Medical Negligence Basics

8/10/2019 Medical Negligence Basics

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MEDICAL NEGLIGENCEbasicsDr.T.V.Rao MD


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Ethical norms may be derived

from:

LawInstitutional policies/practices

Policies of professional organizations

Professional standards of care, fiduciary

obligations


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Clinical Ethics

, L

aw

Clinical ethics may be

defined as: a discipline or

methodology for consideringthe ethical implications of

medical technologies,

policies, and treatments,

with special attention to

determining what ought tobe done (or not done) in the

delivery of health care.


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Clinical Ethics, Law

Law may be defined

as: established and

enforceable socialrules for conduct or

non-conduct; a

violation of a legal

standard may create

criminal or civil liability.


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Risk Management

Risk Management

may be defined as:a method of

reducing risk of

liability through

institutionalpolicies/practices.


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Why We Need Ethics

Ethics has been described as

beginning where the law ends.

The moral conscience is a

precursor to the development

of legal rules for social order.

Ethics and law thus share the

goal of creating and

maintaining social good and

have a symbiotic relationship


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When the Malpractice occurs

Medical malpractice occurs when a health-care

provider deviates from the recognized standard

of care in the treatment of a patient. Thestandard of care is defined as what a

reasonably prudent medical provider would or

would not have done under the same or similar

circumstances. In essence, it boils down to

whether the provider was negligent.


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India takes on Consumer

Protection Act 1986After the Consumer Protection Act, 1986, has

come into force some patients have filed legal

cases against doctors, have established that thedoctors were negligent in their medical service,

and have claimed and received compensation.

As a result, a number of legal decisions have

been made on what constitutes negligence and

what is required to prove it.


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What Negligence Means to

patientIn medical negligence cases it is the duty of the

patient or his/her relatives to establish that:

1. There was a duty which the medical practitionerowed to the patient;

2. There was a breach of duty;

3. The breach resulted in injury to the patient;

4. The injury resulted in causing damages.


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Patients too Should support

his/her allegations

A person who alleges negligent medicalmalpractice must prove four elements:(1) a duty of care was owed by the physician;

(2) the physician violated the applicable standardof care;(3) the person suffered a compensable injury;and

(4) the injury was caused in fact and proximatelycaused by the substandard conduct. The burdenof proving these elements is on the plaintiff in amalpractice lawsuit.


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Why Ethics

Read a Quote by

William Somerset Maugham

[C]onscience is the guardianin the individual of the ruleswhich the community has

evolved for its own preservation


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Common Errors can Lead

to Negligence


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Potential legal actions against

health care providersThere are two primary types

of potential civil actions

against health care

providers for injuriesresulting from health care:

(1) lack of informed consent,

and

(2) violation of the standard

of care. Medical treatment

and malpractice laws are

specific to each state.


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. Informed Consent.Before a health care provider delivers care, ethical

and legal standards require that the patient provide

informed consent. If the patient cannot provide

informed consent, then, for most treatments, a legallyauthorized surrogate decision-maker may do so. In

an emergency situation when the patient is not legally

competent to give informed consent and no surrogate

decision-maker is readily available, the law impliesconsent on behalf of the patient, assuming that the

patient would consent to treatment if he or she were

capable of doing so.


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Information must be Conveyed in

Understandable format and formInformation that must be conveyed to and consented

to by the patient includes: the treatments nature and

character and anticipated results, alternativetreatments (including non-treatment), and the potential

risks and benefits of treatment and alternatives. The

information must be presented in a form that the

patient can comprehend (i.e., in a language and at alevel which the patient can understand) and that

the consent must be voluntary given


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When matters Go wrong

Law of the State Takes overAn injured patient maybring an informedconsent action against a

provider who fails toobtain the patientsinformed consent inaccordance with statelaw.

Never forget EveryPatient has his ownChoice


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Simple Signature do not End the

matters when thing go wrong

From a clinical ethics

perspective, informed

consent is acommunication

process, and should

not simply be treated

as a required form forthe patients signature

or Thumb Impression.


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Informed choice linked with State

of Mind of the Patient

Similarly, the legalconcept of informedconsent refers to astate of mind, i.e.,understanding theinformation provided

to make an informedchoice


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Failure to follow Standards of

Medical care.A patient who is injuredduring medical treatmentmay also be able to bring

a successful claimagainst a health careprovider if the patient canprove that the injuryresulted from theproviders failure tofollow the acceptedstandard of care


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Updating knowledge and facilities is a

Concern for Self protection

The duty of care

generally requires that

the provider use

reasonably expectedknowledge and judgment

in the treatment of the

patient, and typically

would also require theadept use of the facilities

at hand and options for

treatment.


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Continuing Medical Education reduces

the Complex problems in clinical Care

The standard of care

emerges from a variety

of sources, including

professional publications,interactions of

professional leaders,

presentations and

exchanges atprofessional meetings,

and among networks of

colleagues.


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What is Expected From

DoctorsHealth care provider

must exercise that

degree of care, skill, andlearning expected of a

reasonably prudent

health care provider at

that time in theprofession or class to

which he belongs,


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Law is dynamicit is constantly evolving

and changing, and this is

particularly true in health

law. Courts andlegislatures respond to

new issues and

technologies by creating

new laws or applying andinterpreting existing laws.

Move with TIME


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Civil law and Negligence

Negligence is the breach

of a legal duty to care. It

means carelessness in amatter in which the law

mandates carefulness. A

breach of this duty gives

a patient the right toinitiate action against

negligence.


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Are you Competent to

Deliver the CarePersons who offer

medical advice and

treatment implicitly statethat they have the skill

and knowledge to do so,

that they have the skill to

decide whether to take a

case, to decide thetreatment, and to

administer that treatment.


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What it means a Private

ComplaintA private complaint of rashness or negligence

against a doctor may not be entertained without

prima facie evidence in the form of a credible

opinion of another competent doctor supporting

the charge. In addition, the investigating officer

should give an independent opinion, preferably of

a government doctor. Finally, a doctor may be

arrested only if the investigating officer believesthat she/ he would not be available for prosecution

unless arrested.


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Internet brings on Lots of

Information even to the patients

The internet offers

many helpfulresources to orient

non-lawyers to

locating relevant law,

several of which aredescribed below.


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Burden of proof and chances

of ErrorThe burden of proof of

negligence, carelessness, or

insufficiency generally lies

with the complainant. The lawrequires a higher standard of

evidence than otherwise, to

support an allegation of

negligence against a doctor.

In cases of medicalnegligence the patient must

establish her/ his claim

against the doctor.


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Indian Penal Code and Medical

Negligence

Indian Penal Code,

1860 sections 52,

80, 81, 83, 88, 90,

91, 92 304-A, 337

and 338 contain the

law of medicalmalpraxis in India


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Indian legal system acts in

cases as A physician can be charged with criminalnegligence when a patient dies from the effects

of anesthesia during, an operation or other kind

of treatment, if it can be proved that the deathwas the result if malicious intention, or gross

negligence. Before the administration of

anaesthesia or performance of an operation, the

medical man is expected to follow the acceptedprecautions.


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May be Lacking precise

DefinitionIt has long been recognized

that criminal liability of a

physician may result from a

high degree of negligentconduct. What the law calls

criminal negligence is largely

a matter of degree; it is

incapable of a precise

definition. To prove whether ornot it exists is like chasing a

mirage.


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Indian Courts are Careful in

JudgementsThe Indian Courts have been very careful

not to hold qualified physicians criminally

(instances of quacks for criminal negligenceare there) liable for patients deaths that are

the result of a mere mistake of judgment in

the selection and application of remediesand when the death resulted merely from an

error of judgment or an inadvertent death.


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Things Can Go Wrong when you

do not Follow Ethics


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Too many Doctors Increases

Confusion and Litigations


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Opinions Differ

Mahatma Gandhi

....I am & have been for years

a confirmed anti

vaccinationist. Anti-

vaccination has no backingfrom the orthodox medical

opinion. A medical man who

expresses himself against

vaccination loses caste.

Tremendous pecuniaryinterests too have grown

around vaccination.


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Quotes on Prolonging Life

and ConflictsIn quixotically trying toconquer death doctors alltoo frequently do no

good for their patientsease but at the sametime they do harminstead by prolongingand even magnifying

patients dis-easeJack Kevorkian,Prescription: Medicide:


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Our Lives Dependent on Ethics of Others

Bill Moyers

Our very lives

depend on the

ethics ofstrangers, and

most of us are

always strangers

to other people.


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We cannot Hide our

Negligence for long

Never Forget


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Never ForgetTender, Loving care

Reduces Many Conflicts


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ReferencesClinical Ethics and Law This information reflects theopinions of its author, Lisa V. Brock, J.D., M.A. (Bioethics),

Medical negligence and the law K K S R Murthy IndianJournal of Medical Ethics

Consumer Protection Act and Medical Profession - IndianPenal Code and Medical Negligence Med India

Google Images

*Contain no Conflict of Interest on Legal Matters


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For More Articles on Human

Empowerment Visit me at .

World Wide Web


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The Program Created by Dr.T.V.Rao MD for

many Young Medical Professionals for

Universal Practice in Preventing the Legallitigations associated with Medical

Negligence

Email

[email protected]
mailto:[email protected]:[email protected]

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Medical Negligence Basics

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