Discussion 03.1: Defenses to Negligence

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Scenario (based on a real Louisiana case): A patient with chronic kidney failure required continual dialysis treatment. As such, hemodialysis catheters, also called access grafts, were surgically inserted in the patient’s arms. These access grafts eventually caused problems and needed to be removed by a vascular surgeon. After the procedure, the patient was hospitalized and he suffered two incidents where he bled copiously from a surgery site in his left arm. The bleeding was stopped with pressure dressings, and the patient received a blood transfusion. The patient was hospitalized for four additional days for observation. He had no other episodes of bleeding, he received his dialysis treatment fine, ate well, and had good vital signs—therefore, the patient was dismissed from the hospital. The physician’s discharge summary noted the patient had been instructed on how to apply pressure if his arm should bleed and was told to call his physician if problems occurred.

Upon returning home, the patient had two bleeding incidents. Pressure was applied and the site was wrapped with gauze. No one called the physician to report the two bleeding incidents. The next day, the patient was left alone while his wife went to run some errands. When she returned home about 30 minutes later, she found her husband dead, lying in a pool of blood. The patient died from loss of blood caused by hemorrhaging from the incision in his left arm. His wife filed a wrongful death suit against the physician.

  1. In this case, did the treating physician’s actions or omissions satisfy all four elements of the tort of negligence (duty, breach, causation, and damages)? Why or why not?
  2. At trial, the physician will surely argue that one or more elements of negligence were not met. However, are there other affirmative defenses he could also raise that would potentially shield him from liability (in whole or in part) even if he were found negligent? What are they?

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