Duty of Care Revisited
What Is the Meaning of Duty for a Professional Midwife?
In a medical malpractice case against a certified nurse-midwife, the injured patient/plaintiff must be able to prove that the midwife owed them a legal duty. By law, all providers of healthcare owe their patients a legal duty. When suing their midwife, the injured party must establish that she (or he) failed to provide an appropriate level of care under the circumstances. A failure to meet a proper midwifery level of care is what inevitably leads to the midwife’s alleged negligence.
Legal Duty of Care to the Patient
The first step in proving that the midwife owed a legal duty of care to her patient is to demonstrate that a relationship existed. A typical way to support a relationship is by examining the patient’s medical records. In addition, oral testimony can also be used to support the midwife-client relationship. Presenting to the midwife for examinations and treatment on an ongoing basis will also prove the existence of a relationship. The midwife must also prove that they used the degree of care and skill of the average nurse-midwife with a similar specialty practice, taking into account the medical knowledge that was available to the midwife during the time the alleged malpractice took place. For the typical certified nurse-midwife, the standard of care is based on what the average nurse-midwife practicing in the same area of midwifery would typically do in similar circumstances. The standard of care is the first element of a claim for medical malpractice. 1
Tort Lawsuits and The Duty of Care
For most tort lawsuits, the duty of care is to practice as a reasonable person would. It is essential to realize that a “reasonable person”, in the law, does not really exist. She is the creation of tort law and is utilized to measure whether the “real midwife’s” actions are comparable to what a reasonable person would have done. For legal purposes, the imaginary reasonable person always pays strict attention and acts with utmost care. She always considers the possibility that her patient may suffer harm from her actions and will choose the safest course, if one exists. However, in a midwifery malpractice case, the midwife’s actions are compared to the actions of a reasonable midwife, not the actions that a reasonable layperson would have taken. In legal malpractice, an attorney’s duty of care is to act as a reasonable attorney would in that same or similar situation. 2
Children and The Duty of Care
Duty of care is slightly different for children and people with disabilities. The duty of care for a disabled adult is what a reasonable person with that disability would do. Many courts will not allow disabilities to be an excuse for reckless or irresponsible care. They do, however, recognize that specific disabilities may prevent the person who suffers from them from taking a range of options available to a non-disabled adult.
In most states, very young children cannot be liable for harm caused by negligent behavior because they aren’t capable of making reasonable choices. However, once a child reaches the age of six or seven, they are held to the same duty of care as a “reasonable child” of the same age and experience would act. 3
The Meaning of Strict Liability
Certain situations are so dangerous that no matter how much care an individual takes, she cannot make things reasonably safe. These cases are known as strict liability, which means the person with the duty will be liable for an injury, no matter how careful they might have been. Examples of strict liability include manufacturing accidents or explosions, as well as the keeping of dangerous animals. Finally, failing to maintain a duty of care is known as a breach of duty. In most medical malpractice cases, proving that a duty exists and that it was breached is mandatory. One person can only be liable to another if she had a duty to act with reasonable care toward the other.4
Finding A Duty of Care in U.S. Tort Law
In the U.S., because each of the 50 states is a separate sovereign free to develop its own tort law under the Tenth Amendment, there are several tests for finding a duty of care in United States Tort Law. The Foreseeability test is applied in states like Florida and Massachusetts, where the only test is whether the harm to the plaintiff from the defendant’s actions was foreseeable. 5,6 The Supreme Court of California, in a majority opinion, sharply criticized the idea that foreseeability, standing alone, constitutes an adequate basis on which to rest the duty of care: “Experience has shown that . . there are clear judicial days on which a court can foresee forever and thus determine liability but none on which that foresight alone provides a socially and judicially acceptable limit on recovery of damages. 7
The Multi-factor test: California has developed a complex balancing test consisting of multiple factors that must be carefully weighed against one another to determine whether a Duty of Care exists in a negligence action. In the 1968 case of Rowland v. Christian, the court held that judicial exceptions to this general duty of care should only be created if clearly justified based on the following public policy factors:
the foreseeability of harm to the injured party;
2. the degree of certainty he or she suffered injury;
3. the closeness of the connection between a defendant’s conduct and the injury suffered;
4. the moral blame attached to the defendant’s conduct;
5. the policy of preventing future harm;
6. the extent of the burden to the defendant and the consequences to the community of imposing a duty of care with resulting liability for breach;
7. and the availability, cost, and prevalence of insurance for the risk involved;
A 1997 Case added to this:
8. the social utility of the defendant’s conduct from which the injury arose. 8,9
The Difference Between Negligence and Strict Liability
Once a duty exists, the plaintiff must show that the defendant breached it. This is generally treated as the second element of negligence in the United States. It is possible that the defendant took every possible precaution and exceeded what would have been done by any reasonable person, but the plaintiff was injured. If that is the case, then as a matter of law, the duty of care has not been breached, and the plaintiff cannot recover damages for negligence. This is a key difference between negligence and strict liability. If strict liability attaches to the defendant’s conduct, then the plaintiff can recover under that theory, regardless of the precautions taken by the defendant. 9,10
References
The National Law Review. What is a Healthcare Provider’s Duty of Care? https://www.natlawreview.com/article/what-healthcare-provider-s-duty-care
2.Rottenstein Law Group LLP. http://www.rotlaw.com/legal-library/what-is-a-duty-of-care/
3. Ibid. pg 2
4. Ibid. pg 2
5. Wikipedia, the free encyclopedia. Responsibility. https://en.wikipedia.org/wiki/Duty_of_care. pg 3 McCain v. Florida Power Corp., 593 S0. 2nd 500, 503 (Fla. 1992).
6. https://en.wikipedia.org/wiki/Duty_of_care. Perre v Apand (1999) 198 CLR 180, 209-10 (McHugh J.). Jupin v. Kask, 849 N.E. 2nd 829, 835 (Fla. 1992).
7. https://en.wikipedia.org/wikiDuty_of_care. Perre v Apand (1999) 198 CLR 180, 217 (McHugh J.) Thing v. La Chusa, 48 Cal. 3d 644, 667 (http://online.ceb.com/CalCases/C3/48C3d644.htm) (1989)
8. Rowland v. Christian , 69 Cal. 2nd 108 (http://online.ceb.com/calcases/C2/69C2d108.htm) (1989)
9. Parsons v. Crown Disposal Co., 15 Cal. 4th 456 ( http://online.ceb.com/calcases/C4/15C4t456.htm) (1968).
10. Gilson v. Metropolitan Opera, 5 N.Y. 3d 574 (2005).
11. Bozzi v. Nordstrom, Inc., 186 Cal. App. 4th 755 (http://online.ceb.com/calcases/CA4/186CA4t755.htm) (2010).