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It is an all-encompassing effort to sue for negligence tort. The sum of money and energy spent on pursuing tort lawsuit does not nullify the inclusion of negligence tort in the injury prone plaintiff.
This article on interesting elements to sue for negligence tort in tort law will help the reader not only to ponder over the medical malpractice or accidental injuries but also help the plaintiff to sue for medical negligence with in the purview of tort law and the tort time line for tort liability claim.
The difference between negligence and tort law
It is important to know the difference between negligence and tort law before we get in to the deep sea of learning.
Negligence is a common expression to prove an action performed with carelessness and rashness. From the low point of view negligence is a claim for the cause of action.
In the meantime, tort law deals with the negligence from the legal perspective. It is a legal setting where the defendant would be made liable for the injury infused to the plaintiff. Tort law imposes for the tort claim if proved with the negligence tort elements. Is negligence a tort? Yes, it is. Negligence in tort law includes assault, medical battery, malpratice tort, civil wrongs, property loss, pain, suffering, and the damages connected to it.
What is negligence?
Black’s law points out that, negligence is the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation, any conduct that fails the legal standard establishes to protect others against unreasonable risk of harm except for conduct that is intentionally, wantonly, or willingly dis-regretful of others’ rights.
The repercussion of the negligence definition is that the act has to be committed volitionally with non-regretful attitude will qualify for negligence tort claim. In fact, tort law assures the recovery even the defendant is regretful about the negligence.
For example, Robert made a car crash on the pedestrian negligently. When Robert found his condition, he took him to the hospital for treatment. Robert still regrets about the occurrence, but can he justify? Since, Robert regrets for the action so cannot he compensate for the damages? He has to compensate or else the negligence tort law will come to effect.
Primary elements to be proved for negligence tort claim
The US tort law enables the plaintiff to go for negligence claim for any personal injury or liability. The tort law depends on the tort timeline in which the elements of negligence claim proven to be right. Elements of negligence tort claim to be proven before the jury includes:-
- The binding legal obligation (duty) one has towards the other.
- The opposite party has breached that obligation.
- Plaintiff is injured by the negligence of the defendant’s breach
- Negligence of the defendant fully responsible for the injury caused.
- There needs to be the direct correlation between the negligence action (cause) and the harm (outcome).
Let’s try to understand the elements of negligence descriptively for a better thought process to prove before the court proceedings.
The defendant is indebted to legal duty on the other (plaintiff) to behave reasonably accepted by the legal society and legal notes. Germy Bantam, a great philosopher and a jurist tells that actions are morally right if they tend to promote happiness, morally wrong if they promote pain, and suffering for the other.
Correlation or causation
There is a saying that potter acts on the clay to make a pot. It is applicable to the causation. If s/he acts negligently, the pot will be shapeless so also the plaintiff needs to prove that the carelessness or rashness caused the physical injury or damages. The direct causation between the injury and the defendant’s negligence need to be proved.
Plaintiff is not able to perform the action due to the negligence of the defendant. The violation of the defendant’s reasonable care towards the plaintiff is breached. This is to be proved during the court proceedings.
For example, employee’s duty in the company is to sell washing soaps by car. While driving, he is so reckless and rash which resulted in the injury infliction on the pedestrian. It is a breach of conduct. He had the moral duty to drive the car but he breached that responsibility while causing injury to the pedestrian. This is mere negligence from the part of the defendant.
Damages indicate the injuries and the loss suffered by the plaintiff. It can be both economic and non-economic damages. This needs to be proved with evidence that the negligence of the defendant affected the damages directly.
I shall provide few negligence tort examples to claim for economic damages.
- Property damages
- Past and future medical expenses
- Lost earning capacity and lost wages in the present and past
- Medical bills arise out of the injuries caused by the negligence tort.
Let us also understand few non-economic damages to claim better for negligence act.
- Loss of companionship
- Loss of enjoyment of life
- Disfigurement and its emotional distress
In both the damages, the plaintiff must convincingly provide authentic testimony and witness: may it be doctors, psychologists, psychiatrists, and therapists or chiropractors- to prove for the damages acted upon by the rashness or reckless behaviors of the defendant.
Proximate cause and harm
Proximate cause and harm needs to be explained satisfactorily and proved through medical records. The closeness of the negligence tort reflected directly in the injury or other physical harm.
The aforementioned points are like pearls need to be justified before the judge for negligence tort compensation.
What are the types of negligence claims?
There are many number of negligence claims throughout the country. Let me help you with a few.
Car crash or any other automobile collision can be fully the negligence of the defendant or may be also the contributive negligence of the plaintiff.
If the negligence tort is caused by the defendant, plaintiff can claim for the full recovery. Suppose, the accident is by the contributive negligent of the plaintiff, it is meaningless to sue for negligence tort claim. Nevertheless, the damages to any automobile can be claimed through the insurance.
Medical malpractice is a subset of specific omission on negligence tort. It is dealt by the tort law in the legal community.
Medical malpractice can be claimed in the legal battle. When a doctor or a nurse performs his or her duty negligently, least bothering about the patient’s condition, the plaintiff can go for suing negligence tort on lack of reasonable care and attention. This may bring serious ill health to the patient.
Work place accidents
There are over 7 million work place injuries taking place in the United States every year. Work place accident occurs when the work place is not protected enough for the employees to work.
For instance, employee comes in contact with the X-ray machine without the protective suit. It had caused rashes and skin allergy to the employee. Here, the employee can sue for a tort claim because he has the right to get the protective suit from the employer which he did not get. It is a mere negligence seen in the work place.
Defective products can have serious impact on our health. The manufacturer or the distributer need to compensate the plaintiff for the defective product sold.
New York Times tells that Johnson and Johnson has more than 25000 lawsuits on product liability tort. It is very interesting to see that, they have set aside $4 million for fighting the battle.
Premise liability law enunciates that the property owner is responsible for the injury caused by the property. s/he is entirely responsible to keep the environment conducive for everyone to visit.
For example slips and falls leading to sprains, muscle catch, and head injury occurs in the wet floor. When the shop keeper mops the floor s/he must keep the board mentioning about the wet floor till it gets dried. Suppose s/he fails to keep the board and the customer fall prey for the wet floor, the shop keeper is entirely responsible for the negligence.
Negligence liability in tort law
There are three types of liability in negligence tort law. They are vicarious liability, strict liability, and absolute liability.
Vicarious liability is a legal doctrine where one party causes the accident and the employer of that party holds the responsibility for the injury settlement of the plaintiff.
For example, employee-X drives the car towards California to complete the business deal. On the way, the car without the employee’s control hits person-Y. It is the shear negligence of the employee. But in vicarious liability the employer is responsible for clearing the medical bills and all the other injury tort claims.
Strict liability in the tort law includes that an action done by the possession (animals or persons) of the owner though responsible for the negligence tort, the owner needs to take the responsibility for the action.
For example, past vengeance incited the child to execute grievous harm to a young adult with stones. The kid is not of age to take the blame. The father of the child has to pay for the entire tort claim demanded by the plaintiff. According to strict liability, the father of the child is responsible though no harm is inflicted by him. Father always had the duty to take care of the child’s growth and upbringing.
Absolute liability in tort law indicates that the intention or non-intention of the person is culpable for negligence tort.
For instance, the power plant owner is aware of the fact that nuclear wastes and the toxic chemicals can destroy human life and can bring a lot of defects to the human body. His true motive is electricity but the byproduct causes serious havocs to human life.
This case will come under absolute liability where, the defendant though had done with the right intention but s/he needs to compensate for the affected under absolute liability tort law.
Medical malpractice in negligence tort law
James’ PhD. thesis invokes that 400000 medical negligence deaths are happening every year in the US hospitals. Medical malpractice is the third leading cause of death in the country. 17000 people die every year due to medical malpractice.
There are many forms of medical malpractice creep in as the treatment takes place for a particular patients. Let me give you a few types of medical malpractice cases.
- Surgical error
- Unwanted surgery
- Wrong diagnosis
- Ignoring laboratory results
- Inability to identify symptoms
- Wrong dosages
- Mistaken treatment
How to file a medical malpractice lawsuit under medical negligence tort law?
Doctors, nurses, and other healthcare professionals negligently causing personal injury to the patients can be sued under negligent tort law for settlements and compensation. How do you proceed for the settlement? This is the question to be answered. I shall help you with few steps to sue for medical malpractice.
- Plaintiff needs to collect the evidence to show to the jury that physician acted negligently to case the injury.
- Physician had the duty towards the patient to care.
- s/he acted negligently.
- That negligence caused the serious damage.
- The present pain and mental anguish is due to the medical negligence
- Gathering all the aforementioned facts, sue lawsuit for the damages caused by the medical.
Share all the details to the personal injury attorney and claim for the recovery.
How to claim for negligence tort in tort law?
Negligence-tort-law-notes point out that the plaintiff should and must satisfactorily prove with no doubt on the elements of negligence claim before the jury. The elements include:-
- The defendant had the legal duty towards the plaintiff.
- The defendant breached that inherent duty on the plaintiff.
- The plaintiff was terribly wounded and disfigured.
- The injury is strongly caused by the mere breach of duty.
All these negligence tort elements need to be proved with evidence, testimony, witnesses, and proofs.
Statutes of limitations or timeline for negligence tort claims
The country has many states and each state has its own timeline for suing negligence tort claims. Some states will have three years, some two years, and to some states it is just a year.
To know the statutes of limitations or timeline according to each state, kindly go through my previous blog “can I make a personal injury lawsuit without a lawyer?”
Negligence tort law provides healthy approach to recover for negligence tort inflicted on the plaintiff by the defendant. The legal environment gives few prerequisites to be qualified for the recovery of the negligence tort claim.
Duty, causation, breach, damages, proximate, and harm are to be evidentially proved before the jury that defendant has the entire responsibility in causing harm or mental distress to the plaintiff. Vindicating these tort elements, tort claim settlement is assured.