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Negligence Per Se

Negligence per se lawsuits are brought by private plaintiffs but are based on the defendant's violation of a law. In these cases the appropriate standard of care is defined by the law that was violated. For the court to accept a negligence per se claim, the plaintiff must show that a law was violated, that the law was intended to prevent the type of injury that occurred, and that the plaintiff was in the class of persons intended to be protected by the law. The plaintiff may claim negligence per se even if the defendant has not been convicted or administratively sanctioned under the law in question. In such cases, the plaintiff must prove that the defendant has violated the law. The plaintiff does not need to prove independently the violation if the defendant has been convicted or had pleaded guilty. (The plaintiff may not use a plea of nolo contendere, that is, not contesting the charges but not admitting guilt.)

Traffic violations are the most common instance of negligence per se. Assume that a driver hits a child while driving at night without headlights. This behavior is illegal, it is prohibited to prevent this type of accident, and the plaintiff is in the class of persons who were intended to be protected. The driver could be found negligent based on the violation of the statute. Conversely, assume that a physician injures a patient while practicing without a current medical license. This will not support a negligence per se claim because medical licensing laws are not intended to protect specific patients from medical malpractice.

The most common prosecutions of physicians for practice-related crimes involve tax and other economic fraud laws. These will not support negligence per se claims in medical malpractice cases because the laws are not intended to prevent patient injuries. (As discussed in Chapter 10, such violation can support other causes of action against the physician.) Negligence per se claims are a threat to physicians who disregard laws intended to protect patients, such as the federal provisions on patient dumping (discussed in Chapter 32) and state laws requiring physicians to provide emergency care. Since these laws make it illegal to deny a person necessary emergency medical care, a person refused emergency care suffers the injury the law was intended to prevent. Negligence per se claims also could be brought against physicians who do not obey disease control regulations and laws requiring the reporting of dangerous individuals.

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