Lawyers, too, for example, face malpractice litigation. 28 USC Section 2679 protects
them as well, so long as they act within the scope of their employment. Examples of
legal malpractice might be failing to act as the reasonably prudent attorney would have
acted under the circumstances. Did we locate and interview witnesses, and otherwise
properly investigate/handle the case? "Malpractice" is negligence on the part of any
professional; that is, lawyer, doctor, nurse, or architect.
1-10. SANCTIONS FOR NEGLIGENCE
a. Criminal Sanctions Under the Uniform Code Military Justice. This exists
apart from the issue of possible tort liability. Criminal sanctions are generally reserved
for the most egregious breaches of patient care. Possible Uniform Code Military Justice
(UCMJ) provisions that might be applicable would be:
(1) Negligent homicide (Article 134. Uniform Code Military Justice. This is
an unlawful killing resulting from simple negligence (the lack of due care). An intent to
kill or injure is not required. It is an act/omission of a person who is under a duty to use
due care that exhibits a lack of that degree of care of the safety of others which a
reasonably careful person would have exercised under the same or similar
circumstances.
(2) Involuntary manslaughter (Article 119. Uniform Code Military Justice.
This is an unlawful killing that is the result of culpable negligence (a negligent act or
omission accompanied by a culpable disregard for the foreseeable consequences).
Culpable negligence is carelessness greater than simple negligence; it is a negligent
act/omission accompanied by a culpable disregard for the foreseeable consequences to
others of that act/omission. As opposed to negligent homicide, here the deviation from
the acceptable standard of care is much more severe; it is a question of degree
between the two.
(3) Dereliction of duty (Article 92, Uniform Code Military Justice). This is the
willful or negligent failure to perform one's known duties. A duty may be imposed by
treaty, statute, regulation, lawful order, standard operating procedure (SOP), or custom
of the service. Knowledge is either actual or of the nature of something that reasonably
should have been known. A person is derelict in the performance of duties when that
person willfully (intentionally) or negligently fails to perform that person's duties or when
that person performs them in a culpably inefficient manner. Negligence has the same
meaning we have previously looked at, that is, the failure to meet the applicable
standard of due care. "Culpable inefficiency" is inefficiency for which there is no
reasonable or just excuse. A person is not derelict in the performance of duties;
however, if the failure to perform those duties is caused by ineptitude rather than by
willfulness, negligence, or culpable inefficiency, and may not be charged under this
article, or otherwise punished (for example, a recruit who really tries but cannot qualify
with the M-16 or pass a physical training (PT) test is not derelict).
MD0033
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