Negligence

Negligence is probably the most important area of tort law. Here liability may be imposed for results that were not intended by the defendant, and originates from the defendant being at fault through failure to perform a required duty under a set of specific circumstances. There are two types of duties: the duty of due care, that is, the duty to act as any reasonable person would given the same or similar circumstances; and a special duty imposed by case law or statute. A prima facie case for negligence includes the following elements: act or actionable omission by defendant, duty of due care, breach of duty, actual cause, proximate cause, and damages. A negligent act per se consists of an act or omission, duty, and breach of that duty that exposes others to unreasonable risk of harm.

With regard to trades or professions, all individuals are held to certain minimum standards of care exercised by those in their professions, usually across a national standard. Physicians may be judged based on a same or similar community standard of care, although the modern trend is to accept standards set by nationally certified medical specialties as defining that “minimum standard of care.” Here is an example of negligence: An obstetrician who discovers an inheritable disease in a pregnant patient is bound by duty to inform her of the possibility of genetic transmission to the fetus; he or she is also bound by duty to inform her of, although not necessarily personally offer, all available options under the duty of “informed consent.” Failure to do so would constitute an actionable breach of duty.