Medical Mistakes, Informed Consent and Litigation - Essay Example

MEDICAL MISTAKES, INFORMED CONSENT AND LITIGATION To what extent can it be argued that a doctor, who explains the procedures and all the risks and then obtains the patients consent, is free from the potential threat of litigation in the event of a mistake?   Introduction Mistakes are predictable in every realm of human endeavour. In the field of medicine, practitioners are, despite effort and professional competence, susceptible to errors in clinical judgment, unfortunate slip-ups in communication with patients or with their families and technical errors in the execution of medical procedures. Some mistakes are moderately undisruptive, however, others bring substantial damage not just to the patient and families but also to the entire medical profession and the health care industry. When medical mistakes arise, health care professionals are inclined not to report these incidents for fear of litigation which makes the identification and prevention of these errors tough to deal with and hard to correct (Joshi, Anderson & Marwaha, 2002, pp. 40-45; Localio, Lawthers, Brennan et al., 1991, pp. 245-251). In the United Kingdom, there have been no apparent clues regarding its prevalence although an investigation was conducted representing an initial attempt to quantify the extent and magnitude of the dilemma (Vincent, Neale & Woloshynowych, 2001, pp. 517-519). In the United States, field professionals assert that the tort system is not adequate in preventing medical mistakes because the average time to resolve cases purportedly takes 44 months (Palter, 2003). Based on a study, annual deaths caused by medical mistakes have reached 98,000 in United States hospitals (Kohn, Corrigan & Donaldson, 2000). While the statistics reaped so much attention, it was not the very first investigation conducted by the medical community of its errors. Since 1990, numerous studies have dissected and analysed medical mistakes. Interestingly, the publication of these researches denoted an enlightening departure from the conventional secrecy surrounding errors made by physicians (Brennan, Leape, Laird, et al, 1991, pp. 370-376; Wu, Folkman, McPhee & Lo, 1991, pp. 2089-2094). Apparently, practitioners in the field of medicine have moved towards a path that encourages the methodology of admitting mistakes, both to themselves and to others. Duty of Care/Patient-Doctor Relationship Admitting to a mistake is a physician’s moral duty to his/her patient. The American Medical Association Principles of Medical Ethics states that “A physician shall . . . be honest in all professional interactions.” Further, in circumstances where “a patient suffers significant medical complications that may have resulted from the physicians mistake . . . the physician is ethically required to inform the patient of the facts necessary to ensure understanding of what has occurred” (AMA Council on Ethical and Judicial Affairs, 1994). All actions surrounding the patient-physician relationship depend on standards of independence, compassion, justice, and commitment. Likewise, at all times, the physician needs to perform in the patient’s best interests. For example, in order to obtain patient’s cooperation, it is imperative to explain how the patient’s condition arose. In most cases, knowledge of a mistake affects the patient’s current and future decisions about health care. Therefore, to preserve autonomy and provide authentic informed consent, the patient must have knowledge of significant errors (Chiodo, Tolle & Jerrod, 1998). In addition, understanding that a mistake took place can alleviate patients’ apprehensions about sluggish recuperation or the development of unexpected complications. To consciously permit sustained apprehensions constitute malfeasance, as the doctor deliberately harmed the patients well-being. In addition, if the physicians error led to increased costs (medical or otherwise) to the patient, justice commands disclosure to guarantee patient reparation. Without doubt, certain cases will require monetary compensation to the wronged patient (Wu, Cavanaugh, McPhee, Lo, & Micco, 1997). Finally, the principle on commitment demands telling the truth at all times. A study of patients found that 98% desired acknowledgment of even minor mistakes (Witman, Park & Hardin, 1996). This disproves the claim that non-disclosure “protects” patients by preserving an image of physician infallibility. Furthermore, consideration of future consequences also requires the physician to divulge errors. Truthful and precise information could enhance the patient’s succeeding treatments. With this, other caregivers can then work around better-quality specifics, while the collaboration of the informed patient smoothes the progress of recovery. Likewise, disclosure could help relieve the physician’s own emotional stress while nurturing a more robust patient-physician attachment. With these reasons and because a doctor needs to perform always in accordance with the standards of patient-physician relationship, disclosure is evidently the principled action after a medical mistake has transpired. Informed Consent The legal condition wherein a person has said to have provided consent established on the appreciation and understanding of the facts and implications of an action is known as informed consent. And for one to be able to give informed consent, the individual needs to be in possession of all of his faculties (not being mentally retarded or mentally ill) and without an impairment of judgment at the time of consenting. Impairments could include illness, intoxication, drunkenness, using drugs, insufficient sleep, and other health problems. In situations where a person is considered unable to give informed consent, another individual is generally authorised to give consent on his/her behalf. Examples of this include the parents or real guardians of a child and caregivers for the mentally ill (Fisher, 2006, pp. 251-268; Druml, 2004, pp. 570-574). The tenet on informed consent is ingrained in medical ethics and codified as a legal principle. It is founded on the contention that a competent person has the right to determine what is done to him or her (Shojania, Duncan, McDonald & Wachter, 2001). Basically, this doctrine relates to professional negligence and institutes a violation to the duty of care owed to the patient. In the United Kingdom and nations like Malaysia and Singapore, informed consent necessitates evidence as to the standard of care that is anticipated in a recognised norm of acceptable professional practice (Bolam Test), that is, what risks would a medical professional frequently discloses in a situation. Conversely, in the United States, Australia, and Canada, a more patient-centered approach is assumed and this method is often what is referred to by the phrase “informed consent.” Informed consent in these areas requires that vital risks be made known, as well as risks which would be of particular importance to that patient. This course of action combines an objective (the reasonable patient) and subjective (this particular patient) approach. The canon on informed consent is generally executed through good healthcare practice -- pre-operation deliberations with patients and the employment of medical consent forms in hospitals. However, dependence on a signed form should not weaken the foundation of this tenet in providing the patient a chance to reflect on and react to the risk. A classic case illustrates this concept -- in one British case, a physician executing standard operation on a woman took notice of a cancerous tissue in her womb. He took the initative to remove the womans womb. Since the patient has not given or was not able to give informed consent for this operation, the doctor was judged by the General Medical Council to have acted negligently. The council declared that the woman should have been informed of her condition, and permitted to make her own decision. The ability to give informed consent is directed by the general requisite of competency. In common law jurisdictions, adults are automatically taken as competent to consent. This presumption can be invalidated, for example, in cases of mental illness or other types of incompetence. This may be set and agreed in legislation or established on a common-law standard of inability to understand the nature of the procedure. In the case of incompetent adults, informed consent, either from the patients or from their families, is not necessary. Instead, the medical practitioner can simply act in the patient’s best interests in order to avoid negligence liability. On the contrary, minors, a term with various definitions in different jurisdictions, are generally presumed incompetent to consent. In some areas like the U.S., this is a rigid norm while in other jurisdictions such as England, Australia, Canada, this assumption may be refuted by showing evidence that the minor is ‘mature’ (Gillick standard). In cases of incompetent minors, informed consent is usually required from the parent, rather than the “best interests standard,” though a parens patriae order may apply (permitting the court to dispense with parental consent in cases of refusal). The American Medical Association has this advice to practitioners on the matter of informed consent and shielding one’s self from litigations: “To protect yourself in litigation, in addition to carrying adequate liability insurance, it is important that the communications process itself be documented. Good documentation can serve as evidence in a court of the law that the process indeed took place. A timely and thorough documentation in the patient’s chart by the physician providing the treatment and/or performing the procedure can be a strong piece of evidence that the physician engaged the patient in an appropriate discussion.” Discussion The prospect of litigation instigated by a medical mistake is inevitable. However, there is a huge probability that a physician will not be sued despite the error being committed if he/she PROMPTLY admits to committing a medical error or to the fact that some mistake transpired. As a matter of fact, there are some indications that patients are less likely to pursue litigation if the attending physician promptly admits a medical mistake. Risk management organisations have noted that patients frequently file lawsuits out of anger for not having been told the truth about their conditions. Likewise, in a study, respondents intimated that they would be considerably less likely to resort to legal action if the physician informed them of a mistake than if they found out by some other means. More so, attempting to conceal a mistake could lead to complex legal implications. In many states, they hold the statute of limitations in abeyance when a physician has suppressed acts of negligence, while a physician caught hiding acts or results that emanated from error is more likely to be perceived negatively by a jury if a lawsuit does proceed to court. Nonetheless, in situations where a mistake is admitted, compensation for subsequent treatment is rarely paid by the physician personally. Sidaway v Bethlem Royal Hospital Governors (1985) is one case that elucidates how liability from acts of omission can cause damage to a patient and result into a heated legal action (in this situation, the mistake was in the form of an “error in judgment” for choosing to exclude some information). In the aforementioned lawsuit, the patient/plaintiff suffered from pain in her neck, right shoulder, and arms. Her neurosurgeon took her consent for cervical cord decompression, but did not include in his explanation the fact that less than 1% of decompression caused paraplegia. After the spinal surgery, the patient developed paraplegia. Rejecting her claim for damages, the court held that consent did not require a detailed account of remote side effects. However, there was a dissenting opinion from Lord Scarman who stated that the *Bolam principle should not apply to the issue of informed consent and that a doctor has the duty to tell the patient of inherent and material risks of the treatment being proposed. In this particular case, it can be seen that proper and FULL disclosure was not the only issue at stake. Aside from failing to provide the patient with ALL the information necessary for her to give informed consent, the surgeon also failed to own up to that error of judgment when the bigger problem (paraplegia) ensued. In relation to prompt admission of mistakes, mounting proof shows that excellent patient-physician relationships and good communication minimise, if not totally eradicate, the risk of malpractice litigation, particularly for primary care physicians (West, 2003: Hickson, 2002; Rubsamen, 2000). Medical practitioners’ behaviours connected with reduced malpractice claims include suitable use of humor, imploring for patient opinions, checking for patient understanding, and encouraging patients to talk. It was likewise revealed that doctors with high numbers of unsolicited patient complaints get sued more frequently (Hickson, 2002). In truth, doctors may use worry over litigation primarily as a conscious or subconscious excuse to evade the horror of admitting mistakes or even conceding to an error. These admissions can be exceedingly tough and embarrassing, nonetheless, when attending physicians take responsibility for a mistake, physicians and patients benefit. It must also be borne in mind that a physician acting in the “best interests” of an incompetent patient is not likely to invite threats of civil or criminal litigations. In a treatise focusing on law and medical ethics, Lord Brandon affirms that “it would not only be lawful for doctors, on the grounds of necessity to operate on, or give medical treatments to adult patients disabled from giving consent, it would also be their common law duty to do so” (Mason & McCall Smith, 1991, p. 402). However, validation of a “patients best interest” would depend on whether a court concludes that a responsible body of medical opinion would have followed the same line. Understandably, most people find ethical actions hard to perform, they are easier said than done. But in doing so, the health care practitioner develops professionally in endorsing personal ethical standards and learning firsthand how to deal with contradictory concerns. To disregard the opportunity would be to throw away the prospect of learning how to come to grips with the reality of medical mistakes and how to cope with them, an ability that will, in all probability, be needed in the future. By resorting to forthright disclosure, the medical specialist promotes professionalism in the industry and makes sure that it will not be necessary for colleagues to maintain silence when other medical mistakes occur. In consequence, the act serves to go against the indignity of admitting a mistake. Beyond duties to the patient and to peers, a doctor has a responsibility to him/herself to observe and put into practice responsible medicine. Coping with Mistakes As a medical professional who has witnessed or has knowledge that a colleague has committed a mistake, there exists that responsibility to deal with that associate’s mistake in private and with compassion, without anger and with the comprehension of the unavoidability of errors in the field and the toll they take on those who make them. Nevertheless, as doctors relied upon by patients, there is also a special obligation to disclose to these patients about mistakes made in during their care. Being medical educators and practice managers, doctors need to re-evaluate how work is being conducted in order to prevent mistakes, to spot and recognise mishaps and near misses and to reduce the likelihood of error. Conclusion How frequent and widespread are medical errors? Can they be curtailed? And how should risk management be handled? A dilemma in evaluating the frequency of errors is that people are profoundly wrapped up in a blame culture, so it is difficult to convince people to report them. Most mistakes do not really cause harm, but in several ways these are as significant as those that do. These errors point to a breakdown in the system, an erroneous judgment or a mistaken assessment. If people are to learn from mistakes then people need to know about as many occurrences as possible so that remedial action can be adopted and swiftly undertaken. This necessitates cultural change and a sensitive handling of the person making the report. As it is, errors in medical practice will never cease to exist. The goal should be to guarantee that they happen infrequently, as seldom as humanly possible. And when they do, people need to respond with a corrective action as prudently and as swiftly as possible and without judgmental insinuations. Basically, medical audit and meetings discussing morbidity and mortality are both very constructive and extremely beneficial methods for education and improving practice. If errors repeat, there might really be a genuine issue of medical negligence. From a meticulous legal viewpoint, a single error is deplorable. In the moral sense, however, guilt feelings for a remote but catastrophic incident might be sufficient retribution. As far as concealment of error is concerned, in the eyes of the law, this act is outright falsification of evidence and can not be excused or pardoned. Nonetheless, there is a theoretical distinction between law and medicine. Law talks of obtaining justice while medicine is about calculating and making a balance between impairments and benefits. Medical practitioners in particular must always ask what harm have been done by undertaking a specific course of action. In this situation, the harm of disclosure could include adding to the familys grief by involving them in a lawsuit. On the other hand, the benefit of disclosure is tougher to quantify – nobody and nothing will ever bring a dead patient back to life and negate the suffering of the ones left behind. The revelation of every medical mistake can trigger extensive damage and can lead to a mistrust of medicine. But then again, it should not mean that grave errors should just be swept under the carpet and smugly leave them there unnoticed. An initial occurrence is most probably best seen as a good potential for education not litigation. In the long term, such a course can assist physicians to become prudent and compassionate health care professionals. * In the English law of tort, the Bolam test is one of the regulations employed to ascertain the matter of professional negligence where the defendant has represented him or herself as having more than average skills and abilities. Essentially, this test expects standards which must be in accordance with a responsible body of opinion, even if others vary in opinion. The test is derived from Bolam v Friern Hospital Management Committee (1957) 1 WLR 583. The usual rules to establish negligence rely on establishing that a duty of care is owed by the defendant to the claimant, and that the defendant is in breach of that duty. The standard test of breach is whether the defendant has matched the abilities of a reasonable person. But, by virtue of the services they offer and supply, professional people hold themselves out as having more than average abilities. The Bolam test determines the standards against which to measure the legal quality of the services actually delivered by those who claim to be among the best in their fields of expertise. References AMA Council on Ethical and Judicial Affairs. (1994). Code of medical ethics, annotated current opinions. 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