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
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.