Health Law and Ethics

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April 23, 2024
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Health Law and Ethics

Health law is a branch of law that examines legal issues in the area of health provision. Legal issues evolve from the transactional activities of the health providers, health vendors and patients in the health care setting with the aim of creating safe health care practices. The area of health law seeks generally revolves around tort law, political and medical malpractice and issues of negligence which this paper hopes to address.

Tort Law

A tort is a civil wrong that occurs when a tortfeasor cause an act or an omission to result in the harm or injury of another. The injury or harm occasioned by a tort gives rise to legal liability which is apportioned by courts. The objectives of tort law are to preserve peace and harmony between individuals, discourage future wrongdoings and compensate persons who have been injured or harmed(Pozgar&Santucci, 2004).

Tort Law is different from criminal law in that criminal law requires evidence of an intention to commit a criminal action while a tort may result from a negligent, criminal or intentional act. Additionally, tort law requires a lower burden of proof than criminal law based on a balance of probabilities unlike the beyond reasonable doubt for criminal law(Pozgar&Santucci, 2004).

Tort law can be classified into negligent tort, intentional tort and strict liability. Negligence is the most common form of tort and occurs when a tortfeasor commits an action or non-action is so careless that it results in harm of another, and that the said action or omission could not be committed by a reasonable man(Pozgar&Santucci, 2004). Intentional torts can also be criminal as there is need to show that a tortfeasor intended to commit the tort. Intentional torts include battery, defamation, trespass and assault. Strict liability torts apply to situations that are dangerous and not entirely normal in occurrence like work with radioactive materials.

Elements of Negligence

Negligence is classified in three degrees; slight, ordinary and gross negligence, in order of severance of the negligence. All degrees of negligence have four main elements as will be discussed below.

Duty of Care

Duty of care is the first element of negligence and seeks to establish that a person who has suffered harm was wed a duty of care by the tortfeasor. The duty of care is determined by answering three questions; was it reasonably foreseeable that the claimant would be injured by the commission or omission of the tortfeasor’s act? is there a close or proximal relationship between the parties? and is it reasonably fair and just  to impose a duty on the tortfeasor? An affirmative answer to all the three questions proves there was duty of care(Wilensky&Teitelbaum, 2020).

Breach of Duty

Breach of Duty is based on the standard of a reasonable man, which differs slightly based on the situation. For people with skills like medical professionals, the reasonable person must reach the standard of an experiences and competent person of that skill. The courts will normally consider likelihood of injury, social value of the tortfeasor’s action, seriousness of injury, and the cost of avoiding injury in finding that breach of duty has occurred(Wilensky&Teitelbaum, 2020).


Causation is the link between a specific action and its resulting contribution to injury or harm. Courts will use the ‘but for’ test to establish causation. The’ but for’ test seeks to establish that harm or injury would not have occurred but for the conduct or actions of the tortfeasor. The issue of proximate cause is also important in establishing causation(Wilensky&Teitelbaum, 2020). Proximate cause limits scope of liability by looking at the foreseeable nature of the harm or damage.


Damages or harm is the loss suffered by a victim due to the negligent act. Damages can be in hteform of personal injury, property loss, or dependency claims. The aim of apportioning tort as done by the courts and especially in health law is to ensure that the victim is compensated for harm or damage(Wilensky&Teitelbaum, 2020).

Political and Medical Malpractice

The issue of malpractice is usually related to that of malpractice especially in the health sector.  Medical malpractice is the breach of the duty of care that a medical professional owes a patient when the medical professional does not provide the expected standard of care.  Medical malpractice differs from medical negligence in that there is an aspect of intent on the part of the medical professional which is not a necessary component in medical negligence(Sue Janes& Mar, 2011).

Political negligence is also something that can affect the medical profession. Political negligence is largely an ethical affair where political leaders fail to fully exercise their mandate and especially in legislative duties. Political leaders will have committed political malpractice by passing laws without properly reviewing them and this would have detrimental effects especially in the medical field.


The legal aspects of public health are important to ensure a healthy population. Issues of negligence and malpractice in the medical field costs hospital administration boards lost revenue is settling legal suits and can cost a medical professional their license to practice. Understanding the basics of tort law will enable medical professional avoid incidences of negligent acts while practicing their profession.




Pozgar, G., &Santucci, N. (2004). Legal Aspects of Health Care Administration (13th ed.). Jones & Bartlett Learning.

Sue Janes, C., & Mar, R. (2011). Washington Health Law Manual (3rd ed.). Washington State Society of Healthcare Attorneys.

Wilensky, S., &Teitelbaum, J. (2020). Essentials of health policy and law (4th ed.). Jones and Bartlett.