Medical Negligence

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• Medical Negligence

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• 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.

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

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• 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,

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• 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.

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• 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.

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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
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• 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

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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

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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

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Elements of a Cause of Action in Negligence
(Malpractice)

1. Duty of Care
2. Negligent Breach of Duty
3. Causation
4. Damages

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Duty

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

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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?

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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?

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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

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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

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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

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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

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Later applications

• Whitehouse v Jordan 1980
• Maynard v West Midlands RHA 1984
• I have to say that a judges preference for one
  body of distinguished opinion over another also
  professionally distinguished is not sufficient to
  establish negligence

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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

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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)

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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)

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Avoiding Inappropriate Defensive Practice

1. Make a clinically sound treatment decision.
2. Accurately identify the legal risk in the case.
3. Evaluate the risk by estimating potential costs
   of the claim in time, anxiety, money.
4. Discount that risk calculation by the
   unlikelihood of its occurrence and the potential
   claims defensibility.
5. Evaluate that cost to the patient and society of
   potential defensive measures.

Deville, supra, at 582.
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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 dont 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.

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. . . 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 2001164(4)509
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• 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

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• Thank you

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