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FACTS
Sherlock, snowboarder by profession, sustained serious injuries in his left leg as a result of getting tripped off the pathway on the street while crossing the road. This happened when Ryan called out his name loudly in the middle of the street and he was startled to hear the same suddenly. Before this, Sam, a pedestrian while returning from a shop across the street had accidently spilled a bottle of mustard oil near the pathway and then just went away without making an attempt to clear it. However, Sherlock is not sure that whether the reason why he fell is attributable to Rayan, who distracted him while he was crossing the road or because he slipped in the oil, but he is sure that one of these factors must have caused his fall. Sherlock is taken to the oodlands Hospital where !ark, a doctor, negligently fails to diagnose that his ankle is broken. Because he is unaware that his ankle is broken he attempts to drive to a snowboarding competition the ne"t day. #ater, while driving to the competition, while applying the brakes to prevent collision with a truck, he develops a sudden pain in his ankle as a result of applying the brake with a lot of force. $t is then found that he has a broken ankle. $t was found that %raham&s ankle will always remain weak as a result such injury, and that conse'uently he is likely to earn far less by way of participating in snowboard teams during during his career career.. The The delay delay in diagnos diagnosing ing the ankle ankle injury injury substan substantial tially ly reduce reduced d the likelihood that this permanent weakness could have been avoided. The Hospital authorities have contacted you. (rgue on their behalf and defend the hospital authorities in a claim for vicarious liability.
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ISSUES AT HAND
I.
WHETHER THERE IS A SITUATION WHERE DAMAGES ARISE OUT OF NEGLIGENCE?
II.
WHETHER
THE
NEGLIGENT?
HOSPITAL
IS
LIABLE
IF
THE
DOCTOR
WAS
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ARGUMENTS ADVANCED
I.
DAMAGES DO NOT ARISE OUT OF ANY NEGLIGENT ACT.
a. The act was not negligent. )egligence is the omission to do something which a reasonable man guided by those consideration which ordinarily regulate the conduct of human behavior, would do* or doing something which a prudent and reasonable man would not do. + )egligence in the conte"t of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. ( case of occupational negligence is different from one of professional negligence. ( simple lack of care, an error of judgment or an accident is not proof of negligence on the part of a medical professional. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person e"ercising ordinary skill in that profession. $t is not possible for every professional to possess the highest level of e"pertise or skills in that branch which he practices. ( highly skilled professional may be possessed of better 'ualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence. Hence in this case the act of the doctor wherein he failed to diagnose that the plaintiff-s ankle is broken would not be negligent. b. Damages did not arise out of direct consequence. $t is important to prove the that the injury that occurred was due to the direct conse'uence of negligent act, and there should have been no contribution toward the damage by the
+ Blyth v. Birmingham Waterworks Co., +/012 ++ 3" 4/+, Baron (lderson. Jacob athew v. !tate of "un#ab, 5502 1 S66 +
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plaintiff.7 6onsidering but not accepting that the doctor-s act was negligent, but the damage that was caused was not a direct conse'uence of the act. Sherlock knew that his ankle was injured but he still carelessly and negligently went on to drive the very ne"t day. The grave injury that happened to him was also because a truck appeared in front of him and he had to press the braked very hard, hence it can be stated that the injury was not a direct conse'uence of the act of the doctor. II.
THE HOSPITAL WILL NOT BE LIABLE FOR THE ACTS OF THE DOCTOR .
$n $old v. %sse& County 'os(ital Council, the court has held that the hospital authorities are not legally liable for the negligent acts of their professional staff. (lso when the appeal of the same case take to a higher court, the higher court held the order and added that there is a distinction between medical staff on a 8contract for service-e.g. consultants2 and those employed on a 8contract of service- e.g. nursing staff2. They added that that vicarious liability applied in the later case, but not the former. Hospitals may be direct employers of certain healthcare staff, including paramedics, medical technicians and nurses. 9or individuals with whom the hospital shares an employer:employee relationship, the hospital may be sued under the doctrine of respondent superior. Hospitals are usually not liable f or the medical malpractice of doctors because most doctors are independent contractors. $t has been the general rule that a fully licensed and practicing physician who simply has hospital medical or surgical staff privileges is an independent contractor and not a servant or an agent of the hospital. The mere fact that a professional person is on the staff of a medical care institution does not result in a finding that he is a servant. ; The courts have stressed that the contract for medical treatment was between the patient and
7 Barnett v. Chelsea and )ensington 'C, + (ll 3R +51/>4; ; ayers v. *itow, +0; 6al. (pp. d ;+7, 7+1 ?. d 70+ +@042
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to the latter he acts as an independent contractor. The hospital corporation is entirely separate from its managers and stockholders. The hospital&s contract with the patient is only to furnish medical services to be rendered by others and it does not undertake to practice medicine through servants. $t is liable only if it negligently selects physicians to treat the patient. 0 (nother argument supporting the hospital claim is that physicians, not hospitals, have a duty to practice medicine non>negligently, so a hospital cannot delegate a duty it never had. $n some jurisdictions, a non>delegable duty is an established e"ception to the general rule that an employer is not liable for the negligence of independent contractors, making hospitals vicariously liable as matter of law for independent contractor-s negligence.
THE ARGUMENTS ARE HENCE HUMBLY SUBMITTED FOR THE COURT TO JUDGE UPON.
0 Barfield v. !outh 'ighland +nfirmary, et al., +@+ (la. 007, 1/ So. 75 +@+02* Black v. ischer, et al ., 75 %a. (pp. +5@, ++4 S.3. +57 +@72 * !tacy v. Williams, 07 Ay. 707, 1@ S.. d 1@4 +@7;2.
