Medical MalpracticeThe doctor-patient relationship has been defined differently through theyears.
In the beginning it developed into a “common calling” which meantdoctors practiced medicine as a duty to their patients. Laws were developed toprotect patients, therefore doctors used proper care and expert skill. In thepast six centuries, medical malpractice has increased, which lead to revisionand addition to the law. Liability was introduced along with the “GIANT of alltorts”, negligence. Now in today’s society, a doctor’s duty is to usereasonable care, skill and judgment in the practice of his/her profession andwhen negligent, take full responsibility. What is malpractice? Malpractice is negligence.
Negligence is a tort. Atort is a civil wrong, therefore malpractice is a civil wrong. In itssimplest terms, malpractice has four essential elements: 1) Duty. Everyhealth care provider assumes a duty when starting consultations, diagnosis, ortreatment 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 haveassumed the duty to do so, you have created a “breach of duty”, due and owing tothe patient. 3) Causal Connection. Your failure to correctly diagnose,(“duty” you “breached”) the duty due and owing to the patient and as a directand proximate cause of your breach, caused damages.
4) Damages. The result ofyour failure to diagnose correctly, the patient sustained damages in the form ofan additional hospital stay, complications that may or may not be of a permanentand continuing nature. (Brooten Jr. , Kenneth E.
p. 1) Negligence is the mostcommon civil suit filed against doctors. Liability for negligence will not befound unless the following factors are present: (a) the defendant must owe aduty to the plaintiff to exercise care; (b) the defendant must breach thestandard of care established by law for his/her conduct; (c) the plaintiffmust suffer loss or injury as a result of this breach; (d) the conduct of thedefendant 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 tovaccinate 38 patients and instead used one needle for every two patients. As aconsequence, the plaintiff was infected with septicemia (blood poisoning). This doctor failed to give the required standard of care.
Any reasonable doctorwould have in fact changed the syringe after each patient and would haveforeseen the consequences for not changing them. According to the case thedoctor did not follow instructions accompanying the vaccine, stressing the factthat a sterile needle and syringe were to be used for each patient. This caseis a perfect example of a doctor not following orders and unprofessionallypracticing on innocent patients. Though the plaintiff was not mortally injured,the doctor was found liable. This teaches the defendant physician a lessonalong with doctors all across Canada and may prevent another patient fromunnecessary suffering.
Another common civil tort filed against doctors is battery. Battery iscommitted by intentionally bringing about harmful or offensive contact withanother. 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 toremove a miscarried fetus. The defendant also performed a meatotomy without theconsent of the plaintiff. The defendant doctor was liable for battery forperforming the unconsented – to meatotomy. There are several other cases justlike this one where a patient consents for one operation and given another orboth. How a doctor can take the decision of a competent human being into hisown hands is beyond me.
The plaintiff was in no immediate danger, the defendantcould have suggested the second operation after the completion of the first. Incases like these the doctor is incredibly egotistical and is playing God. Physicianswho ignore patient requests or fail to ask for consent only build communicationbarriers and ruin the profession’s reputation. Many people believe doctors are the real victims. They feel doctors areconfined from performing and medical students limit career options in fear ofbeing sued. There are some illegitimate and ungrateful citizens who insist onfiling suits when doctors are not at fault.
When a family member dies, the lossmay 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. Newprocedures carry a higher risk of harm and second guessing later, so doctorsstick to conventional treatments, even in terminal cases, for fear the treatmentmay hasten the patient’s death. The opposite is also true, both overtesting andovertreating are standard methods of beating malpractice suits. Thousands ofunneeded surgeries are performed each year.
Expensive technology is regularlymisused – CAT scans to diagnose simple headaches, for example. Also, the fewplaintiff’s who win unrealistically high awards raise insurance costs for alldoctors. (Nolo Press editors, # 32) In fact, the Canadian Medical ProtectiveAssociation has announced a 20 % increase in premiums for 1996. ( Canada NewsWire 12 Dec. 95)It is my opinion though, that by insisting on settlements more doctors takeextra care and look for a second opinion.
As long as doctors take extra carethey should have no fear. If they do, they know they’re doing something wrong. More and more doctors everyday make lethal mistakes causing death, pain andsuffering, brain damage or scarring. These mistakes must be brought out intothe open and damages to the victim should be awarded.
Fewer than 5% of thepeople injured while under medical care receive any compensation. (Nolo Presseditors, #32)To add to the grief, the plaintiff is injured twice: first by faultymedicine, then by a famously slow legal system. To win a medical malpracticelawsuit, the injured must prove who caused the injury. This can be an extremelydifficult task given the complexities of modern medicine, and the commonreaction of doctors, which is to cover up their mistakes. The majority of thosewho do sue, do not fair well; only 20% win.
The few patients who do succeed,wait an average of seven years before getting a penny. (Nolo Press editors, #32)Unfortunately, the price Canada pays for these suits is enormous. In 1982,Canada spent $ 4 532 292 in legal costs. That is $ 4 524 676 more then whatwe paid in 1950.
In 1982 one out of every 244 doctors was successfully sued. The average sum of awards paid by doctors in 1982 was $ 38 941. 18 whereas in1971 it was $ 8 634. (Picard, Ellen I. p.
347) Many people believe we are in a”malpractice crisis” and another mode of compensating patients should be found. A no-fault method to compensate all patients while under medical care isbeing considered. This method would: a) quickly compensate all who havesuffered harm as a result of medical treatment, regardless of how it occurred;b) give doctors incentives to root out and expose the causes of medical error;c) base a victim’s economic recovery on actual economic loss – medical costs,loss of income and disability – plus, where there is long-term or permanentdisability, a reasonable amount for lost quality of life and d) handlecompensation through a provincial – run Injured Patients Board, which couldtrack information with a Medical Board that could monitor doctors. (Nolo Presseditors, #32)I cannot see this form of compensation working. It would be abused bymoney-seekers and insufficient for the genuinely hurt. I also do not believewe are in a crisis situation.
According to the Canada News Wire the governmenthas been paying supplements to help physicians with an expected escalation inlawsuits, similar to that experienced in the U. S. As it turned out, Canada didnot follow the U. S example and the reserve has grown to about $200 millionin1988 to nearly $1 billion. ( Canada News Wire 12 Dec. 95) Along with thestatistics of how few people win suits, it is clear to me that we are not in anypresent trouble.
We may very well find ourselves in a crisis situation if our doctors do notperform with extreme care. Everyday people depend on them and trust them. Weneed physicians to attempt to save lives at the best of their ability. If adoctor happens to create a breach of duty that causes damages, they should takefull responsibility.
When a person chooses to be a physician, they choose torender their services to society. They choose to care for people. By choosingto care, they should feel for the people they hurt when an error is made. Theyshould want to give some form of compensation.
Though we may not be in a crisis situation now, it’s not to far down theroad. Canada must undergo some serious changes in the coming years. Doctorsattitudes must change along with the compensation system. Whether we keep thepresent system, and make some changes, or try the no-fault system, we couldlessen the pressing problems.
In either case, something must be done before thehospital is considered more dangerous than a lion’s den. Bibliographyn Picard, Ellen I. Legal Liability of Doctors and Hospitals in Canada. 2nd ed. Toronto, Ont.
: The Carswell Company Limited, 1984. n Brooten, Kenneth E. Jr. Malpractice: A Guide to Avoidance and Treatment. Orlando, Fla. : Grune ; Stratton Inc.
, 1987. n Nolo Press editors. Fed up with the legal system? : What’s Wrong and How toFix it. 2nd ed.
United States of America : Nolo Press, 1994. ( Internet:Fed up #32. Compensate Medical Malpractice Victims)n “Government to Rally Support Against Physicians’ High Insurance Costs” CanadaNews Wire. Toronto 12 Dec.
1995. (Internet)n Taylor, John Leathy. Medical Malpractice. Great Britain: John Wright & SonsLtd. , 1980. n Law, Sylvia and Steven Polan.
Pain and Profit: The Politics of MedicalMalpractice. New York, NY. : Harper and Row Publishers, 1978.
