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Lecture to 4th year medical students at the Faculty of Medicine King Fahad Medical City Riyadh on 23rd May 2011 by Professor Omar Hasan Kasule Sr.
1.0 CONCEPTS OF ERROR/INJURY IN THE SHARI'AH
Intentionality is a major consideration in the approach to medical errors relating to causation of death or bodily injury. Death or injury can be (a) purely intentional, 'amd 'amd, ie both the motivation and the consequence were malicious, or can be (b) accidental from a malicious intent, 'amd, i.e the motivation was malicious but the consequence was accidental not intended or can be (c) by error, khata. The punishment depends on the underlying intention. The rules of qisas and diyat apply for all types of bodily injury but there are special considerations for medical errors aimed at protecting both the patient and the physician rights. The errors could be avoidable or unavoidable. We generally use the terms malpractice and negligence for medical errors because in many cases determination of what is erroneous is not straightforward.
2.0 DEFINITION OF MALPRACTICE and NEGLIGENCE
Malpractice is failure to fulfill the duties of the trust put on the physician. The term malpractice includes the legal concept of medical negligence. Negligence is breach of duty owed by the physician to the patient resulting in damage or injury. Negligence is defined according to the customary standards of care that are established by the profession.
3.0 EXAMPLES OF NEGLIGENCE: 1. Negligence may arise as battery which is injury due to intentional tort (a civil wrong in which liability is based on unreasonable conduct). The intentional torts are assault, battery, treatment without informed consent, false imprisonment or confinement, intentional infliction of emotional distress, and defamation (slander if verbal and libel if written). 2. Negligence also arises from abandonment of a patient or breach of confidentiality. 3. Negligence also arises in liability for drugs and devices. 4. A physician is also found negligent for negligent referrals, failure to warn about risks, and failure to report a notifiable disease. 5. Negligence also covers professional errors. The errors may be ordinary or extraordinary. They may be harmful or non-harmful.
4.0 BASIS OF LIABILITY: Three ingredients must be proved in a case of negligence: 1. The physician owed a duty of care 2. The physician failed in that duty 3. The failure resulted in damage.
5.0 MALPRACTICE SUITS: COURT PROCEDURE IN THE US
The legal process follows several steps: 1. filing a complaint by the plaintiff 2. serving a summons on the defendant 3. plea of guilty or not guilty by the defendant 4. discovery (lawyers for both sides collect more information by interviews, examinations, and collection of documents) 5. opening statements at the trial by both sides, testimony and examination of witnesses 6. closing arguments 7. and judgment.
The burden of proof of breach of standard of care lies with the plaintiff.
Proof of breach is based on: 1. a balance of probabilities 2. on the ‘but-for’ test, 3. on causation of damage or risk.
Physician defense against malpractice suits rests on: 1. absence of duty 2. no breach of duty 3. lack of causation 4. lack of damage.
Alternatives to a trial / alternative dispute resolution procedures may be used: 1. Arbitration/mediation using an expert facilitator 2. fact finding and investigation of the case by an expert.
Damages can be awarded for: 1. personal injury 2. death 3. wrongful birth or wrongful life 4. emotional distress 5. economic loss 6. breach of confidence.
6.0 MALPRACTICE SUITS: SAUDI PROCEDURE
According to the Health Practice Guidelines Royal Order No R/59 dated 04/11/1426H and endorsed by Ministerial Order No 39644/1/12 dated 14/5/1427)
1. Article 33: A legal health board os set up consisting of a judge, a consultant appointed by the Minister, a faculty of medicine associate professor, twp hysicians with experience in the matter, and a pharmacist
2. Article 34: The health board shall consider professional faults that lead to death or bodily damage
3. Article 35: The legal board shall make its decisions unanimously and the decisions can be contested in court
4. The Public Prosecutor shall represent the medical staff
5. Article 36: No cases will be heard after one year from the time of the fault
6. The Minister shall suspend the practice licence during the case and will cancel it if the professional is found guilty
7. Malpractice insurance is obligatory for all physicians
7.0 LEGAL TESTS OF NEGLIGENCE: Bolam as modified by Bolitho
The Bolam Case: The judge ruled that doctors could not be found negligent if they acted according to a professional opinion accepted by a reasonable body of medical opinion even if there could exist a contrary opinion by another responsible body of medical opinion.
The Bolitho case: the court could over-rule medical opinion that was not logical in a specific case. The implication of this was that medical opinion was not the final arbiter of the standard of care to be used in defining negligence.
AVOIDING / PREVENTION OF MALPRACTICE SUITS
Malpractice suits can be avoided by 1. obtaining and maintaining registration, 2. sticking to defined professional standards of care, 3. peer review, 4. quality assurance, 5. use of protocols, 6. defensive medicine and politeness with patients.
The best protection against medical negligence is the conscience of all health care workers to make sure that mistakes do not occur. Well written records can be a defense for the physician.