Question

1. 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

#. The four elements that a plaintiff must prove to win a negligence suit are 1) Duty, 2) Breach, 3) Cause, and 4) Harm. When trying to establish a case for negligence, you must make sure that all four elements have been met:

(1) Duty:

The first step in analyzing a negligence scenario is to establish whether or not the defendant owed the plaintiff a duty. There are two kinds of duty that a defendant could owe the plaintiff. The first is the general "duty of care". The duty of care is simply a duty to conduct yourself as a reasonable person, acting under similar circumstances, would conduct himself. In any negligence suit we look at the defendant’s actions and try to determine whether a reasonable person would have acted the way the defendant acted had the reasonable person been in the same circumstances that the defendant was in. If the defendant’s behavior matches the reasonable man’s behavior the defendant has fulfilled his duty of care. If the defendant’s actions fall below what a court determines the reasonable man’s actions would have been the defendant has breached his duty.

The second duty is a "special duty" imposed by statute or case law which may exist either in addition to, or in place of the regular duty of care.

(2) Breach

Once you have determined the existence of a duty, you must determine whether or not the defendant has breached his duty. A defendant can breach his duty both by acting in a certain manner or by failing to act in a certain manner. That is to say, a defendant can breach his duty either by acting in a manner that violates the reasonable man test, or by not acting in a situation where he is legally required to act.

(3) Cause

Once you have demonstrated that the defendant owed a duty to the plaintiff and that the defendant breached that duty, you must show that the breach was both the actual and proximate cause of the plaintiff’s harm.

(4) Harm

Finally, you must show that the plaintiff suffered harm as a result of the defendant’s breach. If a plaintiff does not suffer harm, he can not sue for negligence

In this case negligence can be met by the following :-

Duty - it's the duty of the physician to ensure that no other organ is damaged during the surgery .

Breach - the physician has failed to perform his duty - the way the surgery has to be done .

Cause - it's due to the negligence while performing the surgery because of which the bile duct got damaged

Harm - the bile duct is damaged and the patient requires another surgery to repair it .

#. Yes, there is a mitigating factor present in this case - it was a emergency situation and the patient needed urgent surgery as the gallbladder was gangrenous