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Presentation at a Workshop on Professionalism In Clinical Practice held at Princess Noura University, Riyadh on 12 February 2020. By Professor Omar Hasan Kasule Sr. MB ChB (MUK). MPH (Harvard), DrPH (Harvard) Chairman of the Institutional Review Board and Ethics Committee, King Fahad Medical City
DEFINITION AND DESCRIPTION:
} Malpractice is
failure to fulfill the duties of the trust put on the physician.
} Negligence is a breach of duty resulting in damage or injury.
} Negligence is 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: Western Experience
} 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
} Boolam, 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 Boolam Case
} In the 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.