The Three Elements Required To Pursue A Negligence Case.

In every negligence case, there are three elements.

There has to be negligence, which means the standard of care was not met. There have to be damages. And there has to be a causal connection between the negligence and the damages. This causal connection may not always be so clear.

For instance, consider the scenario of a woman who had abused drugs, who became pregnant and had a very difficult childbirth. There was a delay in the birth and it resulted in a caesarean section. Doctors then determined that the child had some very serious long-term deficits. The family was sure the deficits were due to the negligence of the hospital. When everything was looked at by experts, they agreed that the hospital was negligent in that the medical staff did delay in doing the C-section. Perhaps they did allow the baby to be in distress, but the baby’s deficits, according to the expert medical opinions, were not as a result of that negligence or the delay in moving towards the caesarean section. The deficits were more likely the result of problems the baby would have had anyway because of the mother’s drug use. The doctors could not say for sure that the baby’s deficits were causally connected to the negligence of the hospital or to the doctors through the birthing process. The hospital or the doctors did not meet an appropriate standard of care and they got a bad result, but the baby’s deficits were not tied to the negligence. The result is something that may have happened or would have happened even if the hospital had not delayed in the birth or had not fallen below the standard of care. In this case there was no third element–no causal connection between the results and the negligence.

It’s obviously very difficult for a lay person or parents or a grandparent to accept that their child or grandchild is not perfectly healthy or normal and they may never know why. In the vast majority of cases, the child is fine and the mother is fine, but every once in a while, something bad happens. It is only considered negligence if there is a causal connection between the results and the inadequate standard of care.

If you, or someone you care about, is dealing with Personal injury law issues in the Toronto, Ontario Region, contact Tkatch & Associates

This article is taken from a May 27, 2008 interview with Murray Tkatch, LL.B., Personal Injury Lawyer with Toronto Personal Injury Lawyer in Toronto, a Personal Injury Law Firm.

Note that laws vary from province to province. Please consult with a lawyer in your own area to be sure of the laws and specific issues in your own jurisdiction.