The Use of Tort Law in Healthcare - Essay Example

and number: submitted: The Use of Tort Law in Healthcare Before making the inference whether the client will lose or win the case under tort law is vital to understand what tort law means. Tort Laws are laws established to protect/provide solutions to folks harmed by unreasonable behaviours of others (Harlow 57). They always include state law and are based on the lawful evidence that individuals are accountable for, for the penalties of their behaviour of causing harm to others (Edwards & Wells 4). In addition, Tort Law includes civil suits, which are the legal action established to protect a person’s private rights. There are three categories of torts usually seen in individual related cases: negligence, strict liability, and intentional tort (Edwards & Wells 4). Intentional torts are typical offense committed by an individual who cause harm knowingly (Best & Barnes 15). For intent to occur the person must be aware that the act will cause harm, most common example of intentional tort is assault. Assaults are the explicit attempt to bodily harm a person or generate a feeling of panic and anxiety of harm (Statsky 23). There is no necessity of bodily contact, for an assault to happen. On the other hand, battery is intentional torts that occur from bodily contact. For instance, assault occurs when an individual picks up a knife and threatens to stub another person. However, battery will occur if the individual actually stub the other person, (Best & Barnes 15). In other words, both battery and assault can happen if an individual threatens another, resulting to fear and apprehension, and the typically strikes the second person, causing harm (Emanuel S. & Emanuel L. 57). To established if the victim action constitutes extremely and unreasonable consequences, the court has to examine the age of the plaintiff and the defendant, the weapon used to cause harm if any, the extend of the harm, the nature of the defendant’s offense, the history of the defendant’s previous behaviour, and the temper of the defendant (Best & Barnes 15). The second tort seen in individual related case is the strict liability. In this tort law liability is imposed on the individual who are neither guilty of intentional harm nor negligence (Bevans 277). It is a branch of tort that seeks to control activities that are valuable and necessary but postulate unreasonable threat risk to society. Such activities involve transportation of hazardous materials, blasting, storing harmful substances, and keeping of wild animals in confinement (Emanuel S. & Emanuel L. 311). Discrepancy is sometime created between moral liability and legal liability. In moral liability, individual who intentionally, negligently cause harm to others is always deliberated morally blameworthy for failing to live up to a nominal threshold of mankind behaviour (Emanuel S. & Emanuel L. 311). Legal liability, on the other hand, is more of synthetic standard of conduct that is formulated by government for the protection of the community (Bevans 277). Individual engaging in ultra-hazardous activities usually are blameless because no amount of care can make their action safe for the community (Emanuel S. & Emanuel L. 311). Although, such individual will, however, be held lawfully accountable for harm that occurs from their activities as means of interchanging the costs of harm from potential victims to tortfeasors. In the case of social policy, the individuals and entities that involve in unreasonable harmful activities for benefit must be promising to ensure others are safe as the price of running the business. The victims who are harmed by imperfectly manufactured products also depend on strict liability. Under the policy of strict Product Liability, a manufacturer must pledge that products are appropriate for their projected use when they are sited on the market for public use (Gruyter). In this case, law of torts will hold manufacturers strictly accountable for any harm that occur from putting abnormal dangerous goods into the industry of commerce, without consideration of care practiced in producing the goods for sale and supply and without consideration to whether customer bought the goods from, or entered into a votive relationship with, the producer (Gruyter). The third tort seen in society related cases is negligence tort. The dissimilarity between intentional and negligence tort is that, in negligence, the actions causing harm are neither intended nor expected (Gruyter). Individuals who bring negligence claims must establish that the defendant should have anticipated and prevented the harm by practicing proper care. Accidents that cannot be prevented by a reasonable care are not considered as negligence. With negligence Tort Law, there are 4 fundamentals that must be available for negligence to happen: (1) the defendant must have a duty to protect individual from unreasonable dangers. (2) The defendant must have failed to perform in that duty by not practicing a reasonable ordinary of care. (3) There must be an ultimate link between the breach of duty to care and the occurring harm, and (4) there must be a real bodily or mentally harm occurring from negligence. In the court of law, all these 4 elements must be established before damages are awarded (Gruyter). In the given case study, negligence tort will be applied to solve the matter. Sheila the plaintiff has the task to prove the 4 elements of negligence were available to win over the Kent Ambulance Services. The 4 elements of negligence tort connected to the case study are discussed in the following paragraphs. First element of negligence the court need to consider before reaching a verdict is the duty to protect. Duty to protect is clearly part of responsibilities for all healthcare service providers like Kent Ambulance services (Buckley & Okrent 28). Health care service providers have the duty to anticipate foreseeable risk and take the essential precautions to protect individuals in the society. Some of their duties include providing first aid to individuals in the society, offering nursing care, providing health care related education, providing health care facility, and preventing health related accidents to the society (Bevans 53). Kent Ambulance Service has the duty to provide all this services to the community. It has the duty to protect the individuals in the society from unreasonable health related risks. It has the duty to employee enough workers to unscheduled shifts for efficiency. This will prevent shortage of workers and thus giving its employee enough time to rest (Bevans 53). In the given case study, it is clear that Ahmed the ambulance driver was tired from his night shift due to the shortage of staff. However, this was not Ahmed fault; rather it was Kent Ambulance Service management fault. This is simply because the Kent Ambulance Service had the duty to hire enough staff to provide healthcare services to the society. However, it failed to fulfil this duty and hence led to shortage of its work force (Best & Barnes 135). Thus, did the Kent Ambulance Services have the duty to protect Sheila? If so, did it fail to protect Sheila from unreasonable risk? Yes, of course it had the duty to protect Sheila from unreasonable health related risk (Bevans 53). Though, it failed to protect the Sheila because it had a shortage of workers and had to overwork the few workers that were available like Ahmed. This leads to incompetence among its workers, hence, exposing the Sheila to unreasonable risks. In the matter of Tort Law, Kent Ambulance Services will lose the case to Sheila in court on the ground of negligence. The company showed an act of negligence to Sheila as a result of understaffed. This made Ahmed tired and to reason that the train barriers automatically stop traffic and the call was probably a prank (Best & Barnes 135). Ahmed showed an act of negligence when he assumed that by delaying for ten minutes, would not hurt anyone. In other word, the Kent Ambulance Services will have to compensate Sheila for the damages caused. Second element of negligence that should be deliberated by a court before reaching a verdict is failing to exercise a reasonable standard of care. If healthcare service provider staffs fail to practice reasonable care to protect individuals from harm, then the company is negligent. Under this element, the court will gauge company staff’s conduct on how a reasonable staff in similar circumstances would have act. In the industry of healthcare, any negligence made by the staff of any company, it becomes the liability of that company (Statsky 14). In the case scenario, the court will examine the behaviour of Ahmed behaviour as an ambulance driver. It is clear that Ahmed was negligent and incompetence when he delayed the ambulance services to the scene of the accident. Because, Ahmed works for Kent Ambulance Services, his negligence becomes the liability of the company. The degree of care practice by a reasonable healthcare service provider is determined by aspects such as (a) the skills and experience of the staff in charge. (b) The type of activity instruction given. (c) The atmosphere in which the harm occurred. (d) The absence or presence of the supervising manager, and (e) the disability of the plaintiff. For instance, in the case study, Ahmed will be expected to be experienced and well trained in his profession as an ambulance driver (Buckley & Okrent 18). He will be expected to be competence and efficiency in his duties. However, Ahmed did not practice any of these legal aspects of nursing when he presumed the call to be a prank (Buckley & Okrent 18). Also, Ahmed was negligent when he ignored the instruction given to him over the phone and ignoring. Another issue that will be examined against Ahmed is the environment that the accident occurred (Gruyter). In the case study is clearly that the accident occurred in on a level crossing involving the High Speed train to London. In this situation, in court, Ahmed would be expected to have responded to the call immediately which in this case he failed (Buckley & Okrent 18). On the other hand, Kent Ambulance Services management would be expected to have been supervising services offered by their staff, which in this case they failed to provide effective supervision (Kerley, Lames & Sukys 117). Also, the court would look at the disabilities of the plaintiff, which in this case Sheila was asthmatic who in the field of nursing should be offered an immediate first aid. In conclusion, the Kent Ambulance Services failed to provide an immediate service at the accident causing Sheila to suffer from asthmatic (Buckley & Okrent 25). So there are high chances that the ambulance company will lose the case over Sheila on the ground of failing to practice a rational standard of care. Third element of negligence tort to be considered by the court in the case scenario is the proximate cause (Best & Barnes 221). This is the proving of whether there was any link between the failing of duty by the offender and the plaintiff; that is the defendant failed to practice a reasonable standard of care and this failing of duty caused subsequent harm to the plaintiff (Best & Barnes 221). This element is denoted as the proximate cause because it hinges on the idea of foreseeability. That is, was the plaintiff injury to some degree that could have been foreknown by the defendant? If the injury could have been anticipated and stopped by the defendant then a reasonable standard of care could have been practiced, then there was a logical link and; therefore, negligence may have availed (Emanuel S. & Emanuel L. 139). In the given case study, there are high possibilities that Sheila’s injury could have been anticipated by Ahmed if Ahmed had performed his duties right by responding to phone call on time. However, in this case Ahmed failed to practice a reasonable care (Gruyter). In order for a court to demonstrate the element of proximate cause, first, it will determine if the injury is a probable cause of unjust act. Also, the court will try to establish if the harm could have been projected in the light of the related circumstances (Best & Barnes 221). Negligence claims will not be achieved if the injury will not be avoided through practice of reasonable care (Buckley & Okrent 18). In the case study, it is clear that Sheila’s injury was a probable cause of unjust action of Ahmed. In addition, there are chances that Sheila’s injury could have been prevented if Ahmed had followed the instruction given and obeyed traffic laws (Best & Barnes 221). So there is a high chance that Kent Ambulance will lose the case over Sheila on the ground of the failing of duty. This might cause the company to compensate Sheila under the Tort Law (Gruyter). The last element of negligence that should be referred to by the court is the actual injury. In this element, the plaintiff has the load of instituting that there was a concrete physical or mental harm (Buckley & Okrent 18). However, the harm must be definite as opposed to imaginary, even though the bodily has to be involved (Franklin & Rabin 33). Even in circumstances where there is the existence of negligence, damage law suits will never be accomplished unless there is provable harm (Kerley, Lames & Sukys 117). In the case of the given case scenario, Sheila’s injury, it is provable even though it is not physical. Asthmatic suffering can be verified in court by doctor’s diagnosis (Edwards & Wells 55). Therefore, Sheila will have a strong case over the Kent Ambulance Services Company and the court will find her injury real. The plaintiff who is Sheila will win the case over Kent Ambulance Services Company and the court will award her under the Tort Law. In conclusion, Tort Law is part of civil law that the covers civil crimes, like defamation, trespassing, and among many other wrongdoings. Under Tort Law, if an individual suffers economical, physical or legal harm, he/she might be entitled to file for a lawsuit with the court of law. If the law suit is determined to be legit by the court, all the damages experienced by the plaintiff might be awarded to the victim as reimbursement for his or her claims (Kerley, Lames & Sukys 117). Most Tort Laws are established in national, state, and even regional civil code, which usually spell out the parameters on harms and ruling of limitation for tort cases. Reference Best A. & Barnes W. D. Basic Law: cases, statutes and problems. Aspen Publishers, 2007. Print. Bevans R. N. Tort Law for Paralegals. Aspen Publishers, 2009. Print. Buckley R. W. & Okrent C. Torts and Personal Injury Law. Delmar Learning, 2004. Print. Edwards J. S. & Wells P. Tort Law, 2009. Print. Emanuel S. & Emanuel L. S. Emanuel Law Outlines: Torts. Aspen Publishers, 2009. Print. Franklin M. A. & Rabin L.R. Tort law and alternatives: cases and materials. Foundation press, 1996. Print. Gruyter D. Tort Law. Journal of European. Web 11 Feb. 2013.Print. Harlow C. Understanding Tort Law. Sweet & Maxwell, 2005. Print. Kerley P., Lames B. J. & Sukys A. P. Civil Litigation. Dalmer West Learning, 2009. Print. Statsky P. W. Essentials of Torts. Delmar West Legal Studies, 2001. Print. . Read More