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Article
June 21, 1941

LEGAL RESPONSIBILITY FOR MEDICAL MALPRACTICE: V. FURTHER INFORMATION ABOUT DUTY AND DERELICTION

Author Affiliations

Member of the Bar of the United States Supreme Court BOSTON

JAMA. 1941;116(25):2755-2768. doi:10.1001/jama.1941.62820250004007
Abstract

In a previous article in this series I proposed a comprehensive formula by which one may judge the legal sufficiency of any malpractice claim. This includes four essential components which must all be present concurrently: duty, dereliction, direct causation and damage. Before a plaintiff can make out a prima facie case of malpractice, he must prove each of the four by sufficient evidence to support fact findings by a reasonable man. If he fails to meet this burden of proof, he is not entitled to go to the jury, but the trial court is duty bound, on timely motion, to instruct a verdict for the defendant.

I. DUTY  Now that I have put forward the proposed formula in its simplest form, the reader may profit by a partial unfoldment of the four telescoped concepts. I shall begin with the crucial question of duty. Certain questions in respect to duty should

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