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You will prepare and submit a term paper on Mod 2 case Tort Law. Your paper should be a minimum of 500 words in length.
You will prepare and submit a term paper on Mod 2 case Tort Law. Your paper should be a minimum of 500 words in length. Tort law Negligence arises when an individual or an entity acts incompetently or below the required standard of care and as a resultcauses harm or injury due to lack of reasonable care (Hylton, Lin & Chu, 2013). In order to establish negligence, it is essential to first determine that the party acting negligently had a duty of care, and that such duty was breached by the negligent party resulting in injury to the other party (Ashley, 2004). In respect to negligence in Bobby’s case, it is evident that ACE sports acted negligently by leaving small pieces of metal sticking out of the rim. ACE sports owed a duty of care to the users of the rim to ensure that the rim was safe and did not have any parts that would possibly cause harm to the players who used it. This duty of care was breached when Bobby hurt himself with the small pieces of metal left on the rim due to lack of reasonable care by ACE sports.
Dr. Andrews, on the other hand, is also liable in negligence for erroneously amputating Bobby’s functional wrist. The doctors’ actions were caused by medical negligence, when the surgeon did not exercise the required standard of care before performing the amputation. In establishing medical negligence, it is essential to demonstrate the occurrence of medical negligence or error, and more significantly, that this error or negligence resulted in physical or psychological suffering to the patient (Charlesworth, Walton, & Cooper, 2011). In Bobby’s case, his left wrist was erroneously amputated and this is sufficient to establish both error and physical suffering required to establish medical negligence.
The Emergency Medical Treatment and Active Labor Act (EMTALA) provides for how and when a patient might be denied treatment or transferred to another medical facility when such a patient is in an unstable medical condition. The Act provides that where a patient presents himself to a medical institution requiring examination or treatment the hospital must provide the appropriate screening to establish if the patient has an emergency medical condition. Where it is established that indeed there is an emergency medical condition, the hospital is obligated to provide treatment to the patient until the condition stabilizes or transfer the patient to another hospital. Where the emergency condition is not established, then the statute imposes no obligation on the hospital. The act defines an emergency condition as a medical condition with acute symptoms where absence of treatment is reasonably expected to cause impairment or a dysfunction of body parts or organs (Richards, 2012). The nurse who attended Bobby did not find any emergency condition necessitating emergency treatment under the condition as the cuts on the wrist did not seem severe and Bobby’s condition did not seem to deteriorate. Therefore, both the nurse and the City General hospital cannot be held liable in negligence.
Comparative negligence is a rule applied in determining the responsibility and damages based on the negligence of the parties involved in a negligence case. Comparative negligence is applicable where both parties are at fault. This rule, in essence, reduces the damages due to a plaintiff in a negligence claim to the degree to which the plaintiffs fault contributed to the loss or injury. Liability, therefore, is determined based on the contribution of the parties to the injury (Levy, Golden & Sacks, 2013).
Joint and several liability is a description of liability where individuals in a group are mutually or individually liable to a party in negligence. This form of liability is only practical where two or more individuals are found liable for damages. In such instances the plaintiff may seek to enforce damages from any of the individuals or from any and all the individuals until the damages are fully settled (Antieau, 2012).
Conclusion
When a party owes a duty of care to another and fails to take reasonable care resulting in injury, then such party has acted negligently. ACE sports and Dr. Andrews owed a duty of care to Bobby and they did not take reasonable care to avoid injury to him. Therefore, these parties are both liable in negligence in respect to Bobby’s injuries and subsequent amputation.
References
Antieau, C. J. (2012). Procedural Requirements and Shared Liability. Antieau on Local Government Law, Second Edition, 3.
Ashley, R. C. (2004). The fourth element of negligence. Critical Care Nurse, 24(4), 78-79.
Charlesworth, J., Walton, C., & Cooper, R. (2011). Charlesworth & Percy on negligence. Sweet & Maxwell.
Hylton, K. N., Lin, H., & Chu, H. Y. (2013). Negligence and Two-Sided Causation. Boston Univ. School of Law, Law and Economics Research Paper, (13-50).
Levy, N. M., Golden, M. M., & Sacks, L. (2013). Comparative Negligence, Assumption of the Risk, and Related Defenses. California Torts, 1.
Richards, N. S. (2012). Judicial Resolution of EMTALA Screening Claims at Summary Judgment. NYUL Rev., 87, 591.
