Concepts of Blame and Retribution - Essay Example

Relevance of the Concepts of Blame and Retribution in the Chief Medical Officer's Approach to Mistakes of Doctors: Introduction: Changes occurring in Health care delivery and Medicine are the result of social, economical, technological, scientific forces that have evolved in the 21st century. Among the most significant changes are shift in disease patterns, advanced technology, increased consumer expectations and high costs of health care. These factors have redefined medical practices to fit into the changing health delivery system. Thus, Medical Profession is 'Accountable' to the society. i.e. obliged to the laws regulating the professional activity. This 'accountability' is usually spelt out in "Patient Care Documents" established by hospital associations and medical associations or councils of every country (Suzanne, 2004). In addition, medical profession has defined its standards of accountability through a formal code of Ethics. Legal challenges and court decisions can seriously affect a doctor's professional future. Adrian Bowe, 31, from Dearhem near Maryport won 3 million in damages - the reason - He suffered a massive stroke in April 2000 completely paralyzing him because his GP failed to refer him to a specialist for medical treatment. He needs professional medical care for the rest of his life and will not be able to work again. Mr.Bowe first went to the doctor complaining dizziness and blurred vision. The doctor incorrectly diagnosed a migraine and his diagnosis remained unchanged despite Mr.Bowe making further visits. A year after the consultation Mr.Bowe's mother Patricia found him collapsed at his home. Subsequent tests revealed a massive stroke. In court, it was judged that the doctor should have referred Mr.Bowe to a neurologist based on his symptoms which were clear warnings of a stroke and was a strong case of wrong diagnosis. The Irish Medical Board reported six fatal adverse reaction reports in Ireland of the patients who were treated with the inflammatory blocker Humira, with a note that the deaths could have been also the result of underlying infections. Edward Wilson filed a lawsuit against the Beverly Health Care center, West Virginia which was responsible for his wife Carol's death in Jan 2004. He alleged that she died from sepsis due to multiple urinary tract infections she had developed due to poor infection control methods, during assisted toileting. The Daily post reported that Merseyside hospitals paid more than 5 million to patients for medical litigation compensations. In 2004-2005 alone, there were 470 cases of adverse medical events including 204 clinical negligence cases. Alarmingly, it is said that the number of cases which give rise to compensation are few and for between the actual negligence reports in NHS hospitals. These episodes of medical compensations apart from helping the victims, highlights the errors and negligence occurring in treatment situations and need to raise the medical care standards. The death of Nardia, 32, in Feb 2002 after a hysterectomy at Mater hospital has brought the senior surgeon under scrutiny although he was not excluded or cancelled from the Queensland Medical Board. Shahzadi Shahida Sultana, 35, Pakistan died after a 10 inch forceps was left out in her abdomen during a caesarean section. Two doctors were suspended after her relatives lodged a complaint against five women doctors in 2005. Astra Zeneca was forced to withdraw its alternative to the drug warfarin, after serious hepatotoxic reports in patients. The US food and Drug Administration refused to approve the treatment even after regulators approved the drug as a blood-thinner for patients who undergo hip or knee replacement in 2004. Hundreds of British patients had strokes and heart attacks after taking the arthritis drug retocoxib. They have launched a mass compensation claim in the British courts against the manufacturer, Merck. Merck had withdrawn the drug worldwide on 30 Sept 2004 after reported heart attacks and strokes on prolonged use of the drug . A polish woman, partially blind, has taken her doctors who refused to terminate her pregnancy to the International Court over denial of abortion (European Court of Human Rights). Inspite of the fact that her Myopia will lead her eyesight getting worse due to pregnancy, the abortion has been denied to her due to existing abortion laws in Poland (Pancerski,2006). Thus, patient's perceptions of health care, particularly disagreements and researches of various kinds with doctors have caught the attention of every one since 1980s in Great Britain. These disagreements have turned often into legal complaints (Ellen Annandale 1998). These disagreements turned legal complaints lead to long medical litigations. Most doctors strongly dislike medical-litigations, because the litigation is time-consuming and psychologically afflictive. Most of the doctors who undergo such psychological trauma of litigations of this kind are those who are not aware of the legal hazards of medical practice and their professional accountability. Strangely, the medical diagnostic process is a series of steps that lead to a usual expected conclusion called 'the cure'. Whereas, the legal process of medical litigation is a conclusion called 'the doctor's negligence' for which a series of steps are formulated towards the conclusion. An interdisciplinary study of medical-litigations shows that such adverse medical events are due to negligent patient care. Seventy percent of the negligence based adverse medical events resulted in disability lasting for about six months, 2.6 percent resulted in permanent disabilities and 13.6 percent led to death (Brennan.T 1991). Thus, most of the adverse medical events are due to medical mismanagement and substandard care. These adverse medical events vary based on the disability suffered by the patient and the physician's involvement in the event. Very often, the judgments on such medical-litigations are based on the gravity of the adverse medical event. Negligence can never be always correlated to medical records, and the reliability of review of medical records alone for a judgement is often questioned. This is because of the fact that medical litigations are extremely complex in its nature and there are no fixed physical parameters for adverse medical events to occur. An adverse medical event is an injury caused due to medical treatment rather than the disease for which the patient is treated. This adverse medical event prolongs the hospitalization process causing disabilities, either permanent or temporary. An adverse medical event due to negligence thus is an injury proved to be due to the sub-standard medical care not expected of a medical practitioner. An adverse medical event can be a temporary disability or even death due to injury. Although in most of the medical litigations, the severity of the patient disability has been predictive in judgments in favor of the patients, negligence does have an impact on importance of high-quality medical care and doctor accountability in adverse medical events. The Court usually award three types of damages. 1.Compensatory damages - for an injured plaintiff's economic losses, costs of health care and lost wages. 2. Compensatory damages - for non economic losses including pain, suffering associated to injury and 3. Punitive damages - in cases where a defendant (here, a doctor) has been found to have acted in a willful fashion, demonstrating negligence with no regard for the patient's well being. Thus , punitive damages aim to punish the defendants and are very damaging to the physicians. Medical malpractice law is part of tort, or personal injury law. The standard used to evaluate whether the breach in question rises to the level of negligence is called 'medical custom'. Medical custom is the quality of care expected of a doctor. This custom is primarily based on the testimony of experts in the medical profession and practice guidelines. There has been a shift in recent years from the custom towards a more independent determination by the court. Unlike health care facilities that are well placed under the risk coverage through insurance, doctors are not covered for such litigation risks (Brennan.T 2004). Although, medical malpractice system functions theoretically well, the actual operation of the system is much more complicated. Evolution of Malpractice litigation. Despite a series of medical litigations in the nineteenth century, suing doctors was not so easy until the later part of this century. Rights for advance directives, doctrines such as informed consent have created a new approach to medical litigations The increase in frequency of medical litigations can be attributed to five main factors. 1. Greater public awareness of medical errors 2. Loss of confidence in health care delivery system 3. Technological advancement 4. Increased expectations of medical care and 5. Reduced interest of the plaintiff in accepting compensations outside the preview of the jury due to higher compensation chances through jury. (Brennan.T 2004). Professional problems in medical litigations : It is important to note that many hospitals have closed high-risk services like obstetrics on account of fear of litigation. . The field of obstetrics has attracted the most attention in this regard. For example, some studies revealed that malpractice litigation hazards have forced increased delivery by cesarean section. One should understand that there is a distinction between medical malpractice litigation and patient safety awareness, although they are interrelated. If is true that medical malpractice litigations threat makes a doctor more accountable. But, there are always situations in medical practice which are beyond the control of human limitations. For example, the law always target individual doctors for their negligence. During the process of litigation, the circumstances surrounding the negligence are not probed into, especially the errors that arise of faulty systems (in which proficient doctors work). Medical litigation threat diminishes interest of the physician in patient safety/welfare activities, because they are offered no legal protection for the errors that may be an accidental outcome of the patient welfare activities such as clinical trial of a new drug for cancer. Moreover, it is absolutely difficult on the part of the jury to have an absolute scale of negligence in medical practice. For example, excessive bleeding after a gastro intestinal surgery may demand reoperation, sometimes even with unavoidable resection of the bowel. Determination of negligence here requires careful view of the circumstances of the surgery. This 'could have been avoided' (Avoidability clause) of the litigations usually serves the purpose of compensation in most cases. Research work has clearly shown that initiation of malpractice suits correlates poorly with the actual occurrence of adverse medical events, i.e. the afflictions resulting from medical treatment and negligence. A study of 51 litigations over a period of 10 years (Brennan.T 1998), showed that 24 of the litigations were identified as involving no adverse events; 13 cases were identified as involving adverse medical event but not due to negligence; 9 cases were found involving adverse medical event due to negligence. The medical practice is liable for six kinds of legal authority, viz, 'The federal or central law', 'The law of the state', The international code of physicians', 'Institutional rules and regulations', 'Standing orders of the chief' and 'Precedent court decisions' (Zwemer, 1995). There are certain areas in medical practice which have important legal implications called legal hazards. Negligence about these legal hazards can bring about serious legal difficulties. With increased patient awareness of the health care delivery situations, media flare up and public opinions, medical practice has become more accountable today and there is a radical departure from the traditional medical practice which draws upon the personal experiences, case studies and research of the physician and not the health care delivery system as a whole entity. Management Of Disputes between the doctors and patient - a departure from traditional approach. On account of the above discussed factors, there has been a departure from traditional approach to management of disputes between the doctors and patient. The important approaches in medical care today include 1. Documentation based Medical Practice. 2. Evidence based Medical Practice. 3. New Medical Guidelines and laws. 1. Documentation based Medical Practice: One of the most difficult realities of the medical practice is that, despite efforts and good care, some patients will die, either due to the nature of the disease like cancer, AIDS etc, or due to developments related to patient's age, health conditions etc. Although technological advances in health care bring extended and improved quality of life, the ability of these technologies to prolong life beyond a meaningful point has raised ethical issues, especially in "nothing more can be done" patients. Denial on the part of the patient and family members about the seriousness of terminal illness has been a barrier to discuss about end-of treatment options (Kubler-Ross, 1969). Research studies have confirmed that patients went information about their illness and end of life choices (McSkimming et.al, 1994). The case of Nancy Curzon throws more light on the legal implications of most medical decisions. Nancy Curzon was a young woman involved in a car crash after which she remained in a persistent vegetative state in U.S.A. Inspite of a three year legal battle of her family members to have her feeding tube removed to let her die, The Supreme court ruled that 'a state requires a 'Clear and Convincing evidence' of the patient's wishes for withdrawal of life-support. This gave rise to the legislations which encourage people to prepare advance directives in which they indicate their wishes concerning the treatment and care to be provided if they become incapacitated. Advance directives: Advance directives' are legal documents that specify a patient's wishes before hospitalization and provide the necessary information for tough decision making situations. Thus, proper documentation of the 'Advanced directives' is a key function in medical care of the terminally ill patients (Suzanne 2004). The Advance directive is usually composed of Living will: Living will is a medical directive issued by an individual with sound mind. This documents treatment preferences and provides instructions of care. This is often accompanied by a 'Proxy directive'. Proxy directive: This is the appointment and authorization of another individual to make medical directives on behalf of the person who created an advanced directive when he/she is no longer able to speak for himself/herself. This is known as Health Care Power of Attorney or 'Durable Power of Attorney'. A code of practice under the new Mental Capacity Act for doctors and others who deal with people who cannot take decisions for themselves was issued recently in draft for consultation. The draft code applies to England and Wales. It sets out how patient capacity should be evaluated and how these advance directives on treatment will function and how treatment modes should be decided. The act is expected to be in force from 1 April 2007. Living wills are already binding on doctors even under common law (Dyer,2006).Assisted suicide is a criminal offence except in the state of Oregon, U.S.A where there is a statute legalizing physician assisted suicide. Diagnosis and Treatment Report: Every Health Care delivery center today provides a report to the patient on the details of the diagnosis of the disease with follow up instructions, the Medicine information and the allergy reactions that could follow; dietary restrictions, dos and don'ts, restrictions and exercises prescribed. They take an acknowledgement either from the patient or an authorized person after receiving the report. This documentation serves a key purpose in medical practice (Hackensack University Medical Center, 2006). The Health Record: Documentation of records of all treatments and medications, as well as a record of a patient's reactions and behaviour should be understood. The health record is the written and legal evidence of treatment. This reflects only facts and not the judgement of the doctor. Careful and accurate documentation is vital for patient welfare and that of the doctor. The use of electronic documentation is becoming increasingly prevalent (Bunker, 1999). Documentation should include, medication administered, treatments done with date & time, factual, objective and complete data, with no blank spaces left in charting, on flow sheets or on check lists, calls made to health care team, client's response, signature of the nurse in every entry and consent for treatment (Julia ,1998). A private hospital in Milan, Italy, has been asked to handover for police verification of the medical records of at least twenty one cases who had heart valve surgery, following complaints that the surgeon replaced heart valves even in patients who did not need them replaced (Turone, 2005). Informed Consent: Before any terminally ill person receives his chemotherapy or an invasive procedure, he or his health attorney should give a well documented informed consent. Informed consent means that tests, treatments and medications have been explained to the person, as well as outcomes, possible complications and alternative procedures. A medical hospital has been pushed into a centre of a litigation storm after allegations of abnormally high death rate in its emergency wing. Thirteen deaths are under investigation now. This followed the anonymous complaints of sedation of terminally ill patients. Investigation has revealed an astounding 151 cases of sedation of which 57 cases had no informed consent of the family. A doctor has been suspended following the investigations for a series of 'serious administrative errors' in this regard (Waller,2005). 2.Evidence based Medical Practice: Evidence based medicine is the conscientious, explicit and judicious use of current best evidence in making decisions about the case of individual patients (Sackett, 1996). The practice of evidence-based medicine is the integration of individual clinical expertise with the best available external clinical evidence from systemic research. Individual clinical expertise is the proficiency and judgement that doctors acquire through clinical experience and practice. External clinical evidence is the relevant patient centered clinical research from the science of medicine. This includes the accuracy and precision of diagnostic tests, prognostic markers, therapeutic, rehabilitative and preventive regimens. External evidence sometimes replaces previously accepted treatments by virtue of accuracy and safety. Evidence based medicine takes patient's perspective also into account. Hence, evidence based medicine involves a big process of question building and this process of question building takes into account Clinical findings, Aeotiology, Diagnosis, Prognosis, Therapy and Prevention of diseases. This question building process gives the idea on the most important question, the question which is encountered very often in practice and the question's relevance very often in practice and the question's relevance to the patient situation. Evidence based medical practice is probably best understood as a decision - making framework that facilitates complex decisions across different and sometimes conflicting groups. It involves considering research and other forms of evidence on a routine basis when making health care decisions. Such decisions include choice of treatment, tests or risk management for individual patients, as well as policy decisions for large groups and populations (Baum, 2003). At a broader level, evidence based medical practice works by providing a safe framework in which different groups can make tough decisions by safe guarding their concerns by a fair and scientifically sound process. There are essential differences between traditional medical and evidence based medical practice. Traditional medical practice has always drawn upon the personal experience, case studies and research of the physician. In evidence based medical practice, health care decisions are based on a structured organized process to help physicians, nurses and patients alike to choose the best health care options and their consequences. Thus, the basic idea of evidence-based medical practice is to create a process of life long, self directed, problem based learning for doctors in which caring for their own patients is the prime motive. This caring creates a need for clinically important information about diagnosis, prognosis, therapy and other health care issues. In this process of evidence based medical practice, the doctors convert this information into answerable questions, tracking down with maximum efficiency, the best evidences which can answer these questions, critically analyze them for clinical applications, apply them, integrate them with their clinical expertise and evaluate their own performance. Of course, the best evidences are based on the conviction that a systematic documenting of a large number of high quality RCTs (Randomized with Concealment, Double blended, complete follow-up, intention to treat analysis) gives the least biased estimate. Thus, this becomes level 1 evidence and recommendations based on level 1 evidence are Grade A. Various terminologies aid evidence based medical practice such as 'Clinical practice guideline' which assists practitioner and patient make decisions about appropriate health care and 'Randomized controlled clinical trial' where a troup of patients is randomized into an experimental group and a control group. These groups are followed up for the variables and outcomes of interest. Doctors are under increasing pressure to keep up to date and to base their decisions more firmly on evidences as opposed to anecdotal information of the past. Patients are much more informed than they were 10 years ago. No doctor can tell a patient what to do without being questioned. The most important aspect of evidence based medicine is that it has provided a fair, scientifically rigorous method for making best-practice decisions. This has ensured professional transparency and accountability. Evidence based medicine does have limits. Absence of support structures for sustained evidence, lack of commitment to the process, insufficient evidence for too many problems do pose some challenges. But, evidence based medicine provides a medical practice with a stronger application of the scientific method (Baum, 2003). This also provides all groups involved in providing health care with a rigorous and acceptable frame work for making complex decisions, at a time when effective decision is badly needed. In this context, the ultimate goal of medical profession is to care and cure keeping in view the trust issues in dealing with the patient. The doctor's primary commitment is to the patient and profession. Recent studies identify 16 interventions with proven efficiency under ideal conditions for neonatal survival. These can be used to scale health systems by three approaches, namely outreach delivery mode, family community mode and facility based clinical care. All the modes have been found to be cost effective. Universal application of these is estimated to avert an estimated 72% of neonatal deaths all over the world. Neonatal mortality of less than 50% can be achieved with high-coverage outreach and family-community care. Averting neonatal deaths is possible even in high mortality weak health systems through outreach and family-community care, including health education to improve homecare practices. Clinical care of babies and mothers is an essential aspect of reduction in neonatal deaths (Bhutta, 2005). 3. New Medical Guidelines and laws Patient safety: Over the past years, new guidelines have been established for a clear frame work of accountability with the National Health Service(NHS), Dept of Health, U.K, in order to bring improvement in the health care delivery system. The Chief Medical Officer's report in 2000 indicated the need for patient safety in the realm of large scale occurrence of adverse medical events. The subsequent Government guidelines released in 2001 summarizes the relevant legislations and actions for patient safety. According to the guidelines published by the title Building a safer NHS for patients in May 2001, 'Patient safety incident' is any unintended or unexpected incident that could have or did lead to harm for one or more persons. 'Prevented patient safety incident' is the patient safety incident that had the potential to cause harm. NHS has called for urgent action to replace the guidance on suspension of doctors and dentists and a series of steps have been taken in the last few years to achieve this. This includes the introduction of a framework on the exclusion of doctors and dentists in 2003. On 17 Feb 2005, The Department of health, U.K has framed guidelines in its publication "Maintaining High Professional Standards in the modern NHS". This has been in force since 1 June 2005 and covers conduct issues as well. According to the new framework, when a concern about the practice of a doctor which may place patient safety in doubt arises, He/She can be immediately, temporarily excluded from service to enable rapid investigation. These new procedures have the support of "British Medical Association" (BMA) and "British Dental Association" (BDA). These guidelines have put an end to the controversy surrounding personal and professional misconduct. These guidelines deal poor clinical performance and allow procedures on capability and health. Thus, Doctors in U.K will come under the same disciplinary procedures like other NHS staff members and Medical consultants who are dismissed do not have the right to appeal to the Secretary of State for Health. The "National Clinical Assessment Authority (NCAA) set up in 2001 has been functioning to help NHS deal effectively with concerns about poor performance through expert advice and exploring new avenues on individual performance. Patient safety is a key theme in UK's presidency of the European Union (EU). The United Kingdom of Great Britain and Northern Ireland (UK) hosted a 'Patient Safety Summit' on 28-30 November 2005 in London. This patient safety summit highlighted the safety standards and education in patient safety. The workshop was attended by a large number of patients who themselves had been seriously harmed by health care. At the summit, the W.H.O sponsored "World Alliance for Patient Safety" launched the new draft guidelines for Adverse Event Reporting and Learning systems for patient safety. The aim of these reporting systems in to learn from experience and mistakes and to use the results for implementing good patient care. Clinical Governance: Clinical Governance is a concept framed by the NHS based on the fact that high quality health care can be provided if well trained staff, good facilitates and equipment are provided. The consequences of the Bristol children's Heart surgery service opened a natural debate on professional standards. The General Medical Council, U.K, struck off two doctors from the medical register. Clinical Governance is the way which provides accountability of organizations like hospitals, primary care centers, mental health and ambulance services. This concept of clinical governance was drafted by Sir Liam Donaldson, Chief Medical Officer in 1997. Clinical Governance stresses on the quality of patient care and safety. This is substantiated by clear standards as set by 'National Institute of Clinical Excellence'; Accountability for service quality, appraisal of all doctors and staff and addressing poor clinical performance as per the guidelines of 'National Institute of Clinical Excellence' (NICE); Evolving effective systems for recognizing 'adverse events', errors and negligence as per the framework of 'National Clinical Assessment Authority (NCAA)' and 'National Patient Safety Agency'. Twenty eight 'Strategic Health Authorities (SHA) have been assigned the task of ensuring the delivery of safe, quality health care through effective clinical governance. The implementation is supported by clinical governance support team (CGST). This CGST runs various programming for medical teams, doctors and health care delivery systems. Clinical Governance resources are provided based on real life situations including 'Three sets of Twenty Lessons Cards' containing short hints, 'Eurakas' which contain stories of patient care', 'Performance Enhancement stories (PENS)' and e-News letters. "The Quest for Quality in the NHS - a mid term evaluation of the 10-year quality agents", published by the NHS in 2003 indicates progress in clinical governance and effective patient care with increase in staff awareness and understanding. Thus, patient centered medical care is becoming a realistic concept in U.K. Further, a new press release of the CMO (Friday, 31st March 2006) indicates changes in the clinical practice guidelines, encouraging physicians to a more direct role in managing patients suffering from seven long-term medical conditions including dementia, depression, chronic kidney syndrome, atrial fibrillation, obesity and learning disabilities. The doctors will also be awarded incentives to develop palliative care. As per the new guidelines the patient's views and experience of access and choice will be of prime importance. This in turn is expected to deliver up to date effective treatments. The patient's experience and views will be scaled through health surveys. These practitioners are expected to share an extra 1.90 per patient for involvement in this 'Practice Based Commissioning (PBC)' including rewards in return for reduced level of referrals. These doctors will be rewarded for how well they care for patients rather than for just treatment. Thus, Care for the Patient rather than 'Treatment of Disease' is the focus of attention today. Establishing hospitals or integrated delivery system as the point of legal responsibility (Enterprise - liability models) has been effective in U.K. In such models, the enterprise takes the responsibility for any litigation against a clinician. A hospital trust in UK has been prosecuted for not supervising two junior doctors who negligence led to a patient death. It is for the first time that an NHS trust had been prosecuted. The patient Mr. Phillips, admitted for a routine knee operation developed Staphylococcal toxic Shock Syndrome ( Dyer,2006 ) .As per a recent draft, patients in England who suffer on account of adverse medical events in NHS case could get up to 20,000, ($ 35,000 /29,000) compensation without resorting to litigation. This is being done to divert low value cases from the court of law. Conclusion: Changes in financial incentives and health care delivery structures are producing new threats to health care quality (A.Brennan, 1996). The retributive measures are cumbersome and expensive. Hence, there is a need for more accountable health delivery system which will enable application of modern scientific approaches to quality health care system. 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