Evolution of Malpractice Litigation in the UK - Essay Example

Healthcare Ethics and Law 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 medical professional's future. Thus, patient's perceptions of health care, particularly disagreements and researches of various kinds with medical professionals 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. In UK, the Court usually award three types of damages for such litigations.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 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 medical professionals. 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 medical professional. 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, medical professionals 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 in UK: Despite a series of medical litigations in the nineteenth century, suing medical professionals 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). 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. On account of the above-discussed factors, there has been a departure from traditional approach to management of disputes between the medical professionals and patient. The important approaches in medical care today include 1. Documentation based Medical Practice and.2. Evidence based Medical Practice. Documentation based Medical Practice: Documentation based Medical Practice include "Diagnosis and Treatment Report "which every Health Care delivery center today provides 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, which is the documentation of records of all treatments and medications, as well as a record of a patient's reactions and behaviour. The health record is the written and legal evidence of treatment. This reflects only facts and not the judgement of the medical professional. Careful and accurate documentation is vital for patient welfare and that of the medical professional. 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) and The Informed Consent which means that tests, treatments and medications have been explained to the person, as well as outcomes, possible complications and alternative procedures. A medical hospital in U.K 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). 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. 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. The Case Scenario: Refusal of Treatment During routine antenatal screening, a client was found to be HIV positive. Despite counselling, she refused anti-retroviral therapy during her pregnancy. Following the birth of her baby, she maintained that any treatment/intervention should be withheld, as she believed that neither she nor her child were infected with this disease. The above scenario identifies a situation that health care professionals today frequently face - 'refusal of treatment.' Under the existing UK law, the doctor under such circumstances should judge the options clearly and be prepared to defend his decisions. In case of litigations on account of such medical decisions, the court will decide based on the findings whether the treatment was given in the best interests of the patient. The Bolam test is used to determine the best interest standards, which confirms if a responsible body of medical opinion, would affirm that the treatment was in the best interests. Patrick Hoyte, in his publication Consent may not be needed to save life opines that in case of such adults who will not allow a retroviral therapy in all circumstances, giving a treatment under such a restriction would lay the doctors open to legal charges of battery (Patrick Hoyte,1997 ). According to Hoyte, when a patient temporarily, or permanently, lacks the capacity to give or to express consent to treatment, it is axiomatic that treatment necessary to preserve the life, health or well-being of the patient, may be given without consent. This is not only lawful for doctors to provide such necessary treatment to incapacitated patients, but it is also their duty to do so as medical professionals. According to English Law, no one can give consent on behalf of an incompetent adult. - but, treatment can be still be given in the Best interests of the patient. But, in case the patient when a competent adult issues an advance refusal of treatment under certain circumstances, the doctors should abide by the same. The Mental Capacity Act: 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 April 2007. Living wills are already binding on doctors even under common law (Dyer, 2006). These advance directives helps sort out two types of legal situations.1.These directives help a competent adult to choose his treatment and 2. These help a competent adult to choose his treatment options when he becomes incompetent under circumstances of a disease or accidents. There is no second opinion on the fact that only a competent individual can give an informed consent or refuse treatment. But the concept of competence is broad with moral, medical and legal implications. Hence, it is first important to determine the competence to give or refuse consent. It is important to see if the patient is competent or marginally competent or incompetent. This can be done by the application the classical 5 tests for testing the level of competence of this case. The 5 tests to determine the competence test the following; 1.Reasonable outcome by which the individual is declared competent if consent or refusal seeks a reasonable outcome. 2.Rational reasons by which the individual is declared competent if consent or refusal follows a rational process. 3.Ability to express consent or refuse consent in spite of reasonable outcomes. 4.Ability to understand by which the individual is declared competent if one has the ability to knowingly act on information given in the process of obtaining or refusing consent. 5.Ability to actually understand by which the individual is declared competent if one actually understands the information presented. Informed consent or refusal of treatment in a competent individual is an expression of his right heeding to his/her wishes or desires. In an incompetent individual expression of his/her right is done in their "best interests" from a psychological and medical viewpoint. However, there seems to be a group of individuals who are marginally competent. This group seems to lie in-between the two extremes of competence and incompetence and competence in this case thus appears to be a matter of degree. Marginal competence seems to occur in individuals in adolescence where competency is still in the developmental stage thus bringing age factor into the argument. Mentally retarded persons who have some understanding of the reality and are able to express their wishes and desires can also be considered marginally competent. Mentally ill individuals whose illness has not completely impaired their understanding and capacity to express their wishes and desires are also considered marginally competent. These individuals are not incompetent though they suffer from specific deficits due to destroyed faculties. These marginally competent individuals make a significant group and recognizing the existence of such group of marginally competent individuals will help define competence better.A Medical approach to competence is broader in spectrum than a legal approach. This is because of the fact that always a functional test is used to test the competency, which gives a better understanding of the individual's functioning in the society, work history and interpersonal relationships than a legal approach which focuses on specific legal contexts like understanding of a particular transaction, legal contracts and consequences. 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. In this context, quality of the medical care depends on promotion of quality medical care by managed care organizations like NHS. There should be regulations, which will apply the principles of quality management and improvement. These regulations integrate knowledge from modern scientific fields with quality management. Over the past years, new guidelines have been established for a clear framework of accountability with the National Health Service (NHS), Dept of Health, U.K, in order to bring improvement in the health care delivery system. 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. 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. 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. Clinical Governance is the way which provides accountability of organizations like hospitals, primary care centers, mental health and ambulance services. 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 clinical performance as per the guidelines of 'National Institute of Clinical Excellence' (NICE). Works Cited: Ann J. Zwemer, "Professional Adjustments and Ethics for Nurses in India"., 6th edn, B.1 Publications, India, 1995. Annandale, E and Hunt, K "Accounts of Disagreements with doctors", Social Science and Medicine 1:119-129, 1998. Annandale, E, "The malpractice crisis and the doctor-patient relationship" Sociology of Health and Illness 11:1-23, 1989. Atkinson P. Medical talk and medical work: the liturgy of the clinic. London: Sage, 1995. Audit Commission. What the doctor ordered: a study of GP fund holders in England and Wales. London: HMSO, 1996. Bojan Pancerski, "British Medical Journal", 332:382, 18 Feb 2006. Bosk, C, "Forgive and Remember: Managing medical failure", Chicago University Press, Chicago, 1979. Boulton M, Fitzpatrick R, Swinburn C. Qualitative research in health care. II. A structured review and evaluation of studies. J Eval Clin Pract 1996; 2: 171-179. Brennan, T, et.al, "Incidence of adverse events and negligence in hospitalized patients: the results of the Harvard Medical Practice Study", New England Journal of Medicine 324: 370-76, 1991. Brunner & suddharth's, Suzanne C. Smeltzer, Brenda.G, "Textbook of Medical Surgical Nursing", 10th edn Lippincott U.S.A, 2004. Claire Waller stein, "British Medical Journal", 330:1044, 7 May. 2005. Clare Dyer, "British Medical Journal", 332:135 21, Jan 2006. Clare Dyer, "British Medical Journal", 332:623, 18 March 2006. David R. Thomas, HRC Newsletter, October 2000, No. 34, 18-19. Editorial, "British Medical Journal" 331:923. 22 Oct, 2005. Freidson E. Profession of medicine: a study of the sociology of applied knowledge. New York: Dodd, Mead and Company, 1970. Greer A. The state of the art versus the state of the science. Int J Technol Assess Health Care 1988; 4: 5-26. Hackensack Medical Center- Emergency Dept Report, "Hackensack University Medical Centre", NJ, 02/19/2006. Henderson, Roberta, Rheault, Wendy, Appraising and Incorporating Qualitative Research in Evidence-Based Practice, Journal of Physical Therapy Education, Winter 2004. http://cebm.jr2.ox.ac.uk http://ebm.bmjjournaks.com Kubler - Ross E, "On death and dying", Macmillan New York, 1969. Mc Skimming S.A, Super, A., Driever, M.J, Schoessler, M., Franey S.G & Fonner E, "Living and Healing during life-threatening illness"; Portland, 1997. Michel Fertleman, 'The law of Consent in England as applied to the sick neonate', The interned journal of Pediatrics and Neonatology, Vol 3, (1), 2003. Mulcahy, L., "Disputing Doctors - The socio-legal dynamics of disputes between doctors and patients", Open University press, Milton Keynes, 2003. Naylor CD. Grey zones of clinical practice: some limits to evidence-based medicine. Lancet 1995; 345: 840-842. Neil H.Baum, "Support your decisions with Evidence based Medicine", "Urology Times" Feb 1, 2003. Patrick Hoyte, BMJ 315:1531-1532 , December 1997. Sackett, "Evidence based medicine: what it is and what it isn't", 1996 BMJ; 312: 71-72. www.cochrane.org. Read More