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Misdiagnosis
Failure to provide a proper standard of care - the law states that there are
recognized medical standards by which a health care professional should adhere to
when providing care for patients. The medical profession recognizes these
standards.
Patients have the right to expect to receive these standards when being treated.
If the standard care is seen to be violated, there may have been negligence.
The patient's injury must have very damaging consequences - lawyers say
that for a malpractice suit to succeed, the patient has to show that the injury or harm
caused by the medical negligence resulted in considerable damages. Lawsuits are
very costly to follow through to the end. Examples of considerable damage include
suffering, enduring hardship, having to live in constant pain, considerable loss of
income, and injury that disabled the patient.
If the injury is minor, the patient will probably spend more on the lawsuit than the
eventual money recovered.
Informed consent - if the patient does not give "informed consent" to a medical
procedure, the doctor or health care provider may be liable if the procedure results
in harm or injury, even if it was carried out flawlessly. For example, if a surgeon did
not inform the patient that a surgical procedure had a 30% risk of losing a limb, and
that patient lost a limb, the doctor would be liable, even if the operation was done
perfectly, because the patient may have opted not to go ahead if he/she had been
informed of the risks.
A study led by Harvard Medical School researchers revealed that a sizeable
minority of practicing doctors do not think patients should always be told the
whole truth.
The defendant - this is the party who is being sued. In a medical malpractice suit it is
the health care provider, this could be the doctor, nurse, therapist - any medical
provider. Even those who were "following orders" may be liable for negligent acts.
The prevailing party - this is the party who wins the case; it might be the plaintiff or the
defendant. If the defendant wins the case, the plaintiff has lost and will receive no
compensation.
The losing party - the party who loses the case; the opposite of the prevailing party.
The fact-finder - the judge or jury.
The plaintiff has to prove that the four elements of the tort of negligence existed in order
to succeed in a medical malpractice claim:
A duty was breached - the health care provider or hospital did not conform to the
expected standard of care
The breach resulted in an injury - the breach was closely linked to the injury
The burden of proof is on the plaintiff, who has to prove compellingly that the
defendant was negligent. In most trials, both the defendant and plaintiff will present
experts to explain what standard care was required. The fact-finder must then consider
all the evidence and decide which party is the most credible.
A verdict will be rendered by the fact-finder for the prevailing party. If it is the
plaintiff, the judge will then decide on damages.
The losing party may move for a new trial. In some courts, if the plaintiff wants a
larger settlement, they may move for additur (assess the damages and award a larger
amount). If the defendant is dissatisfied with a large judgment, they may move for
remittitur (for the court to reduce the amount of damages). Either party may take an
appeal from the judgment.
Compensatory and punitive damages
The plaintiff may be awarded compensatory and punitive damages.
Compensatory damages - may include economic damages, including lost earning
capacity, life care expenses, and medical expenses. Usually past and future losses are
assessed. Compensatory damages may also include non-economic damages, which
assesses the injury itself, psychological and physical harm, such as losing one's vision
or legs, extreme pain, and emotional distress.
Punitive damages - these are only awarded if the defendant is found guilty of malicious
or willful misconduct. Punitive damages is a form of punishment; compensation in
excess of actual damages.
The effect of malpractice suits on doctors
Malpractice suits against surgeons in the USA are common, and can have a profound
impact on the surgeon's wellbeing, resulting in stress, professional dissatisfaction and
emotional exhaustion, a study revealed. The study, which was published in the Journal
of the American College of Surgeons, November 2011 issue, found that lawsuits were
strongly and independently associated with surgeon depression and career
burnout.
The authors wrote that surgeons who had gone through a recent malpractice lawsuit
were more likely to be dissatisfied with their careers, and would probably advise their
children and others to pursue on-surgical or non-medical careers.
How should doctors deal with complaints?
The Medical Defence Union, which is the UK's leading medical defence organization,
has these tips for UK doctors on responding to complaints:
Invite the complainant(s) to talk to the staff who are involved in the complaint.
Possibly seek the help of a conciliator.
Take the concern seriously, take measures to make sure they do not occur again.
Make sure your response is appropriate and balanced.
Apologize where appropriate, be open and honest, and acknowledge any errors
and distress caused
Set up a system which reviews and learns from complainants. Make sure the
complainant is told of every action you are taking.