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INTRODUCTION

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As noted in Chapter 1, there is a specific formula for providing evidence that negligence has occurred. Four elements must be proven to support a cause of action in negligence.

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A DUTY MUST EXIST

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The defendant assumed or owed some duty to the plaintiff. The defendant developed a relationship with the plaintiff whereby the defendant owed a duty of due care toward that plaintiff. As an example, when a pharmacist takes a prescription from a patient to be filled, once that prescription is taken from the patient, the pharmacist owes that patient a duty of due care in ensuring that the prescription will be filled correctly.

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A BREACH OF DUTY OF DUE CARE

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The defendant acted in a manner that breached the due care owed to the plaintiff. In the case of a pharmacist filling a prescription for a patient, after assuming the duty, the pharmacist may breach his duty by filling the prescription with the wrong medication.

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CAUSATION OF HARM OR INJURY

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The defendant’s breach of duty was either the actual or the proximate cause of the plaintiff’s injury. If a pharmacist filled a prescription incorrectly, and the patient was injured as the result of the error, the mistake made by the pharmacist may be considered as the actual or proximate cause of that injury. The proof of actual and/or proximate causation may be the most difficult element of a negligence analysis to establish.

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a. Actual Causation

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Actual causation occurs when the plaintiff would not have been injured “but for” the negligence of the defendant. It is the link or bridge between the breach of duty and the injury. For example, a patient receives a prescription filled in error with a sleeping pill instead of a laxative. After taking the pill, he falls asleep behind the wheel of his car, crashing into a cement barrier and suffering serious personal injuries. Based upon the sleeping pill’s pharmacological effects, incorrectly filling the laxative prescription was more likely than not the actual cause of the accident and subsequent injuries. Such injuries would not have occurred “but for” the incorrect filling of the prescription.

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Sometimes there may be several defendants who are viewed as being negligent by breaching their duty toward the plaintiff; however, it may be difficult to prove which one of them caused the harm or injury. The “but for the negligence of the defendant” analysis is mainly associated with one defendant that is closely linked to causing injury to the plaintiff. The “substantial factor” test or analysis is applied when there are two or more defendants, especially where negligence may be difficult or impossible to prove regarding the actions of any one of the defendants. When there is good reason ...

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