Understanding Medical Malpractice

Medical Malpractice

The doctor-patient relationship has been defined differently through the

years. In the beginning it developed into a "common calling" which meant

doctors practiced medicine as a duty to their patients. Laws were developed to

protect patients, therefore doctors used proper care and expert skill. In the

past six centuries, medical malpractice has increased, which lead to revision

and addition to the law. Liability was introduced along with the "GIANT of all

torts", negligence. Now in today's society, a doctor's duty is to use

reasonable care, skill and judgment in the practice of his/her profession and

when negligent, take full responsibility.

What is malpractice? Malpractice is negligence. Negligence is a tort. A

tort is a civil wrong, therefore malpractice is a civil wrong. In its

simplest terms, malpractice has four essential elements: 1) Duty. Every

health care provider assumes a duty when starting consultations, diagnosis, or

treatment of a patient. The duty arises from an expressed or implied contract.

2) Breach. For example, if you fail to make a correct diagnosis once you have

assumed the duty to do so, you have created a "breach of duty", due and owing to

the patient. 3) Causal Connection. Your failure to correctly diagnose,

("duty" you "breached") the duty due and owing to the patient and as a direct

and proximate cause of your breach, caused damages. 4) Damages. The result of

your failure to diagnose correctly, the patient sustained damages in the form of

an additional hospital stay, complications that may or may not be of a permanent

and continuing nature. (Brooten Jr., Kenneth E. p. 1) Negligence is the most

common civil suit filed against doctors. Liability for negligence will not be

found unless the following factors are present: (a) the defendant must owe a

duty to the plaintiff to exercise care; (b) the defendant must breach the

standard of care established by law for his/her conduct; (c) the plaintiff

must suffer loss or injury as a result of this breach; (d) the conduct of the

defendant must be the "proximate cause" of the plaintiff's loss or injury. (

Picard, Ellen I. p. 29) In the case of Adderly v. Bremner (Picard, Ellen I. p.

461) the defendant physician was negligent in not changing the syringes to

vaccinate 38 patients and instead used one needle for every two patients. As a

consequence, the plaintiff was infected with septicemia (blood poisoning).

This doctor failed to give the required standard of care. Any reasonable doctor

would have in fact changed the syringe after each patient and would have

foreseen the consequences for not changing them.