Use of Statutes in Professional Negligence Claims
As a defense medical malpractice attorney, different styles of complaints have come across my desk. Many of these complaints can be simple, general allegations of professional negligence, while others can contain wrongful-death claims, survival actions and their respective statutes.
March 17, 2015 at 06:27 AM
7 minute read
As a defense medical malpractice attorney, different styles of complaints have come across my desk. Many of these complaints can be simple, general allegations of professional negligence, while others can contain wrongful-death claims, survival actions and their respective statutes.
However, I have noticed that as I receive and review more complaints, I have begun to see a trend in the way they are drafted. In particular, many of the plaintiffs' claims of professional negligence are starting to allege violations of other statutes or health regulations in their ordinary professional negligence claims. These statutes include various chapters of Title 28 of the Pennsylvania Code. The regulations usually stem from the Department of Health. This article will address the prior arguments made against the admissibility of these regulations and statutes and will briefly discuss the problems that arise due to their admissibility.
Regarding plaintiffs' use of the statutes within a complaint, the paragraphs usually imply a breach of a duty to follow the statutes. Plaintiffs have also claimed that the defendants were outright negligent in their failure to follow those particular statutes. It is important to note that upon review of these statutes, they are not strong enough to maintain their own negligence per se claim because they do not outright define a standard of care. More importantly, many of them contain disclaimers stating that they are not supposed to be used to determine a standard of care as to civil liability. However, plaintiffs' use of these statutes essentially attempts to provide a back door for this material to be admitted into evidence. As a result, certain arguments must be made.
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