Negligence litigation involves a plaintiff claiming that a defendant acted negligently, causing harm, and seeking financial compensation. Malpractice lawsuits require proving four elements: duty of care, breach of duty, causality, and damages. Critics of malpractice litigation argue that jury awards are disproportionate, while proponents argue that loser pays attorney fees would stifle the common man’s ability to challenge large defendants.
Litigation for negligence is the process of filing a lawsuit in which the plaintiff, or the person who files the lawsuit, claims that the defendant acted negligently, causing harm to the plaintiff. Litigation for negligence almost always asks the defendant for financial compensation as reimbursement of the costs incurred to repair the damage. Neglect itself is the failure to act diligently or to exercise proper care to avoid harm to others. For example, a homeowner who fails to shovel the snowy walkway in front of his or her home may be sued for negligence by someone slipping and falling. The success of the suit will depend on that person being able to prove that the slip and fall was due to the homeowner’s negligence in not shoveling, and that some damage was caused.
Negligence is a tort, which is a cause whereby one party can sue another, usually for damages. There are many types of negligence. For example, a surgical team that transplants an organ into a patient without first verifying that the blood types of the donor and the recipient match have acted negligently and may be sued by the patient or her family. Similarly, a restaurant serving a drink in a broken glass has acted negligently and may be sued by the customer.
Malpractice litigation is relatively easy to initiate, but the plaintiff must prove each of the different elements of the case, depending on the jurisdiction and the nature of the case itself. For a malpractice lawsuit to be successful, all elements must be proven; if even one is not proved satisfactorily, the plaintiff cannot prevail. There are generally four elements that need to be proven, the first of which is that the defendant did indeed have a duty to act with care, sometimes called a duty of care, and the second of which is that the defendant breached that duty. This is not absolute, but determined by a standard of what a reasonable person would do under the circumstances. In both of the above examples, the duty of care and the fact of breach of this duty would be relatively easily demonstrable.
The next two elements to prove a case of negligence, causality and damages, are not so easy to prove. Evidence of causal element requires the plaintiff to show that he was harmed as a result of the defendant’s negligence. Damages is that section of negligence litigation in which value is placed on the negligence of the defendant. If bodily harm was caused, for example, the cost of medical care and follow-up care would be part of the actual damages claimed. Similarly, if damage to property were to occur, the cost of repairing the damage would constitute actual damage. Many jurisdictions allow plaintiffs to sue for other damages as well, including pain and suffering. Punitive damages are another type of damages, assessed against a defendant when the negligence is particularly gross.
In the examples above, the surgical patient or his or her family would likely be able to demonstrate all four elements of negligence, but the restaurant customer may not be able to, especially if the broken glass was discovered before the customer actually drank from it. Most jurisdictions do not allow pain and suffering or punitive damages unless they are “parasitic” – that is, there must be actual damages before other damages can be considered. An exception is California, where plaintiffs can claim pain and suffering for witnessing others being wrongfully injured, even if they themselves were not physically harmed.
Malpractice litigation in the United States is controversial. Critics say the jury awards are disproportionate to the actual damages caused and are not based on business factors and logic, but appeal to emotion fabricated by skilled trial lawyers. They believe that the US system of requiring each party to pay its own costs encourages the introduction of bootleg suits that defendants will settle because it is less expensive than going to court.
Proponents of the status quo, on the other hand, argue that requiring the loser to pay the winner’s attorney fees will stifle the common man’s ability to get his day in court when he challenges large defendants with ample resources. They also point out that the vast majority of jury awards in malpractice cases are reasonable, and only a handful – generally of particularly egregious malpractice cases – result in huge jury awards that generate enthusiastic headlines. Furthermore, they point out that such premiums are rarely, if ever, actually paid. They are significantly reduced on appeal and the amounts finally paid are in line with comparable cases.
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