Module 3 Discussion Post 2

There is no easy answer as to whether medical negligence cases should be handled in civil court or criminal court. It is my belief that medical negligence cases should start out in civil court, and if gross deviation from standard of care is found, it should move to criminal court. The first thing to consider is how to prove medical negligence in court. Medical negligence is proved in court after showing proof of four elements: 1. A professional duty owed to the patient, 2. Breach of such duty, 3. Injury caused by the breach, and 4. Resulting damages (Bal, 2008). This alone is difficult to do.

To take a case from civil to criminal court, proof must be found of “gross or flagrant deviation from the standard of care” (Barcus, n.d.). This is also difficult to do. Many issues arise while trying to prove this, such as jurors who are confused by medical jargon and jurors who overlook the standard of care while paying more attention to the physician’s state of mind (Barcus, n.d.). It is also difficult to figure out and prove whether the physician had prior knowledge of an important aspect that could cause harm unintentionally (Barcus, n.d.). 

So, although this is a difficult process that has a few flaws, it is important to hold physicians responsible for their actions, whether they were intentional or not. This can be done by utilizing both criminal and civil court.

References

Bal, S. (2008). An introduction to medical malpractice in the United States. Clinical orthopaedics and related research467(2), 339-47. https://dx.doi.org/10.1007%2Fs11999-008-0636-2

Barcus, H. A. (n.d.) When does medical negligence become criminal? Retrieved from: http://www.latlaw.com/index.php/firm-news-articles/articles-2010/88-when-does-medical-negligence-become-criminal

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Medical negligence cases I believe should be handled in criminal court. The reason being so is because like stated in the article that is provided to us, “The prosecution of criminal medical negligence was once a relatively uncommon occurrence.” ( Barcus, H. A. (n.d.), 2010). Meaning that it used to be uncommon that criminal negligence went to court and was prosecuted. It has grown since the years of 1809-1981. Medical negligence is not a civil matter, it’s criminal. Yes there are some thing within criminal negligence that is civil, but the overall picture shows that it is criminal. Therefore, Criminal medical negligence should be handled within the criminal courts rather than the civil courts.

References:

Barcus, H. A. (n.d.) (2010):  http://www.latlaw.com/index.php/firm-news-articles/articles-2010/88-when-does-medical-negligence-become-criminal

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To begin with, medical negligence is defined as an act or omission (failure to act) by a medical professional that deviates from the accepted medical standard of care (David Goguen, n.d.).  According to LawHelp.org (2018), in criminal court the government files a case against someone for committing a crime.  The person accused of committing the crime is called the defendant and if found guilty may receive jail time.  In civil court, a person or business files a case against another person or business because of a problem between them.  The judge can order the person who loses in civil court to pay money or a fine towards the other party.  People do not go to jail based off of civil court decisions (LawHelp.org, 2018).

I believe that in order for a medical negligence case to be handled in criminal court there must be a “gross or flagrant deviation from the standard of care”.  Another necessary reason is “practicing outside of one’s area of expertise” or “attempting to cover up a clinical mistake” (James A. Filkins, 2007).  These are all selfish acts that deliberately violate the principles of beneficence and non-maleficence.  Knowingly acts as such by medical “professionals” should be handled in criminal court and result in jail time.

According to Barcus, H. A. (n.d.), health care professionals should not be given a free pass from criminal liability for mistakes made in their treatment of patients (Barcus, H.A., n.d.).  I believe if a medical professional makes a genuine mistake, that the issue should be handled in civil court.  People are not perfect and no one deserves to be dragged away from their family because of a mistake.  If enough evidence is found in order to sincerely convey an action as a mistake, criminal court is not necessary.

LawHelp.org. (2018). The Differences between Criminal Court and Civil Court. Retrieved from https://www.lawhelp.org/resource/the-differences-between-criminal-court-and-ci

David Goguen, J.D. (n.d.). Medical Negligence. Retrieved from https://www.alllaw.com/articles/nolo/medical-malpractice/negligence.html

Barcus, H. A. (n.d.). When does medical negligence become criminal? Retrieved from: http://www.latlaw.com/index.php/firm-news-articles/articles-2010/88-when-does-medical-negligence-become-criminal

at least 250 words, must synthesis the 3 different posts.

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