Question

3. A patient is admitted to the hospital with gallstones and needs to have his gallbladder removed. This is considered an emergency surgery because of the position of the stones and the level of patient pain. The patient also suffers from type 2 diabetes that is not well controlled. The patient undergoes surgery and the gallbladder is found to be gangrenous; the gallbladder is removed but the patient suffers from jaundice following surgery. After follow-up testing, it is determined that the bile duct from the gallbladder was damaged during the emergency surgery and the patient needs another surgical procedure to repair its damage. How would the components of negligence be met in this case? Are there any other mitigating factors involved?

Answer 1

NEGLIGENCE: The failure to do an act which a reasonably careful person would do, or the doing of an act which a reasonably careful person would not do, under the same or similar circumstances to protect oneself or others from a) bodily injury b) death, or c) property damage.

COMPONENTS OF NEGLIGENCE: There are four distinct elements of negligence. They are a) duty of care b) breach of the duty of care c) causation and d) damages.

DUTY OF CARE: A duty of care arises when the law recognizes a relationship between two parties, and due to this relationship, one party has a legal obligation to act in a certain manner towards the other. In this case, it is the duty of the doctor to respect the rights and should maintain a relationship with the patient. BREACH: A breach is a violation of a law or duty. In this cause proper treatment should be given to the patient when diagnosed with jaundice. CAUSE: The breach of duty must have caused harm to the Plaintiff. Due to the negligence during the surgery, the patient has suffered with other complications. HARM: The Plaintiff must suffer harm in order to sue for negligence. If he suffers no harm, he cannot sue.

OTHER MITIGATING FACTORS : Under the mitigation of damages doctrine, a person who has suffered an injury should take reasonable action, to avoid furthe injury or loss. The failure of Plaintiff to take protective steps after suffering an injury can reduce the amount of plaintiff's recovery.The doctrine of mitigating damages usually prevents the recovery of any post-malpractices damages that could have been avoided by the reasonable efforts of the injured patient. However, in some cases, recovery will be completely barred to a patient whose entire injury could have been avoided if the patient had exercised reasonable care after the physician's negligence.