Negligence Vs Malpractice Essay

1) What has your experience been thus far with the legal system? In your opinion, why is it important for students entering medical fields to be familiar with the legal system and how it works?
My experience working within the legal system, from a medical prospective, has been limited to the rules, regulations, and policies of the Department of Defense (DoD). Traditional DoD medics work under the license of a medical officer, operate under established protocols, an receive leniency or restriction of medical practices in accordance with medical control (the medical officer responsible for unit medics). DoD medics maybe granted authorities to work on the civilian populous or limited to DoD members/service members. Students of medicine must be aware of the governing laws and policies within their respective scope of practice. Intimate knowledge of the applicable laws and policies governing the learning medical practitioner protects both the student (both in training and in the professional workforce) as well as future patients. Laws and policies are created out of necessity, regrettably often after unfortunate events occurred. Students of medicine must respect this notion, and apply the gravity of their

responsibilities to their academic cultivation and medical practice.
2) List and DESCRIBE the functions of the three branches of government. Why do you suppose the "founding fathers" decided to set up our system this way? What is the meaning of “separation of powers”? What is the administrative agency that overlooks your particular profession and how does this differentiate (if at all) from a "governmental" agency?

The U.S federal government consists of the Legislative, Judicial, and Executive branches. States follow the same structure of segmented governing branches. The Judicial branch is responsible for being the authority of interpreting law in order to adjudicate disputes. Conversely, the Legislative branch regulates governing laws, but does not interpret them after they have been established. The Legislative branch collaborates to ratify, amend, enact, or abolish laws. The administration and enforcement of laws is the responsibility of the Executive Branch. Presumably, the “founding fathers” designed this system to ensure tyranny did not rule future generations. Presuming a large scale collaborative-coup does not develop, the emplacement of our governmental “separation of powers” allows for elected officials to ensure opposition amongst branches of government. Without opposition, potential radical and/or totalitarian authorities could impose rule, as seen throughout history. The authorities and responsibilities of each branch of government do not overlap, and ensure no one branch of government gains too much governing power. The delineation of authorities is the foundation of the “separation of powers” concept. The organization which employs me is a governmental agency. Oversite and regulation is conducted by the legislative branch, and controlled by executive decision.

3) How would you define the difference between "negligence" and "malpractice"?

Please describe each of the elements needed to be proven for a successful negligence suit? Using your career choice in the health care arena, describe to me a scenario where there is strong possibility that negligence

occurred.

Malpractice is a form of negligence, reserved for licensed professionals charged with providing professional services within a governing set of standards, regulations, and laws. The broader term of “negligence” within the context of tort law, applies to the general populace under the auspice of acts or non-acts conducted by culturally accepted, reasonably prudent persons. Providing that the plaintiff can prove a person(s) unintentionally or carelessly failed to conduct an (non-)act, which by societal standards, were expected for them to conduct. If the defendant was expected to perform a certain way given the circumstances, particularly if dictated by governing standards of profession, then the person in question may be held negligible in the “eyes” of the law. The relationship between the plaintiff and defendant must have a legal foundation in which the defendant was obligated to perform duties for the plaintiff. This is known as the “duty of care”, one of four elements of negligence. Consequently, if the defendant was legally obligated to provide care, and failed to comply with the obligations legally inherent thereof, then the defendant can be found in fault of a “breach of duty”, the second element of negligence. Elements three and four of negligence are injury/actual damages and causation/proximate cause. Hand-in-hand, the defendant’s actions must directly result in injury or damages for the defendant to be deemed truly negligible. Both a direct cause and tangible injuries or actual damages must have occurred and been substantiated. Negligent acts rely on the premise that the medical practitioner is competent when they conduct themselves. In my current career field, many of my peers are inadequately trained and subsequently incompetent. Furthermore, within my career field, the majority of practitioners are EMTs with protocols allowing them to attempt limited advanced pre-hospital procedures, such as cricothyotomies and IV/IO drug administration. In most instances where civilian medical practitioners would be found negligent in their actions, the practitioners in my career field are not held accountable to the same standards and therefore could not be held liable for negligent actions.
4) What does the 14th Amendment mean for the American population?

The distributive justice principle requires that all persons be treated equally and fairly and that no one person should get a disproportional share of society's resources or benefits. In your opinion, are current resources and benefits distributed disproportionally? Explain why you feel this way. Give an example from your profession that supports your belief. How would you suggest this be

“fixed”?

All persons identified as US citizens are afforded equal protections under governing laws, which by state governance cannot be denied, in accordance with the 14th amendment. From a personal perspective, the optics from which I observe the distribution of judicial enforcement is from a lower-to-mid social-economic class. From that perspective, I have seen fair distribution of judicial enforcement. Demographics with habitual criminal tendencies receive more attention due to the frequency of police and judicial involvement. A personal retrospective analysis of these trends infer a stigma inherent with the aforementioned populous. Seldom are members of the higher social-economic classes highlighted for their punitive sanctions, unless they hold a celebrity status. With these assessments considered, the judicial system provides an equal and fair system of enforcement, but does not distribute resources and benefits proportionally. If the predominance of identified offenders are of specific demographics (social-economic or otherwise) then intuitively, more resources would be allocated to addressing said demographics within the judicial system. These assessments are gathered from passive observation and discussion with local law enforcement officers. These observations can also be found outside of the judicial enforcement realm, and can been seen in other aspects of collective societal resources as well. As the lower-to-mid social-economic demographics rely more heavily on collective societal resources, those resources are allocated to them proportionally more so than individuals who are more affluent and able to reimburse their own expenses. The demographics in which I support do not adhere to the prototypical civilian model, and therefore observations of resource allocation are mute. The observations made above are not based upon my professional practices, but rather my limited interactions working in civilian hospitals and pre-hospital medical responses. I do not feel that the current system needs to be fixed. The system supports the inherent fact that there is a demographic within our population who drains predominate amount of the collective societal resources because their actions, or inactions, forces the system to do so. The system is strained because there is a growing need for resources to be distributed. Without the pool of resources to grow in equal proportion, the system will only be strained further. In order to remedy the current strain, either an increase of pooled resources or a reduction of resource consumption (or a combination thereof) must be enacted.