Analysis of Medical Malpractice - Case Study Example

 Analysis of Medical Malpractice I. Introduction The following is the scenario that was presented. In March, Dr Foster (of Muncaster NHS Hospital) performed tear drainage surgery on Mr Smith in order to correct his watery eyes. Dr Foster was a junior doctor who had not performed the operation before. His superior, Mrs Smith (a consultant ophthalmologist and Mr Smith’s wife) was in attendance. Prior to the operation, Dr Foster had told Mr Smith that the operation carried a small risk of blindness, but that any other side effects were rare and/or minor. Mr Smith signed a consent form, but only agreed to the operation because Mrs Smith had privately threatened to divorce him if he did not. 
As a result of the operation (which was competently performed), Mr Smith’s tear drainage improved, but he suffered a side effect of poor night vision. The risk of night vision problems was 2 per cent, but many doctors consider it a minor problem as it has a limited adverse effect (due to the fact that people are usually asleep at 
night) and the operation is highly effective at improving tear drainage. Mr Smith is a taxi driver and insists that he would not have had the operation had he known the risk. He is no longer able to work at night and has suffered a loss of income. 
In July, Mr Smith visited Dr Zeus, his GP, complaining that his left eye was still sore. Dr Zeus suspected cancer of the eyelid. The computers were down so Dr Zeus wrote a note to his receptionist asking him to request a referral to a specialist for Mr Smith, but the note got lost. As a result the referral was delayed by 4 weeks. 
In August, Mr Smith was seen by Dr Foster who diagnosed an aggressive malignant eyelid cancer (which was unrelated to Mr Smith’s previous tear drainage problem). Expert evidence is that symptoms of the eyelid cancer would have been visible to a reasonably competent ophthalmologist when the tear drainage surgery was performed. Had the eyelid cancer been diagnosed in March, Mr Smith’s chances of surviving 10 years would have been 55 per cent. Had the referral letter been sent off when he was seen by Dr Zeus in July, Mr Smith’s chance of surviving 10 years would have been 40 per cent. Now he has only a 20 per cent chance of surviving 10 years. 

Here, within different realms of medical malpractice, each aspect of the case will be discussed. Mr Smith—who seeks financial compensation and complains about his treatment—will be advised to point out the all of the following elements to the General Medical Council. II. Negligence Basically, there are four components or criteria of negligence which must be met in order to establish that a patient has a case for medical malpractice (or any kind of tort) (Donoghue v. Stevenson, 2011, pp. 1). Donoghue v. Stevenson was a classic case in the sense that the plaintiff had found snails in her bottled beverage, and claimed that the company owed her damages due to negligence. In a similar manner, Mr Smith has every right to be upset with not only Dr. Foster, but Mrs. Smith, Dr. Zeus, and Dr. Zeus’s obviously incompetent staff. First of all, Dr. Foster should have mentioned that there was a 2 per cent chance that his night vision might be affected. Failure to alert him to this fact is definitely negligent on his part. In addition, Mrs. Smith, his wife, is not only involving herself in the criminal behavior of blackmailing her husband to have the surgery or else divorce him—but she is also criminally liable as a tortfeasor (a person who commits a tort) because she was a consultant opthalmologist overseeing the surgery superior to Dr. Foster, and she did not report the fact that she saw the cancer on her husband’s eyelid. Not only that, but the fact that Mr. Smith’s wife was even allowed in the operating room definitely presents a direct conflict of interests, and thus gives the defendant (Mrs Smith) a motive for having been at the scene of the crime (in this case, the operating room). Dr Zeus and his staff are also liable for having misplaced or lost the note which required follow-up for Mr Smith’s condition. Therefore, whoever lost the note, as well as Dr Zeus’s failure to follow up on his patient—constitute negligence. Several cases would definitely undoubtedly prove this true. III. Competency The competency element of negligence comes into play in this case. If Dr. Foster had been competent—even though the surgery was competently performed—it demonstrates a large lack of competency on his part to not have properly explained the fact that the procedure could severely hamper the sight of Mr Smith, who is a taxi driver and depends upon his night vision for his livelihood. More will be discussed along this line of thought when it comes to the section about loss of income. However, going back to the issue of competency—it is very unfortunate that these two doctors, as well as the confluence of his wife’s blackmailing—which stands out as some of the most problematic elements of this case, for certain. IV. Capacity The capacity of many of the people involved in Mr Smith’s treatment was that, they had ample chances in order to rectify or improve the situation before it got to be a major fiasco. “[A] major exception to the requirement that the four elements of a negligent tort be proven…is the doctrine of res ipsa loquitur—‘the thing speaks for itself.’ In England in the nineteenth century the courts were confronted with cases [of injured] pedestrians [proven by] the fact of injury” (McConnell, 1993, pp. 13). Now, in this particular case, it has been proven that, with earlier intervention, Mr Smith’s chances of surviving cancer within the next 10 years could have been significantly improved by at least 20%. Not only that, but Mrs Smith was negligent in having had the opportunity to detect her husband’s eyelid cancer, which should’ve been noticed as an opthalmologist. V. Consent Informed consent is an important part of this entire tawdry episode. If Dr Foster had adequately informed Mr Smith about his chances of getting blurry night vision, he might not have had the surgery. It only makes sense that if Mr Smith had known the true risks that the surgery had entailed, he might not have had the surgery at all. Unfortunately, because Mr Smith’s wife, Mrs Smith, had coerced Mr Smith into giving consent, his consent was actually what would be considered informed consent but coercion. In order to have considered what Mr Smith gave as consent, Mrs Smith should not have blackmailed him into giving his consent—Mrs Smith saying that she would ask for a divorce if he did not go through with the surgery. This was just a very unfortunate situation. VI. Duress There are several cases in which duress was cause enough for the plaintiff to receive awards from the court based on the fact that stress had caused the plaintiff anguish. In this case, Mr Smith could definitely argue for the fact that he had been caused not only medical problems, but also that his wife had blackmailed him and that Dr. Zeus was also incompetent—and that the incompetency of his staff had in effect lessened his chances of surviving from the cancer even longer. VII. Alternative to Litigation or Complaints Defendants, if they have acted in error, definitely deserve to be called out on their bad behaviour. “The Court will not look with eagle's eyes to see whether the evidence applies exactly or not to the case...in [one] particular case [the defendants] have ignorantly and unskillfully acted, contrary to the known rule and usage of surgeons” (Ordronaux, 2006, pp. 77). There may be alternatives to litigation or complaints. For example, the defendants may choose to settle. Or, if all three people are implicated in medical malpractice, Dr Foster, Mrs Smith, and Dr Zeus will have to undergo their own separate trials. Since, however, trials can take a long time to even get to the courts, and since litigation can continue on for a long time—it might be a long time before the plaintiff could see any monetary award. Therefore, many of the parties may decide that, instead of going through a long-winded trial, they might want to just settle. Each party will pay a settlement to Mr Smith due to them having wronged him. Of course, each party will have to pay the equivalent of damages which is going to be different for each defendant, based upon the amount of damages that were caused to the plaintiff, Mr Smith. VIII. Loss of Chance The loss of chance that was caused to Mr Smith includes the fact that not only did he have a better chance to have normal night vision, but also due to the loss of chance that he might have had a better chance of surviving his eyelid cancer for longer—means that Mr Smith has grounds for suing Dr Foster and Dr Zeus. The loss of chance might have been less with Dr Foster might have been less because, according to the case study, his vision was repaired in a competent manner. However, the fact that Mr Smith was not told about the possible consequences to his night vision—which would impair the way he made his living—definitely means that this would have affected his income as well, which will be discussed in the section to follow. Without a doubt, Mr Smith’s chances to have had a better chance of coming through the surgery without damage to his night vision had a much less high loss of chance than his loss of chance regarding the lag time that Dr Zeus and his staff took to diagnose his eyelid cancer—resulting in a survival rate that would be much less. IX. Loss of Income The loss of income that has been suffered by Mr Smith is mainly going to fall upon the shoulders of Dr Foster and Dr Zeus—although it is very possible that Mrs Smith has criminal medical malpractice liability implicated in this case as well due to the fact that she did not mention the eyelid condition that she should have noticed when she was consulting along with the surgery. Dr Foster is basically responsible for the fact that he did not properly inform Mr Smith of all the risks involved—including the risk that his night vision could be severely impaired, thus resulting in a loss of potential income for Mr Smith since he has to be a taxi driver who mainly works in the night for a living. Dr Zeus is also liable for having dragged his feet (basically, having procrastinated). If Dr Zeus and his medical staff had gotten the biopsy reports in sooner, Mr Smith would have had a 20% greater chance of survival over the next 10 years from his eyelid cancer. Since his chances of survival have been reduced, that also would take away from his income in the future—because he wouldn’t be able to work towards the end of his life most likely. Thus, he is going to probably need compensatory damages which make up for the fact that all of these medical professionals were not competent in performing their jobs. Of course, there are levels of incompetency. The level of criminal involvement increases starting from Dr Foster, to Dr Zeus, and finally resulting in the highly criminal actions of Mr Smith’s wife, Mrs Smith. Thusly, each individual will have to pay damages in an equal amount corollary with how much suffering each individual caused Mr Smith by his or her actions, respectively. X. Conclusion In conclusion, basically, Mr Smith was given the wrong information by one doctor, blackmailed by his opthalmologist wife, and had his paperwork slip through the cracks at yet another doctor’s office. All of these people are criminally liable for the medical malpractice that they have perpetrated on Mr Smith. The point is that each individual will have to pay compensatory damages in amounts that are corollary to the level of damage that has been caused to Mr Smith. Mr Smith definitely has had a difficult run of luck. Basically, negligence, incompetency, capacity, consent, duress, an alternative to litigation or complaints, loss of chance, and loss of income were all results of these series of unfortunate events. What were the chances that not only two doctors, but also Mr Smith’s wife, were going to be seen as unfit doctors. Unfortunately, Mr Smith has a lot of problems. The positive that can come out of these debacles, however, is that Mr Smith will receive a lot of monetary awards from the courts for his pain and suffering. Mr Smith definitely has compensatory damages coming to him, which will most likely be awarded by the courts because of these three individuals’ obvious medical malpractice. It is unlikely that each individual would have their own individual trials, but it is possible. If Mr Smith decides to be diplomatic about the entire affair, he might consider going after each individual for respective settlements corollary to how much he might be awarded in monetary damages. Mr Smith would probably get awarded the most from any litigation against his wife, because she committed the most undeniably criminal behaviour. Whereas one doctor lost some paperwork, and one doctor neglected to tell Mr Smith of one possible side effect that only happens in 2% of cases—Mrs Smith actually could be sued for not only medical malpractice but blackmailing (extortion). Mrs Smith may have other problems, as well. She threatened to divorce her husband if he didn’t go through with the surgery. Perhaps she was hoping that her husband would not survive for more than a certain amount of years, and therefore did not report the cancer that she saw. In that case, she might be sued for criminal intent such as, perhaps, attempted murder. If she was planning to get insurance benefits from her husband passing away from cancer, that could also be another possibility. It is a bit far-fetched, but not entirely impossible. Mrs Smith has committed the most horrible acts because she has obviously had some intention of malfeasance towards her husband, and that is painfully evident. Moreover, if Mr Smith’s barrister can prove that she had a motive for wanting him to be dead, it could be possible that Mrs Smith had some collusion with the doctors in order to arrange for his demise, if she noticed that Mr Smith had had a problem with his eyelids way before he had ever had the surgery—which is another type of issue altogether. Thusly, in this entire scenario, Mrs Smith looks the most guilty of severe medical malpractice and malfeasance against her husband—even though, to a certain extent, the other two doctors are also at fault here. Mrs Smith is, indeed, in the most trouble of all three of these individuals, especially because her types of malfeasance as a tortfeasor indicate that she had malicious intent towards her husband. Who knows what her motives or motive would have been. But, whatever the motive, she is in trouble for more than just medical malpractice. Mrs Smith is in trouble with the law for possibly having attempted murder. Withholding care from a patient who sorely needs it is a form of medical malpractice. Attempted murder might be a stretch—but nonetheless, who knows why Mrs Smith threatened Mr Smith with divorce if he didn’t get the surgery. She could’ve had several reasons for doing so, but the primary reason that she might have done this was money. Money is a huge motivator, and if she thought that she might make money off her husband’s eventual death from eyelid cancer, she may have either tried to cause the cancer as a knowledgeable opthalmologist, or took advantage of the fact that her husband had a severe medical problem. Whatever the reasons she had, Mrs Smith is in much, much, much more trouble in the legal sense than her counterparts who are also medical doctors. Mrs Smith is liable for not having pointed out that Mr Smith had eyelid cancer when he was having the surgery done on his tear ducts to correct his problem with his watery eyes. The major issue here is why Mrs Smith committed these obvious, heinous crimes against her own husband. The only possible answer could be that she was going to try to watch him die slowly and possibly profit off of her husband’s demise. It’s not pretty to imagine, but it is a possibility which must be considered. BIBLIOGRAPHY Brazier M & Cave E (2011). Cave medicine, patients and the law. 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