30.5.1 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.
There are 4 elements in medical negligence: discharge of duty, breach of duty, injury, and burden of proof. Medical negligence
may be breach of duty resulting in causation of injury which calls for damages. Negligence may also 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 and as vicarious liability. 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.
30.5.2 TYPES OF LIABILITY
The following are types of liability: physician liability, professional errors, neglect of duty, vicarious
liability, liability for defective products, and special types of causation. Physician liabilities include lack of informed
consent, errors, and neglect of duty. Professional errors may be ordinary or extra ordinary. They may be harmful or non-harmful.
Informed consent or express instruction of the patient does not relieve the physician of liability for errors. The physician
is liable for discontinuing treatment without justification. Vicarious liability is when someone is made liable for a negligence
they did not personally perform for example the employer. The supplier is liable for defective products.
30.5.3 BASIS OF LIABILITY
Liability is based on breach of contract, the tort of negligence, and breach of confidence. The physician-patient
relation establishes a contractual relation that can be breached. The tort of negligence is invoked when there is breach of
duty that leads to injury of either the patient or a third party. Three ingredients must be proved: (a) the physician owed
a duty of care (b) the physician failed in that duty (c) the failure resulted in damage. The physician may also be liable
for breach of confidence. The physician-patient relation is based on confidence.
30.5.4 MALPRACTICE SUITS: COURT PROCEDURE
The statute of limitations states that there is a fixed period after the breach during which tort action
can be brought. 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.
30.5.5 AVOIDING / 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.