This article is written by Quin Hoskins. Having studied law and several science-related subjects at degree level, this has provided him with the perfect foundation to cover an eclectic range of topics in his freelance writing career. From the Institute of Legal Secretaries and PAs to countless travel sites, he is proud to be associated with companies and organizations that are definitely at the top of their game. The flexibility of his freelance writing business allows him to devote a significant proportion of his time to study and is finishing his last course – out of 6 – towards his LLB (Hons) this year. He is also an avid traveler and has proudly visited 40 other countries to date, with much more planned for the future.
Any medical professional in the world will always be acutely aware of the possibility of a law suit being pursued against them if they are ever accused of being negligent to a patient, client or another colleague in some way. When you work as an employee, the chances are that you will receive refresher training on this exact subject on a relatively regular basis. However, when you work as a freelance medical professional, the onus will be upon you to ensure you are fully up-to-speed on the laws concerning the tort of negligence; this is precisely where this article aims to be of assistance.
The Tort of Negligence
The first word to consider here is the word ‘tort’ itself. Tort means a ‘civil wrong’ (as opposed to a criminal offense) and covers multiple different misdemeanors ranging from trespass (either to the person or property) to pure economic loss, and up to the tort of negligence itself, which is the only tort, we will be considering in this article.
To be found guilty of negligence, as a medical professional freelancers, five criteria must be fully considered.
1. The Medical Professional Owed the Claimant/Plaintiff a Duty of Care
So, first and foremost, for a successful claim to be brought against a medical professional, it must be established that there was a duty of attention between these two parties. When it comes to a person administering medical care/attention on a patient/client, you can rest assured that such a duty exists. Depending on the type of legal system your country relies on, this bill may have been introduced to the law books in statute form or through common law precedent, but either way, you can pretty much guarantee a duty of care will be defined in much the same way.
2. The Duty of Care has Been Breached
If the medical professional’s conduct has fallen short of the minimal standards expected of them, they may well have breached their duty of care toward the patient/client. If so, you will move on to the third criterion in this test. If there has not been a breach of the duty of care, a claim will not succeed against the medical professional, and there would be no need to consider the rest of the test.
3. The Breach of Duty Caused the Loss or Damage
This part of the test is known as the ‘causation’ part: did the medical professional’s breach of their duty directly lead to the loss or damage that was suffered by the patient/client?
Loss and damage cover considerations like the financial loss. For example, where the patient lost out on wages due to the breach of duty or had to pay for medical expenses. Damage will mean aspects such as physical harm to the patient or even mental anguish etc.
A direct causation link will have to be established between the average professional’s breach of their duty of care and the loss or damage suffered by the claimant/plaintiff. If it is not possible to establish causation, a claim will not prove to be successful. If the link of causation is identified, the 4th part of the test will be considered next.
4. Is the Extent of the Damage Suffered too Remote?
This part of the test will consider whether or not the loss and damage that was sustained by the patient/client were too remote. In other words, is it too far fetched to say that the type of loss or damage suffered was directly connected with the breach? Anything that cannot be found to be directly linked to the violation will need to be considered under this test. A line has to be drawn in the sand at some point to define what was attributed to the breach and to what could be considered as too unfair to hold against the medical professional. This part is known as the ‘remoteness’ test.
5. Defences
If you have committed a breach of your duty against another person and have satisfied all of the requirements set out in the four parts above, alas, a claim under the tort of negligence is likely to succeed against you and it is now necessary for you to investigate the possibility of any defences that you may be able to use to fight back in the claim. A defence basically means there may have been mitigating circumstances or a more justified reason as to why such a breach occurred in the first place.
The types of defences will again depend on your country’s legal system, but are likely to include considerations such as consent: where the claimant/plaintiff knowingly and willingly consented to the breach that was committed against them; contributory negligence: where the actions of the patient/client could be said to have contributed to the loss or damage that they suffered in some way; exclusion of liability: where the liability for the loss or damage had been successfully excluded beforehand (controversial and not readily available in all states) etc.
Protecting Yourself from the Tort of Negligence
The most obvious way to protect yourself against the possibility of a claim being brought before the court with your name on is to ensure you provide every patient you come into contact with the highest level of care at all times. Your country will always have guidelines published on the minimal standards that are expected of you: never, ever breach these. If you do, you should bear in mind that where the first three tests above can be proven above, a claim for negligence is likely to succeed against you, and you will only have yourself to blame.
Please note that we have made every effort to point out the fact that the law will vary in different countries and the onus is entirely upon you, as the freelance medical professional, to familiarise yourself with the exact details and requirements in your home state.
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