No Fault Regime Better Than a No Fault Rule - Medical Negligence

A health care provider must understand many aspects of statutory duty. Duty is “a legal obligation imposed on one to conform to a recognized standard of care to safe guard the rights of others”. The standard of care is usually related to medical malpractice cases. Standard of care is defined as “the caution and prudence that a reasonable person would exercise under the circumstances or by appropriate authority for such situations”. This is mainly of importance because all physicians are expected to perform within the guidelines of this duty, and this standard or care changes depending on the circumstances. “Once the duty has been established, the plaintiff must show that it was breached by presenting evidence of the facts of the case and testimony from expert witnesses regarding whether the standard was met”(Showalter, 2014 p 139). Negligence results in the failure to meet this standard of care, and the jury usually decides if the defendant is guilty of committing a negligent act. Causation is an aspect of negligence. The defendant could be held liable for negligence if the act was considered to be foreseeable, and if the injury occurred from a breach of duty.

Medical error is the third leading cause of death in the US, right behind heart disease and cancer. More than 200,000 people die annually as a result of diagnostic mistakes and negligence by healthcare professionals (Washingtonpost, 2016). In the healthcare industry, even the smallest mistakes and oversight could lead to severe consequences for both the patient and professionals. A healthcare professional would be held liable for any discrepancies that causes harm. The following case will analyze the ethical issue and negligence that lead to the death of an elderly woman.

One of the most critical factors which contribute to the number of preventable cases of healthcare harm is the culture of silence surrounding these cases. The fear of medical providers to report incidences is related to the possibility of punishment and liability due to a medical error (Discovery, 2010). The criminalization of some acts of medical error has resulted in job dismissal, criminal charges and jail time for some healthcare workers. This is despite the fact that the system they are working in helped to create the situation which led to the error in the first place. Human error, due to fatigue and system errors can result in deadly consequences, but by criminalizing the error it effectively shuts down the ability to correct the root problem. Healthcare workers, working at all levels within the medical system, can provide valuable input on how to improve the processes and prevent harm from occurring (Discovery, 2010).

It is shocking to know that every year 98000 patients die from medical errors that can be prevented(Kohn, L. T., Corrigan, J. M., & Donaldson, M. S. (Eds.), 2000). Medical errors are not a new issue in our healthcare system; these have been around for a long time. Hospitals have been trying to improve quality care and patients safety by implementing different strategies to prevent and reduce medical errors for past thirty years. Medical errors are the third leading cause of death after heart disease and cancer in America (Allen, 2013). In addition medical errors are costing our healthcare system an estimated $735 billion to $980 billion (Andel, Davidow, Hollander, & Moreno, 2012).

Blendon, R. DesRoches, C. Brodie, M., Benson, J. Rosen, A., & Schneider, A. (2002). Views of practicing physicians and the public on medical errors. New England Journal of Medicine. 347, 1933-1940.

Charleston Community Memorial Hospital proved a corporate negligence doctrine in the case (Pozgar, 2013). The court found a jury could reasonably find negligence due to the fact that staff did not test for circulation as often as needed, it was concluded that skilled nurses would have been aware of circulation problems, informing attending staff promptly (Law School Case Briefs,2013). There was no argument that the defendant, the hospital in this case, failed to review physicians work, or require a consultation. A jury found that this failure was within reason to assume a negligent act was performed, or not performed in this case (Law School Case Briefs,2013). A person goes to a hospital and within reason expects the hospital to treat them (Pozgar, 2013). There is a legitimate basis in this case to hold the hospital vicariously responsible for torts of its employed staff (Law School Case Briefs,2013). In Darling v. Charleston Community Memorial Hospital, the jury found negligence by both the doctor and the nursing staff, this was supported with evidence during the trial (Law School Case

A second issue is malpractice. Malpractice issues are always present in an unstable environment where patients will seek to remedy an incident if they feel they have been harmed (Hamric, 2009). It is important to always act in a reasonable way as a health care clinician but unfortunately there are always those who are negligent in their actions as practitioners.

Causes of major medical errors have many different factors and influences. This includes why the patient was being seen to allow such an error, what medical guideline or guideline’s that where not followed that caused the error, what could have been done by staff members to prevent the error, etc. When errors take place, repercussions follow such as the cost incurred to the patient or patient family members, fines the medical worker must pay, and most importantly what is the patients status/prognosis. Not all patients prevail and make it through such awful medical errors.

Furthermore, as discussed in chapter 3 there is inconsistent application of the legal rules to determine the liability of the medical professional. Therefore, as previously discussed solicitors are usually hesitant to pursue clinical negligence claims by the means of SFA. With SFA being the only means for claimants to afford to pursue clinical negligence claims the removal of civil legal aid for clinical negligence claims has meant that many claimants are unable to access the necessary legal representation and in turn access courts for their civil rights to be determined. Consequently, many claimants are not compensated for medical injuries inflicted due to the negligence of the medical professional, thus the current system is failing to meet its primary aim. More importantly, the practical difficulties in accessing and in turn using the civil justice system for clinical negligence claims has meant that the Scottish Government is failing to meet its obligation under Article 6 and 8 of the

Mistakes and errors caused by medical providers happen in the healthcare field, resulting in punitive actions against the provider. As cited by Geffken-Eddy (2011) studies by the Institute of Medicine have shown that punishment will only lead to more medical errors or providers not reporting their

Under a no-blame, administrative model, the Patients’ Compensation System (PCS) compensates patients for avoidable injuries without suing health care providers (Patients for Fair Compensation, 2012). Starting with patient advocates who help injured patients navigate the PCS, the system includes several steps to ensure that each case is thoroughly researched. Patient eligibility for and amount of compensation are determined impartially, and improvements in practices and treatment approaches are based on back-end data tracking and the identification of causal factors. The PCS aims to uphold the highest standards of judgement in each case by relying on a review panel of physicians, nurses, and other certified medical professionals who possess no knowledge of the case. The inclusion of an administrative law judge further ensures that the law is applied fairly and the process is followed to the letter (Patients for Fair Compensation, 2012). The goal is to seek justice for injured patients, regardless of traditional barriers to access, and to protect health care providers from meritless

As a result of the present laws regarding negligence and duty of care, the Australian legal system and courts have established certain principles which aim at protecting and guiding medical practitioners in relation to their duty of care. One such principle is known as the Bolam Principle, or the Peer Acceptance Defence. This principle was initially established in the case Bolam v Friern Hospital Management Committee6, an English case, but was introduced into the Australian system in the High Court case Rogers v Whitaker7, where the principle from Bolam was applied. This principle is ‘a rule that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though

It is human nature to make mistakes; however, mistakes that cause harm to someone else could be considered negligence. In the case with Mr. Benson in the Neighborhood Newspaper article, a mistake was made that was irreversible. He went into the hospital to have his leg amputated, and the doctor amputated the wrong leg. The question is was the doctor negligent in his practice? Is the amputation of the wrong leg considered to be malpractice on the doctor’s part? This paper will differentiate between negligence, gross negligence, and malpractice. After differentiating between these terms, it will be determined if the doctor operating on Mr. Benson was considered to be negligent, gross negligent or was this mistake malpractice.

In Gregg v Scott, Mr. Malcolm Gregg (‘the claimant’), the House of Lords examined the law of negligence in the area of personal injury. In order for the claimant to have a successful claim in court, the onus to shifts to the claimant to demonstrate that a duty of care owed by the doctor, there was a breach of that duty, an injury was sustained, and the negligence on behalf of the doctor Dr. Andrew Scott (‘defendant’) was a cause of the ‘injury’. If these elements are not satisfied, the claimant may lose its entitlement to full compensation.

Inexperience and ignorance are two factors that can result in unintentional harm to a patient. For instance, foolish mistakes made out of