What has been defined as not doing something that a reasonable person would do?

Negligence and Malpractice

The terms negligence and malpractice are frequently used interchangeably. However, there is a difference in the two terms.

Negligence is:

• A general term that denotes conduct lacking in due care;
• Carelessness; and
• A deviation from the standard of care that a reasonable person would use in a particular set of circumstances.

Anyone, including non-medical persons, can be liable for negligence.

Malpractice a more specific term that looks at a standard of care as well as the professional status of the caregiver. To be liable for malpractice, the person committing the wrong must be a professional.

The courts define malpractice as the failure of a professional person to act in accordance with the prevailing professional standards, or failure to foresee consequences that a professional person, having the necessary skills and education, should foresee.

The same types of acts may form the basis for negligence or malpractice.

• If performed by a non-professional person the result is negligence;
• If performed by a professional person the acts could be the basis for a malpractice lawsuit.

In order to prove negligence or malpractice, the following elements must be established:

• Duty owed the patient;
• Breach of duty owed the patient;
• Foreseeability;
• Causation;
• Injury; and
• Damages.

There are different levels of responsibility or liability for malpractice.

• An individual is accountable for acts of negligence personally committed;
• The manager or supervisor may be held liable for the acts of the nurse if there has not been appropriate delegation of duties or adequate supervision;
• An employer may be liable for the acts of its employees for failing to do the following:
  • hire staff who has the qualifications and skills to perform the necessary functions;
  • provide opportunities for the professional growth of the staff such as workshops and seminars;
  • provide adequate library services;
  • provide opportunities for exchange of ideas;
  • provide adequate and sufficient equipment and supplies and maintaining them; and
  • ensure that managers and supervisors carry out their duties competently.

References
Brent, Nancy J. (1997). Nurses and the Law. W.B. Saunders.

Feutz-Harter, Sheryl. (1993). Nursing and the Law. Professional Education Systems, Inc.

Wacker Guido, Ginny. (1988). Legal Issues in Nursing. Appleton and Lange.

Return to Table of Contents

Negligence is a failure to use reasonable care or doing of something which a reasonably prudent person would not do.3 min read

1. What is NEGLIGENCE?
2. How Does California View Negligence?
3. Negligence and Contracts
4. Officers of Law and Negligence

What is NEGLIGENCE?

• The failure to use reasonable care.
• The doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do under similar circumstances.
• A departure from what an ordinary reasonable member of the community would do in the same community.

Negligence is a 'legal cause' of damage if it directly and in natural and continuous sequence produces or contributes substantially to producing such damage. In order for negligence to occur, it must be proven that if not for the negligence, the loss, injury, or damage would not have occurred.

Negligence may be a legal cause of damage even though it operates in combination with the act of another, a natural cause, or some other cause. In this type of instance, it must be proven that the other cause occurs at the same time as the negligence and how the negligence contributes substantially to producing such damage.

In cases involving allegedly defective, unreasonably dangerous products, the manufacturer may be liable even though it exercised reasonable care in the design, manufacture, and sale of the product in question.

On the other hand, any failure of a manufacturer of a product to adopt the most modern, or even a better safeguard, does not necessarily make the manufacturer legally liable to a person injured by that product. The manufacturer is not a guarantor that nobody will get hurt in using its product, and a product is not defective or unreasonably dangerous merely because it is possible to be injured while using it.

There is no duty upon the manufacturer to produce a product that is 'accident-proof.' What the manufacturer is required to do is to make a product which is free from defective and unreasonably dangerous conditions.

How Does California View Negligence?

In general, the law of California declares that '[e]very one is responsible . . . for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person . . . .' Cal.Civ.Code Sec. 1714(a). That, of course, means that people are generally liable when they negligently injure others. If the language is a bit quaint, it is because that has been the law of California since at least 1872. The California courts have assiduously enforced that principle and only deviate from it when some powerful public policy dictates a contrary result. See Lipson v. Superior Court, 31 Cal. 3d 362, 372-73 (1982).

Negligence and Contracts

When considered in relation to contracts, negligence may be divided into various degrees:

• Ordinary negligence is the want of ordinary diligence.
• Slight or less than ordinary negligence is the want of great diligence.
• Gross or more than ordinary negligence is the want of slight diligence.

Three great principles of responsibility seem natural to follow this division.

In those contracts which are made for the sole benefit of the creditor, the debtor is responsible only for gross negligence, good faith alone being required of him, as in the case of a depositary who is a bailee without reward.

In those contracts which are for the reciprocal benefit of both parties, such as those of sale, of hiring, of the pledge and the like, the party is bound to take that care which a prudent man ordinarily takes of his affairs, and he will, therefore, be held responsible for ordinary neglect.

In those contracts made for the sole interest of the party who has received and is to return the thing which is the object of the contract, e.g., a loan for a thing's use, the slightest negligence will make him responsible.

In general, a party who has caused an injury or loss to another in consequence of his negligence is responsible for all the consequences. An example of this may be found in the case of a person who drives a car during a dark night on the wrong side of the road and injures another.

Officers of Law and Negligence

When the law imposes a duty on an officer, whether by common law or statute, and he neglects to perform it, he may be held accountable for such neglect, and in some cases, such neglect will amount to a forfeiture of the office.

Is a term used to describe any unreasonable behavior?

What group would be an exception to the reasonable person standard?

Which of the following is also known as the reasonable person standard?

What is the most common example of negligence?