Legal Issues and Concepts in Medicine - Essay Example

Despite legal issues being a regular feature of the practice of clinical medicine, physicians are not, in general, trained in the medico legal aspects of medicine. The violation of clinical responsibility constitutes, at least in part, the basis of unprofessional conduct. A profession is defined as "an occupation that regulates itself through systemic, required training and collegial discipline; that has as a base in technical, specialized knowledge; [and] that has a service rather than a profit orientation enshrined in its code of ethics"1. The concept of malpractice was related to the medical profession in 1768 by Sir William Blackstone, who defined mala praxis or bad practice to include, "Injuries... by the neglect or unskillful [sic] management of [a person's] physician, surgeon, or apothecary... because it breaks the trust which the party had placed in his physician, and tends to the patient's destruction2." Tort law comes into play whenever one person harms another. Tort derives from a Latin word which means twisted. Therefore, a tort is an act that has been twisted from the benchmark or is in other words a wrong. The objective of the legal system in resolving torts is to restore the plaintiff to his previous condition; however this can prove to be impossible in many medical situations. If this is not possible, then money is awarded to compensate for the damages that the defendant caused the plaintiff. In the mid 19th century, physicians strived to obtain for medicine the status of a profession, arguing that physicians and patients were not peers and, hence their relationship should not be judged under the contract law. This change in status enabled medicine to obtain the licensing laws sought by physicians of the period. However, it also served to force malpractices into the sphere of torts, which are vaguer, easily manipulated and more subject to interpretation. A malpractice tort comprises of four criteria, first, duty to treat; second, deviation from the standard of care; third, damages; and finally, the causation of damages by the deviation, which is also known as proximate cause. Success in a malpractice action requires the plaintiff to establish that the defendant has met all the four criteria otherwise the defendant will not be held to be guilty of malpractice. Depending on the state, additional criteria might be required for allowing a case to go to a jury trial. The term duty refers to a duty to provide the standard of care, which is established when the physician patient relationship is created. It refers to the duty to show the required skill, care, and diligence that a prudent physician would have shown under similar circumstances. In the emergency department (ED), the physician and patient have no choice in choosing the relationship. The federal Emergency Medical Treatment and Active Labor Act (EMTALA)3 applies to EDs requires emergency physicians (EP) and hospitals to provide medical screening examination in all emergency cases, regardless of that person's paying capacity. Under EMTALA, ED and emergency medicine (EM) physicians have to provide care, whereas private practitioners need not do so. Since, EMTALA has unequivocally established the duty of a hospital and EM physician towards the patient, the premise of duty is an uncommon contention in EM malpractice cases. Causation in technical cases, like those involving medical practice can prove to be abstruse for a layperson. Further, confusion is caused by the differences between medical causation and the legal concept of causation. Legal causation or proximate cause refers to the single causative factor of injury. The defendant physician is liable for injuries if they had been of an anticipated nature. In Falcon v Memorial Hospital4, a woman after childbirth had an amniotic embolism and died due to non provision of an intravenous line, which according to the testimony, would have given her 37.5% chance to survive. The court held that this had resulted in the patient being deprived of a chance to survive. This case deviates from the standard duty, standard of care, breach and damages formula that malpractice cases must satisfy. In the ED, the hospital being the employer is responsible for the actions of doctors, nurses, technicians, orderlies and secretaries. This constitutes vicarious liability, which is based on the doctrine of respondeat superior. In Capan v Divine Providence Hospital5, the court held that the physician is an agent of the hospital. In Brown v La Societe Francaise de Bienfaisance Mutuelle6, a California court held that the hospital was liable for a physician's negligence as the patient sought care from the hospital, which employed the doctor. If the hospital does not pay the ED group, the hospital can be held liable for a physician's negligence7. In Beeck v Tuscon General Hospital8, a contract existed between the hospital and the physicians group, conjoining their relationship and this creates a potential liability for the hospital. In People v Einaugler9, a New York physician was convicted of reckless endangerment and willful violation of New York's health laws, when he mistook a patient's peritoneal dialysis catheter for a feeding tube and ordered feedings to be administered through it. The physician delayed the patient's transfer to the hospital for more than 10 hours resulting in death within days. In 1993, an anesthesiologist fell asleep during a mastoidectomy of an 8-year-old patient, resulting in the patient's temperature reaching 107F and blockage of the endo tracheal tube. The physician's license was suspended as he was found to have been grossly negligent and he was also charged with manslaughter in connection with the boy's death10. Negligence is breach of legal duty of care owed to one person by another, resulting in damage being caused to that person. Clinical or medical negligence deals with claims against doctors, other healthcare professionals and their employers. Success in a claim for negligence, requires the claimant to prove that, the doctor or other healthcare professional owed a duty to take care of the claimant and not cause injury; there was a breach of that duty to take care; that breach of duty had caused harm to the claimant and that damage or other losses had resulted from that harm. It is essential to demonstrate that whatever the doctor did or did not do was inadequate in comparison to what a plausibly proficient doctor would have done. The test of negligence of a doctor as to whether he or she was upto the mark of a reasonable body of other practitioners also skilled in that field is known as the Bolam Test. Further, the court has stated that if a body of medical opinion is relied on to demonstrate that a particular doctor has not been negligent it is essential to illustrate that such medical opinion is logical and reasonable. The implication is that the body of opinion supporting the doctor has to be reasonable. At times the only clarification is that negligence has transpired, for example a surgeon amputating the wrong leg or a dentist pulling out the wrong tooth. In such cases there is a presumption that the doctor was negligent and the onus of proving their innocence is entirely theirs. In the present case, Mr. and Mrs. Aron and their five year old nephew Thomas after a motor car accident were taken to the emergency department of Terella Base, a country hospital. Due to the accident Mr. Aron sustained fractured ribs, a (R) pneumothorax and a suspected ruptured spleen. Thomas sustained an open fracture of his (L) tibia and fibula. Mrs. Aron escaped unhurt in this accident. The hospital staff informed Mrs. Aron that her husband and her son required emergency surgery. Mrs. Aron given her written consent for the operation duly providing the complete medical history of her husband and nephew and that her nephew Thomas a patient of epilepsy was being treated with the drug Dilantin for epilepsy. During the course of treatment, Thomas exhibited epileptic symptoms. Nurse Buxom consulted Dr. Crow who verbally ordered administration of 450 mg of I.V. Dilantin, while rushing to attend to Mr. Aron. Nurse Buxom administered the injection as instructed and then she entered the dose and route on the drug chart. Thomas stopped breathing and was found to be in a state of collapse due to this medication. Doctor Crow did not sign on the chart, stating that he did not order that particular dosage. He rewrote the drug order for a lower dose and then signed on the chart. Mr. Aron failing to adhere to the medical recommendations, upon discharge, died at home four weeks later. The basic principle of clinical responsibility is breached in this medico legal case, because a physician must demonstrate integrity, service, compassion, conscientiousness, commitment to clinical and scientific excellence and appropriate behavior toward colleagues. In Wright v Abbott Lab. Inc11, it was held that the nurse's failure to read the manufacturer's warning on a medication container was an interveningact which precluded liability for the manufacturer of the drug that had resulted in brain damage to a child. In this case Eric Wright was born at Wesley Medical Center and shortly after his birth,he had low blood pressure. The hospital transferred him to its NeonatalSpecial Care Unit (NSCU). Dr. Barry Bloom directed Nurse Benjamin to "Piggyback" normalsaline, 20ccs over 30 minutes" in order to raise Eric's blood pressure. Anothernurse, Nurse Diltz offered to help and was told to prepare the solutionof un concentrated sodium chloride. The court held that Nurse Diltz behaved irresponsibly by not ensuring that she was administering the correct drug and that her failure to read the label was an intervening cause ofEric's injury. It was further held that even if Abbott had erred by not warning the hospital, Diltz's action broke the causal connection between Abbott's original wrong andEric's injury. Medical malpractice results when a negligent act of commission or omission by a doctor or other medical professional results in damage or harm to a patient. Such negligence could include a mistake in a diagnosis, treatment or illness management. Whenever the result of such negligence is injury to a patient, a case could arise against the doctor if the doctor's actions had diverged from commonly allowed standards of practice; against the hospital for improper care, like unsatisfactory medication, sanitation or nursing care; or against local, state or federal agencies that operate hospital facilities. In Doe v Roe Obstetrician12, the defendant after delivering triplets at a hospital suffered a stroke that left her with hemiparesis and cognitive problems. The court held that her condition was caused by improper discharge after delivery. Medical malpractice is applicable to doctors, nurses, dentists, osteopaths, health care facilities and others providing health care services, such as nursing homes. In the present case, doctor Crow had failed to prescribe the correct dosage of the drug to be used in treating Thomas for the ostensible reason that he was summoned to attend upon Mr. Aron in another operation theater. This constitutes gross negligence on the part of doctor Crow, while treating an epileptic patient. Common instances of mistakes committed by doctors are failure to diagnose a condition, misdiagnose a condition, failure to follow proper medical procedure and failure to protect patients from additional harm. Most instances of such mistakes occur without the patient or the patient's family coming to know that doctor mistakes have taken place. While it is the endeavor of most doctors to provide the highest level of care and treatment, some doctor mistakes do occur and fear of liability forces doctors to conceal such information. The damages sustained due to doctor mistakes can be extensive, both financially and physically. Nursing malpractice is negligence of nurses resulting in emotional or physical damage to a patient under their care. Any medical professional is accountable for medical malpractice. Instances of nursing malpractice are surgical mistakes; negligence during child delivery; failure to properly diagnose and treat an illness within time; failure to observe a significant change in a patient's condition or failure to notify the doctor of such change; misuse of a medical device or any other negligent act resulting in injury or illness due to falling short of the nursing standard of care. The four basic elements of a nursing malpractice case are, first, it has to be proved that the nurse did not meet the basic standards of care while treating the patient and which are what a reasonable and careful nursing professional would have provided under similar circumstances. A victim of nursing malpractice must prove that this standard of care was not met leading to the injury or illness that was suffered. Such a victim has the legal right to seek compensation for all of these damages. In case of death, the deceased's beneficiaries or dependants may file a nursing malpractice suit to seek appropriate compensation. The laws regarding nursing malpractice vary by state and circumstance. Administering the wrong medication to a patient is one of the principal types of medical negligence resulting in serious injury and illness. Wrong medication can lead to serious problems for the victims of this type of medical negligence. Such medicine administration is one of the best tracked of medical mistakes and can occur in hospitals, pharmacies, nursing homes and home care. Medical negligence due to wrong medication can be the result of an incorrect medicine being administered or the administration of an incorrect dosage of the correct medicine. Children and infants are principally at risk from wrong medication administration, as their immune systems or chemical tolerance to handle wrong medication are not as efficient as that of adults and because of specific age and weight factors. Nurses have to implicitly follow the "Five Rs in medication administration, while discharging their standard of care responsibilities. These are the Right medication to the Right Patient in the Right dose by the Right route at the Right time". If these rules are ignored, then a patient could be injured or harmed, resulting in the health care professional being held liable in a medical malpractice case13. Thus there is a breach of duty by both the doctor and the nurse while administering treatment to Thomas, which resulted in the collapse of breathing. Nurse Buxom should have taken the order in writing from the doctor and should have obtained his signature. However, nurse Buxom, should have read the instructions on the container of this drug and most importantly she should have consulted another pediatrician, since children have to be handled with great care due to their lower immunity in comparison to adults. Further, doctor Crow refused to accept that he had instructed the nurse to give the higher dosage. This indicates his malafide intent and his desire to avoid responsibility for having diagnosed and prescribed in an incorrect manner. Moreover, although he had time to write down the dosage, he just wrote down the name of the drug and dashed off to the operation theatre. Mr. Aron died after being discharged from the hospital as he had neglected to follow the instructions given to him in the hospital. Since, he had ignored the hospital's instructions, Mr. Aron has displayed contributory negligence and this reduces the liability of the doctor and the staff of the hospital. In respect of Thomas and Aron, the hospital cannot escape its vicarious liability as the doctor and the nurses were its employees. This was the court's decision in Golden v. Autauga Medical Center.14 In People v Einaugler15, a New York physician was convicted of reckless endangerment and willful violation of New York's health laws. He had mistaken a patient's peritoneal dialysis catheter for a feeding tube and ordered feedings to be administered through it. An alert nurse discovered the mistake and this physician sought the advice of a nephrologist, who advised the physician to hospitalize the patient. The physician examined the patient and delayed his admission to the hospital by more than ten hours. The patient was diagnosed with peritonitis and died within days. The physician was held to be guilty of conscious disregard for the patient's safety in failing to transfer her to a hospital for treatment. An appeals court, while upholding the conviction stated that, this decision "does not support the proposition that medical professionals need fear the prospect of unwarranted criminal prosecution for honest errors of medical judgment." A number of experts, specializing in the improvement of health care quality have collected a great amount of strong evidence in respect of improving health care. This evidence has indicated that the best way to achieve these essentially required improvements in quality of medical care is by providing better opportunities for health professionals to work together to identify errors, or practices that may lead to errors, and correct them. The cause of several difficulties encountered with the health care system can be attributed to complex systems failure and not the failure of a single individual. Such problems can be solved only by garnering information from a wide cross selection of doctors and hospitals, and by encouraging them to pool resources in order to recognize and find acceptable solutions to these medical problems. Nevertheless, such efforts are hindered due to the absence of an unambiguous and all-inclusive protection for collaborative quality efforts. It has to be accepted that doctors are disinclined to gather quality related information and analyze. This is because of the very real and persistent danger that such information could be used against them or their colleagues in a lawsuit. In fact nearly, 95% of adverse events are not reported16. In order to engender improvements in quality, doctors should be able to exchange information about patient care and its proper implementation. Further, these endeavors to enhance the quality of the treatment entail improvements to information and reporting systems. Bibliography. 1. Annas GJ: Medicine, death, and the criminal law. N Engl J Med 1995 Aug 24. 2. Berlin L: Countersuing plaintiffs and their attorneys who have sued for malpractice. AJR Am J Roentgenol 1997 May. 3. Blackstone W: Commentaries on the laws of England. Vol 3. Oxford, England: Clarendon Press. 4. Brazier, M. (2003). Medicine, Patients and the Law. Third Edition, Harmondsworth: Penguin Books. 5. Brennan TA, Sox CM, Burstin HR: Relation between negligent adverse events and the outcomes of medical-malpractice litigation. N Engl J Med 1996 Dec 26. 6. Colon F: 10 ways to reduce medical malpractice exposure. In: The Physician Executive. Mar-Apr 2002. 7. Davidson TM: Anatomy of a medical accident. West J Med 2000 Apr; 172(4). 8. Feinman JM: Law 101. Oxford University Press; 2000. 9. Fish RM, Ehrhardt ME: Preventing Emergency Malpractice. Oradell, NJ: Medical Economics Books. 10. Jones, M. (2003). Medical Negligence. Third Edition London: Sweet & Maxwell. 11. Mason, J. K. & Laurie, G. T. (2003). "Misfeasance in Public Office: An Emerging Medical Law Tort" 11 Medical Law Review 194. 12. Starr P: The Social Transformation of American Medicine. New York; Basic Books: 1984. 13. Twardy S, Sanbar SS: Crimes by and against health care providers and criminal procedures. In: Legal Medicine. American College of Legal Medicine. Mosby; 1998. 14. US Department of Health and Human Services: National Practitioner Data Bank 2001 Annual Report. 15. Wood J, Weiss L, Lex J: Surviving a Medical Malpractice Suit. 9th Annual Scientific Assembly. New Orleans, LA; February 22, 2003. Read More