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Medical malpractice

Medical Malpractice Today


 While legislation helped increase safety for
patients, doctors still make mistakes.
 On average, only 6% of doctors are
responsible for about 60% of all malpractice
payments. Surgery errors are the leading cause
for claims from inpatient incidents at 34%.
 The overall cost for medical malpractice in the
United States is around $55.6 billion dollars,
according to recent data.
What is Medical Malpractice?

 Medical malpractice occurs when a


hospital, doctor or other health care
professional, through a negligent act or
omission, causes an injury to a patient.
 The negligence might be the result of
errors in diagnosis, treatment, after care
or health management.
 First, not every bad outcome in the medical
field rises to the level of medical malpractice.
 Doctors and other medical providers can only
do some much in any situation.
 Sometimes they will not be able to save a life or
prevent a bad outcome.
 However, doctors and medical providers have a
duty of care that they owe their patients.
Medical malpractice is professional
negligence by act or omission by a health
care provider in which the treatment
provided falls below the accepted standard
of practice in the medical community and
causes injury or death to the patient, with
most cases involving medical error.

Mello, Michelle M. (November 26, 2014).


"The Medical Liability Climate and Prospects for
Reform". JAMA. 312 (20): 2146–55
Medical malpractice
 Medical malpractice is the breach of the duty of care by a medical
provider or medical facility.
 It has an element of “intent” that medical negligence does not
have in it.
 The doctor or provider knew he should have done something to
treat the patient but he failed to do so knowing that his failure
may result in harm to the patient.
 It was not intentional in that he wanted to harm the patient but it
was intentional because he knew that by doing so the risk of harm
was present.
 For example, a doctor decides to forego an expense diagnostic test
because the person’s insurance company will not pay for the
expense of running the test; therefore, the doctor would bear the
financial burden if he the test.
To be considered medical malpractice
under the law, the claim must have the
following characteristics:
 A violation of the standard of care;
 An injury was caused by the
negligence;
 The injury resulted in significant
damages .
A violation of the standard of care
 The law acknowledges that there are certain medical
standards that are recognized by the profession as being
acceptable medical treatment by reasonably prudent
health care professionals under like or similar
circumstances.
 In a medical malpractice case a claimant must prove that
a doctor or health care facility breached or violated the
standard of care.
 Standard of care, in a medical malpractice action, means
that a healthcare provider must possess the same
knowledge and skill, and exercise the same level of care,
that is normally provided by other healthcare providers
in that field.
A violation of the standard of care
 The standard of care is a legal yardstick to gauge
whether a physician was negligent.
 The standard can be defined as “That which a
minimally competent physician in the same field
would do under similar circumstances” .
 !!! Note, that a doctor only needs to be “minimally
competent” – in other words, not incompetent. A
minimally competent doctor (or even an excellent
doctor) can have a tragic patient outcome while still
upholding the standard of care.
A violation of the standard of care
 The standard of care should not be confused
with the duty of care.
 The duty of care begins when the doctor
agrees to treat a patient who has requested their
services.
 The duty of care is the doctor’s obligation to
provide appropriate treatment, while the is
what the doctor must do to carry out standard
of care that duty.
What is negligence?
 Negligence (Lat. negligentia) is a failure to exercise appropriate
and or ethical ruled care expected to be exercised amongst
specified circumstances.
 A failure to behave with the level of care that someone of ordinary
prudence would have exercised under the same circumstances.
 The behavior usually consists of actions, but can also consist of
omissions when there is some duty to act (e.g., a duty to help
victims of one's previous conduct).
 The core concept of negligence is that people should exercise
reasonable care in their actions, by taking account of the potential
harm that they might foresee ably cause to other people or
property.
 When they fail/ignore to do that they commit negligence.
Medical negligence falls into two types:
1. errors of omission: happens when the doctor fails
to do something that should have been done. A delay
in diagnosing a patient’s cervical spine injury or
neglecting to give a patient her medication are errors
of omission.
2. errors of commission: occurs when the doctor
does something that should not have been done.
Errors of commission include ordering the wrong lab
test to or prescribing a dose of medication that’s too
high.
What is NOT by itself
Medical Negligence?

 When a medical provider is rude or


rushed.
 When a medical provider fails to heal the
patient.
 When the patient has an adverse outcome.
What is the injury?
1. Injury is defined as harm The harm that results from
to a person caused by medical malpractice/negligence
external forces. may include:
2. Injury (bodily): the  disability (the form of
damage caused by an impairment cognitive,
external force, as contrasted developmental, intellectual,
with an “illness” , which mental, physical, sensory, or
simply indicates that the some combination of these),
body is not in a healthy  pain and suffering,
condition.  mental anguish,
3. Injury: the damage to  loss of income,
tissues caused by an agent  Etc.
or circumstance.
Examples of Medical Malpractice
Medical malpractice can take many forms. Here are some
examples of medical negligence that might lead to a lawsuit:
 Failure to diagnose or misdiagnosis
 Misreading or ignoring laboratory results
 Unnecessary surgery
 Surgical errors or wrong site surgery
 Improper medication or dosage
 Poor follow-up or aftercare
 Premature discharge
 Disregarding or not taking appropriate patient history
 Failure to order proper testing
 Failure to recognize symptoms
Examples of Medical Malpractice
 When a surgeon leaves a medical instrument in a patient
causing injury such as the need for a second surgery to
remove the instrument.
 When a surgeon operates on the wrong body part.
 When a medical provider fails to diagnose an injury or illness
that a provider in his or her field should have known about
and treated – thus resulting in injury.
 When a medical provider fails to get informed consent and
performs an operation that the patient did not agree to have
done.
What are kinds of the most frequent
medical malpractice claims?
 A wide variety of situations can lead to a medical
malpractice claim -- from a doctor leaving a sponge in a
patient's stomach during an operation to failing to tell a
patient that a prescribed drug might cause heart failure.
Most medical malpractice claims fall into one of these
categories:
 Failure to diagnose.
 Improper treatment.
 Failure to warn a patient of known risks.
Failure to diagnose
 If a competent doctor would have
discovered the patient's illness or made a
different diagnosis, which in turn would
have led to a better outcome than the one
actually achieved, then the patient may
have a viable medical malpractice claim.
Improper treatment

 If a doctor treats the patient in a way that no


other competent doctor would, the patient
could have a medical malpractice claim.
 In a similar vein, it may also be malpractice if
the doctor selects the appropriate treatment but
administers it incompetently.
Four elements of medical malpractice claim:

1. DUTY
2. BREACH
A duty was breached.
A duty was owed by the health
care provider or hospital.

4. DAMAGE
3. CAUSE
Considerable damage resulted
The breach resulted for the patient.
in/caused an injury.
I. The patient has to prove that health care provider has a
duty in relation with him

Health care Health care


provider are provider are
expected to expected meeting
accomplish the standards of care
patients rights. for the profession.

Duty
I. The patient has to prove that health care provider has a duty in
relation with him.
CHARTER OF Standards of care:
RIGHTS BASIS
T Rome, Duty to act with an
2002 depicted the appropriate level of skil
s that are also linked
rnational documents and prudence when
ons, emanating in diagnosing, treating or
m the WHO and the informing patients.
rope.
Duty to act the same a
ht of Access might be expected of
he Observance of
ty Standards
Duty any other doctor in the
same situation, the sam
geographic area, in a
similar specialty with a
o information. similar educational
background.
2. The patient has to prove that

 health care provider has breached  health care provider did


this duty (i.e. the patient's right for
appropriate information). not conform to the
 Example 1: If a surgeon does not expected standard of care
inform the patient that a (i.e. act without
procedure involves a 30-percent
risk of losing a limb, and the prudence).
patient loses a limb, the doctor  Example 2: like in the case
will be liable, even if the
operation was done perfectly. on amputation of healthy
This is because the patient may leg.
have opted not to go ahead if they
had been informed of the risks.
3. The patient has to prove that a
duty breach caused an injury to him.

Duty’s breach caused injury


The patient has to prove that a duty breach
caused an injury to him and to show that injury is
caused by negligence.
The breach resulted in/caused an injury, and it
was closely linked to the injury.
The professionals is not liable for all the harms a
patient experiences.
They are legally responsible if the patient
experiences harm or injury BECAUSE the health
provider deviated from the quality of care that is
normally expected in similar situations.
If someone cannot prove that
there is a connection between
breached duty and harm, he has
not chance to prevail in
malpractice trial.
Or the duty is breached by it not
resulted in harm – is a situation
when the malpractice claim is
useless.
1) Any medical expenses the plaintiff has incurred;
2) Any loss of earnings, earnirig capacity, or
profits suffered by the plaintiff;
4. The plaintiff 3) Physical pain and mental suffering by the
has to prove that plaintiff and the extent and duration of bodily
the damage injuries sustained;
(whether physical, 4) Disfigurement or deformities and any
emotional, or humiliation or embarrassment associated
financial) exist. therewith and the effects of the injuries on the
overall physical and mental health and well-
being of the plaintiff;
A checklist of
5) Medical expenses that will probably be
damages to be incurred in the future;
considered: 6) Physical pain and mental suffering and any
inconveniences or discomforts that will
probably occur in the future; and
7) Any monetary loss the plaintiff will probably
suffer in the future.
A verdict will be given by the fact-
finder for the prevailing party. In other
words, the judge will decide who wins.
If it is the plaintiff, the judge will then
decide on damages.

 Consequently a verdict will be given for the


prevailing party (who wins).

 If it is the plaintiff, the judge will then decide


on damages.
Assignments:
!!!
Discover and Describe your country
standards and regulations for medical
malpractice .
 Malpractice lawsuits tend to
be costly, time consuming,
and stressful for the parties
involved.

What one have to do to reduce the rate of


malpractice claims ?
!!!
- Reducing the rate of errors (to perform the
standards of care).
- Respecting and fulfilling the patient rights.
- To have an appropriate communication with
patients.
 However, it’s also important to understand
that an undesired result is not always
synonymous with poor care or malpractice.
 Poor communication combined with a bad
outcome usually drive patients towards
litigation.
 Therefore, the importance of effective
communication between doctors and their
patients cannot be stressed enough.
Risks that Doctors Must Mitigate:
 Bad communication:
When it comes to running a medical practice,
open and honest communication should be
one’s fundamental approach. This is why it’s
known as full disclosure. Patients tend to be
more forgiving and understanding of mistakes
when they feel their doctors truly care about
them and have their best interests at heart.
Risks that Doctors Must Mitigate:
 Unsatisfactory training and failure to uphold
standards
Doctors need to update their training and knowledge in
their areas of specialty. They should be aware of any new
developments such as technological changes, changes in
disease management, and the recently published
standards of care. For instance, some medical
malpractice claims focus on the issue of whether the
doctor followed the latest standards of medical
procedure.
Risks that Doctors Must Mitigate:
 Failure to get informed consent
Patient consent is another issue. Doctors should always
ensure their patients have given their consent for any
subsequent treatment or procedure. For example,
before a doctor performs an operation, s/he should
ensure that the patient understands all the associated
risks. The doctor must explain the risks before the
operation clearly and include that information in a
consent document the patient must sign.
Other things doctors should do to help
minimize their risk of facing a malpractice suit:
 Keep accurate medical records of all exams,
procedures, and counseling.
 Build functional, trusting relationships with
their patients.
 Maintain patient confidentiality.
 Guard against missed or delayed diagnosis.
 Offer honest apologies for any mistakes.
 Obtain medical malpractice insurance.
Conclusion
!!!
 Medical malpractice is a legal cause
of action that occurs when a medical
or health care professional deviates
from standards in his or her
profession, thereby causing injury to
a patient.
Medical errors
OUTLINE:

 Definitions Related To Medical Errors.


 Classification.
 Factors result in Medical Errors.
 Prevention of the Medical Errors.
The concept of error

 The concept of error typically regards an


action, not its outcome, and its meaning
becomes clear when separated into categories:
 medical error,
 nurse perceptions of (medication) error,
 diagnostic error.
DIAGNOSTIC ERRORS:
 Incorrect diagnoses after clinical examination or
technical diagnostic procedures.
Patient surveys confirm that at least one person
in three has firsthand experience with a diagnostic
error.
The researchers have found that diagnostic errors -
not surgical mistakes, or medication overdoses -
account for the largest fraction of malpractice
claims, the most severe patient harm, and the highest
total of penalty payouts.
The delayed diagnosis
 A delayed diagnosis refers to a case where
the diagnosis should have been made earlier.
 Delayed diagnosis of cancer is by far the
leading entity in this category.
 A major problem in this regard is that there
are very few good guidelines on making a
timely diagnosis, and many illnesses aren’t
suspected until symptoms persist, or worsen.
The wrong diagnosis
A wrong diagnosis occurs, for
example, if a patient truly having a
heart attack is told their pain is from
acid indigestion.
The original diagnosis is found to be
incorrect because the true cause is
discovered later.
The missed diagnosis
 A missed diagnosis refers to a
patient whose medical complaints are
never explained.
 Many patients with chronic fatigue, or
chronic pain fall into this category, as
well as patients with more specific
complaints that are never accurately
diagnosed.
Medication errors
 Medication errors can occur throughout
the medication-use system.
 Such as, when prescribing a drug, upon
entering information into a computer
system, when the drug is being prepared
or dispensed, or when the drug is given
to or taken by a patient.
Serious harmful results of a
medication error may include:
Death
Life threatening situation
Hospitalization
Disability
Birth defect.
MEDICAL ERRORS vs MALPRACTICE

MEDICAL ERRORS are differentiated


from MALPRACTICE in that the
former are regarded as honest mistakes
or accidents while the latter is the result
of negligence, reprehensible ignorance,
or criminal intent.
 Many of the benefits/risks would
have delayed manifestations.

 For example, if a doctor fails to order a


mammogram that is past due, this
mistake will not show up in the study.
What are the differences?
Case 1. Case 2.
A patient with peripheral vascular A middle-aged man had rectal
disease required angiography. bleeding. The patient's physician
After the procedure, which was completed only a limited
sigmoidoscopy, which was negative.
performed in standard fashion, the
The patient had continued rectal
patient's renal function bleeding but was reassured by the
deteriorated as a result of physician. Twenty-two months later,
exposure to angiographic dye. The after a 14-kg (30 lb) weight loss, he
hospital course was stormy was admitted to a hospital for
because of kidney failure, but the evaluation. He was found to have colon
patient's renal function slowly cancer with metastases to the liver. The
returned to normal. The adverse physicians who reviewed his medical
event caused the prolonged record judged that proper diagnostic
management might have discovered the
hospital stay.
cancer when it was still curable.
The difference
Case 1. Case 2.

The adverse event They attributed the


caused the prolonged advanced disease to
hospital stay, but there substandard medical
was no negligence. The care. The event was
event was considered considered adverse
adverse but not due to and due to
negligence. negligence.
The differences
 Making difference between factual errors (it happen
naturally, nothing could be done except learning and taking
precaution in future) and attitudinal/ normative error
(this is related to negligence).
 Case 1. - factual errors (it happen naturally).
 Case 2. - attitudinal/ normative error (this is
related to negligence).
What are the causes of error?
Factors which may contribute to error are as follow:
1. Poor communication,
2. improper documentation,
3. illegible handwriting,
4. spelling errors,
5. inadequate nurse-to-patient ratios,
6. similarly named medications.

Friedman, Richard A.; D, M (2003). "CASES; Do Spelling and Penmanship Count? In


Medicine,You Bet".The NewYork Times. Retrieved August 29, 2018
Medical errors may result from faulty
systems and poorly designed processes
 Poor leadership and management (i.e. the impression that action
is being taken by other groups within the institution).
 Lack of appropriate infrastructure (i.e. emergencies) that
poorly suit for safe monitoring of patients.
 Lack of skilled operators of medical equipment that lead to
substandard diagnosis and treatment.
 Inadequate systems to share information about errors, which
hampers analysis of contributory causes and improvement
strategies.

Palmieri, P. A.; DeLucia, P. R.; Ott,T. E.; Peterson, L.T.; Green, A. (2008).The anatomy and
physiology of error in averse healthcare events. Advances in Health Care Management. 7. pp. 33–
68
Medical errors result from:

1. Poor practices and incompetent


practitioners (individual/personal).

2. Faulty systems and poorly designed


processes (environmental).
MEDICAL ERRORS DISCLOSURE
After a medical error, patients want an explicit statement that an
error occurred, what happened, and the implications for their health.
They want an outright apology, not a statement of regret.
Physicians avoid reporting medical
errors, because of various reasons:
strong emotions (sham, fillings of guilt),
and concerns for the consequences
(lawsuits and professional sanctions).
Failure to report the error leads to the
perpetuation of them. And become a
significant quality-of-care problem, that
has to be solved.
Practitioners do not disclose or report error for
various reasons:
 including ignorance about reporting requirements,
 uncertainty about how to report error,
 a wish not to upset patients and concerns for the
consequences of disclosure,
 the fear of retaliation, such as lawsuits and
professional sanctions, is a significant impediment,
 the medical professionals have high expectations of
themselves and, not surprisingly, find it difficult to
acknowledge their errors openly before patients and
colleagues.
How to change physicians attitudes
toward disclosure?

 Most hospitals now have policies that encourage the


reporting of “medical incidents” as part of quality-
assurance programs.
 Encourages health care organizations to implement
no punitive systems for reporting errors.
 Encouraging the physician (especially those young) to
recognize limits, and asking for help. To increase the
vigilance system.
Physicians’ attitudes towards using deception to
resolve difficult ethical problems

 In a study in which physicians were given a


hypothetical case in which a patient dies because
of a drug mistakenly administered by a
physician, more than one third of those surveyed
indicated that they would provide the family with
incomplete or misleading information about what
transpired.

(Novack D, Detering R, Arnold R, Furrow L, Ladinsky


M, Pezullo J. Physicians’ attitudes towards using
deception to resolve difficult ethical problems.
JAMA 1989;261:2980-5.)
Do physicians have an ethical duty
to disclose information about
medical mistakes to their patients?
How does the doctor decide whether to
tell a patient about an error?

 In general, even trivial medical errors should be disclosed to


patients.
 Any decision to withhold information about mistakes requires ethical
justification.
 If a physician believes there is justification for withholding
information about medical error from a patient, his judgment should
be reviewed by another physician and possibly by an institutional
ethics committee.
 The physician should be prepared to publicly defend a decision to
withhold information about a mistake from the patient.
Elaborate a practical guidelines for
disclosing the error to patient.
CONCLUSION:
 Medical error should be defined in terms of failed
processes that are clearly linked to adverse outcomes.
 Efforts to reduce errors should be proportional to their
impact on outcomes (preventable morbidity, mortality,
and patient satisfaction) and the cost of preventing them.
 The error and the quality movements are analogous and
require the same rigorous epidemiologic approach to
establish which relationships are causal.
CONCLUSIONS:
 A systematic approach to patient safety should be adopted
where responsibility for safety is shared by all members of
the healthcare teams.
 In fact, significant errors occur in all phases of patient care.
There is no single area where change will eliminate error.
Likewise, a multitude of individuals and services are involved
in errors.
 Although training physicians (or any other single profession)
about errors should be beneficial, major strides in safety will
likely require educating all those involved in patient care.
CONCLUSIONS:
Efforts to reduce errors should
be proportional to their impact
on outcome (preventable
morbidity, mortality, and patient
satisfaction) and the cost of
preventing them.
Thank you!

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