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Professor Omar Hasan Kasule Sr. January 5, 2011
DEFINITION and DESCRIPTION
· Malpractice is failure to fulfill the duties of the trust put on the physician.
· Negligence is breach of duty resulting in damage or injury.
· Negligence defined according to the standard of care
EXAMPLES OF NEGLIGENCE
· Treatment without informed consent
· False imprisonment or confinement
· Intentional infliction of emotional distress
· Defamation: slander if verbal and libel if written
· Abandonment of a patient
· Breach of confidentiality
· Negligent referrals
· Failure to warn about risks
· Failure to report a notifiable disease
· Professional errors that may be ordinary or extraordinary; harmful or non-harmful.
BASIS OF LIABILITY
· The physician owed a duty of care
· The physician failed in that duty
· The failure resulted in damage.
MALPRACTICE SUITS: COURT PROCEDURE
· 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)
· 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.
AVOIDING / PREVENTION OF MALPRACTICE SUITS
· Obtaining and maintaining registration
· Sticking to defined professional standards of care
· Peer review, quality assurance, and use of protocols
· Defensive medicine and politeness with patients
· Conscience of all health care workers to make sure that mistakes do not occur
· Well written records can be a defense for the physician.
LEGAL TESTS FOR NEGLIGENCE I: The Boolam Case
Bolam, a mentally ill patient, suffered fractures during electroconvulsive treatment. This type of treatment was accepted as a normal treatment for mental disorders at that time. The patient had consented to the procedure. When he suffered a fracture he sued in court. 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.
LEGAL TESTS FOR NEGLIGENCE II: The Bolitho Case
In a case of Bolitho, a patient who suffered brain damage because the doctor failed to intubate, the court ruled that doctors are expected to follow responsible medical opinion but would not be found negligent in cases in which that opinion did not stand up to logical analysis. The court thus set a principle that 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.
Case #1:
A medical officer pierced the ear drum of a patient who protested loudly about the pain and eventually became deaf in that ear. A consultant who was standing by did not say anything. The patient sued both the medical officer and the consultant.
Case #2:
A medical officer by chance at the site of an accident tried resuscitation and failed. He was sued by the victim’s family.
Case #3:
A surgeon carried out an operation using a new technique unknown in the hospital but the patient recovered well with no complications.
Case #4:
A consultant at a dinner without seriously questioning the patient advised doubling the anti-coagulant dose. The patient died of hemorrhage the next day.
Case #5:
A physician forgot to prescribe an antibiotic for a patient with acute lobar pneumonia but the patient recovered uneventfully after one week.
Case #6:
A patient with no obvious injury after a minor accident was discharged without X-ray investigations. He developed back problems 3 months later leading to leg paralysis. He sued the hospital for negligence.
Case #7:
A 45-year old mother of 5 grown up children had hysterectomy because of prolonged, heavy, and irregular menstruation. The surgeon took care to preserve the ovaries and therefore saw no need to put her on HRT. Three years later she had a hip fracture due to osteoporosis treated by hip replacement and she was started on HRT. Six months later she developed pain in the right groin and investigations revealed cancer of the ovary which had to be removed. Her daughter who was a nurse in the hospital argued her to sue the hospital for malpractice but she herself was not very sure of what had gone wrong.
Case #8:
An aspiring actor was advised by her media consultants to change her facial features in order to succeed in landing major and lucrative acting roles. She went to a doctor who advertised his cosmetic surgery services on the television and women’s magazines. She signed a consent form for surgery but did not see a notation in the footnotes that the operation was entirely at her own risk. Six months later and after a series of operations she was angry. Her face was asymmetric and her eye lids drooped. She asked for his license as a plastic surgeon. He told her he was a general surgeon who had interest in plastic or cosmetic surgery. With her career ruined she decided to take him to court.
Case #9:
A patient with epilepsy well controlled on drugs for the past 10 years, experienced a minor epileptic seizure. His physician increased the drug dosage and told him all would be well and that he could go back and resumes driving the school bus. The patient asked for an MC to explain his day’s absence to the manager of the school bus company. The next morning the patient crushed the bus into a wall as he was driving it out of the garage. He explained that he felt sleepy at the time of the accident.