Educational Malpractice: Educate or Litigate
Keywords:
educational malpractice, professional liability, educator accountability, tort law, educational negligenceAbstract
No claims for educational malpractice have yet been submitted to the Canadian courts for adjudication. Those claims for educational malpractice which have been submitted to the courts in the United States have all been resolved in favour of the defendant educator or educational institution. However, it would be naive to believe either that claims for educational malpractice will not be initiated against educators in Canada or that the Canadian courts will emulate their American counterparts and hold that educators cannot be liable for harm caused by their malpractice to their students. In this paper, the author suggests that educators should be held accountable to their students for the quality and adequacy of the educational services they provide. The paper seeks to show, first, that the extension of liability for malpractice to the sphere of education can have a positive and beneficial impact on education and the participants in the educational process and, second, that the reasons relied on by the United States courts to extend to educators a protection from liability enjoyed by no other professional group are by no means compelling.
References
Can a student sue the schools for educational malpractice? Harvard Education Review, 44, 416.
Annotation, Modern status of the doctrine of sovereign immunity as applied to public schools and institutions of higher learning, 33 American Law Reports 3d 703.
Bargen, P. V. (1961). The legal status of the Canadian public school pupil. Toronto: Macmillan.
Barnes, C. (1978, May). The spectre of academic malpractice, Change, 10, 100.
Barnes, J. (1977). Tort liability of school boards to pupils. In L. Klar, (Ed.), Studies in Canadian tort law. Toronto: Butterworths.
Black's Law Dictionary (5th ed.). (1979). St. Paul, MN: West Publishing Co.
Bridge, M. G. (1978). Government liability, the tort of negligence and the House of Lords decision in Anns v. Merton London Borough Council, McGill Law Journal, 24, 277.
Comment. (1976). Educational malpractice, University of Pennsylvania Law Review, 124, 755.
Craig, P. (1978). Negligence in the exercise of a statutory power, Law Quarterly Review, 94 428.
Drushall, J. (1976). Consumer protection and higher education: Student suits against schools, Ohio State Law Journal, 37, 608.
El-Khawas, E. (1977, Spring). Putting the student consumer issue in perspective, Educational record, 169.
Elson, J. (1978). A common law remedy for the educational harms caused by incompetent or careless teaching, Northwestern University Law Review, 73, 641.
Fleming, J. (1983). The Law of Torts (6th ed.). Sydney, Australia: The Law Book Co. Ltd.
Foster, W. (1985). Educational malpractice: A tort for the untaught, University of British Columbia Law Review, 19, 161.
Funston, R. (1981). Educational malpractice: A cause of action in search of a theory, San Diego Law Review, 18, 743.
Goldenberg, S. (1973). Tort actions against the Crown in Ontario. In Law Society of Upper Canada Special Lectures, New Developments in the Law of Torts, Toronto: Richard de Boo.
Halfwight, R. (1979-81). Development in limitations under the Public Authorities Protection Act, Advocates Quarterly, 2, 380.
Henning, J., White, C., Sorgen, M., & Seltzer, L. (1979). Mandate for change: The impact of the law on educational innovation. Chicago: American Bar Association.
Hodder, C. J. (1984). The Education Act (Ontario) 1980: A review. Interchange, 15(3), 44.
Jackson, R., & Powell, J. (1982). Professional Negligence. London: Sweet & Maxwell.
Janisch, H. (1975). Legal liability for failure to educate. In H. Janisch (Ed.), The university and the law. Halifax: Dalhousie University.
Janisch, H. (1980). Educational malpractice: Legal liability for failure to educate. The Advocate, 38, 491.
Jung, S. M. (1979). Accreditation and student consumer protection (An occasional Paper). Washington DC: Council on Post-Secondary Accreditation.
Klein, A. (1979). Educational malpractice: Can the judiciary remedy the growing problem of functional illiteracy? Suffolk University Law Review, 13, 27.
Kurland, P. (1972). The privileges or immunities clause: 'Its hour come rounds at last?' Washington University Law Quarterly, 405.
Linden, A. (1973). Tort law as ombudsman, Canadian Bar Review, 51, 155.
Linden, A. (1982). Canadian tort law (3rd ed.). Toronto: Butterworths.
Linden, A. (1983). Reconsidering tort law as ombudsman. In F. Steel, & S. Rodgers-Magnet (Eds.), Issues in Tort Law. Toronto: Carswell.
Linn, J. (1967). Tort liability and the schools, North Dakota Law Review, 43, 765.
McCurdy, S. (1968). The legal status of the Canadian teacher. Toronto: Macmillan.
MacKay, A. W. (1984). Education Law in Canada. Toronto: Edmond-Montgomery.
Mancke, J. (1972). Liability of school districts for the negligent acts of their employees, Journal of Legal Education, 1, 019.
Newell, R. (1978). Teacher malpractice, Case and Comment, 83(4), 3.
Picard, E. (1978). Legal liability of doctors and hospitals in Canada. Toronto: Carswell.
Pritchard, J. (1977). Professional civil liability and continuing competence. In L. Klar (Ed.), Studies in Canadian tort law. Toronto: Butterworths.
Proehl, P. (1959). Tort liability of teachers, Vanderbilt Law Review, 12, 723.
Prosser, W., & Keeton, W. (1984). The law of torts (5th ed.). St. Paul, MN: West Publishing Co.
Rosenberger, D., & Plimpton, R. (1975). Teacher Incompetence and the Courts, Journal of Law and Education, 4, 469.
Smith, J. C. (1977). The mystery of duty. In L. Klar (Ed.), Studies in Canadian tort law. Toronto: Butterworths.
Strickland, R., Phillips, J., & Phillips, W. (1976). Avoiding teacher malpractice. New York: Hawthorn Books.
Tataryn, L. (1984). The shrinking education dollar. Canadian Consumer, 14(10), 10.
Tracy, D. (1980). Educational negligence: A student's cause of action for incompetent academic instruction, North Carolina Law Review, 58, 561.
Vacca, R. (1974). Teacher malpractice, University of Richmond Law Review, 8, 447.
Woods, N. (1978). Educational malfeasance: A new cause of action for failure to educate? Tulsa Law Journal, 14, 383.
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