Homework Question on Legal Liability
- A surgeon performs elective surgery on John Smith. Smith later complains to his surgeon about pain resulting from the surgery. His surgeon dismisses his complaints as not credible and eventually withdraws from the case. Smith is then treated by another surgeon, who determines that Smith developed complications from surgery and that the delay in treatment has made the complications worse. Smith sees an attorney about a possible lawsuit against the first surgeon.
- Based upon the information above, describe at least two theories of liability that could support a lawsuit under these circumstances. Be sure to discuss each theory in detail and thoroughly explain the rational for your choices. What are the potential defenses and limitations of the liability theories you have chosen?
Homework Answer on Legal Liability
The lawsuit by John Smith against the first surgeon can be based on two liability theories. The first liability theory is that one of proving negligence by the first surgeon. The other liability theory is breach of contract or breach of warranty.
This malpractice case may proceed under the theory that the surgeon committed medical negligence. John Smith as the plaintiff has the responsibility of proving the following in order for negligence to be established:
- He must prove that the surgeon owed him a duty that is, there was a doctor-patient relationship.
- He must prove a standard level of care and show that the surgeon deviated from it breaching the duty owed to the patient
- That there is a causal relationship between the negligence of the healthcare professional and the injuries that john Smith sustained.
- The presence of actual injuries caused by the negligence of the first surgeon.
John smith will be required to have another qualified surgeon testify, in this case the second surgeon that treated him. This qualified medical professional will have to inform the court what standards of care or level of care expected of medical professionals in that field and demonstrate how the defendant failed to achieve those standards.