MEDICAL NEGLIGENCE

basicsDr.T.V.Rao MD

Ethical norms may be derived

from:

LawInstitutional policies/practices

Policies of professional organizations

Professional standards of care, fiduciary

obligations

Clinical Ethics, Law

Clinical ethics may be

defined as: a discipline or

methodology for considering

the ethical implications of

medical technologies,

policies, and treatments,

with special attention to

determining what ought to

be done (or not done) in the

delivery of health care.

Clinical Ethics, Law

Law may be defined

as: established and

enforceable social

rules for conduct or

non-conduct; a

violation of a legal

standard may create

criminal or civil liability.

Risk Management

Risk Management

may be defined as:

a method of

reducing risk of

liability through

institutional

policies/practices.

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

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. The

“standard 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.

India takes on Consumer

Protection Act 1986

After the Consumer Protection Act, 1986, has

come into force some patients have filed legal

cases against doctors, have established that the

doctors 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.

What Negligence Means to

patient

In 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 practitioner

owed 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.

Patients too Should support

his/her allegations

A person who alleges negligent medical malpractice must prove four elements: (1) a duty of care was owed by the physician; (2) the physician violated the applicable standard of care; (3) the person suffered a compensable injury; and (4) the injury was caused in fact and proximately caused by the substandard conduct. The burden of proving these elements is on the plaintiff in a malpractice lawsuit.

Why Ethics

Read a Quote by

William Somerset Maugham

[C]onscience is the guardian

in the individual of the rules

which the community has

evolved for its own preservation

Common Errors can Lead

to Negligence

Potential legal actions against

health care providers

There are two primary types

of potential civil actions

against health care

providers for injuries

resulting 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.

. 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 legally

authorized 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 implies

consent on behalf of the patient, assuming that the

patient would consent to treatment if he or she were

capable of doing so.

Information must be Conveyed in

Understandable format and form

Information that must be conveyed to and consented

to by the patient includes: the treatment’s nature and

character and anticipated results, alternative

treatments (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 a

level which the patient can understand) and that

the consent must be voluntary given

When matters Go wrong

Law of the State Takes over

An injured patient may bring an informed consent action against a provider who fails to obtain the patient’s informed consent in accordance with state law.

Never forget Every Patient has his own Choice

Simple Signature do not End the

matters when thing go wrong

From a clinical ethics

perspective, informed

consent is a

communication

process, and should

not simply be treated

as a required form for

the patient’s signature

or Thumb Impression.

Informed choice linked with State

of Mind of the Patient

Similarly, the legal concept of informed consent refers to a state of mind, i.e., understanding the information provided to make an informed choice

Failure to follow Standards of

Medical care.

A patient who is injured during medical treatment may also be able to bring a successful claim against a health care provider if the patient can prove that the injury resulted from the provider’s failure to follow the accepted standard of care

Updating knowledge and facilities is a

Concern for Self protection

The duty of care

generally requires that

the provider use

reasonably expected

knowledge and judgment

in the treatment of the

patient, and typically

would also require the

adept use of the facilities

at hand and options for

treatment.

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 at

professional meetings,

and among networks of

colleagues.

What is Expected From

Doctors

Health care provider

must “exercise that

degree of care, skill, and

learning expected of a

reasonably prudent

health care provider at

that time in the

profession or class to

which he belongs,

Law is dynamicit is constantly evolving

and changing, and this is

particularly true in health

law. Courts and

legislatures respond to

new issues and

technologies by creating

new laws or applying and

interpreting existing laws.

Move with TIME

Civil law and Negligence

Negligence is the breach

of a legal duty to care. It

means carelessness in a

matter in which the law

mandates carefulness. A

breach of this duty gives

a patient the right to

initiate action against

negligence.

Are you Competent to

Deliver the Care

Persons who offer

medical advice and

treatment implicitly state

that they have the skill

and knowledge to do so,

that they have the skill to

decide whether to take a

case, to decide the

treatment, and to

administer that treatment.

What it means a Private

Complaint

A 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 believes

that she/ he would not be available for prosecution

unless arrested.

Internet brings on Lots of

Information even to the patients

The internet offers

many helpful

resources to orient

non-lawyers to

locating relevant law,

several of which are

described below.

Burden of proof and chances

of Error

The burden of proof of

negligence, carelessness, or

insufficiency generally lies

with the complainant. The law

requires a higher standard of

evidence than otherwise, to

support an allegation of

negligence against a doctor.

In cases of medical

negligence the patient must

establish her/ his claim

against the doctor.

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 medical

malpraxis in India

Indian legal system acts in

cases as …A physician can be charged with criminal

negligence when a patient dies from the effects

of anesthesia during, an operation or other kind

of treatment, if it can be proved that the death

was 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 accepted

precautions.

May be Lacking precise

Definition

It has long been recognized

that criminal liability of a

physician may result from a

high degree of negligent

conduct. What the law calls

criminal negligence is largely

a matter of degree; it is

incapable of a precise

definition. To prove whether or

not it exists is like chasing a

mirage.

Indian Courts are Careful in

Judgements

The Indian Courts have been very careful

not to hold qualified physicians criminally

(instances of quacks for criminal negligence

are there) liable for patients’ deaths that are

the result of a mere mistake of judgment in

the selection and application of remedies

and when the death resulted merely from an

error of judgment or an inadvertent death.

Things Can Go Wrong when you

do not Follow Ethics

Too many Doctors Increases

Confusion and Litigations

Opinions Differ

Mahatma Gandhi

....I am & have been for years

a confirmed anti

vaccinationist. Anti-

vaccination has no backing

from the orthodox medical

opinion. A medical man who

expresses himself against

vaccination loses caste.

Tremendous pecuniary

interests too have grown

around vaccination.”

Quotes on Prolonging Life

and Conflicts

In quixotically trying to conquer death doctors all too frequently do no good for their patients’ “ease” but at the same time they do harm instead by prolonging and even magnifying patients’ dis-ease

Jack Kevorkian, Prescription: Medicide:

Our Lives Dependent on Ethics of Others

Bill Moyers

Our very lives

depend on the

ethics of

strangers, and

most of us are

always strangers

to other people.

We cannot Hide our

Negligence for long

Never Forget Tender, Loving care

Reduces Many Conflicts

References Clinical Ethics and Law This information reflects the opinions of its author, Lisa V. Brock, J.D., M.A. (Bioethics),

Medical negligence and the law K K S R Murthy Indian Journal of Medical Ethics

Consumer Protection Act and Medical Profession - Indian Penal Code and Medical Negligence Med India

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*Contain no Conflict of Interest on Legal Matters

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Universal Practice in Preventing the Legal

litigations associated with Medical

Negligence

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