Monthly Archives

March 2018

Criminal Law

Criminal Law – What Is the Standard of Proof?

March 31, 2018

In the common law system which is used in the legal systems such as Britain, the United States, Canada and Australia there is a very important principle of the criminal law which has existed in the legal systems of these countries from the time that is was first developed in the original England common law system. This principle is that a defendant in a criminal law case has the protection of the presumption of innocence. A defendant in the legal systems of these countries is innocent until proven guilty. This contrasts with the systems of civil law which have been adopted in continental Europe in countries such as France, Italy and Germany which have an inquisitorial system of justice where the judge can gather evidence independently of the parties appoint their own investigators in order to gather evidence.

So what does the presumption of evidence mean in terms of the trial? This means that the prosecution must prove that the defendant committed the crime in question in the trial beyond a reasonable doubt. It is notoriously indistinct as to how this is likely to be defined and in terms of instructing juries, a judge must confine their directions to the jury to the application of the law to the facts rather than directions about the facts and evidence. Naturally, in a jury trial, a voir dire (a trail within a trial) can also be used in order to identify if a particular pieces of evidence which are able to be admitted in the trail. Once a piece of evidence is deemed admissible, the jury allowed to consider it in its deliberations about the evidence. In practice, judges often refer to a 90% certainty that the defendant committed a crime in order to enter a verdict of guilty and there have been phrases such as ‘the absence of any material uncertainty’ or ‘A rational belief which is supported by the vast majority of available evidence’ in order to describe the level of proof which is required. The more general justification for the principle is that it is better to set 9 guilty people free rather than let 1 innocent person to jail.



Understanding Medical Malpractice – What It Means

March 20, 2018

A person will generally file a medical malpractice suit with a lawyer if they feel they have received substandard care by any healthcare professional, like a doctor or dentist, that has directly resulted in economic or physical damages to them personally or a family member. When discussing what substandard care this generally means care that has violated the normal medical practices. In order to show medical malpractice there has to be three factors, which include a direct causal link, liability, and damages. For you to meet the requirements of liability, it must be proven a professional relationship existed between the provider of health care and you. Meeting this requirement is rarely a problem but being able to prove it was substandard care could be a little difficult. It depends on what the violation was.

Economic damages, injury, or suffering must be shown and be the direct result of the negligence. Most all parts of medical care have risks even if proper care is taken. Unless your lawyer can prove negligence from an outcome that turned out bad from the procedure or medical care alone, are not the grounds for a malpractice suit. When talking medical malpractice it can take on different forms. Some examples include:

• Not diagnosing a disease that is life-threatening
• Medication errors
• Surgical errors
• Delivery room or prenatal care
• Failure to give the correct follow-up care
• Anesthesia miscalculations

According to the Journal of the American Medical Association, approximately two hundred twenty-five thousand deaths happen each year because of medical malpractice. This makes it the third biggest cause of death in the United States. Approximately nine percent are caused by medication errors, miscellaneous errors, or unnecessary surgery. About eighty-two percent are due to contacting an infection while in the hospital or adverse reactions to medications.

It is harder to file a malpractice suits against hospital employees than against private physicians. Certain members of the staff in the hospital are often provided by private contracts so in these instances the contractor and negligent party is named in the medical malpractice suit and not the hospital. When there are multiple parties that are affected by the same negligent group it makes more sense to bring a class action suit, which can list hundreds or more plaintiffs. If the case is won then the monetary award, after paying court costs and legal fees, is distributed to the plaintiffs.

The laws that govern medical malpractice suits will vary in each state and may require different or additional criteria. When choosing a lawyer make sure that they specialize in this field of law.

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