Medical Malpractice – The three basics legal principles – UAE Medical Liability Law Medical Malpractice law in is based on three legal principles: Negligence, Causation, and Damages
The three basics legal principles
Medical Malpractice law in is based on three legal principles: Negligence, Causation, and Damages.
Negligence. First the plaintiff needs to establish that the negligence by the physician occurred based on acceptable evidence. Wherein negligence is normally defined as the failure of physician to use the same level of practice and judgment that is usually exerted in similar circumstances through the average professional in the same specialty. Negligence is the physician’s failure to comply with the applied standard of care in treating the patient.
Causation. The plaintiff next is required to show that it was the physician’s negligence that leads, wholly or partially, or aggravated an injury.
Damages. The plaintiffs then is required to prove loss, which includes compensation for lost wages (both past and future), pain and suffering, loss of companionship, any additional costs of care/transport, etc. Damages can be compensatory and punitive in nature.
Why the physician being sued??
The plaintiffs mostly file claims to obtain information. The information is likely to come out so it is in the best interests of the physician to provide comprehensive information in an understandable manner directly after the incident.
Some plaintiffs file suits based on the belief that the physician did not listen to the patient or answer inquires, or failed to caution them about the risks. It is essential that the records be properly documented when conversations take place. It is also essential to realize that the patient and the family may be under stress, which may make them less able to understand the consequences. They may need to be told of the dangers several times.
Some plaintiffs sue because they consider the physician to be incompetent. Anger can motivate them to seek to protect other patients or seek revenge. Prompt and properly thought out communication with distressed and angry patients/families is vital in affecting their course of action.
Sometimes patients or their families complain that the physicians did not fully inform them. Even when the physician disclose everything fully, the physician should be aware of the potential for misunderstandings as many people will be under stress, pain or fair may not understand medical terms or may fail to advise you when they are confused or are not clear on an issue. Grief and denial can cause patients/families to mishear or not hear the provided information and subsequently, they may state later that they were never provided information.
Statute of Limitations
The statute of limitations is the deadline to file a civil case and can be run from as little as one year to three years. Some states limit the overall time even in the case where an injury was not discovered but most states run the time limitation.
Communicating With Lawyers
Subpoenas and Letters
Requests for medical information or correspondence from patients’ attorneys or a court (such as subpoena, summons, complaint, or other written request) should generate a call to the insurance company. Acquiring legal documents need a response within a limited time frame or may require a personal appearance. In any response one should only respond to what has been asked for and not speculate as to what the requestor may be looking for.
Communicating with Lawyers Appointed by the Insurer
Whenever a case is filed, defense counsel will be appointed by the Insurer. Assistance and cooperation in the investigation of potential or actual claims and preparation for defense is very important.
One shall not discuss ANY information provided during interviews with the lawyers relative to the claim or potential claim with any party other than your own lawyer or as instructed by the lawyer. Discussion could result in some of the information ceasing to become privileged.
The litigation process has three stressful phases, which can take time. The physician needs to realize that it is important to take the time to be properly prepared and take time to handle each area with a reduced emotional involvement. The three areas are:
Quality Care / Risk Reduction
The physicians’ aim is to provide quality care for all patients and their families. This includes the technical aspects of care, access, timeliness and good manners and concern. These must be the highest priorities. Providing quality care may also reduce your chances of becoming involved in malpractice lawsuits. Although the following quality care recommendations are based on common sense, they are often not followed despite their importance. Failures in these areas provoke patients’ anger and may convince them to file a malpractice claim:
Spend quality time with patients.
The time to develop a trusting relationship is before, not after, an adverse outcome.
Look and act professional.
Listen for questions, spoken and unspoken.
Where appropriate, sit on the bed or in a chair alongside the patient or family. Likewise, where appropriate, touch the patient to show concern.
Answer questions and explain situations in language that patients and their families understand.
Create reasonable expectations about treatments and outcomes. Be honest.
Involve patients in decision making.
Provide information about alternatives and risks required for patients to make truly informed choices.
Ask patients and family members to repeat in their own words what you have discussed so you may be sure they have understood.
Respect patients’ decisions and maintain their confidence.
Anticipate families’ questions and provide appropriate answers. Patients may not know what questions to ask, so be prepared to provide some information commonly requested by similar patients.
Report test results as quickly as possible. Patients and their families wait anxiously for these results. Nothing is more important to them than learning the outcome(s) and your interpretation of it. Be sensitive to their need.
Never demonstrate or express anger or contempt. The uncontrolled emotions cause more harm than good. Neither should you get caught up in a patient’s anger. A health professional’s controlled reactions, expressing his or her reasoned disappointment or dissatisfaction, are more likely to be productive.
Employ the golden rule: Treat patients as you would like to be treated. Always communicate changes in patient status or treatment. Failure to communicate changes in patient status and treatment regimen among physicians may lead to adverse outcomes and malpractice suits. Communicate changes to the patient, especially if they involve the possibility of a complication or an unexpected outcome. Surprises or disappointments may lead to unnecessary litigation. Therefore, forewarn patients about circumstances (e.g. fever, infections) that may lead to problems and/or extended treatments or hospital stays.
Mohamed Mahmoud Al Marzooqi law firm
Attorney / Mohamed Al Marzooqi
Mohamed Al Marzooqi advocates & Consultancy
Lawyer in Abu Dhabi, Dubai – UAE