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Cases about negligence
Essay on medical negligence
Cases about negligence
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Law and Medicine The general principle is valid consent must be obtained before medical treatment can commence. In Allen v New Mount Sinai Hospital [1980], J linden stated ‘consent is not a mere formality; it is an important individual right to have control over one’s body, even where medical treatment is involved.’[1] In Schloendorff v society of New York Hospital [1914][2], Cardozo J made a statement “Every human being of adult years and sound mind has a right to determine what shall be done and a surgeon, who performs an operation without his patient’s consent, commits an assault.” There must be some lawful justification for a medical procedure, which would otherwise constitute the tort of battery. Battery is a form of trespass, and as such, it is actionable par se. A battery consists of the infliction of unlawful force on another person. It is sometimes stated that where the patient is incapable of consenting, an effective consent may be given by his/her spouse, or by some near relative. Nevertheless, this can be argued, as there is no general doctrine whereby a spouse or relative is empowered to give a legally effective consent to medical procedures to be carried out on an adult. There are circumstances where doctors are justified in proceeding without the consent of the patient. Tom was unconsciousness on arrival and was in critical condition where his injuries were life threatening. Tom is considered temporally incompetent because he was unconscious on arrival at the hospital. Therefore, he could not consent to treatment at the time of the accident. No one can consent on Tom’s behalf because he is an adult; the a... ... middle of paper ... ...LR 582 [5] [1905] 104 NW 12 [6] [1989] 2 A.C. 1 [7] [1997] 2 FLR 426 [8] [1949] 2 DLR 442 [9] [1981] C.A. unreported [10] [1933] DLR 260 [11] M Jones, Medical Negligence, 1997, pg 164 [12] Stauch M, Sourcebook on Medical Law, 2nd Ed, Cavendish Publishing, 2002 [13] [1988] 2 All ER [14] [1979] 2 All ER 620 [15] [1988] 1 Ch 449 [16] M Jones, Medical Negligence, 1997, Sweet and Maxwell [17] [2002] 1 All ER 786 [18] [1990] 1 All ER 786 [19] [1988] 2 Al E.R. 648 [20] [1985] QB 526 [21] [1990] 1 All ER 568 [22] [1969] 1 QB 428 [23] [1997] 2 All ER 865 [24] [1957] 1 WLR 582 [25] [1995] 6 Med LR 128 [26] Khan, M, Robson M. What is a Responsible Group of Medical Opinion? (1995) 11 Professional Negligence 4 [27] [1995] 6 Med LR 128
Alan Goldman argues that medical paternalism is unjustified except in very rare cases. He states that disregarding patient autonomy, forcing patients to undergo procedures, and withholding important information regarding diagnoses and medical procedures is morally wrong. Goldman argues that it is more important to allow patients to have the ability to make autonomous decisions with their health and what treatment options if any they want to pursue. He argues that medical professionals must respect patient autonomy regardless of the results that may or may not be beneficial to a patient’s health. I will both offer an objection and support Goldman’s argument. I will
First, I believe that doing medical procedures without being given the consent to do so is a serious issue that is very wrong because that could be jeopardizing somebody's whole life without them even being aware of what is being done. “With Henrietta unconscious on the operating table in the center of the room, Dr. Lawrence sat between her legs. He peered inside her, dilated her cervix,
In conclusion, every patient is worried about their rights to care but not so much are focused on the rights of the physicians providing the care. It is hard to establish a respectable practice if you are required to perform care for instances in which you object or do not want to be a part of. This detracts from the ethical background of practice and procedure every physician should hold to the highest standard.
Kuczewski, Mark. "Reconceiving the Family: the Process of Consent in Medical Decision Making." Hastings Center Report. March-April 1996: 32-37.
Exceptions for providing fully informed consent include when “(1) the patient is unconscious or otherwise incapable of consenting and (2) the benefit of treating the patient outweighs any potential harm of treatment,” in which case informed consent does not appeal to the patient (Murray). For example, providing care to a knocked out patient without a surrogate to fend for him/her requires the physician to form a decision targeting the patient’s best interest. . In all other circumstances, a physician, to ensure fair and equal decision-making circumstances, should provide informed
The law and how it is interpreted and followed in the administration of medicine is an important aspect that must be placed at the forefront. The law, simply put, refers to social rules of conduct that are enforceable and are not meant to be broken. While the practice of medicine carries a myriad of systematic complexities which expose healthcare organizations to potential legal problems, healthcare leaders must establish procedural methods and policies to mitigate the risk of liability through implementation of robust risk management programs. Failure to adhere to established laws, policies, and procedures can lead to legal issues for both the organization and its employees (Brock & Mastroianni, 2013).
Consent is an issue of concern for all healthcare professional when coming in contact with patients either in a care environment or at their home. Consent must be given voluntary or freely, informed and the individual has the capacity to give or make decisions without fear or fraud (Mental Capacity Act, 2005 cited in NHS choice, 2010). The Mental Capacity Act perceives every adult competent unless proven otherwise as in the case of Freeman V Home Office, a prisoner who was injected by a doctor without consent because of behavioural disorder (Dimond, 2011). Consent serves as an agreement between the nurse and the patient, and allows any examination or treatment to be administered. Nevertheless, consent must be obtained in every occurrence of care as in the case of Mohr V William 1905 (Griffith and Tengrah, 2011), where a surgeon obtain consent to perform a procedure on a patient right ear. The surgeon found defect in the left ear of the patient and repaired it assuming he had obtained consent for both ear. The patient sued him and the court found the surgeon guilty of trespassing. Although there is no legal requirement that states how consent should be given, however, there are various ways a person in care of a nurse may give consent. This could be formal (written) form of consent or implied (oral or gesture) consent. An implied consent may be sufficient for taking observation or examination of patient, while written is more suitable for invasive procedure such as surgical operation (Dimond, 2011).
For legally competent adult patients, regarding medical care per se - according to Anglo-American law -- every competent adult has the freedom to seek or not to seek medical care and to refuse to consent to any specific treatment proposed, under the common law right of bodily integrity and intangibility:
Paramedics deemed the patient competent and therefore Ms. Walker had the right to refuse treatment, which held paramedics legally and ethically bound to her decisions. Although negligent actions were identified which may have resulted in a substandard patient treatment, paramedics acted with intent to better the patient despite unforeseen future factors. There is no set structure paramedics can follow in an ethical and legal standpoint thus paramedics must tailor them to every given
The patient is lethargic, but has trouble sleeping which can impose serious psychological issues. Before having a heart attack and being put on dialysis, he spoke of “ending it all”. All of these factors prove that George’s competency should be questioned. In order to give informed consent the patient must be competent, a standard for concurrence. Therefore, he cannot approve of treatment if he is lacking decision-making capacity.
... event arises and it was due to lack of assessment of genuine comprehension. I think the best system of obtain consent would incorporate a regulated system that accommodated each institution and their requirements, but also equally weighed the importance of true understanding of facts and realization of the patient’s capacity to make decisions. But even if this was established as standard practice, there would still be the issue of how the assessment is made and how accurate it is due to other influences i.e. current injury status or medications needed for full psychological and or conceptual functioning. There could also be an issue of how to regulate such a subjective issue; each physician is going to have different ethical views and this will inevitably influence how he/she assess the patient and their ability to make the best decisions concerning their health.
Disclosure of pertinent medical facts and alternative course of treatment should not be overlooked by the physician in the decision making process. This is very important information impacting whether that patient will go along with the recommended treatment. The right to informed consent did not become a judicial issue ...
While watching “Training Day” I was able to identify three criminal charges from Chapter 940, two charges from Chapter 943, and three charges from 946. I also could determine whether each were a Felony or a Misdemeanor, including the classification and punishment that goes with each. I could also explain if the actors could be charged with “conspiracy” or not. I also explained all the elements of the crime as well.
In the past, consent was never needed to perform a treatment on a person. However, as medicine and science began to advance at a rapid rate, along came hundreds of new machines/procedures that are incorporated into treatments, and the patients must be well informed of what’s going to happen to them before they undergo any type of procedure. Furthermore, the patients have the ability to become more informed on what is occurring to them if they know what kind of condition/disease is affecting them, so they become more biased in the types of treatment that they’ll receive. Sometimes they will feel uncomfortable with some types of procedures and since the patient’s permission to perform any type of treatment is crucial in this day and age, the doctor is limited to the type of care he/she will administer.
Law is a tool in society as it helps to maintain social control, promoting social justice. The way law functions in society and its social institution provide a mechanism for solutions. There are many different theories of the function of law in relation to society in considering the insight they bring to different socio-legal and criminological problems. In the discussion of law’s role in social theory, Leon Petrażycki and Eugen Ehrlich share similar beliefs in the jurisprudence of society. They focused their work on the experience of individuals in establishing meaning in their legal relations with others based on the question of what it means to be a participant in law. Jürgen Habermas presents a relationship between law and morality. From a certain standpoint, law is a key steering mechanism in society as it plays an educational role in promoting conducts, a mean of communication and it