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Over the last several decades there has been a serious increase in claims for medical negligence. The threat of malpractice lawsuits changes the practice style of many physicians, leading to defensive medicine, and the rising tide of medical negligence actions is destroying good patient–doctor relationships and driving promising junior physicians away from specialties that have become of high risk for negligence claims.
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There is no doubt that there is increasing consumer awareness of the possibility of bringing legal actions following media coverage of cases involving consumer rights and better consumer education. Patients now expect diagnostic tests and procedures as well as operations to be carried out with a high level of competence and accuracy. The public seems to be unforgiving of those perceived to have harmed patients as a result of medical negligence. Also, it is the public’s belief that suspending doctors who have committed clinical errors is an effective prevention strategy.
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The wide spectrum of operations and diagnostic invasive procedures carried out currently is considerable. The use of monitored anesthesia care (MAC) as the technique of choice for a variety of invasive or noninvasive procedures as well as the use of regional anesthesia for major surgical operations is increasing. Also, more complex operations are carried out with general anesthesia.
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PRINCIPLES OF MALPRACTICE
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The legal basis for professional liability is not well appreciated by many and therefore confusion abounds concerning the definitions of negligence and malpractice. Not every medical mishap gives the patient the right to sue for damages as the success of a claim depends on the ability of the injured party to prove negligence.
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In law, negligence is defined as a breach of duty to practice to the standard of care expected and which causes substantial injury to the patient. The following elements should be established to document a negligence action:
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The defendant was duty bound to take care.
The defendant was in breach of that duty or was careless in that duty.
The patient was injured as a direct result. The damage, which was suffered, must not be too remote.
The result of which (the victim claims) was directly caused by that carelessness. There was a causal relationship between injury and breach of care.
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Therefore, duty refers to a practitioner’s responsibility to treat a patient according to the standard of care, negligence is defined by law as a deviation from the accepted standard of care and, therefore, a breach of duty, while causation requires that the patient’s damage is the result of negligence, and damage infers harm, detriment, or loss sustained by reason of an injury.
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In general, legislators seek to establish how the average physician would act under similar circumstances. All doctors are not expected to have levels of awareness equal to those of a professor and certainly all hospitals are ...