids and drugs is the most common complication of any medical procedure worldwide. Extravasation injury leading to gangrene occurs rarely and is due to factors related to patient characteristics, underlying disease, and the type of drug which is being injected. Human error rarely may be contributory to development of the extravasations and injury resultant thereof, but to label all of these complications as negligence by the application of “res ipsa loquitur” has serious consequences. High compensation risk for a complication which is faced universally by all doctors has the potential to raise the cost of this simple procedure.

Surgeons, anesthesiologists, and other health care providers may be subject to liability for injuries relating to improper patient positioning in neurosurgical procedures. Lawsuits arising out of these types of injuries typically allege medical malpractice, but some also include claims for lack of informed consent. These torts are, for the most part, governed by state law; consequently, litigants may be subject to different requirements depending on where the lawsuit is filed. Recent federal legislation has attempted to standardize aspects of these claims, but, to date, these efforts have been unsuccessful.

Medical profession differentiates itself from other professions, where apart from the knowledge and skill, touch of humanity is also required. Since the inclusion of medical profession under the ambit of Consumer Protection Act there has been a spurt in the number of cases against the doctors. Bolam's test is applied to assess medical negligence of doctor. Cases against the doctors can be brought in a civil or criminal court, and accordingly the negligence may be civil or criminal negligence. In deciding criminal negligence against doctors criminal intent need to be proved. The Medical Law and Ethical Code for medical professional in India are prescribed by Indian Medical Council, under the section 20-A of Indian Medical Council Act of 1956 and Amendment Act No. 24 of 1964.

Objective: This paper aims to explain the meaning and implications for practice of the High Court of Australia’s finding in the negligence case, Hunter and New England Local Health District v McKenna [2014] HCA 44. Method: The facts of the case and the law of negligence are reviewed before reporting the Court’s decision. Results: The High Court found that the obligation upon doctors to provide the least restrictive option for care that was imposed by the, then applicable, Mental Health Act 1990 (NSW) was inconsistent with an obligation that might otherwise be imposed by a common law duty to have regard to the interests of those with whom a psychiatric patient may come into contact if not detained. Conclusions: The Court’s finding underlines the importance of clinicians documenting their clinical reasoning around why their negotiated management plan was the option least restrictive of the patient’s freedom and most protective of his or her human rights.

This Article is intended to contribute to the literature concerning the relationship between agricultural law and tort liability by examining cases involving the application of the res ipsa loquitur doctrine to cases involving agriculture. Courts throughout the country vary on whether to apply res ipsa loquitur to cases involving agricultural interests. This Article finds that the following three general rules can be gleaned depending upon the fact pattern: 1. A majority of courts have held that the res ipsa loquitur doctrine does not apply in cases involving crop or barn fires. 2. A majority of courts hold that the res ipsa loquitur doctrine applies in cases involving pesticide drift, the application of pesticides by crop dusting and spraying companies, as well as application of pesticides from contaminated barrels of insecticide. 3. There is a split in authority on whether res ipsa loquitur applies in cases involving escaped livestock.

For at least 20 years I have been conducting guerrilla warfare against legal publishers on the matter of copyright. Whenever I get a copyright form I either �forget� to send it back to the publisher (in more than half the cases no one seems to notice or care) or, if they do insist, I always cross out the critical language concerning my intellectual property (they usually ask you to make them a gift of your copyright) and replace it with a handwritten grant of a non-exclusive licence. I was challenged only once. I informed the publisher of the journal in question (Blackwell) that if they were unhappy they should feel free to drop my piece. That did not happen. The first footnote proudly displayed: ©JHH Weiler. I remember the moment of change. The publisher in question was Walter De Gruyter, publisher of the multi-volume series Integration through Law, of which I was co-editor and in which I had published a couple of pieces myself. Some years later I wanted to photocopy one of the pieces for my students. University copy-centres in the USA take copyright seriously and requested a release from the publishers. I requested such from De Gruyters, who promptly sent it accompanied by a hefty bill. They owned, it appeared, the copyright on my work and were now re-selling it for a profit (two years later I would presumably receive a 10% royalty on the fee I had paid�). Res ipsa loquitur. Consider the raw deal we authors get from most legal publishers, including law journals. Typically you are asked in exchange for publishing your brilliant piece, the result of many months of research, drafting and redrafting, to cede your copyright to the publisher of the journal. Now make no mistake: law journals are a serious source of �

刑事法領域で医療従事者にとって最も身近な話題である刑法の考え方, とりわけ過失犯の考え方について述べた. 刑罰の基本は犯罪を予防し, 私達の利益を保護することにあり, 故意犯処罰が原則である. 例外的に故意のない行為でも, 処罰の対象となるものが過失犯である. 故意犯では犯人に明確な意思があるが, 過失犯にはそのような意思がみられず, そのため本質的に処罰範囲が広くなる傾向がある. したがって, 過失犯の範囲を, いかにどのような形で限定するかが過失犯の基本的な問題となり, その中で特に重要なものとして信頼の原則がある. これに付随してチーム医療の場面での監督過失にもふれた. これからの医療現場において参考にしていただけたらと思う.

In every negligence lawsuit, including a lawsuit based on the medical negligence of a healthcare provider, the injured party must prove the existence of a duty of exercise reasonable care, a breach of the duty to exercise reasonable care, a causal connection between the breach of the duty to exercise reasonable care the in the injury suffered and proof of legally cognizable injury. This chapter overviews each of these requirements.

Medical malpractice is defined as an adverse outcome that causes injury or harm which occurs after a physician–patient relationship establishes the duty of care.1 There must be negligence by provider which is usually interpreted as failure to provide the standard of care and direct causality between negligence and outcome. Litigation is an unfortunate consequence of medical complications although in my experience, whether or not malpractice occurred is often unrelated to whether or not a lawsuit is filed. People usually file a lawsuit because of an unexpected, bad outcome, not necessarily because malpractice was committed. Errors in medicine happen commonly, fortunately, most do not result in patient harm. Clearly, a bad outcome does not necessarily indicate malpractice but most patients are not in a position to determine whether or not true malpractice has transpired. Complications are unavoidable and most complications are defensible except for a special category referred to as “res ipsa loquitur” which is loosely translated to mean “the event speaks for itself.” These are complications that are so egregious that by definition, negligence has occurred. “Never events” such as retained foreign bodies and air embolism are often referred to as “res ipsa loquitur.” Incidentally, this is different and sometimes confused with “prima facie” which simply means that the minimal amount of evidence needed to continue a case.

The last two articles published in the Medicolegal Sidebar addressed the complex interplay between the law and social values [1, 2]. Sometimes, court decisions may appear to be arbitrary and unfair to the medical profession, but a deeper examination of judicial rulings can show the practical tensions that courts sometimes face in adjudicating medical malpractice claims. We previously addressed the development of legal doctrines that are relevant to medical malpractice cases, such as “loss of chance” [1] and “res ipsa loquitor” [2]. In this article, we ask whether physician conformity to established and accepted treatment norms should always insulate the provider against medical malpractice claims. The question is relevant because of the prevailing assumption among physicians that compliance with the medical standard of care requires conformity to treatment norms that their peers would follow in comparable circumstances [14]. Indeed, a general assumption in medical malpractice litigation is that a physician or a surgeon who conforms to the prevailing norms of professional conduct, as described by an expert witness, should not be found liable for medical negligence [11]. However, as this article will illustrate, conformity to a medical norm as a measure of professional performance or medical negligence presents daunting challenges to American jurisprudence.

(2006). “Res Ipsa Loquitur” … It Speaks for Itself … Social Work—Values, Pain, and Palliative Care. Journal of Social Work in End-of-Life & Palliative Care: Vol. 1, No. 4, pp. 3-6.

Analyses the emergence of tortious liability on solicitors and the damages awarded against them for negligence in preparing wills, ie testamentary disposition, when this causes losses to beneficiaries recognisable in law; it is no longer the case that actions by clients against solicitors are always for breach of contract. Traces how negligence has been established as an independent tort, and shows how absence of privity does not debar a claim. Discusses the landmark case of Ross v Caunters, which showed that liability could be to a third party, ie the beneficiary of a will that was made void by solicitor negligence; discusses how the duty of care was ascertained in this and other cases. Outlines the control mechanisms that a third party has to prove before a court decides that a solicitor is liable: reliance on the solicitor, whether there is a causal link between negligence and loss, proximity and foreseeability; there is also the concept of fair, just and reasonable. Covers lastly the issues of unjust enrichment of unintended beneficiaries, professional indemnity insurance, social policy objectives for awarding damages, and the bounds of liability.

Learning Objectives After completing this course, the reader will be able to: Describe the factors suggesting the melanoma epidemic is real and not artificial. List the major risk factors for melanoma and preventative measures. Describe the relationships between age and gender and melanoma risk. Access and take the CME test online and receive one hour of AMA PRA category 1 credit at CME.TheOncologist.com Many have debated whether or not we are in the midst of a melanoma epidemic. Some facts are clear and helpful to this debate, while others are less clear. The incidence and mortality of melanoma have increased over the last several decades, but the incidence has risen faster than the mortality. The incidence has risen 3%–7% on average over several decades and even more rapidly among Caucasian men and the elderly. In the U.S., the incidence in men is higher than in women after the age of 40, and the difference between men and women increases from age 40 until the end of life. The incidence in the U.S. has risen most rapidly among in situ and localized lesions, but distant and regional disease have increased as well. Among localized disease, in the U.S. from 1988–1997, all stages increased by comparable amounts. This strongly argues against the idea that the increase in incidence of melanoma is only due to early detection of thin lesions or biologically benign lesions, at least during the time period studied. On the other hand, early detection of thin lesions may well account for lower increases in mortality than incidence and improvements in survival. Survival has increased from approximately 60% in the 1960s to 89% in recent years. Improvements in survival appear to be related to earlier diagnosis, rather than an improvement in survival of a given stage. Studies consistently point to a major role for UV light exposure as the most important risk factor for those individuals with a phenotypic susceptibility. Public health efforts aim at primary and secondary prevention strategies. Primary prevention strategies attempt to prevent people from developing melanoma, primarily through avoiding exposure to UV light. There is a particular emphasis on avoidance of UV light exposure in childhood and young adulthood, when it appears the risk is greatest. When strict avoidance cannot be adhered to, sunscreens have been logically recommended. Secondary prevention strategies include screening campaigns and educational campaigns. Many of these strategies appear promising but require further rigorous testing. The melanoma epidemic has arisen for a variety of reasons including: a true increase in melanomas of malignant behavior, a particularly high increase in localized and in situ lesions, and an increase in the number of biopsies performed, which may have resulted in an increased detection of less aggressive lesions. The contribution of possible changes in the diagnostic criteria for melanoma to the increased incidence remains unknown.

Focusing on a recent California Supreme Court decision, Verdugo v. Target Corp. , the author analyzes the “no duty” doctrine and its improper use in recent tort decisions. He argues that too many US appellate courts are misapplying the “no duty” doctrine by using it in situations in which they are actually deciding whether there has been a breach of the duty of care. The author places recent applications of the “no duty” doctrine in the context of recommendations made by the American Law Institute, and suggests that the case law would benefit if the courts reflected upon the relative roles of judges and juries and followed the guidance of the Restatement (Third) of Torts .

Sometimes, it is very difficult to prove the negligence because the word negligence has two meanings. One is the negligence is a mode of committing certain torts, like defamation, nuisance and trespass. In this case negligence involves certain mental element towards the consequence of the defendant, he intends those consequences type of negligence man may be held liable for his mental element as well as the act towards that intention. At other side negligence as an independent tort, in this case the negligence involves the physical conduct rather than state of mind here man may be held liable due to his physical conduct rather than his intonation towards the act. Man may punish for his carelessness behavior though he had no any indentation. That means carelessness in which law mandates carefulness in modern sense negligence as considered as an independent tort which has been well illustrated in Donoghue v Stevenson (1832) by Lord Atkins. In the era of medical profession there is duty to take care and same is imposed by law, thus in case failure to take care of that duty even without any kind of indentation of the medical practitioner, his act would be treated as breach of legal duty and known as medical negligence. Medical negligence happens when the medical practitioner fails to provide the care which is expected in each case thus resulting in injury or death of the patient.In medical negligence cases it is the duty of the patient or his /her relatives to establish that:• There was a duty which the medical practitioner owed to the patient• There was a breach of said duty• The breach resulted in injury to the patient• The injury resulted in causing damages.

In his book, The Case Against the Supreme Court [5], Erwin Chemerinsky JD, Dean of the University of California, Irvine School of Law, examines the legal decisions issued by the Supreme Court, and concludes that these decisions principally reflect the ideologies or values of the judges. Chemerinsky begins his analysis with the 1927 legal case of Buck v Bell [3]. In his controversial majority opinion, Justice Oliver Wendell Holmes Jr. upheld a state statute that allowed involuntary sterilization of the “mentally unfit.” The Buck decision held that the societal value of protecting citizens from the offspring of the intellectually disabled took precedence over the reproductive rights of a group of men and women [3]. This holding is offensive by contemporary standards, but it reflects a balancing of social interests that prevailed at the time. In our previous Medicolegal Sidebar column [2], we described how the evolution of legal principles relevant to medical negligence, such as the doctrine called “loss of chance,” can reflect evolving societal priorities. Loss of chance addresses the tension between unfair verdicts arising from jury confusion and the need to compensate plaintiffs who merely lost some probability of survival, or the chance of obtaining a better outcome, because of medical negligence. In this article, we will examine another legal doctrine of interest to physicians, res ipsa loquitur, which in Latin means “the thing speaks for itself.” Since this doctrine was applied to medical malpractice litigation, it has evolved in ways that will be relevant to clinical practice, and help mitigate medical malpractice risk.

This article explores the possibility that the surgeon’s control over his or her environment is not complete and that, in certain circumstances, the final swab count can be distinguished from the ‘normal course of events’. We readily accept that most swabs and instruments are left inside patients simply as a result of substandard care but we cannot accept that this is invariably the case, and lessons from the common law are cited to illustrate the reasons why. We hope to persuade defendant lawyers that it might be worthwhile to tease out from surgeons under scrutiny how these factors may have influenced their practice on the day that a swab was retained.

JR, age 2 months, was scheduled for a craniectomy at Medical Center. Dr. A, a specialist in pediatric anesthesiology, anesthetized JR with halothane and nitrous oxide. Once JR was asleep, Dr. A passed an endotracheal tube into her trachea for the administration of oxygen. Dr. A checked the tube for proper placement and then connected it to a ventilator designed to perform the breathing process. Dr. A next established an intravenous (IV) line for the administration of fluids and medications into JR’s bloodstream during surgery. He was assisted by a surgical nurse. The IV line was assembled prior to surgery and filled with fluid by the nurse for Dr. A. Both Dr. A and the nurse testified that while observing fluid dripping through the IV line they carefully inspected the tubing for air bubbles. Observing no air in the line, Dr. A connected the tubing to a catheter in JR’s foot.

Publisher Summary A pharmacist, like any other professional person, can make a mistake and, like doctors, the consequences of a pharmacist's mistake can be most serious. The customer may suffer serious personal injuries as a result of the mistake. In the UK, little research has been performed on dispensing errors in community pharmacy. With the increase in professional negligence litigation, it is an area of law with which the contemporary community pharmacist needs to have some familiarity. It is always a question of fact whether the defendant has failed to show reasonable care in the particular circumstances of a case. The law lays down the general rules that determine the standard of care that has to be attained and it is for the court to apply that legal standard of care to its findings of fact to find whether the defendant has attained that standard. The legal standard is not the standard of the defendant himself, but that of a person of ordinary prudence or a person using ordinary skill. In cases where a person has a particular skill, such as a pharmacist, the person is required to show the skill normally possessed by persons undertaking work of a similar nature.

Gossypiboma or textiloma is referred to as a surgical gauze or towel inadvertently retained inside the body following surgery. It is an infrequent but avoidable surgical complication, which must be kept in mind in any postoperative patient who presents with pain, infection, or palpable mass. Gossypiboma, in the doctrine of res ipsa loquitur, proves that the surgeon is negligent. Moreover, it has medicolegal consequences including mental agony, humiliation, huge monetary compensation and imprisonment on the part of the surgeon and increased morbidity, mortality and financial loss on the part of the patient. Here we report two cases of gossypiboma and review its current medicolegal aspect in relation to the surgeon.

Whether fracking is an abnormally dangerous activity for purposes of strict liability appears to be an issue of first impression. That larger issue primarily turns on a smaller one: whether fracking accidents—or “fraccidents”—are avoidable or unavoidable. To that end, this Comment argues that when practiced with reasonable care and in the vicinity of other petroleum production, fraccidents are avoidable, and thus, fracking is not abnormally dangerous. Instead of strict liability, courts should combine a negligence standard with res ipsa loquitur to determine liability of fracking companies that contaminate water sources. First, this Comment will present background on the process and known environmental impact of fracking.Then it will survey the development and current laws of strict liability for abnormally dangerous activities, negligence, and res ipsa loquitur. The article will then apply the Second Restatement of Torts’ factors of strict liability to fracking. Finally, it concludes with recommendations for courts to apply res ipsa loquitur in fracking cases.

This paper analyses the applicability of the principle of Res Ipsa Loquitur in negligent actions. To this end, the objective of this paper shall be to highlight the essentials and effects of the application of the principle in case involving negligent actions. In the final analysis, the paper submits that the doctrine has assisted the courts in ensuring that persons who suffer harm or damage as a result of the careless conduct of others are protected are duly compensated.

We show that negligence standards should differ under comparative and contributory negligence regimes. If due care standards are allowed to vary with the laws of a jurisdiction, then comparative and contributory negligence may be equally efficient, even in a model with evidentiary uncertainty. It is commonly observed that jurors are naturally inclined to be more lenient to plaintiffs on the issue of plaintiff negligence in contributory negligence jurisdictions. We show that such lenience may actually be efficient in addition to satisfying jurors' senses of equity. A similar conclusion applies to defendants. (This abstract was borrowed from another version of this item.)

In this, the final article of this series on understanding negligence law, the causation and remoteness of damage is discussed. The final element that needs to be established in a negligence case is that the defendant's breach of duty was the cause of the claimant's loss and that this loss was not too far removed or remote from the actions of the defendant. The law involved in this area can be quite difficult to understand as some of the principles used are uncertain and the cases can be quite hard to draw together and reconcile.

This article, the third in a series on clinical negligence, looks at the law surrounding breach of the duty of care in negligence. It shows some of the principles that judges and lawyers use in order to decide whether a person has broken his/her duty of care in the tort of negligence. It will be seen that the principles are contained in decided court cases, some of which are quite old but are still relevant today. The focus of this article is on the rule that courts, in deciding the issue of a breach of duty of care, would judge the defendant's conduct by the standard of what the hypothetical, ‘reasonable person’ would have done in the circumstances of the case.

The first article in this series gave an introduction to clinical negligence (Vol 11(15): 1033–5). This article begins with a discussion of the law of negligence within the context of the law generally. What must be established in order to bring a legal claim for compensation in negligence is also discussed along with the important concept of owing a legal duty of care. The duty of care concept is illustrated through two cases.

In this paper, legal provisions for dealing with elder abuse in social or healthcare settings will be considered. The need for such measures for detection and management of elder abuse will be highlighted. Interventions should take into account elderly victims' vulnerability, which may be due to physical and/or psychological dependence. The effectiveness of current interventions is limited due to a lack of cohesion and the absence of a specific legal framework. The term 'vulnerable adults' is broader than 'elder abuse'. It is difficult to estimate the extent of the problem of elder abuse because of the usually intimate settings within which it takes place - this may affect the strength of the evidence. The purpose of this paper is to encourage a debate on the effectiveness of current legal responses to elder abuse. The true figures of the incidence of abuse may never be known. Consequently, in criminal law trials, providing evidence on abuse can be very traumatic and intimidating for a victim because of the circumstances in which it generally takes place. The irony is that the likelihood of a criminal prosecution may be higher in more serious types of abuse where the evidence is overwhelming, on the basis of the res ipsa loquitor (facts speak for themselves) principle. The abuse in question may be domestic or institutional; the effects nevertheless are the same.

Now adays malpractice problem of health service start to talk lively by the various society. That matter is seen from many indictment cases of malpractice which submitted by the society about a doctor profession that regarded to have inflicted the patient in conducting a task which are cause the wrong act, feel pain, injury, physical defect, body damage, and death. A law justification of doctor malpractice which is cause the inflicted of patient, so the victim side could be demand for materil and immateril compensation. The law protection of doctor malpractice’s victim who is demand to the court, a judges could apply a Res Ipsa Loquitur doctrine, its means that the victim sides does not need to prove the presence of carelessness substances, but they enough to show the truth.Keyword: Malpractice, Res Ipsa Loquitur

Although tort law centers on the negligence concept, it is accepted that “pockets” of strict liability provide an alternative to the negligence regime. This belief is fueled by cases in which responsibility for the well-being of others appears to be based on causing harm rather than on committing a wrong that causes harm, and by the proliferation of definitions of “strict liability” to cover situations in which “fault” is thought to be absent. Accordingly, tort theory not only assesses the relative merits of strict liability and negligence liability, it seeks to justify their simultaneous implementation within tort law. In this chapter, I question the success of this venture as it applies to abnormally dangerous activities, and I offer a new interpretation. Strict liability of the kind addressed in this chapter puts the focus on an actor's activity. It makes the defendant responsible for causing harm and thereby induces an actor either to set aside money for victims or, if it is cheaper, to make better choices when engaging in the activity that is subject to strict liability. Undoubtedly, a system of strict liability applied to all accidental harms, although not without its problems, could be made coherent. Causing harm could be seen as a basis for compelling an actor to correct the harm she caused, whatever the context, with appropriate adjustments for victim error and an appropriate definition of “cause.

The other-regarding behavior of product sellers has been the object of intense scrutiny for over half a century, developing product liability law into a seemingly distinct branch of tort law. Yet the product liability “revolution” has come into focus over the last couple of decades, and it appears now to be different than it initially appeared. When we reexamine developments in product liability law through justificational lenses, we understand them in a new way. THE JUSTIFICATIONAL ERRORS My account of product liability law emphasizes its close relationship to the negligence concept. My account is therefore a major departure from most contemporary stories of product liability. It is generally thought, for example, that “products liability law” is a unique legal regime, self-contained and separated from the negligence regime applicable to other activities. A small industry has grown up advancing this position, producing product liability casebooks, treatises, and restatements, carefully justifying the regime's individual identity and content. Often the regime is thought of as “strict products liability,” although I demonstrate below that the term strict liability is largely a misnomer when applied to product liability law.

The word “negligence” is always damaging to the reputation of doctors, related to some damage to the patient and a challenge before the judges. In recent years, sudden spurt in the cases of “Criminal negligence” and decision of the Supreme Court raises a fresh debate. This paper deals with current scenario of “Criminal Negligence”, applicability of Section 304 & 304-A IPC in cases of death of patient during treatment, remedial measures available to a doctor facing the charge of ‘Criminal Negligence’ and a brief discussion of important cases related to the issue, including recent case. Negligence is a term of art, but has distinct meanings in different jurisdictions. In ‘Tort’, damage is an essential ingredient but that element is not necessary in the law of master and servant. In criminal law, there are series of offences based on negligence in which loss or injury is not material; it is enough if the act is likely to cause injury or endanger life. Operation of patient without consent is an example of negligence (Statutory Damage) even without actual apparent damage. Dictionary meaning of term ‘Negligence’ is ‘Lack of Proper Care’. As defined by Baron Alderson negligence means: “Omission to do something which a reasonable man guided by those consideration which regulate conduct of human affairs would do, or doing something which a reasonable man would not do”. Same definition is quoted in many decisions of the court. ‘Criminal Negligence’ is an offence against the State while ‘Civil Negligence’ is an offence against the individual act, which leads to injury i.e. physical injury, hurt- Section 319, grievous hurt- Section 320 Indian Penal Code (IPC). Loss of property (financial loss) due to some negligent act is always a civil negligence. The decision of the Supreme Court delivered on last years raises a fresh debate on the issue of ‘Criminal Negligence by the Doctors’. In this case the Supreme Court relied on various decisions of the House of Lords.

Public awareness of medical negligence in India is growing. Hospital managements are increasingly facing complaints regarding the facilities, standards of professional competence, and the appropriateness of their therapeutic and diagnostic methods. After the Consumer Protection Act, 1986, has come into force some patients have filed legal cases against doctors, have established that the doctors were negligent in their medical service, and have claimed and received compensation. As a result, a number of legal decisions have been made on what constitutes negligence and what is required to prove it.Negligence is the breach of a legal duty to care. It means carelessness in a matter in which the law mandates carefulness. A breach of this duty gives a patient the right to initiate action against negligence. Persons who offer medical advice and treatment implicitly state that they have the skill and knowledge to do so, that they have the skill to decide whether to take a case, to decide the treatment, and to administer that treatment. This is known as an “implied undertaking” on the part of a medical professional. Section 304A of the Indian Penal Code of 1860 states that whoever causes the death of a person by a rash or negligent act not amounting to culpable homicide shall be punished with imprisonment for a term of two years, or with a fine, or with both. The burden of proof of negligence, carelessness, or insufficiency generally lies with the complainant. The law requires a higher standard of evidence than otherwise, to support an allegation of negligence against a doctor. In cases of medical negligence the patient must establish his claim against the doctor.

Recently most states have abandoned the traditional tort defense of contributory negligence and substituted a form of comparative negligence. Using an extensive data set of auto accident injury claims, we provide evidence on the relationship between negligence rules and claimants' litigation decisions to retain attorneys, file lawsuits and litigate versus settle out of court. Litigation choices appear to be rational responses to the varying incentives created by alternative tort standards. We find that in contrast to comparative negligence, claims arising under comparative negligence are associated with greater probabilities of attorney involvement, higher average award levels, and longer delays in securing payment. Only 37% of claims involving attorneys in contributory negligence states result in a lawsuit being filed compared to 49% and 47% under the pure and modified forms of comparative negligence, respectively. The study provides the first statistical evidence on the litigation costs of the new forms of comparative negligence.

1475 phy, most likely due to contamination of the contrast medium or spinal needle used for the myelography. The plaintiff’s expert asserted that the fault lay with the radiologist or technologists under his supervision at the time. The expert witness retained by the defense, in his deposition, disagreed that the defendant–radiologist was responsible for the complication that arose from the myelographic procedure. The expert pointed out that the myelogram kit or the contrast medium itself may have been contaminated with the S. bovis bacteria before they were placed in the hands of the defendant–radiologist. The expert went on to testify that, although unusual, S. bovis infection secondary to a myelogram is a known risk of the procedure and can occur without negligence. He also added that the bacteria could possibly have already been in the patient’s bloodstream and that the meningitis simply had not become symptomatic until the time of the myelography. After completion of the depositions of both expert witnesses, the defendant–radiologist, and other individuals who were involved with the myelogram CT procedure, the defense attorney moved for dismissal of the lawsuit, asserting that the plaintiff failed to present sufficient evidence to support the res ipsa theory. The trial judge agreed with the defense attorney’s argument and dismissed the lawsuit. The plaintiff then appealed the dismissal to the Illinois Appellate Court.

It is important to know what constitutes medical negligence. A doctor owes certain duties to the patient who consults him for illness. A deficiency in this duty results in negligence. A basic knowledge of how medical negligence is adjudicated in the various judicial courts of India will help a doctor to practice his profession without undue worry about facing litigation for alleged medical negligence.