About malpractice

What are the determinants of performance in dentistry?

Each of us wants to be among the best, we cultivate the qualities that make this possible.

Demandingness in the medical profession is formed from the faculty and is the essential condition for performance.

Hard work is vital, but it is by no means the only ingredient for success.

Equally important are sound training, compassion, sound reasoning, communication skills, clinical acumen, theoretical knowledge and exemplary professional conduct to successfully meet the demands of patients.

Beyond all these qualities, the doctor must know that he is safe when he practises, that his entire capacity must be focused on the medical act and not altered by fear of error. In order to achieve this goal, we need to have a clear understanding of malpractice and how to protect ourselves from the repercussions of possible errors.

In the following I will present malpractice in the form in which it concerns the doctor, the scope of malpractice being extended to other professional categories.

What is malpractice?

The most concise definition of malpractice is that of a professional error causing damage.

As medical science still has many areas that we do not fully understand, what exactly can be considered as professional error?

To make this distinction we divide errors into subjective errors and objective errors.

Subjective errors consist of misrepresentation of the medical reality due to poor professional training, implicitly the faulty implementation of techniques and specialist maneuvers.

Under the same working conditions, any other doctor would have been able to avoid injury due to lack of skill, omissive doubt, superficial assessment of the case or unfitness.

Diagnostic errors may be due to ignorance of the patient’s medical history, wrong examination, misinterpretation of symptoms, failure to carry out tests, failure to refer the patient for specialist consultation or failure to make a diagnosis in the case of treatment that does not work.

Subjective errors incur liability.

These are different from objective errors related to the disease, the reactivity of the patient, the complexity of the disease, false information given by the patient, the paucity of disease symptoms or their non-specific nature.

Objective error is most often due to a flaw of medical science at a given time, a particular reactivity of the patient or specificities of the disease.

Any doctor who would have done the same under the same conditions is in objective error. In this area, it is necessary to specify the factual error, which is a cause that removes criminal liability: Article 51 of the Criminal Code. “The perpetrator at the time of the offence did not know of the existence of a state, situation or circumstance on which the criminal nature of the offence depended” (e.g.: the patient did not declare himself suffering from certain illnesses) and the error of rule which is imputable (e.g.: the criminal nature of the offence in the case of euthanasia is not removed by the doctor’s ignorance of the legislation in this field).

The differentiation between objective and subjective error requires an analysis of the concrete working conditions that the doctor had at hand.

It investigates whether the doctor did, using conscientiousness and rigor in the application of his professional knowledge, all that was possible in those conditions, in order to make the most accurate diagnosis and choose the best method of treatment in the interest of the patient.

If he respected the requirements of an irreproachable professional attitude, the inconsistency of the diagnosis with reality will be an objective error, because any doctor would have reached the same conclusions under the same conditions.

If the inconsistency of the diagnosis is caused by the prejudicial use, without diligence and consistency, of the doctor’s knowledge in the concrete working conditions, then there is a subjective, imputable error.

Medical malpractice is not yet provided for in Romania’s legislation and its analysis involves three important issues:

  • The creation of a legislative framework for the performance of the medical act, in which malpractice is regulated,

  • Establishing and imposing certain rules on medical institutions,

  • Conditions to be met by the person performing the medical act.

For a better representation of the notion of malpractice, it is first necessary to understand the position from which the doctor reports to the patient. The relationship between doctor and patient is a contractual one.

The doctor’s obligation to cure the patient is a duty of care (of means), an obligation that consists in the duty of the debtor (doctor) to use all his efforts to achieve a certain result, without committing himself to the result itself.

This type of contractual relationship protects the doctor, in cases where professionally correct surgery or treatment has been carried out, but the patient’s condition has not been cured or improved, from any material damages claimed by the patient.

There is, however, a risk of errors that may occur in the performance of the medical act, errors which, in the case of medicine, unlike most professions, can have the most serious implications culminating in the patient’s maiming or death.

Malpractice insurance was created out of the doctor’s (in our case) need to protect himself against possible compensation due to patients as a result of professional errors and is represented by a contract between the doctor on the one hand and the insurance company on the other hand, which specifies the professional errors for which the doctor wants to be insured as well as the tariff plans that suit him.

The conclusion of the insurance policy requires knowledge of certain legal and economic details:

From a legal point of view, professional (medical) errors which cause damage take the form of fault. In this field, there are two known types of faults: fault of medical technique and fault of omission.

Medical malpractice or medical malpractice consists of failure to observe the rules of the medical profession through negligence or deviation from the rules commonly recognised and recommended in the practice of this profession, resulting from negligence, carelessness or failure to observe specific methods and procedures. This is also known as imprudence.

Technical medical fault is divided into:

-Professional negligence through unpreparedness (incompetence)

-Professional negligence through lack of prevention

This is the simple form of professional negligence. Failure to foresee constitutes a fortuitous event, as does helplessness in the face of risks inherent in medicine.

Professional negligence

This category includes failure to seek interdisciplinary consultation, deprivation of opportunity, late referral to a specialist.

Negligence or carelessness in medical practice takes the form of haste and superciliousness, the reckless fulfilment of obligations.

Specifically, negligence can take the form of: not taking a correct medical history, not carrying out a correct clinical examination, not carrying out routine paraclinical examinations, not taking all aseptic measures in preparation for an operation.

Serious negligence includes: failure to detect diseases or defects prior to the initiation of treatment which may lead to worsening of the initial disease or even death of the patient, failure to isolate the contagious patient, failure to carry out tetanus therapy in the case of tetanus plagues, injecting drugs with an outdated period of use, injecting a substance other than the desired one by confusion.

Malpractice through carelessness (negligence)

Frequently, professional carelessness resides in: failure to clinically and competently examine the patient, ignoring the risks to which the patient is exposed, inadequate immobilization of the fracture, improperly performing injections or punctures, loss of hearing in a child by treating the mother with streptomycin, the occurrence of notorious undesirable effects (listed in the package leaflet) by failing to comply with maximum doses, burns after antiseptics or radiotherapy, ignoring poor working conditions: filth, improper sterilization.

Fault through ease is favored by underestimating the risk of medical action or overestimating the possibility of action.

Fault of omission

The doctor is equally responsible when he acts and when he does not act; in other words, he is responsible for everything he does and for everything he refuses to do:

-Refusal to respond to the patient’s request

-Refusal to intervene (failure to take risks)

-Refusal to refer the patient to a higher sample (deprivation of chance)

-Denial of the patient’s right to a second opinion in the same medical case

-Refusal to continue a patient’s treatment

As can be seen the entire civil liability is based on the principle of fault.

Originally medical liability was of a tortious nature: the doctor could not be convicted unless it could be shown that he had willfully caused the patient harm.

Once the legal side of the concept of malpractice was understood, the economic side emerged as a protective measure designed to cover, if not all, then as much as possible of the range of medical malpractice.

Normally every doctor should be able to negotiate malpractice insurance with an insurance company of his choice under the laws of the market economy.

The insurance company undertakes to pay, up to the insured amount, the compensation and legal costs that the insured doctor is obliged by a final and irrevocable court decision, pronounced by a Romanian court, to pay to a third party (the patient), for a material damage, bodily injury, damage to health or death, resulting from the following acts committed during the legal exercise of his professional duties:

  • misdiagnosis;

  • prescribed treatments wrongly recommended to patients;

  • errors or negligence in the performance of medical interventions for diagnostic or therapeutic purposes;

  • negligence, delay, superficiality and omission in the performance of his own duties.

The amount of compensation is determined on the basis of the assessment of the damage and the determination of the insured doctor’s liability.

The assessment of damages and the determination of the liability of the insured doctor shall be based on a final and irrevocable court decision.

The doctor must request the written consent of the patient or the legal representatives by assuming liability for those interventions or medical acts with the risk of causing material damage, bodily injury, damage to health or death.

The insured doctor is covered for medical acts carried out on an emergency basis in situations where the patient’s life is threatened, in the event that the patient is unconscious or unable to give consent and is unaccompanied by legal representatives.

Physician liability is not an issue discussed in our medical schools. It should be noted that malpractice insurance is not an absolute shield, it protects the insured doctor only from a civil (financial) point of view towards the patient, besides this civil liability there are several other types.

The responsibility for the deontological rules of the medical profession falls on the Romanian College of Physicians, failure to comply with it can lead to the sanction of the withdrawal of the right to practice.

The administrative responsibility towards the employer’ i.e. the health institution, implies compliance with the rules imposed by the latter, otherwise there are various administrative sanctions, including the termination of the employment contract.

Criminal liability before the law for errors made in the performance of medical acts, which is dealt with by the prosecutor’s office.

In order to exemplify some cases of malpractice we will present and analyze in the pages of the magazine, in future issues, cases from international judicial practice.

PowerPoint presentation

Leave a comment

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.