Medical malpractice: Causes, definition, and concerns

The following paragraphs of the report aim to shed light on the various types of medical malpractices common among physicians, with a clear emphasis on the medical practice of unnecessary surgeries and medical errors. The report also aims to analyze extensively and elaborately on the primary ethical and legal concerned associated with the selected medical malpractice, followed by recommendations concerning the prevention and management of the same.

According to Taghizadeh et al. (2017), medical malpractices can be defined as the occurrences of faulty or inappropriate clinical practices in medical profession, due to incompetence or negligence by the concerned physicians. Despite usage of quality practices, healthcare professionals such as doctors may still perform clinical errors which are preventable, resulting in fatal complications such as serious injuries or even death of a patient. Such medical malpractices can be avoided in the clinical settings, but unintended errors may still emerge due to lack of adequate competency or experience in medical professionals during the performance of surgeries and administration of drugs. The conductance of errors and the associated patient injuries often lead to serious ethical and legal concerned leading to filing of medical lawsuits (Zhang et al. 2018).

Some of the common types of physician’s medical malpractices include delayed diagnosis, misdiagnosis, surgical errors, failure to treat and medical product liability.

This occurs due to the failure of the doctor in illness identification after patient examination and often results in the doctor administration an incorrect treatment procedure which is unrelated to the care of the patient. Additionally, this malpractice also involves doctors misdiagnosing the patient stating the absence of a discernible illness (Letterie 2017).

Similar to the above, this malpractice involves doctors providing an incorrect assessment and diagnosis of the patient upon examination. However, later the fault is corrected followed by the required treatment which however, results in delayed patient management and by the, the condition of the patient may worsen (Smith-Jackson et al. 2018).

In this case, despite correct assessment, the doctor may still administer an incorrect treatment to the patient resulting in worsening of patient’s condition (Grauberger et al. 2017).

This includes the performance of incorrect and unnecessary surgeries on the patients, which can lead to life threatening complications. Examples under this malpractice include usage of non-sterile surgical equipment, leaving medical equipment in the patient’s body, incorrect anesthesia administration and damage inflicted on the organs of the patient during performance o surgery (Rynecki et al. 2018).

Types of physician’s medical malpractices

This involves negligence and lack of adequate care during prenatal stage as well as childbirth further resulting in fatal outcomes for the child and mother and also birth defects (Cardoso et al. 2017).

This involves usage of malfunctioning medical equipment resulting in serious patient health consequences (Li et al. 2014).

As researched by Graafland et al. (2015), the physician malpractice of surgical errors and unnecessary surgeries can be explained with the help of the following examples:

• Performance of incorrect surgical procedures by healthcare professionals.
• Performance of surgeries which are unnecessary.
• Damage incurred to the organs of the patient during performance of surgery, such as nerve injuries.
• Administration of inappropriate amounts of anesthesia, known as anesthesia errors.
• Usage of surgical equipment which are non-sterile.
• Occurrence of surgical incidences where the used medical equipment has been left inside the patient, such as instruments or sponges.
• Provision of inadequate care and treatment to the patient after the performance of surgery.
• Performance of surgery on the wrong patient.
• Performance of surgery on an incorrect body part.

As observed by Hemingway, O’malley and Silvestri (2015), a surgical error can be defined as the occurrence of  mistake during surgery which could have been prevented. Every surgical procedure brings with itself a unique set of possible risks and consequences and hence considering the possibility of unexpected outcomes, however minor, patients are required to sign a form of consent prior to the surgery in order to provide their acknowledgement and awareness of the same.

However, as researched by Bidra (2017), it must be noted that, the occurrences of such malpractices such as surgical errors and incorrect surgeries can lead to serious and fatal health implications in the patients. Often healthcare professionals justify their performance of such malpractices by referring to the form of consent which a patient signs prior to surgery and treatment, stating the acknowledgement of the patient concerning the possible risks and even death which can result due to the chosen surgery and denying them the right to file appropriate lawsuits against the clinical organization in question. According to Mushtaq et al. (2018), the mere acknowledgement of a patient’s consent and awareness of the complications concerning surgery does not justify the performance of deliberate or incompetent malpractices by the patient which may result in life threatening complications such as death.

According to Chen, Havnaer and Greenberg (2014), malpractices such as surgical errors and unnecessary surgeries can occur due to the following reasons:

• Lack of competency:Surgeries which are performed by healthcare professionals lacking adequate experience and expertise are susceptible to incidences of surgical errors or the performance of surgeries which are incorrect or not required.
• Lack of planning prior to operation:Prior to the performance of a critical surgery, it is of utmost importance for healthcare professionals to conduct procedures such as reviewing the medical history of the patient, assessment of the patient’s present medical condition and evaluating the availability and functional capacity of required medical equipment. An absence of such preoperative procedures increases the susceptibility of risks and malpractices associated with surgery.
• Inadequate work process:During the performance of a surgery, physicians may perform surgical steps deviating from standard procedures without adequately evaluating the possible consequences. Hence, this such lack of evaluation may result in occurrences of surgical errors and unnecessary surgeries.
• Lack of adequate communication:The outcomes of medical procedures are dependent on a collective team effort by the overall healthcare workforce. Hence, due to lack of adequate communication by nurses, surgeons may receive incorrect or incomplete information concerning the patient’s health condition, or may perform surgeries using defective equipment due to negligence by the concerned healthcare authorities, resulting in malpractices and errors.
• Fatigue:Healthcare professionals such as physicians and nurses are required to work under challenging and demanding situations, and are often subjected to long working hours. This may result in burnout and fatigue further leading to lack of concentration and possibilities of errors during surgery.
• Alcohol and Substance abuse:Stressful working conditions often lead to performance of harmful coping strategies such as drug usage and alcohol consumption by surgeons and physicians which may hamper their everyday functioning and increase the possibility of errors.
• Negligence:Surgeons and associated healthcare professionals may often be ignorant towards the performance of minute yet critical clinical procedures such as monitoring the functioning of equipment or sterilization of surgical instruments hence leading to medical errors leading to surgery.

According to Berlin (2016), the performance of medical malpractices such as conductance of unnecessary surgeries and surgical errors often lead to the emergence of several ethical issues notably the health of the patient. Incidences of medical errors can lead to life threatening consequences in the patient leading to serious and permanent injuries of deformities and even death.

In Australia, medical malpractices can lead to emergence of serious medical complications. According to Trulove (2015), in order to be legally eligible to file a medical lawsuit resulting in the defendant to be guilty, the concerned medical malpractice must comprise of the following components:

• Legal ability of the patient:In certain states of the nation, there may be laws which restrict the ability of the patient to file a medical lawsuit against the healthcare professionals who have been responsible for the performance of surgical errors. However, is it worthwhile to know that the right of the patient to sue a healthcare professional is not absolutely absent and if the occurrence of medical negligence and associated damage to the patient has been proven, then the filing of a lawsuit may still not be a lost cause.
• Breach of Duty:For a medical consequence to be deemed legally as an error and malpractice due to negligence, the concerned patient will be required to prove that the duties performed by the medical professional was a deviation from the standard procedures, hence resulting in a breach of the required duties to be followed.
• Damage to the patient:For proving the medical defendant to be guilty, the patient must prove that the he or she has suffered from extensive or life threatening damage, as a result of the administration of the concerned surgical procedure.
• Causation:This is one of the most critical and difficult factors determining the legal severity of an incidence of medical error and negligence. In order to prove that the concerned health professional was guilty, the patient will not only be required to prove the performance of wrong doing by the physician  but must also prove that the harm faced by the patient was a result of the wrongdoing.
• Defense:One of the biggest legal obstacles required to be overcome by the patient, is the presence of a law which defends the actions performed by the concerned medical professional, despite the negative implications. If it is proven that the concerned physician performed a duty which is vastly accepted in the nation in terms of clinical professional practice, and as well as by experts in a similar profession, then he or she is not liable to be guilty. Hence, in defense, the concerned medical professional must not aim to prevent the patient from filing a lawsuit, but rather must prove the acceptability of his actions at the time of performance of the surgical procedure.
• Failure to warn:Every surgical procedure presents itself with its own set of risks and complications which the concerned surgeon must communicate with the patient for the purpose of enhancing patient awareness and obtaining the required consent and acknowledgement. Hence is the medical professional failed to warn a patient concerning the possibilities of surgical risks then he or she is liable to be filed under a medical lawsuit.

Ethical and legal issues associated with medical malpractice

Despite the possibilities available for the patient to file a lawsuit against the concerned health professional, the legal and ethical issues outlining the medical malpractice in questioning may still bring forth discordance due to the presence of additional complications such as adequate disclosure of medical errors to the patient by the medical professional, administration of defensive medicines as protection to the patient, administration of quality improvement activities by the clinical organization and provision of care to the concerned patient by the associated families (Kramer, Kinn and Mishkind 2015).

In accordance to Australian Medical Negligence Law, patients posses the right to file a medical lawsuit if the concerned medical malpractice contains the necessary components as mentioned above (Breen and Weisbrot 2015). However, as researched by Ross (2018), concerning the various legal complications and defenses associated with medical malpractice, it is recommended that the patient keep the following components in mind for successful filing of a medical lawsuit.

• Time of filing lawsuit:The patient must attempt to bring forth the malpractice issue as soon as possible, since delaying may lead to the dismissal of the case by the court, irrespective of the validity of the facts.
• Consideration of Review Panels:Before bringing the issue to the court, patients may be required to address the malpractice to a malpractice review panel, who will expertly review the incidences using available evidence in order to assess the credibility of the claim.
• Requirements of special notice:Patients in certain states may be required to first address the issue to the concerned physician, before going to the court.
• Testimony by experts:Prior to bringing forth the issue, it is advisable for patients to discuss the issue with professional engaged in a similar field, to further garner sufficient strength and legal credibility.
• Thresholds of Damage:The Civil Liability Act provides thresholds and caps on financial compensations upon proving the extent of injury incurred as a result of the malpractice.
• Duty of Care:Duty of Care specifies obligations of responsibilities of patient safety for healthcare professionals which must be considered by the patient prior to filing a lawsuit.

Conclusion 

Despite the adherence towards professional standards, the profession of healthcare and surgery are not devoid of complications in the form of medical errors and malpractices. A number of medical practices occur in healthcare profession which the concerned physicians must attempt to avoid. However, lack of competency and negligence may lead to errors and adverse patient health outcomes leading to the emergence of several ethical and legal issues. Despite the presence of adequate legal frameworks, proving a healthcare professional as guilty is a long drawn and cumbersome process with little hope for success. Hence, to conclude, patients must keep in mind several key legal considerations and recommendations for the successful legal compensation of injuries due to medical malpractices.

References 

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Bidra, A.S., 2017. Surgical safety checklist for dental implant and related surgeries. Journal of Prosthetic Dentistry, 118(3), pp.442-444.

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Grauberger, J., Kerezoudis, P., Choudhry, A.J., Alvi, M.A., Nassr, A., Currier, B. and Bydon, M., 2017. Allegations of failure to obtain informed consent in spinal surgery medical malpractice claims. JAMA surgery, 152(6), pp.e170544-e170544.

Hemingway, M.W., O’malley, C. and Silvestri, S., 2015. Safety culture and care: a program to prevent surgical errors. AORN journal, 101(4), pp.404-415.

Kramer, G.M., Kinn, J.T. and Mishkind, M.C., 2015. Legal, regulatory, and risk management issues in the use of technology to deliver mental health care. Cognitive and Behavioral Practice, 22(3), pp.258-268.

Letterie, G., 2017. Outcomes of medical malpractice claims in assisted reproductive technology over a 10-year period from a single carrier. Journal of assisted reproduction and genetics, 34(4), pp.459-463.

Li, H., Wu, X., Sun, T., Li, L., Zhao, X., Liu, X., Gao, L., Sun, Q., Zhang, Z. and Fan, L., 2014. Claims, liabilities, injures and compensation payments of medical malpractice litigation cases in China from 1998 to 2011. BMC health services research, 14(1), p.390.

Mushtaq, F., O’Driscoll, C., Smith, F.C., Wilkins, D., Kapur, N. and Lawton, R., 2018. Contributory factors in surgical incidents as delineated by a confidential reporting system. The Annals of The Royal College of Surgeons of England, 100(5), pp.401-405.

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Zhang, Z.W., Zheng, Z.Y., Li, R., Zhou, S.Y., Tang, W., Zhou, J.P. and Wang, B., 2018. Forensic Pathological Examination on 73 Medical Malpractice Cases of Pediatrics. Chinese Journal of Forensic Medicine, 34(2), p.147.