Medical Negligence

1. Medical Negligence

2. Medical negligence is the act or omission in treatment of a patient by a medical professional, which deviates from the accepted medical standard of care.

3. Medical negligence is often confused for medical malpractice, when in fact, negligence is only one aspect of a meritorious medical malpractice claim.

4. In terms of medical malpractice tort law, medical negligence is usually the basis for a lawsuit demanding compensation for an injury caused a patient by a doctor or other medical professional. While negligence on it's own does not merit a medical malpractice claim,

5. Medical negligence occurs when a doctor, dentist, nurse, surgeon or any other medical professional performs their job in a way that deviates from the accepted medical standard of care.

6. If a doctor breaks the rules regarding how to treat a patient, and does something that is "against the rules", then that doctor has failed to perform is duty, and is said to be negligent.

7. Types and Examples of Medical NegligenceMedical negligence can occur in an infinite number of ways, but many instances of medical negligence can be grouped into one of the following categories:

8. Misdiagnosis • Failure to Timely Diagnose • Surgical Error • Failure to Follow Up with Treatment • Failure to Treat in a Timely Manner • Anesthesia Error • Medication or Prescription Error

9. Tort Law • Tort = a civil wrong • Sometimes also considered crimes (intent) • Governed by state law, common law doctrines • Designed to prevent harm or compensate for harm to a person • Primary aim = to provide relief through compensation to injured parties for the damages incurred

10. Medical Malpractice • Professional liability for personal injury • When physician agrees to diagnose & treat a patient, assumes a duty of care toward that patient • Medical Negligence: failure to meet that duty of care • To provide the standard of care • May include criminal negligence, malicious intent, or strict liability • May also be subject to disciplinary sanctions • By State Medical Boards

11. Elements of a Cause of Action in Negligence (Malpractice) • Duty of Care • Negligent Breach of Duty • Causation • Damages

12. Duty • What is the legal relationship between the defendant and plaintiff that will support a tort claim?

13. Treating Physicians • If the doc lays hands on the patient, is there a duty? • Can this duty be terminated? • When is a patient abandoned? • How broad is the duty? • Is a specialist consultant responsible for the patient's entire condition or can she rely on the primary physician? • What if you only talk on the phone?

14. Limited Engagements • Occupational medicine • What is the duty of physicians who do physicals, examinations, and limited treatment for occupational injuries and licensure? • What about ambulatory care centers? • Does the doc you consult for a limited purpose have a duty to inquire into other health issues? • What if they notice something beyond their engagement?

15. Invisible Physicians • What about radiologists and pathologists who never see the patient, but read tests that affect patient care? • Consultants who do not examine the patient • Physicians who review or supervise the care of other physicians in training programs • Physicians who are the legal supervisors of paramedical personnel

16. 1. Standard of Care • What is the applicable standard of care in medical malpractice cases? • Professionals are held to a standard of care, judged by: • Professional Standard: a reasonable & prudent physician of ordinary skill (majority of states) • MI: “minimum acceptable standard of care” • Reasonable Patient Standard: what a reasonable patient in similar situation would expect • Individual Patient Standard: what this patient expects • Usually determined by court using expert testimony

17. 2. Breach of Duty • Was there a breach of this standard of care? • Negligent breach of the standard of care • Negligence can occur at different stages: • Misdiagnosis • Failure to properly treat • Administering wrong medication • Failure of informed consent • Failure to inform patient about risks, alternative treatments, e.g. • Negligence is usually established by expert witnesses

18. BREACH OF DUTY 2 • The Bolam Test/Defence • “A doctor is not guilty of negligence if he acted in accordance with a practice accepted as proper by a responsible body of medical opinion….A doctor is not negligent if he is acting in accordance with such a practice merely because there is a body of opinion that takes a contrary view”

19. Later applications • Whitehouse v Jordan 1980 • Maynard v West Midlands RHA 1984 “I have to say that a judge’s preference for one body of distinguished opinion over another also professionally distinguished is not sufficient to establish negligence”

20. Criticisms of Bolam Test • Too protective of doctors • Judges not permitted to choose between competing expert views • “Responsible body” not defined • A sociological rather then a normative framework

21. 3. Causation • Once it has been shown that a physician (hospital, other professional) has been negligent • Plaintiff must prove that this negligence caused (or worsened) the harm/injury • The negligent act must be directly responsible for the harm (proximate cause) • or at least have contributed to it (cause-in-fact)

22. 4. Damages • If plaintiff establishes negligence & liability, they are entitled to damages (financial compensation) for: • Compensatory damages: Past/future medical bills, lost wages • Non-economic Damages: Pain & Suffering • Capped (1994) in MI: $280,000 • Except for paralysis, cognitive impairment or loss of reproductive capacities = $500,000 • Attorney Fees • MI: In personal injury & wrongful death cases = limited to 1/3 of award to plaintiff • Damages reduced by • Contributory negligence (of plaintiff) • Joint and Several liability (of other parties)

23. Avoiding Inappropriate Defensive Practice • Make a clinically sound treatment decision. • Accurately identify the legal risk in the case. • Evaluate the risk by estimating potential costs of the claim in time, anxiety, money. • Discount that risk calculation by the unlikelihood of its occurrence and the potential claim’s defensibility. • Evaluate that cost to the patient and society of potential defensive measures. Deville, supra, at 582.

24. Approaches to Disclosing Error in Practice. • Report/Resolve conflicts as “close to the bedside” as possible. • Keep accurate, contemporaneous records of all clinical activities. • Notify insurer and seek assistance from others who can help (e.g., risk manager). • Take the lead in disclosure; don’t wait for patient to ask. • Outline a plan of care to rectify the harm and prevent recurrence. • Offer to get prompt second opinions where appropriate.

25. . . . in Practice • Offer the option of family meetings, get professional help to conduct them. • Offer the option of follow-up meetings. • Document important discussions. • Be prepared for strong emotions. • Accept responsibility for outcomes, but avoid attribution of blame. • Apologies and expressions of sorrow are appropriate. Cf., Hebert, et al., supra, CMAJ 2001:164(4);509

26. Following are the most common medico-legal issues faced by doctors and health care personells. Medical-Legal Issues Consent Advanced Directives (Living Wills) Blood Samples or Toxic Substance Screens Uttering Threats Reporting Duties Child Abuse Spouse / Elser Abuse Sexual Abuse by a Regulated Health Professional OHIP Fraud Medically Unfit to Operate a Motor Vehicle

27. Thank you