Medical malpractice is a critical issue which has become very frequent nowadays, it takes place, when a medical practitioner including doctors, nurses, physicians, psychiatrist, dentists and their assistants, negligently or non-negligently causes some serious harm to the patient which can result in significant damages, or they do not show the valid degree of their skills and learning which are necessary while providing medication to a patient. Negligence might be the result of mistakes in the treatment, diagnosis, and aftercare. It is a lawful cause of action that happens, when a medical practitioner deflects from the recognized “standard norms” of their professional ethics in the treatment of patients, thereby causing harm to the lives patients.
In common law countries, medical malpractice liability is based on the laws of medical negligence. Medical malpractice is one of the serious and critical issues in the medical industries which can lead to various problems among patients. There are many instances of medical negligence and other malpractices which has caused a number of problems to the patients in which many have lost their lives, some are not able to recover and some are in lifetime physical or mental pain.
Examples of Medical Malpractice
There are many types of medical malpractices; some of them are mentioned as follow:
- Wrong laboratory reports
- Surgical errors
- Improper prescription
- Poor aftercare
- Premature discharge
- Wrong testing
- Unnecessary operation
- Carelessness of staff
- Improper sterilization
- Failure to recognize symptoms
Difference between medical malpractice and medical negligence
Medical negligence occurs when a medical professional cause’s injury to the patient without knowing the fact that he/she/it is harming their patients due to their simple mistakes, and ignorance or not able to take the proper action against it. There are many instances where a doctor or any other medical practitioner unknowingly harms the patient.
For instance: A doctor or any other medical professional has given the medication prescription without noticing the interaction of drug to the patient’s health, which could lead to serious effects on them.
There are serious examples as well in which doctors have damaged an organ during surgery or operation, used wrong tools to operate patient, injecting a wrong dose of anesthesia, after completely operating the patient mistakenly left small tools in their organs etc.
In such instances, there is no malafide intention of the doctors or any other medical practitioner to harm the patients but due to failure to recognize the mistakes, they were not able to take proper action against it.
Medical malpractice is wider than medical negligence and includes it in its definition but slightly different from each other. In medical negligence, a medical practitioner or doctor knows the results or consequences of their medical operation or surgeries which they are going to perform on the patient but ignoring it knowingly and proceeds to operate. Some doctors perform the surgeries and operations in rush, in which there are great chances of injury to the patient. Medical malpractice also includes illegal trafficking of various human organs; doctors fail to sterilize surgical tools for surgeries, overprescribing of medication, prescriptions, illegal abortions etc. It is not necessary that a patient’s condition should be fatal in order to qualify for either medical negligence or malpractice, there are many instances when a patient recovers successfully, but after some time they are witnessing some kind of unwellness in their health. Patients may also feel unsatisfied with their treatment.
In order to file a lawsuit against the medical malpractice and medical negligence, the claim must include the following reasons:
- Violation of the standard care: Every profession has some standard norms for care and ethics and every law acknowledges these norms for care and ethics. Medication has a number of norms according to their profession because it is a life-saving profession where great vigilantism is required. It is accepted from the patients that, the medical services are going to take reasonable health care measures while treating them, if they fail to do so, then negligence can be claimed by the patients.
- Injury caused by negligence or ignorance: There should be a valid claim against medical negligence or medical malpractice in order to file the suit. A patient needs to prove that, how he/she/it sustained the negligent surgery or operation. Merely, violation of the standard of norms will not be sufficient and unwanted results from the medical services will not be treated either malpractice or negligence. A case cannot be established without negligence that did not cause serious harm to the patients.
- The physical injury resulted in serious damage: In order to make a case reasonable, in order to receive claims, a patient must depict that there were great damages which caused an injury and not able to recover due to medical negligence or malpractice, which resulted in a significant loss in working capacity, regular pains, mental anguish, expensive hospital bills and hardship to the patients.
Requirements in Medical Malpractice
- Medical malpractice or negligence cases should be brought soon after the injury.
It is necessary to bring the cases of medical negligence or malpractice quickly, within the period of six months and one year depending upon the law of the country i.e. Law of Limitation. If the lawsuit is not filed within the prescribed time, the court will reject the matter irrespective of facts of the case.
- Medical malpractice review panels.
It is necessary to the patients to submit all the detailed claims to a malpractice or negligence review panel, the member of the panel will hear the arguments, reviewing the pieces of evidence and testimony to decide whether malpractice or negligence has happened or not.
- Notice requirements.
In some countries, it is necessary for the patient to issue a notice to the doctor or any other medical practitioner regarding the medical negligence incurred by the patient which resulted in great loss. So, it is need required to inform the concerned medical institution or practitioner regarding the claim for damages.
- Expert testimony is required.
In order to constitute a strong case for the medical malpractice, expert’s opinions and bits of advice plays a significant role. It is necessary to have a well-qualified expert to get the damages for the injuries caused by the patient.
- Limitation on damages.
There is a certain limit set according to the law of limitation of every country i.e. the “cap” amount of the money to be awarded to a victim patient of the medical malpractice or negligence.
Medical malpractice case
Case of Yash Arora
A 10-year old boy named Yash Arora was declared dead on July 30, 2011; at Gurugram’s Medanta medical institution which is one of India’s leading super-specialty hospitals. Yash had gone through various readmissions, two liver transplants, and many infections over nine months. The family member of Yash Arora has brought him to the hospital in March 2010. Yash’s guardian claims that the doctor’s advised a liver transplant because they can afford it when the doctors came to know that they couldn’t, they treated him differently.
The first liver transplant was done on 1st April 2011; the boy was discharged with an infection that made the transplant to a great failure. Then, he was readmitted on April 5 for the second liver transplant, after which he was put in the ‘shared room’ with a patient suffering from tuberculosis. The shared room was provided by the hospital because they know that the family could not afford a separate ward, knowing the critical situation the patient the hospital compromised with him.
The family of Yash Arora knows that their son has become the victim of medical malpractice, but couldn’t do anything because he was their only child. They struggled for three years to save their son’s life but failed.
Laws and other statutes regarding medical malpractice are highly regulated by a body of rules, which is different from every country to country. Such cases happen very rarely, not only doctors are responsible for malpractices but the medical staff as well who are more responsible for taking care of the patient very cautiously. Malpractices are very rare, as compare to negligence but still the medical institution has to face the consequences. There are many instances of medical malpractices which do not come into notice because hospitals manage to bury them in order to save the good name of the institution which is a great compromise in the health sector and can cause a great threat to the lives of the patients.
Written By: Gunjan Rathore