Medical Malpractice


The doctor-patient relationship has been defined differently through the
years. In the beginning it developed into a "common calling" which meant
doctors practiced medicine as a duty to their patients. Laws were developed to
protect patients, therefore doctors used proper care and expert skill. In the
past six centuries, medical malpractice has increased, which lead to revision
and addition to the law. Liability was introduced along with the "GIANT of all
torts", negligence. Now in today\'s society, a doctor\'s duty is to use
reasonable care, skill and judgment in the practice of his/her profession and
when negligent, take full responsibility.
What is malpractice? Malpractice is negligence. Negligence is a tort. A
tort is a civil wrong, therefore malpractice is a civil wrong. In its
simplest terms, malpractice has four essential elements: 1) Duty. Every
health care provider assumes a duty when starting consultations, diagnosis, or
treatment of a patient. The duty arises from an expressed or implied contract.
2) Breach. For example, if you fail to make a correct diagnosis once you have
assumed the duty to do so, you have created a "breach of duty", due and owing to
the patient. 3) Causal Connection. Your failure to correctly diagnose,
("duty" you "breached") the duty due and owing to the patient and as a direct
and proximate cause of your breach, caused damages. 4) Damages. The result of
your failure to diagnose correctly, the patient sustained damages in the form of
an additional hospital stay, complications that may or may not be of a permanent
and continuing nature. (Brooten Jr., Kenneth E. p. 1) Negligence is the most
common civil suit filed against doctors. Liability for negligence will not be
found unless the following factors are present: (a) the defendant must owe a
duty to the plaintiff to exercise care; (b) the defendant must breach the
standard of care established by law for his/her conduct; (c) the plaintiff
must suffer loss or injury as a result of this breach; (d) the conduct of the
defendant must be the "proximate cause" of the plaintiff\'s loss or injury. (
Picard, Ellen I. p. 29) In the case of Adderly v. Bremner (Picard, Ellen I. p.
461) the defendant physician was negligent in not changing the syringes to
vaccinate 38 patients and instead used one needle for every two patients. As a
consequence, the plaintiff was infected with septicemia (blood poisoning).
This doctor failed to give the required standard of care. Any reasonable doctor
would have in fact changed the syringe after each patient and would have
foreseen the consequences for not changing them. According to the case the
doctor did not follow instructions accompanying the vaccine, stressing the fact
that a sterile needle and syringe were to be used for each patient. This case
is a perfect example of a doctor not following orders and unprofessionally
practicing on innocent patients. Though the plaintiff was not mortally injured,
the doctor was found liable. This teaches the defendant physician a lesson
along with doctors all across Canada and may prevent another patient from
unnecessary suffering.
Another common civil tort filed against doctors is battery. Battery is
committed by intentionally bringing about harmful or offensive contact with
another. The basis of this tort is that the touching is without consent.
(Picard, Ellen I. p. 25) In the case of Hankai v. York County Hosp. (Picard,
Ellen I. p. 490) the defendant doctor performed surgery on the plaintiff to
remove a miscarried fetus. The defendant also performed a meatotomy without the
consent of the plaintiff. The defendant doctor was liable for battery for
performing the unconsented - to meatotomy. There are several other cases just
like this one where a patient consents for one operation and given another or
both. How a doctor can take the decision of a competent human being into his
own hands is beyond me. The plaintiff was in no immediate danger, the defendant
could have suggested the second operation after the completion of the first. In
cases like these the doctor is incredibly egotistical and is playing God.
Physicians
who ignore patient requests or fail to ask for consent only build communication
barriers and ruin the profession\'s reputation.
Many people believe doctors are the real victims. They feel doctors are
confined from performing and medical students limit career options in fear of
being sued. There are some illegitimate and ungrateful citizens who insist on
filing suits when doctors are not at fault. When a family member dies, the loss
may cause anger and looking for a doctor to sue seems like the right thing to do.
It is human nature