Medical Malpractice Essay Research Paper Medical Malpractice

Medical Malpractice Essay, Research Paper

Medical Malpractice

The doctor-patient relationship has been defined differently through the

years. In the beginning it developed into a “common calling” which meant

doctors practiced medicine as a duty to their patients. Laws were developed to

protect patients, therefore doctors used proper care and expert skill. In the

past six centuries, medical malpractice has increased, which lead to revision

and addition to the law. Liability was introduced along with the “GIANT of all

torts”, negligence. Now in today’s society, a doctor’s duty is to use

reasonable care, skill and judgment in the practice of his/her profession and

when negligent, take full responsibility.

What is malpractice? Malpractice is negligence. Negligence is a tort. A

tort is a civil wrong, therefore malpractice is a civil wrong. In its

simplest terms, malpractice has four essential elements: 1) Duty. Every

health care provider assumes a duty when starting consultations, diagnosis, or

treatment of a patient. The duty arises from an expressed or implied contract.

2) Breach. For example, if you fail to make a correct diagnosis once you have

assumed the duty to do so, you have created a “breach of duty”, due and owing to

the patient. 3) Causal Connection. Your failure to correctly diagnose,

(”duty” you “breached”) the duty due and owing to the patient and as a direct

and proximate cause of your breach, caused damages. 4) Damages. The result of

your failure to diagnose correctly, the patient sustained damages in the form of

an additional hospital stay, complications that may or may not be of a permanent

and continuing nature. (Brooten Jr., Kenneth E. p. 1) Negligence is the most

common civil suit filed against doctors. Liability for negligence will not be

found unless the following factors are present: (a) the defendant must owe a

duty to the plaintiff to exercise care; (b) the defendant must breach the

standard of care established by law for his/her conduct; (c) the plaintiff

must suffer loss or injury as a result of this breach; (d) the conduct of the

defendant must be the “proximate cause” of the plaintiff’s loss or injury. (

Picard, Ellen I. p. 29) In the case of Adderly v. Bremner (Picard, Ellen I. p.

461) the defendant physician was negligent in not changing the syringes to

vaccinate 38 patients and instead used one needle for every two patients. As a

consequence, the plaintiff was infected with septicemia (blood poisoning).

This doctor failed to give the required standard of care. Any reasonable doctor

would have in fact changed the syringe after each patient and would have

foreseen the consequences for not changing them. According to the case the

doctor did not follow instructions accompanying the vaccine, stressing the fact

that a sterile needle and syringe were to be used for each patient. This case

is a perfect example of a doctor not following orders and unprofessionally

practicing on innocent patients. Though the plaintiff was not mortally injured,

the doctor was found liable. This teaches the defendant physician a lesson

along with doctors all across Canada and may prevent another patient from

unnecessary suffering.

Another common civil tort filed against doctors is battery. Battery is

committed by intentionally bringing about harmful or offensive contact with

another. The basis of this tort is that the touching is without consent.

(Picard, Ellen I. p. 25) In the case of Hankai v. York County Hosp. (Picard,

Ellen I. p. 490) the defendant doctor performed surgery on the plaintiff to

remove a miscarried fetus. The defendant also performed a meatotomy without the

consent of the plaintiff. The defendant doctor was liable for battery for

performing the unconsented – to meatotomy. There are several other cases just

like this one where a patient consents for one operation and given another or

both. How a doctor can take the decision of a competent human being into his

own hands is beyond me. The plaintiff was in no immediate danger, the defendant

could have suggested the second operation after the completion of the first. In

cases like these the doctor is incredibly egotistical and is playing God.

Physicians

who ignore patient requests or fail to ask for consent only build communication

barriers and ruin the profession’s reputation.

Many people believe doctors are the real victims. They feel doctors are

confined from performing and medical students limit career options in fear of

being sued. There are some illegitimate and ungrateful citizens who insist on

filing suits when doctors are not at fault. When a family member dies, the loss

may cause anger and looking for a doctor to sue seems like the right thing to do.

It is human nature to always look for a party at fault in any tragedy.

Doctors’ fears of malpractice awards also result in bad medical care. New

procedures carry a higher risk of harm and second guessing later, so doctors

stick to conventional treatments, even in terminal cases, for fear the treatment

may hasten the patient’s death. The opposite is also true, both overtesting and

overtreating are standard methods of beating malpractice suits. Thousands of