Unit 5 Seminar

Unit 5 Seminar

Chapter 6: Professional Liability and Medical Malpractice

Malpractice definition

• First, lets begin by defining malpractice. • Malpractice is “professional misconduct or

demonstration of an unreasonable lack of skill that results in injury, loss, or damage to the patient” 

• Now, remember, what was the definition of negligence? 

Negligence definition

• Negligence is an “unintentional action that occurs when a person performs OR fails to perform an action that someone is a similar situation would have done.  

• Negligence and malpractice are 2 different concepts…

Breaking down negligence…

• The root word “feasance” means performance of an act.  – Malfeasance– Misfeasance– nonfeasance

malfeasance

• MALFEASANCE – where there is straight-out performance of an

illegal act.

• What could be an example of malfeasance in health care? 

misfeasance

• MISFEASANCE-– this means the IMPROPER performance of

something that would have otherwise been legal.

– Could anyone give me an example of this in healthcare? 

Nonfeasance

• NONFEASANCE • FAILURE to perform a necessary act

altogether. • What would be an example of

nonfeasance in healthcare? 

4 Ds of negligence

• Now, this is very important. You will always see this on you certification tests.  

• There are 4 “Ds” of negligence: These 4 Ds mean that ALL four of these things must be proven in order to prove negligence. So, for example, if you can only prove 3 out of 4, you don’t have a case for negligence

• Duty• Derelict• Direct cause• Damages

Duty

• this is the responsibility established by the physician-patient relationship

• how is this doctor patient relationship established?

Derelict

• Dereliction, or neglect, of duty refers to the physician’s failure to act as any ordinary and prudent physician (a peer) within the same community would act in a similar circumstance 

Direct cause

• Direct cause means a cause which, in a natural and continuous sequence, produces injury and without which the injury would not have happened

• For negligence to be a direct cause it is necessary that some injury to [the property of] a person in [Plaintiff’s] situation must have been a reasonably foreseeable result of negligence

Damages

• DAMAGES, which of course means there were some type of injury to the patient caused by the defendant (who they are suing) 

Res ipsa loquitur

• “the thing speaks for itself”• This means 3 things: 

1. the injury could not have occurred without negligence. 

2. the person being sued (defendant) had direct control over what happened to cause the injury. 

3. the patient had nothing at all to do with the injury. 

Types of damages

• Compensatory– damages are awarded by the court as payment to make

up for loss of income OR emotional pain and suffering• Punitive or exemplary damages

– meant to punish the offender and they award money to a person that was harmed in a really bad way

• Nominal damages– not that big as they are just a slight token payment

awarded by the court

How are malpractice suits defended?• Denial• assumption of risk• contributory negligence• comparative negligence• borrowed servant• statute of limitations• res judicata • Respondeat superior

True malpractice…

• True medical malpractice consists of negligent conduct that causes  damage.  

• There may be "malpractice" from a theoretical point of view,

• if the conduct has not caused injury it is not a matter for the legal  system.

• Sometimes there may be true "malpractice" but no residual  damage. These are not strong cases.

• Juries are not all interested in a  past history of damage; they do become interested when a plaintiff can  show permanent injury.

How much do these suits cost?

• Most medical malpractice cases for the plaintiff are handled on a  contingent fee basis. Ordinarily this ranges from 331/3 to 50% of the  recovery after costs are deducted "off the top." 

What do you think about these cases?

• The following are all true court cases. We do not know the outcome, but I want to ask…– Is there a malpractice (or negligence) case

here?– If so, who’s at fault?

Anesthesia

• A patient underwent surgery with Halothane (fluothane) as the anesthetic  agent, even though he had suffered previous biliary tract disease, which  made the use of this anesthetic contraindicated. The patient died as a  result of liver necrosis due to the effects of the anesthetic. 

• A trainee anesthesiologist ran out of oxygen before the operation was  completed, causing the patient to suffer a fatal cardiac arrest. 

Angiography

• A patient underwent angiography (dye study of the arteries). The  procedure was improperly performed, and the patient suffered brain  damage.

Childbirth

• A patient's obstetrician was twenty minutes late, and delivery room  nurses had to deliver her child. Then, although the infant was suffering  from respiratory distress, a pediatrician was not called for several  hours. The child is brain-damaged and requires life-long care.

Diet Error

• An accident victim's operation to repair a skull fracture was delayed  twenty-four hours because the patient was fed a regular diet by nursing  personnel, despite a physician's order that the patient was to receive  nothing by mouth. The patient suffered permanent brain damage.

Drug Addition

• A patient underwent unnecessary surgery that resulted in severe pain for  which addictive medication was prescribed. The patient became a drug  addict.

Error in diagnosis

• A child swallowed foreign metal material, and the attending physician  failed to diagnose the trouble. The child died.

• A patient suffered from cancer, but the attending physician failed to  diagnose the disease. The cancer spread and the patient died. 

• A patient ingested insecticide. His physician incorrectly diagnosed his  condition, and failed to administer the proper antidote. The outcome was  permanent brain damage. 

• A patient who fell was taken to the hospital emergency room where a  diagnosis of inebriation was made. The patient actually had a fractured  spine and a severed spinal cord. The result was permanent paraplegia.

Experimental therapy

• A patient complaining of low back pain received an injection of an  experimental enzyme into a vertebral disc, causing a neurological  deficit.

• A patient underwent low back surgery following a minor fall. There was  no objective medical evidence whatsoever to justify surgical  intervention. The patient suffered emotional and physical disability,  and attempted suicide.