Medical Malpractice and Its Characteristics - Research Paper Example

Medical Malpractice Introduction The relationship between a patient and a doctor has been outlined differently over the years. While patients often trust doctors and other medical practitioners to provide them with correct medication or to carefully perform the right procedures on them, sometimes this never happens in which case medical malpractice occurs. Professionally, medical malpractice is negligence by omission or act by a medical practitioner in which the practitioner provides care that is not in line with the acceptable standard of practice as defined by the medical fraternity thereby causing death or injury to the patient (Baker 202). An understanding of the causes/dimensions, effects and liabilities of medical malpractice can help one to avoid such professional negligence and malpractice lawsuits. Medical malpractice and its characteristics Current trends and statistics relating to medical malpractice Within the past six centuries, medical malpractice has increased drastically. According to statistics, there were a total of 2696 serious cases of malpractice in the United States in 1999 alone (Medical Malpractice par 1). The Institute of Medicine of the National Academy of Sciences states that about 98000 patients risk losing their lives in various hospitals in the US due to medical malpractices (Medical Malpractice par 1). In today’s society, a doctor’s responsibility is to provide affordable care, talent and reasonable judgment in the course of duty. Whenever patients are given wrongly diagnosed, mal-treated or die due to what is perceived to be medical malpractice, the doctors normally are subjected to a lot of suffering without appreciating their efforts or whatever good they may have done before to save lives. This situation also makes fellow doctor fear performing certain risky procedures for fear of going through similar or worse experiences. Potential doctors are also discouraged from joining the medical profession when they witness such situations. Characteristics of Negligence Malpractice is negligence. Cases of negligence fall under the description of torts. A tort may be a common offence, thus malpractice could be a common offence. In the simplest terms, there are four essential elements of malpractice which include duty, breach, damage and (direct) causal affiliation. Each healthcare supplier assumes a duty when beginning diagnosis, consultations, or treatment of a patient. The duty or responsibility emanates from an implied or expressed contract. Another important element of medical malpractice is breach. If one fails to create an accurate diagnosis once he or she has assumed the duty to try and do so, one might commit a breach of responsibility. Thirdly, causal affiliation which states that damage is caused by a failure to properly diagnose the breach responsibility. Damage is the outcome of a failure to diagnose properly. Medical malpractice occurs when a patient sustains injuries or complications that may or may not be of a permanent and continuing nature due to negligence (Pozgar 558). Negligence is among the most typical civil suit filed against doctors. Legal responsibility for negligence cannot be found unless the following subsequent elements are present: One, the defendant should owe an obligation to the plaintiff to practice care. Two, the defendant should breach the quality of care stipulated by law for his/her behavior. Thirdly, the plaintiff should suffer loss or damage as a result of this breach. Lastly, the behavior of the defendant should be the near cause of the plaintiff’s injury or damage ((Pozgar 65). Cases related to medical malpractice In the case of Adderly v. Bremner it was noted that the defendant medical doctor was careless in not altering the syringes to vaccinate thirty eight patients and as an alternative used one needle for more than one patient (Pozgar 76). As a result, the plaintiff experienced blood poisoning. The doctor in this case did not provide the specified correct care. Any sensible doctor would have actually changed the syringe for every patient and would have predicted the implications for not altering them. The doctor failed to follow directions in prescribing the vaccine that demanded the use of sterile needle and syringe for ever patient. This case could be an excellent example of a doctor violating orders and unprofessionally exercising negligence on blameless patients. Although the plaintiff was not greatly injured, the doctor was found answerable. Another frequent civil tort brought against doctors is battery. Battery is dedicated by deliberately bringing about offensive or destructive contact with another. In the case of Hankai v. York County Hospital, it was noted that the defendant doctor conducted surgery on the plaintiff to get rid of a miscarried fetus (Pozgar 56). The defendant performed a meatotomy without the permission of the plaintiff. Moreover, the defendant doctor was responsible for battery for conducting the illegal action to meatotomy. There are many alternative cases similar to this one where a patient allows for one operation and is given another. How a doctor will perceive the choice of a competent individual into his own hands is taken into close consideration. As the claimant was not in instant danger, the defendant may have urged the second operation upon the completion of the primary operation. Physicians who normally pay no attention to patient requests or fail to ask for permission in certain events destroy the profession’s name. Many people believe doctors are the important victims in cases of medical malpractices. They feel doctors are restricted from exercising their professional responsibilities. On the other hand, many students limit career choices avoiding the study of medicine out of concern that they may be sued. When a friend or loved one dies under the care of a doctor, the loss could cause anger and those affected could go seeking to sue the concerned doctor. Doctors’ fears of malpractice additionally lead to unhealthy medical care. New procedures carry higher risk of causing damage and therefore doctors keep to standard treatments even in terminal cases out of the concern that the treatment could speed up the patient’s death. The alternative is additionally true, each over treating and over testing are normal strategies of dealing with malpractice suits. Expensive technology is frequently misused to diagnose minor problems. Even though there are very few plaintiff’s who win court cases against medical malpractice, the high awards given to them contribute to the rise in insurance prices for all doctors (Haskell & Krause 135). Provided that doctors take extra care in providing medical services, they ought to stay free from worry. If they do, they are most likely to do one wrong thing. Many doctors everyday make lethal mistakes causing death, suffering and pain, brain damages or scarring their patients. These mistakes should be dealt with accordingly and damages to the victim should be compensated for damages caused to them (Haskell & Krause 135). In order to succeed a medical malpractice lawsuit, the patient should prove who caused the damage. This could be an especially troublesome task given the complexities of contemporary medication, and therefore the common reaction of doctors, is to hide up their mistakes. Many of those who sue defendant doctors do not succeed but few of the win. In fact, the few patients who do succeed wait about seven years before getting their compensation according to Haskell and Krause (135). Medical malpractice cases are still high resulting in medical malpractice crisis and consequently physicians are now faced with huge and rising premiums. The high premiums are a result of increased severity and the frequency of claims being made. In this case, severity refers to the awards, administrative costs, defense and settlements made while frequency refers to the claims made per insured physician. This is an indication that not only is the trend still high, but also the severities of cases involved. Higher trends are recorded by physicians and surgeons as compared to all other healthcare givers. Increased frequency of medical malpractice law suits can be linked to increased percentage of educated consumers and this is boosted by the general mistrust of healthcare givers. In some states where tort reform has been done, the frequency of cases has dropped but the severity has not reduced. Tort reform Tort reform is important because it minimizes the number of cases of medical malpractice and puts the medical industry regulated more intensely. However, proponents of medical liability reform argue that lawsuits related to medical malpractice limits patient access to healthcare. The fear of professional liability makes physicians to minimize high-risk procedures or removing physicians out of business. Dubay et al (500) observes that tort reform has generally impacted on the number of caesarean sections conducted. The unfriendly working conditions and medical environment created by tort reform forced states to conduct reforms aimed at limiting the costs of medical malpractice insurers. An example of a state that has conducted medical liability reform is Texas. This was done in 2003 resulting to an influx of physicians into the state. Though tort reform has resulted in improved medical environment and reduced cases in the participant states, these reforms are not expected to impact on the ongoing severities (Genre 32). It has led to a reduction of 23% in physician’s liability rates (American Medical Association 63). NAIC (26) claims that apart from increased premiums, there have been decline in profits and the number of liability carriers who give insurance. Specialists who deal with high-risk patients are the ones experiencing a higher level of reduction in the availability of coverage. Emerging issues in medical malpractice include improved and more potent medicines and advanced and quickly evolving medical technology, terrorism, increased need for health care due to a large portion of aging population, toxic mold and general mistrust healthcare providers. Currently, state laws govern the applicable time within which patients can file a lawsuit for medical malpractice as well as the minimum professional qualifications of expert witnesses for such cases. In some states, limitations on monetary damages are recoverable in such kind of suits while in some others, it is considered unconstitutional. Laws relating to medical malpractice in the US At the moment, each state has its own laws concerned with wrongful deaths or injuries in which medical malpractice is alleged to be their causes. Medical malpractice law in reality is a subset of the law that deals with personal injury, its application often overlapping with the law that relates to litigation. The penalties for such actions also vary from one state to the other and this greatly influences the choice of state in which healthcare givers wish or actually move to offer their services. In the US in particular, the medical malpractice law has always been under the authority of state government and not state government. Unlike other laws, the rules and legal frameworks governing actions of malpractice were mainly established through decisions in presented lawsuit rather than through statutes that state legislatures enact. This was so until the most recent years. Usually, legal precedents that establish case laws in a particular state have no power or weight in another state. It is for this reason that rules for dealing with cases of medical malpractice vary between states. However, majority of the principles are the same. How medical malpractice can be prevented Medical malpractices can be avoided through various ways. Medical practitioners should be well trained an competent before being allowed to perform procedures on patients as a primary way of preventing medical malpractice. When performing procedures or diagnosing patients, the doctors should also be very careful, abiding by established standards of practice. Yet again, the medical should maintain clear communication amongst themselves and with the patient to avoid making errors that could otherwise be avoided through proper communication. Furthermore, medical practitioners should adequately document their patients conditions, past procedures and diagnosis such as through charting as a way of avoiding malpractice. Conclusion Everyday individuals rely upon doctors and trust them to deliver quality services without putting their lives unduly at risk of injury or death. Therefore, physicians should aim to try to avoid wasting lives as much as possible. If a doctor happens to commit a breach of duty that causes injuries, they ought to take full responsibility. But when an individual decides to be a physician, they prefer to render their services to society, and should practice to care for people. By choosing to care, they must feel for the individuals they hurt when a mistake is done. Works cited American Medical Association. The case of medical liability reform. 2009. Web. Viewed 15th June, 2011 http://www.ama-assn.org/ama1/pub/upload/mm/-1/case-for-mlr.pdf. Bremner Robert Hamalett. “Children and youth in America: a documentary history”, Volumes III USA: Harvard University Press. 1974. Print. Genre Property-Casualty Forecast and analysis, conning research and consulting. 2007. Web. Viewed 15th June, 2011. http://www.genre.com/sharedfile/pdf/GenReViewpointMedMal200710-en.pdf. Haskell Guy & Krause Robert. EMT-Basic: Pearls of Wisdom 2nd ed. London: Jones & Bartlett Learning. 2006. Print. Medical Malpractice. National Medical Malpractice Statistics. 2011. Web. Viewed 15th June, 2011 http://www.medicalmalpractice.com/National-Medical-Malpractice-Facts.cfm NAIC, Profitability Report (Kansas City: NAIC, 2003. Web. Viewed 15th June, 2011http://content.healthaffairs.org/content/suppl/2004/01/21/hlthaff.w4.20v1.DC1 Pozgar George. “Legal aspects of health care administration” 10th ed. illustrated Sudbury: Jones & Bartlett Learning. 2007. Print. Baker Tom. The Medical Malpractice Myth. University of Chicago Press. 2005. Print. Read More