James Claim in Negligence - Case Study Example

Professional negligence Student’s Name Instructor’s Name Course Code and Name University Date of Submission James claim in negligence Introduction When a person is harmed by a doctor or any other medical professional, who completely fails to perform his medical duties then medical malpractice is said to have occurred. When a medical treatment produces an iatrogenic result, then the affected person has a right to bring forth a civil tort against the medical practitioner (Danzon, 2000, p. 55).1 James is a promising Hockey player who did not have any reason not to trust his couch, the team doctor or his physiotherapist. By the fact that his contract stated he agreed to special diet including vitamins and supplements does not prove that he appreciated the risks that comes with it. James is a young player who believes that in order to succeed in his career he must listen and follow the instructions of his coach, the team doctor and his physiotherapist. James claims he is innocent and he suspects that the coach and the team medical doctor gave him supplements that contained prohibited substances. This paper explores whether James can bring an actionable negligence suit against his coach and the team doctor. Requirements for the negligence case to be actionable A relationship must have been in existence between the parties involved. For a plaintiff to succeed in a case of negligence, he must prove that some relationship existed between him and the defendant. The relationship may be a doctor-patient relationship, advisor- advisee etc (Mulholland 1993, p.40).2 In this particular case, the relationship between James and the team doctor is that of patient-doctor relationship. James considers the team doctor as his doctor to treat him and advice him in all matters concerning his health as a hockey player. The relationship that exists between James and his coach is that of advisor-advisee relationship. He considers his coach as a professional who should advise him on what to do or not to do as a hockey player. Including advising him on what vitamins or supplements he should not take. Both the team doctor and the coach owed James a duty of care. They should have made sure that he does not take any supplements that contained any of the prohibited substances. Alternatively, the coach and the team medical doctor should have warned James that some of the supplements may contain substances that are prohibited to ice hockey players. Bleach of duty of care When a court of competent jurisdiction has proved that a relationship existed between parties and one party owed the other a duty of care, then the plaintiff must prove that the duty of care has been bleached (Spector 2004, p. 285).3 The reasonable man test will be imposed by the court to assess whether a duty of care has been bleached. Reasonable man test involves determining what a reasonable man of similar skill and knowledge would have done (or would do ) or would not have done, given the circumstances of that particular incident (Mahar & Burke, 2011p.254). 4 Among other things, the court may consider the following when considering the standard of care required of the defendant; the defendant’s capacity, whether the plaintiff had given consent, extent of potential risk to the plaintiff, the burden of the likely injury and whether the defendant held himself as an expert. In this case, the team medical doctor and the coach had the capacity, they knew the potential risks of advising James to take such supplements, they knew the seriousness of the likely injury because they are professionals in their respective positions and they held themselves as experts in their respective fields (Holder, 1971, p.1111).5 The negligence caused injury The plaintiff must prove that it is more likely than not that the defendant’s incompetence caused the injury directly. Usually, there should be an expert to testify that the defendant’s negligence caused the injury (Mayberry 2003, p. 77).6 The injury in the case of James is to test positive of some prohibited substances. That injury is said to have been caused by supplements administered to James by his coach and the team medical doctor because never in his lifetime has he ever used performance enhancing drugs. The injury caused specific damages. Even if the plaintiff proves beyond any doubt that the defendant’s performance was below the expected standards in his field, a negligence suit cannot be actionable if the claimant suffered no harm or damage. In the case of James, it is clear there was injury (testing positive of prohibited substances) and the injury caused specific damages in terms of ruining James’ career as an ice hockey player (Connors,1980,p. 235)7. Application of the defense of volenti non fit injuria Volenti non fit injuria is a Latin phrase meaning, one who volunteers no harm is done. It is also known as the assumption of risk doctrine or defense of consent. It is a legal doctrine which states that any person who knowingly exposes themselves to a peril, having express or implied knowledge of the dangers facing them, and appreciates the risk whatever the outcome, although doing so is not negligence, it is considered as engaging in an assumption of the risk. If an injury ensues thereof, the claimant is precluded from any recovery in terms of damages (Reynolds Rizzo & Gonzalez, 2008,p. 2780).8 The defense of assumption of risk requires a voluntary and a freely entered agreement by the defendant, in full knowledge of prevailing circumstances to absolve the claimant of all legal consequences of their actions. The requirement of the defense is a voluntary agreement made in full comprehension of the nature and extent of the potential risk. For the defense of volenti non fit injuria to succeed, the agreement must have been entered voluntarily. If the defendant was not in a position to exercise free choice, then the defense will fail. Another vital requirement for the defense to succeed is agreement. The agreement could be implied or express. An implied agreement results when the defendants’ actions in the prevailing circumstances demonstrates the willingness to accept both physical and legal risks9. The last but not the least requirement for a defense of volenti non fit injuria to succeed is knowledge; the plaintiff must have full knowledge of nature and the extent the risks that they ran (De Rose 2008, p.110).10 The test of whether the claimant had knowledge of nature and the extent of the risks that they ran is subjective. As demonstrated in the case of Morris V Murry (1992), the defendant raised a defense of Volenti non fit injuria and he succeeded. It was held that the actions of the defendant in accepting an aircraft ride from a heavily intoxicated pilot could have been taken to be voluntary acceptance of risk of injury and waived any right to compensation (The IEA Health and Welfare Unit 1996)11 In this case, the coach and the team doctor can raise the defense of volenti non fit injuria but the defense can only be successful if the three requirements of; voluntary, agreement and defendant's knowledge of nature and extent of risk fulfilled. James entered into the contract voluntarily and the agreement states that he agrees to a special diet including vitamins and supplements. Up to that point the defendants can use volenti non fit injuria as a defense to negligence, but when the third requirement is considered (i.e The plaintiff must have full knowledge of the nature and the extent of the risks that they ran), the defendants are faced with a hard task to prove that James had full knowledge of the nature and the extent of the risk involved, therefore considering the circumstance of this particular case, the defense of volenti non fit injuria must fail. James is a young hockey player with an aim of succeeding in his career. He knows too well that to achieve his goals, he must follow the instructions of his coach, the team doctor and his physiotherapist. He believes that they are professionals in their respective fields and he does not have any reason to suspect otherwise. He innocently follows instructions and other guidelines from his trainers and the team doctor, but this result in an injury. As to who was responsible for negligence among the three i.e. the coach, the team doctor or the physiotherapist is a matter of the court to decide. But one thing is clear; James has a strong civil case (tort of negligence) against the defendants. List of references Connors, P. J 1980, Salus populi suprema lex est: comments on governmental regulation of medical professional liability insurance. Legal Medicine, p.229-245. Danzon, PM 2000, Liability for Medical Malpractice Culyer, A J. & Newhouse, J P. eds. Social Science Research Network, vol. 1, no. 3, p. 51-69. Viewed from http://www.jstor.org/stable/1942796. De Rose, EH 2008, Doping in athletes--an update. Clinics in Sports Medicine, 27 (1), p. 107-130, viii-ix. Viewed from http://www.ncbi.nlm.nih.gov/pubmed/18206571. Holder, AR 1971, Contributory negligence. Jama The Journal of The American Medical Association, vol. 218, no.6, p.1109-1110. Mahar, PD & Burke, JA 2011, What is the value of professional opinion? The current medicolegal application of the “peer professional practice defence” in Australia. The Medical journal of Australia, vol. 194, no. 5, p.253-255. Viewed from http://www.ncbi.nlm.nih.gov/pubmed/21382000. Mayberry, MK 2003, Effects of the civil procedure rules on clinical negligence claims. Postgraduate Medical Journal, vol. 79, no. 928, p.74-77. The IEA Health and Welfare Unit 1996, Charles Murray and the Underclass:The Developing Debate Charles Murray, Viewed from http://www.civitas.org.uk/pdf/cw33.pdf Mulholland, DM 1993, Managed care liability for medical malpractice and utilization review. The Medical staff counselor, vol. 7, no. 2, p. 35-43. News Health, BBC 2000, Litigation: the next NHS crisis. BBC News, 2000, Viewed from http://news.bbc.co.uk/1/hi/health/610487.stm. Reynolds, RA, Rizzo, JA & Gonzalez, ML 2008, The cost of medical professional liability, Jama The Journal Of The American Medical Association, vol. 257, no. 20, p. 2776-2781. Viewed from http://www.ncbi.nlm.nih.gov/pubmed/3573273. Spector, RA 2004, Utilization review and managed health care liability The Southern medical journal, vol. 97, no.3, p. 284-286. Read More