The national law firm of Charles Jerome Ware, P.A., Attorneys and Counsellors, contains a premier medical malpractice (medical negligence) practice that is truly: "Still working. Still committed. Still here to make a difference." The firm and its affiliates have a successful track record of high recoveries in medical negligence and wrongful death cases.
As always, the reader of our blogs, and our web-postings, and our website is advised, counselled and urged to contact a knowledgeable attorney about his or her possible claim since, among other things, D.C. and state laws are constantly subject to change in this important area of medical negligence. Contact us for a free initial consultation.
There are some general tort principles concerning medical malpractice/medical negligence in Washington, D.C.:
(1) "Contributory Negligence" is a common-law defense in Washington, D.C. This defense ordinarily establishes a complete bar to recovery.
However, defenses of "contributory negligence" and "assumption of the risk" are not available against employees in actions based an employer's breach of the statutory duty to provide reasonably safe working conditions for employees. An exception exists where the employee's actions are with willful, wanton, or reckless disregard for his own safety.
[See generally, Felton v. Wagner, 518 A.2d 291 (D.C. 1986); Elam v. Ethical Prescription Pharmacy, Inc., 422 A.2d 1288 (D.C. 1980); Martin v. George Hyman Construction Co., 395 A.2d 63 (D.C. 1978)].
(2) The "Assumption of Risk" defense is applicable when a plaintiff gets into an adverse situation voluntarily, and with full knowledge of the risk, and with full appreciation of the dangers.
However, the reader should note the exception under "contributory negligence" and the general rule that the "assumption of the risk" defense does not apply to employees in the course of their employment.
[See generally, Kanelos v. Kettler, 132 U.S. App. D.C. 133, 406 F.2d 951 (1968); Scoggins v. Jude, 419 A.2d 999 (D.C. 1980)].
(3) The defendant is liable (at fault) under the "Doctrine of Last Clear Chance" if:
- the plaintiff was put in a position of danger which was caused by the negligence of both the defendant and the plaintiff;
- the plaintiff was unaware of the danger or unable to extricate herself from the position of danger;
- the defendant knew or should have known of the plaintiff's danger and inability to aid him/herself;
- the defendant failed to exercise reasonable care to avoid injuring the plaintiff; and
- there is evidence that the defendant had a reasonable opportunity to avoid the dangerous situation.
[See generally, Robinson v. District of Columbia, 644 A.2d 1084 (D.C. 1994); Felton v. Wagner, 512 A.2d 291 (D.C. 1986); District of Columbia v. Huysman, 650 A.2d 1323 (D.C. 1994).]
(4) Washington, D.C. recognizes and accepts the "Doctrine of Respondent Superior": i.e., the employer/master may be liable for employee/servant's torts committed while acting within scope of employment. When the doctrine applies, the employer/master/principal is strictly liable for the damages caused by the employee/servant/agent's negligence, regardless of whether the employer is at fault.
The employee does not lose liability he otherwise had because of respondeat superior; and in the District, the employer has a right of indemnity against wrongdoing employee for the losses sustained and paid by master/employer under respondeat superior. The doctrine applies only to servant/agents, not to independent contractors, over whose physical acts the employer has no control.
(5) The "Doctrine of Res Ipsa Loquistur" may apply where the cause of the accident is known, it is in the defendant's control, and it was unlikely to do harm unless the person in control was negligent.
Remember: consult an attorney. And, keep the conversation going. J
Great post Charles! The lawyers in Philadelphia that I'm working with have told me the same thing that you said in this article. Thank you for sharing your informative post with us!
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