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.  According to the case the doctor did not follow instructions accompanying the vaccine, stressing the fact that a sterile needle and syringe were to be used for each patient.  This case is a perfect example of a doctor not following orders and unprofessionally practicing on innocent patients.  Though the plaintiff was not mortally injured, the doctor was found liable.  This teaches the defendant physician a lesson along with doctors all across Canada  and may prevent another patient from unnecessary suffering.

Another common civil tort filed against doctors is battery.  Battery is committed by intentionally bringing about harmful or offensive contact with another.  The basis of this tort is that the touching is without consent. (Picard, Ellen I. p. 25)  In the case of Hankai v. York County Hosp. (Picard, Ellen I. p. 490) the defendant doctor performed surgery on the plaintiff to remove a miscarried fetus.  The defendant also performed a meatotomy without the consent of the plaintiff.   The defendant doctor was liable for battery for performing the unconsented - to meatotomy.  There are several other cases just like this one where a patient consents for one operation and given another or both.  How a doctor can take the decision of a competent human being into his own hands is beyond me.  The plaintiff was in no immediate danger, the defendant could have suggested the second operation after the completion of the first.  In cases like these the doctor  is incredibly egotistical and is playing God.  Physicians who ignore patient requests or fail to ask for consent only build communication barriers and ruin the profession's reputation.

Many people believe doctors are the real victims.  They feel doctors are confined from performing and medical students limit career options in fear of being sued.  There are some illegitimate and ungrateful citizens who insist on filing suits when doctors are not at fault.  When a family member dies, the loss may cause anger and looking for a doctor to sue seems like the right thing to do.  It is human nature to always look for a party at fault in any tragedy.

Doctors' fears of malpractice awards also result in bad medical care.  New procedures carry a higher risk of harm and second guessing later, so doctors stick to conventional treatments, even in terminal cases, for fear the treatment may hasten the patient's death.  The opposite is also true, both overtesting and overtreating are standard methods of beating malpractice suits.  Thousands of unneeded surgeries are performed each year.  Expensive technology is regularly misused - CAT scans to diagnose simple headaches, for example.  Also, the few plaintiff's who win unrealistically high awards raise insurance costs for all doctors. (Nolo Press editors, # 32)  In fact, the Canadian Medical Protective Association has announced a 20 % increase in premiums for 1996.  ( Canada News Wire  12 Dec. '95)

It is my opinion though, that by insisting on settlements more doctors take extra care and look for a second opinion.  As long as doctors take extra care they should have no fear.  If they do, they know they're doing something wrong.  More and more doctors everyday make lethal  mistakes causing death, pain and suffering, brain damage or scarring.  These mistakes must be brought out into the open and damages to the victim should be awarded.  Fewer than 5% of the people injured while under medical care receive any compensation. (Nolo Press editors, #32)

To add to the grief, the plaintiff is injured twice:  first by faulty medicine, then by a famously slow legal system.  To win a medical malpractice lawsuit, the injured must prove who caused the injury.  This can be an extremely difficult task given the complexities of modern medicine, and the common reaction of doctors, which is to cover up their mistakes.  The majority of those who do sue, do not fair well; only 20% win.  The few patients who do succeed, wait an average of seven years before getting a penny. (Nolo Press editors, #32)

Unfortunately, the price Canada pays for these suits is enormous.  In 1982, Canada spent  $ 4 532 292 in legal costs.  That is  $ 4 524 676  more then what we paid in 1950.  In 1982 one out of every 244 doctors was successfully sued.  The average sum of awards paid by doctors in 1982 was  $ 38 941.18 whereas in 1971 it was $ 8 634. (Picard, Ellen I. p. 347)  Many  people believe we are in a "malpractice crisis" and  another mode of compensating patients should be found.

A no-fault method to compensate all patients while under medical care is being  considered.  This method would:  a)  quickly compensate all who have suffered harm as a result  of medical treatment, regardless of how it occurred; b)  give doctors incentives to root out and expose the causes of medical error; c)  base a victim's economic recovery on actual economic loss - medical costs, loss of income and disability - plus, where there is long-term or permanent disability, a reasonable amount for lost quality of life and d)  handle compensation through a provincial - run Injured Patients Board, which could track information with a Medical Board that could monitor doctors.  (Nolo Press editors, #32)

I cannot see this form of compensation working.  It would be abused by money-seekers  and insufficient for the genuinely hurt.  I also do not believe we are in a crisis situation.  According to the Canada News Wire the government has been paying supplements to help physicians with an expected escalation in lawsuits, similar to that experienced in the U.S.  As it turned out, Canada did not follow the U.S example and the reserve has grown to about $200 million in1988 to nearly $1 billion. ( Canada News Wire 12 Dec. '95)  Along with the statistics of how few people win suits, it is clear to me that we are not in any present trouble. 

We may very well find ourselves in a crisis situation if our doctors do not  perform with extreme care.  Everyday people depend on them and trust them.  We need physicians to attempt to save lives at the best of their ability.  If a doctor happens to create a breach of duty that causes damages, they should take full responsibility.  When a person chooses to be a physician, they choose to render their services to society.  They choose to care for people.  By choosing to care, they should feel  for the people they hurt when an error is made.  They should want to give some form of compensation. 

 Though we may not be in a crisis situation now, it's not to far down the road.    Canada must undergo some serious changes in the coming years.  Doctors attitudes must change along with the compensation system.  Whether we keep the present system, and make some changes, or try the no-fault system, we could lessen the pressing problems.  In either case, something must be done before the hospital is considered more dangerous than a lion's den. 

 Bibliography

n Picard, Ellen I.  Legal Liability of Doctors and Hospitals in Canada.  2nd ed.  Toronto, Ont.:  The Carswell Company Limited, 1984.

n Brooten, Kenneth E. Jr.  Malpractice:  A Guide to Avoidance and Treatment.  Orlando, Fla.:  Grune & Stratton Inc., 1987.

n Nolo Press editors.  Fed up with the legal system? : What's Wrong and How to Fix it.  2nd ed.  United States of America :  Nolo Press, 1994.  ( Internet:  Fed up #32.  Compensate Medical Malpractice Victims)

n "Government to Rally Support Against Physicians' High Insurance Costs"  Canada News Wire.  [Toronto]  12 Dec. 1995. (Internet)

n Taylor, John Leathy.  Medical Malpractice.  Great Britain:  John Wright & Sons Ltd., 1980.

n Law, Sylvia and Steven Polan.  Pain and Profit:  The Politics of Medical Malpractice.  New York, NY.:  Harper and Row Publishers, 1978.