DEFINITION and DESCRIPTION
Malpractice is failure to fulfill the duties of the trust put on the physician. The term malpractice
includes the legal concept of medical negligence. Negligence is breach of duty owed by the physician to the patient resulting
in damage or injury. Negligence is defined according to the customary standards of care that are established by the profession.
Negligence may arise as battery which is injury due to intentional tort (a civil wrong in which liability
is based on unreasonable conduct). The intentional torts are assault, battery, treatment without informed consent, false imprisonment
or confinement, intentional infliction of emotional distress, and defamation (slander if verbal and libel if written).
Negligence also arises from abandonment of a patient or breach of confidentiality.
Negligence also arises in liability for drugs and devices.
A physician is also found negligent for negligent referrals, failure to warn about risks, and failure
to report a notifiable disease.
Negligence also covers professional errors. The errors may be ordinary or extraordinary. They may be
harmful or non-harmful.
BASIS OF LIABILITY
Three ingredients must be proved in a case of negligence: (a) the physician owed a duty of care (b)
the physician failed in that duty (c) the failure resulted in damage.
MALPRACTICE SUITS: COURT PROCEDURE
The legal process follows several steps: filing a complaint by the plaintiff, serving a summons on
the defendant, plea of guilty or not guilty by the defendant, discovery (lawyers for both sides collect more information by
interviews, examinations, and collection of documents), opening statements at the trial by both sides, testimony and examination
of witnesses, closing arguments, and judgment.
The burden of proof of breach of standard of care lies with the plaintiff. Proof of breach is based
on a balance of probabilities, on the ‘but-for’ test, and on causation of damage or risk. Physician defense against
malpractice suits rests on absence of duty, no breach of duty, lack of causation, and lack of damage. Instead of a trial,
alternative dispute resolution procedures may be used: arbitration, mediation using an expert facilitator, fact finding and
investigation of the case by an expert. Damages can be awarded for personal injury, death, wrongful birth or wrongful life,
emotional distress, economic loss, and breach of confidence.
/ PREVENTION OF MALPRACTICE SUITS
Malpractice suits can be avoided by obtaining and maintaining registration, sticking to defined professional
standards of care, peer review, quality assurance, use of protocols, defensive medicine and politeness with patients. The
best protection against medical negligence is the conscience of all health care workers to make sure that mistakes do not
occur. Well written records can be a defense for the physician.