Negligence is an integral part of every medical malpractice and personal injury lawsuit. Medical negligence occurs when a doctor, who owes his patients a duty of care, fails to provide treatment according to the standard of care. There are four different types of negligence:
- Contributory Negligence
- Comparative Negligence
- Vicarious Liability
- Gross Negligence
The Australian law of negligence requires a person to conduct himself or herself in a manner that imitates certain standards of conduct. If an individual does not conform to a particular standard, he or she is held liable for harm caused to another person or property. Let us talk about the four types of negligence in detail. If you find yourself in a position that you wish to claim medical negligence we suggest you read our top 15 Medical Negligence Lawyers Perth.
- Contributory Negligence
Contributory negligence arises when you, as a plaintiff, have contributed to the injury or harm you suffered. It can be a partial or full defence by an individual being sued for the tort of negligence.
Your negligence will depend on whether you fail to take the standard of care a reasonable individual would have taken in a particular circumstance. If the court finds you contributorily negligent, it will reduce or eliminate the liability of the defendant for the harm or injuries suffered.
For example, if you fail to fully disclose your medical history, including previous medical treatments, surgeries, or known allergies, you will be contributorily negligent to the injuries or harm suffered. Other examples include lying about your personal medical history and engaging in activities that could aggravate your medical condition.
2. Comparative Negligence
Comparative negligence focuses on the negligence of the plaintiff and the defendant that contribute to the accident, injuries, or harm. Unlike contributory negligence, comparative negligence seeks to compensate the plaintiff for some part of his injuries.
In the comparative negligence system, you will recover damages minus your degree of fault. For example, if you receive AUD 50,000 in damages, but you are found at fault for 50% of your injury, you will receive 50% of the AUD 50,000 award.
3. Vicarious Liability
Vicarious liability means one person held responsible for the negligence of another. In simple words, it is a situation in which the plaintiff is held partly responsible for the negligence or unlawful actions of the defendant. Keep in mind that the defendants carry their own share of the liability.
In the context of medical negligence, the court may hold the hospital responsible for its negligence or “vicariously” liable for the unlawful actions of an employee. For example, a doctor, physician, or nurse can be held vicariously responsible.
4. Gross Negligence
In legal terms, gross negligence refers to conscious malpractice or wilful disregard of providing reasonable care. Sometimes, the plaintiff accuses the defendant of gross negligence in a case where the defendant did not intend to cause harm. Gross negligence is more than failure to act or carelessness. It is conducted with foreseeable damage.
For example, a doctor or nurse gives you a certain medication that could cause adverse reactions or allergies. Despite knowing that your chart says you are allergic to the drug, your health provider gives you the medication. Another example is leaving a surgical instrument inside your body after open back surgery.