Which is a higher culpability of the defendant act : recklessness or gross negligence or intent?
January 15, 2015
I claimed recklessness and the intent to go beyond the limited consent given in not disclosing the inherent risks and knowing that the damages could be aggravating and that the smaller and safer surgery could be performed.
To answer your question, generally, a deliberate, intentional act that harms another has higher culpability; "recklessness" is conscious disregard for a substantial and unjustifiable risk that harm may result, and "gross negligence" is the failure to use even slight care which evinces complete disregard for the safety of the patient. Gross negligence focuses on the severity of harm done. Please note: the category a defendant's conduct will fall into depends highly on the individual facts of the case, and is to be determined by the finder of fact (i.e. the jury). This is in the ambit of experts, and is not something that can be established through creative semantics or by implication. No judge in NY will allow this claim to go to a jury without expert testimony.
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