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.
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