Friday, February 8, 2013
Medical malpractice elements | Atlanta lawyer
A claim for medical malpractice is a specialized negligence action. There are 4 essential elements of a cause of action for negligence. First a duty to conform to a certain standard of care to protect others from unreasonable risk of harm, 2nd a breach of this duty, and 3rd, a legally attributable causal connection between the breach and the injury, and forth, some damage or injury to a legally protected interest from the breach of the duty. These 4 elements are summarized as the duty or standard of care, proximate cause, and injury. Sometimes the Georgia appellate court joined proximate cause and injury as one element. As a consequence the practitioner may read cases that mention only 3 elements of the malpractice claim; one a duty inherent in the doctor-patient relationship, breach of that duty by failing to exercise the requisite degree of skill and care, and this failure being the proximate cause of the injuries sustained. Although these elements are commonly presented in this sequence, the Supreme Court of Georgia has ruled that a jury charge that restricts the order for addressing the constituent elements of negligence claim can have a harmful effect of precluding the jury from giving proper consideration to the totality of the facts and circumstances relevant to the ultimate determination. Critser v. McFadden, 277 Ga. 653 (2004). The Supreme Court reversed a case because the trial court instructed the jury to first consider the question of negligence, and then go to the question of proximate cause, and then move to the question of damages. Critser court erroneously gave a jury instruction that person should consider the question of negligence or whether the defendant departed from the standard of care, as I will explain that phrase to you. If you find the defendant did not depart from the applicable standard of care, then he should go no further and you would return a verdict in favor of the defendant. Contact an Atlanta lawyer immediately for a free consultation.