• Gregg W Luther.
• Gregg W. Luther PLLC, Oklahoma City, Oklahoma, USA.
• Neurosurgery. 2021 May 13; 88 (6): 1051-1055.

AbstractAmerican tort law (a.k.a. negligence) is designed to be flexible and elastic to adapt to changes in time and public policy. It provides a structure of elements and factors to be applied to each case's specific facts on a case-by-case basis. The purpose of this structure is to achieve as much uniformity as possible in the application of tort law. One side effect is that this structure makes predicting the outcome difficult because of so many variables. In addition, there is no national tort law. Instead, each state has developed its own law in the area of torts, which has resulted in differing exceptions and requirements based on where the medical care was given. The purpose of this article is to explain the first element of a negligence case-"duty to use care"-and its accompanying factors/variables. The first element that must be established in a medical negligence case is a duty to use care. In short, this means the physician must use a certain level of care in providing medical services. The physician typically owes her or his patient the duty to exercise care. However, there are special situations in which a physician may not owe a duty of care and thus cannot be held liable for medical negligence. This article is designed to provide an overview of the most common situations and summarizes the processes to determine whether a duty is owed.© Congress of Neurological Surgeons 2021.

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