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Presentation
at the Muslim Health Professionals Ramadhan Seminar Mombasa August 3, 2013 Professor
Omar Hasan Kasule Sr. MB ChB (MUK), MPH (Harvard), DrPH (Harvard)
DEFINITION and
DESCRIPTION
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.
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).
Negligence also
arises from abandonment of a patient or breach of confidentiality.
Negligence also
arises in liability for drugs and devices.
A physician is also
found negligent for negligent referrals, failure to warn about risks, and
failure to report a notifiable disease.
Negligence also
covers professional errors. The errors may be ordinary or extraordinary. They
may be harmful or non-harmful.
BASIS OF
LIABILITY
Three ingredients
must be proved in a case of negligence: (a) the physician owed a duty of care
(b) the physician failed in that duty (c) the failure resulted in damage.
MALPRACTICE
SUITS: COURT PROCEDURE
The legal process
follows several steps: filing a complaint by the plaintiff, serving a summons
on the defendant, plea of guilty or not guilty by the defendant, discovery
(lawyers for both sides collect more information by interviews, examinations,
and collection of documents), opening statements at the trial by both sides,
testimony and examination of witnesses, closing arguments, and judgment.
The burden of proof
of breach of standard of care lies with the plaintiff. Proof of breach is based
on a balance of probabilities, on the ‘but-for’ test, and on causation of
damage or risk. Physician defense against malpractice suits rests on absence of
duty, no breach of duty, lack of causation, and lack of damage. Instead of a
trial, alternative dispute resolution procedures may be used: arbitration,
mediation using an expert facilitator, fact finding and investigation of the
case by an expert. Damages can be awarded for personal injury, death, wrongful birth
or wrongful life, emotional distress, economic loss, and breach of confidence.
AVOIDING /
PREVENTION OF MALPRACTICE SUITS
Malpractice suits
can be avoided by obtaining and maintaining registration, sticking to defined
professional standards of care, peer review, quality assurance, use of
protocols, 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.