The Legal And Ethical Aspects Of Medical Malpractice
The Legal And Ethical Aspects Of Medical Malpractice
Medical malpractice exists when the physician does not provide adequate service and care in available conditions; does not reach the performance that an experienced physician could do under the same conditions; departs from the requirements of accepted practice and is below standards; and hence causes harm and loss. Malpractice is a service that deviates from acceptable limits that could be provided in normal conditions.
In a broader sense, medical malpractice occurs when an individual, who received medical care, is harmed because of wrong or improper practices of professionals who work in medical or related fields.
Since medical knowledge is increasing exponentially every day and new medical technology is being developed with a rise in the number of physicians that use this technology, physicians are being required to do some practices that they never did in the past. In addition, because these practices generally carry high risks, the number of complaints and claims of malpractice is rising. The term ‘malpractice’ is multi-faceted and multi-dimensional.
In a broader view, improper medical practice exists as a result of negligence, lack of care, ignorance, incapability and inadequacy in patient care. Thus, now let us define the sub-concepts:
Ignorance relates to the situation when a physician does not perform medical care and treatment in available conditions that an experienced physician could do in the same conditions. Moreover, it means deviating from the requirements of accepted practice, and being below standards. While ignorance could be explained as not doing the things that should be done necessarily; carelessness is doing the things that should never be done.
A physician who gives medical treatment to a patient should have knowledge and skills adequate enough to be accepted by other colleagues. It may be assumed that physicians have different levels of knowledge and ability, every physician ought to know about developments in his or her field to some extent, and be able to provide medical services using methods and treatments that have been tested and proven to be effective.
A physician is not expected to guarantee a good result, however, an inferior result should be justifiable by the physician. A physician is deemed guilty solely on the grounds of neglecting or abuse of the requirements of his or her profession. In summary, malpractice exists when a health service that could be provided in available conditions deviates from acceptable limits.
When investigating claims of medical malpractice, the facts should be scrutinized in three points of view: in terms of law, ethics and standard care. The conditions in which the harm that is claimed to be existed, the profession of the practitioner, the average level of knowledge and ability that the practitioner should have acquired to conduct his or her profession,
any deviations from this level, any deviations from the level of medical care that is acceptable for the country in question, whether the harm is the result of the malpractice claimed are all areas that should be considered.
At the beginning of patient rights is the right to be informed which is defined as “patients are completely informed about the medical realities of their condition, every recommended treatment’s potential risks and benefits,
alternatives to the recommended treatment, diagnosis and prognosis” and it is necessary for physicians to set aside sufficient time with their patients to fulfill this right. Although physicians are responsible to their patients, it is the health care service understanding which forces physicians to work in conditions like this which is the real abuser of patient rights.
In the lawsuits regarding medical malpractice, some of the claims depend on wrongful acts, which are intentional or resulting from negligence. The conditions for physician’s responsibility in the case of wrongful acts are as follows:
– The act being realized.
– The act being unlawful: Unlawful acts are defined as acts against the rules of the legal system to protect property and individual persons.
– Fault: An individual who intentionally acts unlawfully or who does not strive to prevent the act (negligence) is considered to be at fault.
– Harm: An unlawful act must have caused harm.
– Causality: There must be causality between the unlawful act and the harm for a liability to exist. The harm must be the result of that very act. When this relationship is being determined, the course of action and life experience is beneficial. This result ought to be an expected one.
Whether the fault results from a human or a device or technology, the physician’s liability exists if he harms a patient because of a fault. The principle of liability being related to a fault, when an individual that harms another individual by committing an unlawful act, he is liable only if he is at fault and to the extent of his fault. The principle of liability being related to a fault is valid in the legal system, as well.
Medical Malpractice Law
This law brings regulations that demand that health personnel respect human life, health, patient’s personal integrity, rights dictated in domestic and international law, and provide maximum care and attention to the needs that their profession requires. The physicians that act against these rules, if their action does not require heavier punishment, will be punished with the corresponding fine or penalty.
When a health personnel intends to write a scientific publication regarding his patient, he will inform the test subject and ask for his written consent. The records can never include the patient’s private information even if they are stated indirectly. Research that involves patients for the purpose of contributing to scientific knowledge may only be conducted by patient’s written consent and permission from the Ministry of Health. Test subjects that are to be used in the research will be insured in order to compensate for possible harm.
No medications other than medications that are obviously required will be prescribed. However, the number of medications will never be limited. The patient will be informed beforehand about the cost of services, and health personnel will not force patients to spend money unnecessarily.
Medical Ethics Perspective of Malpractice
the field of law is more stable, contrary to medical ethics that is variable and dynamic. Ethical principles can be discussed and priorities can be changed for each and every case. On the other hand, legal rules are to be obeyed to the extent that they are valid. The patient’s rights issue, which is one of the aspects of the patient-physician relationship that is one of the basic issues in medical ethics, and that was regulated again from ethics towards law, covers several rights that competent groups have been agreeing upon and have been trying to express in a much more detailed manner.
When “fundamental patient’s rights”, which were stated in Lisbon and Bali Declarations of the Union of World Physicians, are scrutinized, the perspective of medical ethics may be seen much more clearly. The aim should be disseminating this view throughout Turkish society.
The increasing role of physicians in developing and disseminating the principles of professional ethics when they practice their profession, is resulting in the issue of malpractice, an issue which is known to be unpopular with physicians, and is discussed by them more and more.
In the Marbella Declaration, which was on “medical malpractice”, the view of the Union of World Physicians regarding malpractice can be seen. The measures to decrease the number of malpractice cases were declared in this Declaration, and ethical liabilities of the stakeholders were stressed.
It is important to maintain a sensitivity and awareness regarding ethical responsibilities among physicians and other health personnel. The education of medical ethics has been revised to reflect this point of view.
Mohamed Mahmoud Al Marzooqi law firm
Attorney / Mohamed Al Marzooqi
Mohamed Al Marzooqi advocates & Consultancy
Lawyer in Abu Dhabi, Dubai – UAE
