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What’s medical negligence?
View(s):By Prof. Ravindra Fernando
Negligence may be defined as doing something which a prudent and reasonable man would not do or omission to do something which a prudent and reasonable man would do, in a given situation. Although medical accidents and misadventures are an expected social phenomenon, medical negligence is not. Medical negligence is the breach of a duty of care towards a patient which results in, harm to a patient. This could be by an act of commission or omission by the medical staff.
This duty is owed by all those professionals who hold themselves out as skilled in medical, nursing and paramedical fields. It arises independently of any contractual relationship.
Medical negligence is established when four main criteria are satisfied. They are:
- The doctor owes a duty of care to the patient
- There is a breach of this duty by an act of commission or omission,
- A causal relationship exists between the breach of the duty and the damage caused to the patient, and,
- Damage or harm is caused to the patient.
For a successful action of medical negligence, the plaintiff (patient) must establish that the doctor was in breach of his duty of care. There is no breach of duty unless the doctor has failed to meet the required standard of care. The standard of care and what constitutes a breach of that standard must be determined, based on the facts of a particular case with the assistance of medical experts.
At the trial of Mr. Phipos, a British surgeon and apothecary, who failed to diagnose and treat a fracture and partial dislocation, resulting in loss of the use of a hand, Chief Justice Tindal told the jury, “Every person who enters into a learned profession undertakes to bring to the exercise of it a reasonable degree of care and skill. He does not undertake, if he is an attorney, that at all events you shall gain your case, nor does a surgeon undertake that he will perform a cure; nor does he undertake to use the highest possible degree of skill. There may be persons, who have higher education and greater advantages than he has, but he undertakes to bring a fair, reasonable and competent degree of skill, and you will say whether in this case, the injury was occasioned by the want of such skill in the defendant”.
Therefore, in a case of negligence it is necessary to determine when and how a breach of duty has occurred and whether there was a failure to exercise a reasonable degree of care and skill. As stated by Lord Scarman, although the law imposes the duty of care, the standard of care is a matter of medical judgement.
The law requires a fair and reasonable standard of care and competence. A doctor is not negligent if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. It is necessary to consider the “breach of duty” by an act of commission or omission, in different circumstances.
A patient who suffered harm as a result has to sue the doctors and/or the hospital to receive damages in our adversarial system. This is costly and time consuming. A final court decision may take even up to 10 years.
Therefore, ‘No fault Liability’ system has been proposed to obtain redress for patients. In no-fault liability system the patient must show that the medical error was a causative factor in the resultant injury, irrespective of who is to blame (proof of causation rather than proof of fault).
The damages are calculated through an inquisitorial tribunal, which has access to all relevant documents. The tribunal can obtain independent expert advice.
The advantage of this system is that claims can be investigated promptly, without the restriction of legal access to documents and communications, typical of the adversarial process.
Even the British Medical Association (BMA) accepts that the present system is harmful, unpredictable, and unjust for both patients and medical staff. In the BMA model a no-fault compensation fund would handle compensation after causation is proved by the tribunal, which would work out compensation according to predetermined criteria. The British Medical Royal Colleges also agree with this proposal.
New Zealand, the greatest exponent of the no-fault system has established it in 1972 after the report of the Woodhouse Commission. The ‘socialist’ legal ideology of Scandinavia also favours a no-fault principle that relies on insurance rather than litigation. For example, Sweden created an insurance system for patients in 1975, and Norway in 1988, based on voluntary agreement. Denmark and Finland have adopted a mandatory patients’ insurance scheme.
In France medical negligence claims against the state are handled under an administrative law scheme. The compensation to patients for hospital mistakes is automatic.
(The writer is Senior Professor of Forensic Medicine and Toxicology at the University of Colombo.)
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