Medical Negligence and Malpractice - Case Study Example

Case Introduction Benny, a 17 year old boy was admitted to the hospital for stomach pain. Upon the consultation with Douglas (a surgeon), he told Benny that he needs to immediately undergo a surgery due to his perforated stomach ulcer. Considering Benny's belief that illnesses are psychosomatic and should not be treated, he refused to give his consent to the surgeon. Contrary to the will of Benny, Douglas obtains consent from Benny's parents to allow him to remove Benny's gallstone. At the operating room, Douglas removed Benny's gallstone without his personal consent. Defining Medical Malpractice According to Bhat (2001), marketplace professionalism is a major factor for the advent of malpractice litigation. There were no laws specifying requirements to practice any profession and anyone could practice whatever profession he or she wished to. As a result, there was tremendous competition between physicians and other healers. The only way the public could hold a person responsible for his actions were through tort laws. However, malpractice litigation can exist only with an established practice and a healer cannot be sued for deviating from standards if no standards exist. Since only trained physicians had professional standards, they were sued and quacks were not. There are five fundamental groupings of rationales for medical malpractice. First, a physician "contracts with those who employ him that he has such skill, science, and information as will enable him properly and judiciously to perform the duties of his calling." Second, "the principle is plain of uniform application, that when a person assumes the profession of physician and surgeon, he must, in its exercise, be held to employ a reasonable amount of care and skill. For anything short of that degree of skill in his practice, the law will hold him responsible for any injury which results from its absence (Breen et al, 1997). Third, a physician "undertakes that he will bring to the work a fair, reasonable and competent degree of care and skill in reference to the operation to be performed." Fourth, "freedom from errors of judgement is never a part of a contract with a professional man." And finally, physicians need not guarantee a cure. These principles led to increased malpractice lawsuits against better physicians. Although medical malpractice is founded on the standard principles of tort law, interest groups perceive medical malpractice differently depending on the way malpractice claims affect their financial, social, political, and professional interests. Differences in perception among politically perceptive interest groups have been significant obstacles in resolving malpractice problems. Articles supporting and opposing the medical malpractice system have appeared in newspapers and magazines. Opponents of malpractice cite malpractice cost as a cause of high health care costs. Opponents argue that the medical malpractice system modifies the doctor and patient relationship and creates an environment in which defensive strategies influence treatment decisions (Fielding and Waitzkin, 1999). Opponents also claim that damage awards are like winnings in a lottery and provide unscrupulous lawyers and patients incentives to sue the providers. The costs of defending malpractice lawsuits and damage awards are increasing the cost of medical treatment. The costs of defensive medicine are increasing medical costs and making medical care unaffordable. Compensation for medical injuries is a paramount goal of medical malpractice actions (Hay, 1992). Compensation should be timely, fair, and paid to all who qualify for it. To be timely, compensation should be paid expeditiously. To be fair, compensation should be proportional to the amount of loss. However, it is important to determine what injuries will be compensated. The system could compensate all injuries regardless of cause, or medically caused injuries only or negligent medical injuries only. Using the concept of quality costs, malpractice costs can be divided into injury costs and prevention costs (Morreim, 1995). Injuries are expensive. Costs of injuries can be categorized into four types: medical and non-medical costs, morbidity costs, mortality costs, and costs of pain and suffering. Costs of hospitals, nursing homes, physician visits, physical therapy, ambulances, wheelchairs, appliances, and so on are examples of medical costs. Non-medical costs include costs of home modification, rehabilitation, and so on. Morbidity costs include the value of goods and services a person would have produced if that person were not injured. Mortality costs are the net present value of the future earnings lost due to death. Differing perceptions about the medical malpractice compensation system among various groups has led to a variety of proposed resolutions to the problems (Rosenthal, 1988). Uncertainties about the claims and premiums have led physicians to blame lawyers for initiating spurious claims. Physicians consider the contingent fee arrangement between lawyers and patients to be an incentive to bring claims against physicians. The slow judicial system and juries are blamed for unreasonable outcomes of medical malpractice claims. By contrast, lawyers blame physicians for increased medical negligence. Physicians are faulted with lack of sensitivity toward patients. Resentments among patients about high physician incomes are also considered a factor in increased malpractice claims by unhappy patients. The indirect costs of the malpractice system and their impact on the health care system include costs of activities performed to reduce malpractice risks (Rothman, 1991). Increased costs of diagnostic procedures, record keeping, and increased time spent with patients are some malpractice-related activities that can increase health care costs. However, such increased prevention activities can increase health care outcomes and reduce subsequent costs of health care. Although both direct and some indirect costs of the malpractice system may increase health care costs, they can act as a deterrent to negligence and can improve outcomes. However, such deterrence's also can encourage physicians to over treat patients, thus significantly increasing health care costs without substantial benefits. Rising malpractice premiums and damages have forced interest groups to respond to the malpractice compensation system. Consent and Informed Decision Making Benny in this case has the right to file complaints against Douglas because there are ethical and legal reasons why doctors must adequately inform patients about proposed treatments or procedures, especially in regard to risks and dangers, and be satisfied that patients understand and consent to such measures (Sargent and Johnson, 1996). This arises principally out of respect for the autonomy of the patient. Second, if a doctor undertakes any procedure which involves touching the patient without consent, the doctor is guilty of an assault, or more precisely in legal terms, a battery, and an action in trespass may be brought against the doctor in a civil or a criminal court. For an instance in the case, Schloendorff vs Society of New York Hospital in the New York Court of Appeals in 1914, under the law of informed consent and respondent superior under the United States Law (Medscape.com, 2008). The complainant Mary Schloendorff, checked in the facilities of New York Hospital, she agreed to the hospital to perform an examination, however, she refused to get an operation. On the other hand, the doctor ignored the complainant's refusal to operations and removed her tumor. The court of New York found that the hospital and the physician guilty of medical battery. Every human being of adult years and sound mind has a right to determine what should be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault for which he is liable in damages (Sloan, 2001). According to HRA 1998 Article 8 "Right to respect for private and family life, the home and correspondence" Douglas should have respected the decision of Benny, not to have an operation because of his religion. Doctors who fail to adequately inform their patients about their condition, treatment options or material risks of treatment, may be sued on the grounds of negligence (Visscher, 2002). Patients generally desire more information than they are currently receiving to enable them to fully participate in informed decision making. The same studies revealed that most doctors were aware of this desire but many were uncertain of how much information was desirable or sufficient (Barzansky and Gevitz, 1992). The comments of unsatisfied patients revealed that poor communication was often a difficulty, quoting the use of medical jargon which was not understood, being rushed, having information withheld from them and being discouraged from asking questions. The plaintiff, in the Sidaway vs Bethlem Royal Hospital Governors in 1985, had a pain in her neck, right shoulder and arms. According to her attending neurosurgeon, he was granted a consent by the plaintiff for cervical cord decompression (All Engl Rep, 1984). However, this surgeon did not inform the plaintiff of the post operation side effect that is paraplegia. In this case it is the duty of the surgeon to inform the patient of the side effects of the operation so that the patient will be given a chance to arrive to a more appropriate decision, to undergo the treatment or not. Genuine emergencies are the principal exception to the general rule that a doctor who goes outside the scope of authority expressly or implicitly conferred by a patient risks liability in trespass (Byrd and Clayton, 2000). The exception presumes that the patient is temporarily incapable of giving consent. This exception does not absolve the doctor from adhering to appropriate standards of care in the circumstances of the emergency. As soon as the patient's condition is sufficiently improved or stabilised, consent for ongoing treatment must be obtained. Although this ethical and legal responsibility has long been accepted and broadly understood by doctors, difficulties in obtaining a patient's consent still arise, particularly in regard to what and how much information needs to be disclosed, what constitutes a material risk, what to do when dealing with minors or the intellectually disabled, what constitutes implied consent and whether 'therapeutic privilege' can be claimed (D'Ydewalle and Lens, 1981). Consent may be obtained orally, in writing or be implied. The more major the proposed treatment, such as a surgical procedure or invasive investigation, the greater is the need that the patient be fully informed and the greater is the desirability that the patient's consent be attested to in writing (Fielding and Waitzkin, 1999). The recommendation that consent be in writing is not a legal requirement. The existence of a signed consent form does not constitute conclusive evidence of adequately informing a patient; consent forms are more usefully regarded as an important reminder that sufficient information be given for the consent to be valid and as prima facie evidence that the discussion took place. Traditionally, written consent has not been obtained when medications are prescribed, but the duty nevertheless to warn patients of significant side effects must not be overlooked. In everyday medical practice, as for example when patients attend for consultations, accept prescriptions or proffer an arm for blood pressure measurement, venesection or injection, consent is either implied or verbal. Depending upon any pre-existent doctor-patient relationship which provides a basis for mutual understanding, the nature of the clinical problem and the patient's attitude and capacity to understand, more or less time may need to be devoted to communication specifically directed towards consent. It is not possible to provide advice which predictably or fully covers every eventuality. To be legally competent to give consent, a patient must generally be an adult (eighteen years of age or over). The patient must also have the cognitive capacity to understand the medical condition, the options for treatment, what the doctor is recommending, any material risk and what may happen if no treatment is given. The treating doctor is responsible for assessing in each case whether the patient is competent to understand. A higher level of understanding is required for more complex or risky procedures. CHILDREN AND TEENAGERS Parents can generally consent to medical procedures for their children provided that the proposed procedure is in the child's 'best interests'. Special rules apply for non-therapeutic procedures such as sterilisation. Here parental consent is not sufficient and a court order is required. In the Children (Care and Protection) Act 1987 defines a range of special medical treatments for which the approval of the Supreme Court must be obtained for minors under sixteen years of age. These include treatments to produce prolonged or permanent infertility, the prolonged administration of a drug of addiction or certain experimental procedures (Gallie et al, 1998). Where a proposed procedure is relatively minor, older children can provide consent themselves (Kapp, 1998). For an operation or more serious procedures, the consent of a parent or guardian is necessary, other than in true emergencies. In some states, legislation exists which links aspects of consent to stated physical age. For example, the Minors (Property and Contracts) Act 1970 provides protection from liability for assault when a doctor treats a minor under sixteen years of age with the consent of a parent or guardian. The same Act allows minors over fourteen years to give consent for treatment, but if this treatment is opposed by the parents, the doctor should not proceed other than in an emergency. In the reverse situation (i.e. where the parents are requesting that a procedure be done but the child aged over fourteen is opposed to the treatment) the refusal of the minor must be respected. Such conflicts between parent and child are best resolved by a court order. In South Australia, under the Consent to Medical Treatment and Palliative Care Act 1995, doctors can accept the consent of a child, provided the child is capable of understanding what is proposed, the treatment is in the child's best interests and a second doctor has assessed the child and has concurred in writing. A frequently faced problem is the request from a sexually active teenage girl for advice on contraception, where the teenager makes it clear that her parents are not to be informed of her attendance (Klosek, 2000). Each case should be judged on its merits, but for practical purposes it is generally permissible for doctors to treat teenagers who are sixteen years or over, provided they are mature and appear to understand the proposed treatment. If they meet these criteria, they are also entitled to have their medical information kept confidential from their parents. When the teenager is under sixteen or where doubt exists as to the maturity of a teenager over sixteen years, greater care must be taken and the doctor should endeavour to obtain the consent of the parent or guardian as well, unless the minor clearly objects. The doctor is not necessarily obliged to provide treatment to such a minor, other than in an emergency. Another practical difficulty which may emerge is where parents are separated or divorced and the custody of the child is in issue. Other than in an emergency, doctors should take care to accurately establish the legal situation in regard to which parent is able to consent on behalf of the child, especially when procedures carrying risks are proposed (MacCarthy and Wilson, 2001). The situation can be made more complex if one parent has custody but the other is responsible for medical expenses. Where a child is temporarily in the care of a teacher, baby sitter, relative or sports coach or the like, again care should be taken to obtain consent from a parent for medical treatment other than for first-aid or in an emergency. Legal protection for certain emergency procedures on children exists in some states. The Emergency Medical Operations Act 1973 permits emergency surgery without the consent of parents, the Consent to Medical Treatment and Palliative Care Act 1985 places an obligation on the doctor to seek the consent of the parent or guardian. Eventhough, it is an emergency situation, Douglas should have waited for the consent of the parents or guardians of Benny's parents before pursuing the gall stones operation (Morreim, 1995). Competent Patient and Refusal of Treatment A competent patient at all times may refuse treatment or withdraw previously given consent to treatment, even where that treatment is regarded as life-saving by the doctor (Selwyn, 2001). Difficulties arise where an illness renders a previously competent person incompetent and decisions need to be made as to whether treatment should be continued. Some doctors have expressed concern as to their legal position if they withdraw treatment in this situation. This problem has been addressed by the Medical Treatment Act 1988 which allows patients to complete a refusal of treatment certificate in advance of their becoming incompetent. It also allows patients to appoint someone to make decisions on their behalf should they become incompetent. The patient-advocate is a responsible person, whether family or friend, whom the patient, when competent, has nominated to speak for him or her, and who is familiar with the patient's views and philosophies. The guidelines state that any directives previously made by the patient should be taken into account (Selwyn, 2001). Treatment maintaining a persistent vegetative state is categorised as futile. Futile treatment is defined as 'investigations and treatment which according to professional judgment will lead to inappropriate outcomes such as continued pain, unacceptable quality of life or maintenance of a vegetative state with no possibility of a reversal of that condition'. The guidelines then state that if they have been followed 'it should be reasonable to withdraw or withhold intensive monitoring or therapies which are considered to be burdensome or futile to the patient' In the HRA 1998 article 2, Personal autonomy is people's capacity to choose freely and to be able to direct their own lives. In every day life, EHPs regularly seek to control the behaviour or responses of others through persuasion, coercion or the overt use of legislative powers, for example, by badgering a food handler to make more regular and better use of the wash-hand basin or trying to dissuade the smoker from "lighting up" at work. Challenging a person's autonomy to achieve what is perceived to be a wider benefit is a regular feature of an enforcement officer's life. (Gorman and Mihalkanin 1997) Exercising reasonable choice - taking decisions on the basis of deliberation - is a cornerstone of personal autonomy. But if a reasonable choice that is based on adequate understanding is to be made, a person needs balanced, unbiased information in an accessible form. If Benny intentionally fails to provide essential information or if it is provided in written form, in terms couched to confuse or obscure the key facts, then is that person not acting unethically If the act was deliberate, then there is probably an ethical debate to be had. But what about the unintentional effect of the use of jargon The case of Rogers vs Whitaker showed that in order to get the consent of the patient, it is the duty of the doctors to inform patients according to the following guidelines (Richards, 2005): The mental capacity and level of comprehension of the patient. The seriousness of the patient's illness and the negative effects of the treatment The possible adverse impact of the treatment to the patient. Consequently, as a case officer, the need to remain as objective is possible during an investigation, even when making subjective assessments, is impressed on EHPs at an early stage of practical training. From a legal standpoint, to exhibit bias towards one party in a dispute before the evidence has been assessed may prejudice later action. When viewed from an ethical perspective this absence of bias becomes even more important. 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