Medical Negligence

2. Medical Negligence Dr. RubinaSalmaYasmin MBBS, MCPS, M.Phil (Forensic Medicine)

3. Introduction • Negligence-carelessness, • Lack of proper care and attention. • Doing an act which a reasonable and careful person will not do or not doing something which a reasonable and careful person will do.

4. Definition • Medical Negligence • It is defined as lack of reasonable care and skill or willful negligence on the part of medical practitioner in the treatment of the patient where the health or life of the patient is endangered.

5. Definition • It is an act or omission by a health care provider which deviates from accepted standards of practice in the medical community and which causes injury to the patient.

6. Law of Tort • Law of Tort: tort is the law of civil wrongs. • The word tort comes from Latin term TORQUERE which means wrong or twisted.

7. Law of Tort • It is the area of law that covers the majority of all civil law suits. • Every claim that arises in civil court falls under tort law. • The concept of tort law is to redress a wrong done to a person, usually by awarding him money as compensation.

8. Law of Tort • A body of rights, obligations and remedies that is offered by courts in civil proceedings to provide relief for persons who have suffered harm from the wrongful acts of others.

9. Law of Tort: Objectives • It seeks to compensate victims for injuries suffered by the culpable action or inaction of others. • It seeks to shift the cost of such injuries to the person or persons who are legally responsible for inflicting them. • It seeks to discourage injurious, careless and risky behavior in future. • It seeks to vindicate legal rights and interests that have been compromised or diminished.

10. Parties in Medical Negligence • The plaintiff • The person who sustains injury or suffers pecuniary damage as the result of tortuous conduct is known as the plaintiff. • Or it is a legally designated party acting on behalf of the person(patient).

11. Parties in Medical Negligence • The defendant • The person who is responsible for inflicting the injury and incurs liability for the damage is known as defendant. • That is the defendant is the health care provider. • Although a health care provider usually refers to a physician, the term includes any medical care provider, including therapists, dentists, nurses and other paramedical staff.

12. Elements of Negligence/ Malpractice. • A plaintiff must establish all four elements of the tort of negligence for a successful medical malpractice claim. • A duty was owed- a legal duty exists whenever a health care provider or a hospital undertakes treatment or care of a patient.

13. Elements of Negligence/ Malpractice. • A duty was breached • The health care provider failed to conform to professional standard and to exercise reasonable carefulness. The standard of care is proved by expert testimony . • The breach of duty caused an injury • The breach of duty was the proximate cause of the injury.

14. Elements of Negligence/ Malpractice. • Damage; Damage to be assessed in terms of money. • Damages; Losses which may be monitory or, physical or emotional. • Without the assessment of damage, there is no basis for a claim, regardless of weather the medical provider was negligent

15. Elements of Negligence/ Malpractice. In short the ELEMENTS OF NEGLIGENCE are. • Plaintiff’s right for treatment • Defendant’s (Doctors) duty to plaintiff (patient) to conform to professional standard and reasonable care. • Breach of this duty. • Breach results in damage may be monetary/ physical/ mental. • Damage to be assessed in terms of money.

16. Burden of Proof • BURDEN OF PROOF- of negligence normally rests on patient, except in cases covered by RES IPSA LOQUITUR, a doctrine of common law, meaning that thing speaks for itself. • This doctrine creates that negligence has occurred and places a responsibility of explanation on the medical practitioner. • In such cases the burden of proof shifts from the patient to the medical practitioner to prove that he is not negligent

17. Burden of Proof Examples are: • 1-Instrument or swab left in the abdomen after surgery. • 2-Removal of a wrong organ (removal of a healthy kidney instead of the diseased kidney).

18. TYPES OF MEDICAL NEGLIGENCE/ MALPRACTICE • Civil negligence • Criminal negligence • Contributory negligence • Negligence of the 3rd party

19. TYPES OF MEDICAL NEGLIGENCE/ MALPRACTICE • Civil Negligence • Lack of carefulness in administration of treatment. • Examples are: • Failure to X-ray fractured part of bone or joint. • Failure to give anti- tetanus vaccine after an injury causing disease to the patient. • Such a case is brought before a civil court for compensation in terms of money.

20. TYPES OF MEDICAL NEGLIGENCE/ MALPRACTICE • Other examples of civil negligence are • During treatment of a patient, every care should be exercised while using dangerous drugs. • Excessive exposure of the patient to radiation should be avoided. • Failure to suggest consultation with a specialist when needed may be regarded as negligence. • Failure to warn the patient of any known or probable side effects of a drug or device.

21. TYPES OF MEDICAL NEGLIGENCE/ MALPRACTICE • Contributory negligence • The proper result of the medical treatment depends upon the exercise of carefulness of both the patient as well as the medical practitioner.

22. TYPES OF MEDICAL NEGLIGENCE/ MALPRACTICE • Contributory negligence • In case the patient becomes negligent and does not carry out the medical instructions, then such a situation is not ignored by law. • If the patient has contributed to the bad results, it is referred to as Contributory negligence.

23. TYPES OF MEDICAL NEGLIGENCE/ MALPRACTICE • Or it is defined as a concurrent negligence by the patient and doctor resulting in harm to the patient. • Contributory negligence is a good defense for the physician in civil cases. • The burden of proving such negligence rests entirely on the doctor.

24. TYPES OF MEDICAL NEGLIGENCE/ MALPRACTICE • Negligence of the 3rd party • Carelessness on the part of paramedical staff working in a hospital may damage the patient and this type of negligence is known as Negligence of the 3rd party. • However doctor in charge of the patient is responsible for the actions of his paramedical staff.

25. TYPES OF MEDICAL NEGLIGENCE/ MALPRACTICE • Criminal negligence • Gross and wicked recklessness on the part of medical practitioner, showing absolutely no regard for the safety of patient’s life and usually resulting in death of the patient.

26. TYPES OF MEDICAL NEGLIGENCE/ MALPRACTICE • Criminal negligence • The state punishes the wrongdoer and medical practitioner is charged under criminal law with manslaughter. • The case is brought before a criminal court for the award of punishment.

27. TYPES OF MEDICAL NEGLIGENCE/ MALPRACTICE Examples are: • Over-anesthesia of the patient by an addicted anesthetist. • Leaving the patient unattended on OT table after starting the surgery. • Drunk surgeon. • Operation on the wrong limb, removal of the wrong organ.

28. TYPES OF MEDICAL NEGLIGENCE/ MALPRACTICE 5. Leaving swabs, instruments in the body. 6. Giving wrong or infected blood. 7. Performing a criminal abortion. 8. Operation on wrong patient.

29. Precautions Against Negligence: • Make the care of your patient your first priority. • Protect and promote the health of patients and public. • Provide a good standard of practice and care • Keep your professional knowledge and skill up to date

30. Precautions Against Negligence: • Work within the limits of your competence • Consultation with a specialist should be suggested in doubtful cases’ • No procedure should be undertaken beyond one's skill.

31. Precautions Against Negligence: • Act with integrity and without delay if you have good reason to believe that delaying the treatment may put the patient at risk. • X-ray should be routinely advised in case of injury to bones or joints.

32. Precautions Against Negligence: • The diagnosis should be confirmed by laboratory tests including biopsy. • No experimental methods should be adopted without prior consent. • Never abuse your patient’s trust in you or the public s trust in the medical profession.. • Always act in the best interest of the patient.

33. Medical Documentation Dr. RubinaSalmaYasmin MBBS, MCPS, M.Phil (Forensic Medicine)

34. Medical Documentation • Medical Documentation is an important duty of medical practitioner. • Preparation of medical records of patients such as case notes, daybook and abstract register containing data. • Issuing of important medical documents like medical certificate, report and notification to patient, colleague and other administrative authorities including law courts are highly responsible duties of medical practitioners.

35. Medical Documentation • There are four important medical documents, which a medical practitioner has to prepare. • Medical prescription. • Medical certificate. • Medical report. • Medical notification.

36. Medical Documentation • Medical certificate is the most important and medical prescription is the most common of all medical documents. • A medical document ought to have proper format to fulfill the specific objective for which it is prepared.

37. Medical Documentation • These medical documents consist of three portions. • First and the last portions are common to all and are meant for identity of the patient and the medical practitioner. • Central portion has medical information relevant to the type of document. • The entries are made differently in accordance with the specific objective of each document.

38. Medical Documentation Medical Prescription • A direction of med. Practitioner to pharmacist through the patient for dispensing of medicine e.g Farah – 35 yrs Date: 20/10/17 Dx : Acute Tonsillitis R/x • Cap. Amoxicillin 500mg 1 TDS x 5 days • Tab. Panadol TDS x 5 days • Disprine gargles 1 tablet in 1 glass of water TDS x 3 days Signature (of R.M.P) (superscription essential for prescription of dangerous drug)

39. Medical Documentation MEDICAL REPORT • Limited medical information prepared and supplied by investigating physician after performing a test on part of the body of a patient e.g. X-ray Ultrasound, MRI CT Scan, blood, urine, biopsy. • This is to report…………………. • Medico-legal Reports – State duty e.g. autopsy report, report on injuries, poisoning

40. Medical Documentation MEDICAL CERTIFICATE • Complete and full medical information about the physical state of a person assessed after physical examination and investigations e.g. fitness for job, sickness, physical & sexual assaults, intoxication, nature of hurt • This to certify………………………

41. Medical Documentation • MEDICAL NOTIFICATION • Medical information pertaining to patients suffering from infectious, contagious diseases to safeguard other members of society or information about a seriously ill person working in a factory • R.M.P sends information to Municipal Health Officer (Municipal Administrative Ordinance 1960) or Inspector of factories (Factory Act 1934) • This is to notify……

42. Medico-legal Report • This is a report prepared by a doctor in response to a requisition from a law enforcement authority. • It is usually prepared in criminal cases such as physical assault, sexual assault(rape), murder and poisoning, etc. • It gives guidance about the case to the investigating officer. • It is produced in the court and is subject to cross examination by the opposing council.

43. Medico-legal Report • The medical information portion of the report consists of two parts. • The facts observed on examination. • The opinion drawn from them by the medical practitioner. • The opinion should be brief and clear and if possible technical terms should be avoided. • The report must state the place, date, and time of examination

44. Medico-legal Report • Two identification marks must be noted. • Names of the individuals, identifying the person or the body or the means by which the body was identified. • If an opinion cannot be given immediately the person should be kept under observation and necessary investigations carried out.

45. Dying Declaration • This is a statement made by a person, verbal or written as to the cause of his death or the circumstances leading to his impending death. • It is recorded only when the clinical condition of a victim is so serious that his death is imminent.

46. Dying Declaration • Legal formalities of oath are not necessary. • It can be recorded by any credible person, including the attending medical practitioner. • Case must be a criminal one and the subject of the statement is the circumstances of death. • Presence of the accused is not necessary.

47. Dying Declaration • It should contain only the statement of the dying person. • If possible the statement should be read over to the victim and got signed by him. • It becomes legally valid only upon the death of the declarant

48. Rules for Recording Dying Declaration • Fitness-the patient understands what he is saying & what is being asked that is the patient is in sound mental condition. • It should be recorded in simple narrative form. • Statement should be free and spontaneous without any suggestions or prompting. • The declaration may be made orally but the person receiving it should record it in writing at that time.

49. Rules for Recording Dying Declaration 5. The declaration, when concluded, should be read over to the victim and get his signature or thumb impression on it. 6. The statement should also be signed by the person recording it as well as by the witnesses. 7. The declaration should then be forwarded in a sealed cover to the appropriate magistrate.

50. Differences between dying declaration and dying deposition