There are currently many myths surrounding medical negligence caused by incompetence in the professional field. Such European countries such as the United Kingdom and France are believed to have one of the highest levels of healthcare in the world. However during the last few years the amount of legal actions against the healthcare system, and particularly against medical doctors has elevated dramatically. Furthermore, the overall number of pecuniary compensations for the damage caused has risen over 80 times.
As such there is no such conception as medical negligence, however if we were to conduct an analysis of medical worker’s practical activities, we would be able to say that medical negligence infers to assignation of careless or inappropriate medical assistance by either a medical worker or a medical institution, which has caused harm to the health of the patient.
Strict rules that regulate the actions of medical personnel within a hospital are available. If due to any knowing or accidental reason a medical worker has failed to follow these standards and this had caused trauma to the patient, all the burden of responsibility for its consequences is being put down the medical worker, and if to be precise, on the insurance company that insures the hospital.
Medical negligence can have many shapes and forms: from a wrong diagnosis or a miswritten prescription, to deliberate denial of the required service and care. The most common illnesses associated with misdiagnosis or failures to uncover a disease are: heart attack, breast cancer, lung cancer, colon cancer, and appendicitis. Neglecting actions of such kind usually lead to serious consequences, such as permanent injury, severe disruptions and even death of the patient.
Medical negligence also encloses, but is not limited by illegitimate doctor’s behavior (sexual harassment), fallacies in the operation rooms (during anesthesia), and also birth injury. It must be mentioned that the patient possesses the right to hold the complete information concerning the condition of own health as well as treatment tactics. This includes the familiarization with the medical history health record, analysis results, and other various documents.
The patient must be aware of all the medical prescriptions, and in other words have a clear conception of the drugs that are being taken, know of their indications and contraindications. If the patient is suffering from allergies or intolerance to a certain group of pharmaceuticals, these data must be reflected in the patient’s medical record.
Stating the question of doctor’s and medical worker’s accountability is only possible in the case of establishing the fact of inappropriate fulfillment of professional responsibilities, as well as a direct causative connection between this fact and the harm done to the patient. In such case the most basic document is the health record. In the event where all the stages of conducted medical-diagnostic process did no get the full extent of reflection in this document, the court might have a solid argument to make a judgment against the medical worker.
Another aspect is that before any medical interference the patient must be informed of its all possible risks and consequences. However what is usually done when a patient becomes a victim of medical negligence? A patient that has got problems with his legal capacity usually appeals to a lawyer that specializes in the current field in order to carry out an inspection of whether a reimbursement for the damage is appropriate in this very case.
In case the harm done to the patient due to medical negligence has been confirmed the suitor along with his legal court action usually presents an expert’s evaluation that determines whether medical negligence had occurred. The specialist performs a full examination of the patient or the sufferer, studies the case circumstances according to medical documentation, as well as performs other necessary medical investigation, based on which he makes his own assumption.
Realization of such evaluation is mandatory, as in the opposite case it does not appear possible to file a lawsuit. Medical negligence could be the foundation for filing a court claim. The body of laws about harm attempt to bring medical negligence under regulation and divide it into three parts: cautiousness, reckless acts, and infliction of damage.
Based on the conclusions of the experts, taking into account the opinions of both sides, the court determines the amount of reimbursement for the damage done to health due to medical negligence, at that the court follows the legal norms and judiciary practice.
The purpose of this dissertation is to examine the legal issues that surround medical negligence in two European countries – France and the United Kingdom, and to look as well as perform evaluation of the differences in both legal systems surrounding this sensitive area of law.
The currently established healthcare system in France has been functioning and developing for a period of over a century and in June 2000 WHO had recognized it as the best in the world system of healthcare. It gives an opportunity to all French people to make use of traditional therapeutic services, as well as the newest scientific accomplishments. The proof of efficacy of healthcare organization is a high overall level of national health as well as annual increase of population’s life expectancy by more than three months. French women should be especially thankful to the public healthcare, as according to WHO data their average life expectancy is world’s second highest.
French laws and regulations foresee a wide array of universal public rights in the medical field. Almost 96% of the public are provided with either free or reimbursed therapeutic services. Currently the French also have the right to choose between medical institutions disregarding the level of income or insurance premium. For example, they can appeal for assistance to many general practitioners, as well as experts in public, private, academic, or basic clinical practice (Annas, 1999).
Besides, the waiting lists for surgical interferences typical for most other countries with governmental financing of the healthcare sector are not familiar to the French whatsoever. Medical insurance in France is a branch of the social security system. It is financed by the payroll taxes, income taxes, and after a recent reform – by indirect tolls on alcohol and tobacco. At first thought it may appear that the French medical insurance returns less to the medical field than in other countries of the European Union. But this is not the case, as over 80% of the French population has additional insurances, often suggested by their employers. The social group with the least income has a free universal access to medical care, which is fully financed by taxes. It should be noted, that the spendings for the treatments of continuous or chronic conditions are also fully compensated.
The issue of liability takes up a major part of the medical field. In many developed countries the question of medical liability is arising as a part of comparative law, which is believed to bring some sort of harmonization into healthcare. Although medical liability is for the most part a national issue, this problem has a rather wider base. In 1991 the European Commission had presented a Draft directive to the European council on the liability for services, and in 1997 the convention on Human Rights and Bio-Medicine has been adopted by the council of Europe. Back in 1991 this proposal had been rejected, but currently it has gained some new interest and the harmonization of healthcare liability might soon be on the agenda.
A study done by Ewoud Hondius gives some insight on the differences in law regarding practitioners, medical services related to the care standards, causation and proof, damages, who is liable, exemption clauses, as well as patient insurance systems in such legal systems of the EU as France and UK. After analyzing these issues of healthcare liability, Ewoud Hondius concluded that there is considerable disagreement between these two legal systems, however they are demonstrating more interest in one another than ever before. It appears that exemption clauses are the only issues that possess some sort of consensus, whereas the problems of proof and causation and who is to be held responsible are dealt with differently in each one of the jurisdictions.
This author also stresses the difference between the Nordic countries which implement Patient Insurance Schemes and other more traditional liability systems in countries like UK and France, where administrative and criminal law are of the most interest, and private law is not as relevant. Ewoud Hondius also focuses on the legal response to personal injury or death caused by medical negligence of healthcare professionals focusing mainly on the compensation systems which are outside private law. It was noted that the success expectations have impacted the issues of medical practitioner’s liability not just by raising new standards, but also through creating new problems in the field of healthcare.
It is presumed that court decisions concerning medical workers are meant to prevent negligent or inappropriate treatment. Furthermore, non-financial expenses of medical workers for medical lawsuits (amount of time spent for the process and for interrogation, humiliation, loss of reputation, depression, etc…) are also negative stimuli of inappropriate medical treatment. Currently more and more doctors in UK and France, just as in other countries of the EU are resorting to defensive medicine. It is yet unclear, whether the restraining influence of tort liability system has reached its goals of lowering the numbers of unfavorable outcomes and transforming the style of doctor’s behavior to a more paradigmatic one (Postema, 2002).
British and French doctors are claiming that the modern system is forcing them to practice defensive medicine, which implies to prescription of costly and unneeded procedures, in order to minimize the possibility of a lawsuit. At the same time such defensive medicine is considered to be one of the factors of medical negligence, increasing the healthcare expenses (Miceli, 1997). The term defensive medicine is defined as prescribing of analyses and procedures, as well as evading difficult patients or procedures for the purpose of lowering the risk of being accused in medical carelessness. According to this definition there is positive defensive medicine which benefits the patients when doctors suggest additional tests and spend more time with patients, following the tactics of defensive medicine.
However cases of evading difficult patients or procedures as well as prescription of tests and procedures that do not benefit the patient are related to negative defensive medicine. In general the tactics of defensive medicine may serve to the purposes of preventing errors just as other expensive and wasteful methods.
Within the system of tort liability the insurance claims for medical errors in administrative districts or for a certain occupation are also considered to be holding back the doctors from low quality treatment (Markesinis & Deakin, 1999). In such manner insurance payments may fully compensate the pressure rendered upon the doctors and hospitals by medical worker’s liability system. As insurance premiums induce the prevention of negligence, it makes sense to give the structure of medical insurance claims a closer look.
Inherently there are two methods when the law of professional negligence influences the expenditures of healthcare. This may occur directly through the executive expenses of the professional liability system, and indirectly, when the system of professional liability influences the doctor’s behavior and tactics. Medical workers in France and UK bear direct management expenses of the professional liability system by financing the system through making insurance payments. With the tort system the direct liability expenses of medical workers measured by insurance payments, made by doctors, hospitals, healthcare management organizations, and other medical institutions make up less than 1% of the healthcare budget in UK.
Nevertheless it is believed that concealed expenditures of the medical system are very common to defensive medicine. Many doctors of high-risk occupations claim that they practice defensive medicine, prescribing more tests, spending more time with the patients, keeping a better count or evading the more difficult patients or sending them to other specialists. With such change of behavior, the defensive medicine may appear to be wholesome to the patients, although potentially high-priced.
In the beginning of the 21st century the French government approved a series of new laws that enable the healthcare system providing additional help to the citizens which are in need of everyday care, and compensate all accidents associated with medicine, irrespective of the medical malpractice fact. All these innovations have become a good addition to the list of already existing rights, such as pregnancy compensation costs, prevention measures payments, medical assurance of laborers and students, free organization of family planning, as well as a systematic screening for early diagnostics of several medical conditions.
Since 1996 the French government has been annually issuing a separate law for social security funding. This document gives a description of the healthcare budget for the upcoming year and determines the basic indicators that vary due to planned and practical amounts of fiscal charges. The government is providing medical insurance to the three main public groups: workers and their families, farmers, workers of business and art.
In each one of these three groups the expenses are divided according to the geographical approach depending on the type of expenditures. The latter implies to funding the services of general practitioners, cost of medical prescriptions, staying in public hospitals, private clinics, nursing care at home, as well as medical transport. The government performs its functions by means of central, regional, and departmental offices. Two major organizations are functioning under the leadership of the French health ministry: General Health Care Management Service, and Clinical Management and Medical Assistance Service.
In its turn each one of the governmental structures controls the multiple medical and preventive treatment facilities as well as administrative institutions. Just like in many other countries of the EU the numbers of doctors in France had grown significantly from 60 000 in the end of the sixties, to the current 185 000. There are 3 medical doctors for every thousand people, and this indicator can be viewed as superb even comparing to other developed countries (UK – 3:1800, US – 3:2700, Germany 3:3400, Italy – 3:5900).
Concerning the gender ratios of medical staff, there is an interesting tendency towards increase of female doctors that today make up around 40 % of practicing specialists. The doctors, biologists, and dentists are getting paid in all hospitals as hospital staff, and their professional advancement depends on the experience. According to section 4 of the public service statute, there is a national system of hospital staff categorization.
All French medical institutions can be divided into three types: public hospitals, private clinics, and charity institutions. Currently 1032 regional, university local and general hospitals are related to the public hospitals. Some of them have a long lasting history, dating back to the times of Christian expansion in Europe. The public institutions differ widely according to their sizes structure, and functions. For example, the Paris public hospital holds over 80 000 staff, whereas some local institutions employ under 300 persons.
It is worth wile saying that the above Paris public hospital is the most essential group of country’s government clinics, created after the French revolution, and restructured in 1941 as a medical facility for the poor and industrial injury patients. Right now this facility is a multi-level organization responsible for high standards of treatment, development of medical technologies, and performance of scientific studies.
Since 1985 each public hospital is funded primarily (91%) by the funds of medical insurance, which are determined according to the data from the previous year. There is a medical information system that allows including exact data on the general pressure on a certain clinic, relative productivity of its divisions, and considering this information to make changes in the volume of financing.
The first progressive conceptions of medical ethics that have reached our days are recorded in the ancient Indian book Ayurveda, which took a close look at the issues of goodness and fairness, as well as instructed the doctors to be compassionate, charitable, fair, patient, calm and always in self possession. According to this sample of ancient literature, the responsibility of a doctor is confined in constant care and improvement of people’s health (Visscher, 1972).
A medical worker must defend the life and health of his patient as if it were his own. Medical ethics had received an even greater development in Ancient Greece, and its signs are clearly visible in the Hippocratic Oath. Medical ethics of progressive ancient doctors was directed against moneymakers, quacks, and racketeers that strived to benefit from an ill person (Radest, 2000). The Hippocratic Oath has made significant influence on medical ethics in general. Subsequently graduates of medical institutions were signing a pledge, which was based on the moral perceptions of Hippocrates.
A scrupulous specification of medical worker’s behavior norms is characteristic to the development of medical ethics in the modern capitalist era. In today’s world medicine is transformed into an object of trade, where a medical worker is perceived as an enterpriser. Code of medical ethics becomes even more reactionary with development of new means of human extermination, leaving severe consequences for the future generations (asphixant gasses, nuclear weapons, napalm, biological weapons, etc…). More or less recent events of the passed century have reached an unprecedented level of genocide and racial discrimination.
It should be mentioned that all these antihuman measures involved workers of the medical field. Medical industry becomes more monopolistic, and medical ethics is currently deteriorating into a corporative moral of medical societies which favor the concerns of private practice specialists (Zussman, 1997).
The international code of medical ethics approved by WHO in 1968 defines the main doctor’s responsibilities as always corresponding to the highest standards of professional conduct, performing own professional duties, not thinking about the profit. It is unethical to perform any self-advertising, unless permitted by the national code of medical ethics, collaborate with any medical institution without professional independence, obtaining any money over the earned income for a service, even with patient’s consent (Wear, 1998). Any action or advice that could weaken physical or mental resistance of a patient may be used only for his/her benefit.
Currently the doctors are recommended to relate to new treatment techniques with great caution, as doctor should approve only the facts that he is completely sure of. Concerning the patient, the International code of medical ethics states the doctor must always remember of his liability to save human lives (Ellos, 1990). Therefore a medical worker must always demonstrate full loyalty to the patient, and bring all his knowledge to his benefit. Each time, when a test or treatment tactics require knowledge that exceeds doctor’s abilities, he is obliged to invite other specialists that possess the needed qualifications however it is doctor’ liability to provide assistance, if he is not sure that other specialists are able or willing to provide it.
In the beginning of the 20th century many aspects of people’ lives were used by the Soviet propaganda in order to proclaim the benefits of the newly emerged communist system. Viewing the problem of medical negligence Professor Epstein claimed that in a Soviet nation the issue of medical errors must be brought to their minimum. He presented proof of great success of the Soviet healthcare system, as well as medical science and technology.
Professor Epstein had also called to the importance of cultivating a sense of humanism and proletarian ethics in a future medical professional. Epstein indicated that the initial point of medical liability is the harm done to the patient in case of failure to render medical assistance, or careless attitude of a doctor when providing medical assistance, as well as medical errors. His discussions on some concrete violations that had no clear legal interpretation back in those years are somewhat fascinating.
Concerning the ideological landmarks of medical practice, the attempts to trace the story medical discourse establishment belong to Michael Foucault. This author is famous for his interpretation of bio-politics, which represent all applications of biology to the political sphere. This definition is rather broad therefore individual bio-politicians tend to adhere to narrower explanations of this concept (Luther, Gutman & Hutton, 1988).
For example, American politologists Albert Somit and Stephen Peterson define bio-politics as using “biological conceptions – especially the theory of evolution… — and biological methods of research” in order to “understand political behavior of a human being. Michael Foucault introduced his own interpretation of bio-politics as an aggregate of political measures that influence human biological origin and give control over it for social purposes (Salter, 2006).
According to this theorist medicine takes up the most decisive place in the architecture of humanitarian disciplines. From here comes the authority of medicine in concrete forms of existence: health replaces salvation, which provides medicine with a status of human philosophy. Foucault claims that for the purpose of observing an individual, medical practice outlines clinical experience as the first rational concept.
He boosted the issue of medicalization when he observed the “triumph of medicalization” reflected in the fact that since the middle of the 20th century thanks to the advancements in technology, stationary treatment, successes in reanimation, analgesia, as well as certain healthcare politics, a human life became an object of total regulation and hospital management, which lead to a change of relation to death and style of dying in the modern epoch. In his lectures (1974-1975) Michael Foucault spoke about medicalization of intrafamiliar relations, which had started in European countries in the middle of 18th century.
In Self-regard he indicates the medicalization process of self-regard practice in the Hellenistic era. Back then, the internal connection between medicine and philosophy had been acknowledged, as both of them according to Plutarque derived from pathos. The care of ones soul is described by a wide array of medical metaphors. Foucault introduced a concept of autopathologization. However whether medicalization of Hellenistic “culture of self” is a historical truth or Foucault simply transferred this retrospective hypothesis to the present is a matter of debate. The metaphor of other cultural field’s philosophies as a soul therapy has been living its own life since then.
It may be traced in the works of different philosophers in different times, for example in Friedrich Nietzsche, however to us it is important that we are currently observing total medicalization of everyday human existence, expressed in multiple practices and institutions.
In ethical doctrine which states that fault or rectitude of a deed should be determined based on the consequences is called consequentialism. The simplest type of consequentialism is classical (hedonistical) utilitarianism, which claims that an action is correct or incorrect depending on whether it maximizes the positive balance of pleasure over pain in the Universe. Moore’s consequentialism is known as ideal utilitarianism, and considers beauty friendship and pleasure as the main benefits towards maximizing which all deeds are directed (Holden, 2001). According to Hare’s preferential utilitarianism, actions are correct if they maximize satisfaction of preferences or desires, disregarding the type of preferences.
Consequentialists are also diverging in the question of whether each separate action should be evaluated based on the consequences, or only general behavioral rules should be assessed in such manner. In this case separate actions are evaluated from the point of view of adherence to these guidelines. Followers of the first view point are called utilitarians of action, and of the second one – utilitarians of the rule. Consequential ethics is usually contrasted with moral arguments of deontology, which had ruled in the field of moral discourse during the major part of human history.
The term deontology derives from Greek “deontos” – due, and “logos” – knowledge and signifies a conglomerate of moral norms of professional behavior for medical workers. Lately, principles of deontology have found a reflection in various professional codes of journalists, social workers, etc… Deontology includes such issues as respecting medical secret, means of responsibility for the patient’s life, as well as relations of one doctor to another (Breen, Plueckhahn, Cordner, 1997).
According to the principals of deontology a medical worker must show maximum attention and apply all his knowledge for the purpose of improving patient’s health or at least bringing relief. A healthcare worker should also inform the patient only the information that might make him feel better, and avoid discussing patient’s condition with colleagues when the patient is around. This principal of deontology immediately bring up the issue of patient’s right to their information briefly mentioned earlier and poses a big dilemma.
The term deontology was introduced by a British sociologist and lawyer J. Bentham in 19th century in order to mark a theory of ethics. But the concept of deontology had emerged somewhat earlier (Singleton & McLaren, 1995). Hippocrates played a vital role in the development of deontological guidelines. The Hippocratic Oath reflects the most severe problems of the 20th century, for example it states that a doctor shall not allow religion, nationalism, racism, politics, or social condition to influence the performance of his duties. This Oath also claims that even when threatened, the doctor must not use his medical knowledge against the basic humane laws. This last phrase reflects the experience of World War 2, strengthens the Ten Nuremberg Regulations which stress the inadmissibility of criminal experiments on humans.
Practice shows that the doctors are in constant need of proof for their actions, in fact proof obtained through certain methods, adhering to several conditions (excluding subjectivism, expert comparison, adequate statistics, and logical conclusions). When a surgeon is asked a question about the reasons for his decision he usually refers to personal experience, knowledge, etc… Let us look at these decision making components from the evidence-based point of view. A doctor is mostly guided by personal experience, knowledge, medical intuition, colleague’s advice, and official recommendations (Smith & Churchill, 1986).
A major conscious aspect is personal experience of a medical worker, as it is formed throughout many years, and without it the most brilliant abilities cannot be realized. Looking at this category it becomes clear that proof based on experience can be obtained only after analyzing the practical results. A doctor generalizes his conscious experience by constantly studying the treatment outcomes, frequency of complications, or distant results. Knowledge is another conscious aspect of doctor’s professional competency that commonly competes with medical intuition. However medical intuition is a very rare ability to make correct conclusions without any clear explanation.
Scientific bioethical literature indicates and explains its main principles. There are four main principles at the bottom of bioethics as medical ethics, based on ethical norms in the framework of medical investigations and treatment. Beauchamp and Childres define these principles as the respect for autonomy, non-malfeasance, beneficience, and justice. The principle of autonomy assumes the right of each individual to act according to his interests and concepts of life, politics, health, religion, and manage own body according to own discretion (Brazier & Lobjoit, 1991). Abidance of autonomy by others is included into this concept, and implies to providing others with the right of freedom to choose.
The principle of autonomy regards only to the social relations, as members of fauna are unable to realize this bioethical principle. The human survival is deprived of sense without nature’s survival. Regulations of autonomy concern human rights, in particular the rights to life, personal life, personal opinion and freedom of expression. Autonomy has today become a valuable trait of democratic society. Specifically, we are often speaking about autonomy in the field of making decisions about own health. It is yet important to determine the limits of this autonomy in the context of bioethics, in cases when autonomy could influence moral, psychological, and physical health of other individuals related to the patient.
The principle of non-malfeasance is an expression of the most ancient medical law. Its meaning is clear to all: any action in the medical field must be carried out with minimal danger to the body and psyche of an individual (Howie, 1983). In such context this principle obtained a new interpretation in the framework of rights to health, social security, and respect of human dignity. The principle of beneficence supplies a conceptual quality of interpersonal relations, as well as relation between humans and nature, orienting all human actions towards good deeds, performed to the extent of other’s interests. The principle of justice provides all individuals with equal chances in social relations, receiving medical treatment and being medically assisted (Johnson, 1999).
Bioethics in a broader sense as a science is based on the principals of dignity and human completeness, as well as his physical and mental weaknesses. The principle of morality lies at the heart of all relations of individual with biosphere and underlines the fact that strict adherence to panhuman values compiles the essence of human existence. Without this all scientific discoveries, mainly in biology and medicine may become dangerous and risky for the human kind. The vulnerability approach to bioethics presents the reality of each individual’s life, as well as lives of all people. Bioethics considers the vulnerability of children, elderly, disabled, poor, and pregnant women, which directly relates to the regulations of international documents on human rights.
In my opinion, the progress of modern medicine is undeniable: highly effective medications, informative methods of diagnostics, etc… however ethical aspects of medicine have not lost their actuality, but gained greater significance in law than ever before. This is due to many reasons. The major reason is an increase of population’s medical literacy, accessibility of medical information sources, equipment and medications, as well as preconceived orientation of the mass media at medical progress and shortcomings. From another hand, not only the patient had changed, but so did the doctor. He became not simply more available, but often less educated and single-purposed.
It becomes more difficult keeping up with medical information flow, maintaining own level of qualifications. All this caused emerging of new types of doctor-patient relations which includes paid services, contracts, insurance and charity relations, and preference of one doctor over another. At the current stage the reforming of medical field pursues these major goals: forthcoming of healthcare towards family medicine, reduction of stationary treatment and services of single-purposed doctors, change in registration authority towards personal communication with the patient, as well as rationalization of fees for medical services.
Respectful and trustworthy communication with the patient lies at the heart of the aforesaid transformations. The comfort of medical services compiles of many ethically based moments that may include how fast the patient was able to reach the doctor on the phone, was he able to get a visit in short terms, how fast were the test results ready, how considerate and kind was the doctor or a nurse, and what assurances are given for being cured. In such system the patient becomes very important, as he is followed by money. If the patient is dissatisfied, he can pay the services of another doctor or medical institution.
A large scale analysis of patient’s complaints allows emphasizing basic violations of ethical law in medical practice. Around 30% of the patients complain about denial or untimely hospitalization. It is quite common when a patient is traveling around the city as some institutions might not have free space, others are not urgent, and others do not have the necessary experts and conditions for diagnostics and treatment. Sometimes patient is connecting with a qualified doctor when it is too late to do anything. Late hospitalization of severe neglected patients has not become very common. This issue mainly concerns the elderly.
It is a frequent occurrence that hospitals are being transformed into nursing homes, as patients move from one department to another a few times. In medical ethics there is still an absence of the needed succession between medical facilities and hospitals, which elongates the tossing of the patient from one doctor to another after hearing yet another conclusion, similar to “I do not observe any pathology from my side”. And if we were considering the obligation of waiting in many hour lineups at the reception, delay and loss of documentation, the patient’s complaints appear to be quite reasonable.
Speedy integration of modern medical technical means is one of the causes of dehumanizing effect upon medical practice that is expressed in medical indifference towards patients, rudeness, impoliteness, and extortion. A frequent reason for complaints is also insufficient literacy of medical workers, which leads to severe consequences and lethal outcomes. It is also clear that extreme deontological situations are rarely simple. More often these are combinations a few different in their mechanism and resolution unfavorable reasons. For the purpose of preventing offences of medical workers, just as attempts of unjustified accusation, each case of medical negligence and defect of medical practice must undergo careful examination.
From my point of view it appears to be prospective to conduct short-term courses on medical ethics and deontology, organizing special training with a counselor for the purpose of teaching medical personnel to relate to patients at the required deontological level, originating from the formula where the patient is always right. A doctor who adores and values his occupation has all the possibilities to avoid professional errors and offences.
In case of medical negligence, three conditions must be respected. Foremost, an individual who is making the accusation must show that that doctor should have been more careful towards him, secondly this liability had been violated by failing to follow the necessary standard of medical care, and thirdly, this negligence had caused harm to the filer of the lawsuit, for which he should receive financial compensation and the damage was so predictable that could have been avoided. In UK the standard of medical assistance is primarily defined by the Bolam criteria, which states that the criterion should be a standard of medical assistance provided by a person of regular qualification, who claim that he possesses this special skill (Bolam v. Friern Hospital Management Committee, 1957).
According to the Bolam Test it is possible that there are several schools of medical opinion concerning own medical administration, which enable practical medical workers to deny accusations in negligence if they can vividly demonstrate that they ware acting according to practice approved by an organization of other responsible practicing specialists. The recently modified Bolam Test demands (in order to be admissible by the courts) for the standard of doctor’s practical work to be defined by the criteria and be amendable to logical analysis (Bolitho v. City and Hackney Health Authority, 1997).
There is a question that concerns the degree to which clinical administration can influence the decision of the courts about standards of medical care. Hurwitz (2004) claims that if individuals are filing lawsuits for the reason of considering methodological recommendations because they describe standards based on evidence, but not tradition, this intensifies the so called normative legal dynamics, shifting the focus from more traditional to what really should be done.
Hurwitz interprets risk as subsequent following of clinical methodological recommendations. The NHS administration perceives this stating that clinical methodological recommendations can only assist a practitioner, and cannot be used to force certain treatment methods, justifying or forbidding them. Irrespectively of the strength of evidence, the medical doctor shall bear the responsibility of explaining their purpose (Department of Health, 2004).
The adversary (or antagonistic) system of the law is a system widely used in all countries with integrated precedent law of practice. These countries include US, UK and others who have accepted the British body of laws. The court is passive and neutral, relying on the defense attorney, and makes decisions according to the presented facts and conclusions of defendant, specialists, and witnesses. The court is not looking to find proof, witnesses, and experts for one or for both sides of the process. In other words, sides can compete like on a duel, and the judge does not take any participation, as his only task is to decide who won.
Unlike the European countries, such as France where the main juridical source is the law, in UK the main source of law is the norm, formulated by judges and expressed in court precedents. A court precedent is a court decision on a concrete law case, which is given obligatory legal significance. British legal system, just as Roman Civil Law was developing according to the principal of obligatory coexistence of justice and defense, therefore despite all attempts of codification the UK common law, improved and complimented by the equity law at the heart is still a law of practice at the heart, created by the courts.
But this from the other hand does not include an increasing role of the statute law. In such manner the UK law had obtained a triple structure: common law as the main source; law of equity as the correcting source; and statute law – the written law of parliamentary origin. Of course this is just a simplified model.
Counterbalancing to the UK legal system is the continental legal system, prevalent among the civil rights systems of the continental Europe, particularly in France. This system has an active judge or a group of judges which cooperate with the flanks of the process, study the proof, look for new evidence, and may present the sides with new proof which had not been presented at all. Under this system the judges are performing their own investigation (Kahn-Freund, Lévy, Rudden, 1991).
When the French lawyers are viewing law as an aggregate of provided rules, in UK the law is what the court trial leads to. The French lawyers are mainly interested how the current situation is brought under regulation, whereas in UK more attention is drawn to the order it should be viewed in for the purpose of making correct court decision. In countries like France justice was lawyers done be judges who were university graduates. In UK up till 19th century the lawyers were not obliged to have proper education, as they were mastering the occupation studying the practice of legal proceedings. Only now the availability of university diploma became an important prerequisite for becoming a lawyer or a judge. However even today, the most important in the eyes of UK citizens is for the cases to be ruled by conscientious people.
Following the main principles of legal proceedings, which make up a major part of basic ethics, is believed sufficient for making correct court decisions. Currently the UK legal system remains mainly a judiciary law, developed by the judges during examination of concrete cases (Harris & Joseph, 1995). The judge, unlike the doctrine and the legislator does not make decisions of general nature taking into account a series of cases that can happen in the future.
He is demanding justice from the justice system in this certain case, and his role is to bring the legal contest to an end. Inclusive of the precedent rule, such approach makes the norms of the common law more flexible and less abstract than the norms present in France, however simultaneously this makes the UK law lacking general concept of rules, and less definite. In UK due to the common law and rule of precedent the differences between a right and a law have somewhat diverse, and at the same time vivid nature than the difference between a right and law in France. This is especially true in the modern world where the fraction of statute law is growing among other sources of UK law. The structure of the law in the UK, the conception of the law, sources of the law, as well as the legal language are totally different comparing to the French legal system.
The most concerns are caused by the recently occurred change of public opinion towards clinical errors, as well as increase of criminalization of fatal medical errors. Ferner (2000) informed of frequent cases of doctors being accused in murder (not attempted) in UK between 1980 and 1999. During each period 1970-1979 and 1980-1989 there were only two corresponding cases. From 1990 to 1999 there were 13 such cases at this 17 doctors were accused. Ferner had concluded that the criminal law is insufficient towards most medical errors. Admission of guilt for murder can satisfy appetence of retaliation, but shall not deliver ways of preventing similar tragedies.
Increase of criminalization in the medical field is explained by a modification of public opinion towards course negligence. We could assert that filing lawsuits for consequences of carelessness and increase of compensation amounts for the damage caused should hold back from committing clinical errors however there is no evidence of such claim. Although practicing medical workers can change their methods towards being more secured from legal point of view, their activity is not accompanied by a decrease of filed court cases, or medical errors. Furthermore, the ideas about healthcare institutions participating in development of plans that foresee an improvement of healthcare quality, as well as initiatives on decreasing the amount of clinical errors have not been factually proven (Mello & Brennan, 2002).
This is partially due to discrepancy between those who have suffered the damage resulting from clinical negligence, and those who are filing the legal case, as well as assignation of compensations to third parties (insurance companies). Therefore medical services do not have a great stimulus to take action directed at lowering medical errors. Although even if healthcare would take decisive measures, directed at reducing clinical errors, there are still questions, such as how would this influence the specification of medical negligence?
In the UK medical negligence is the third mortality cause among the population, after cardiovascular diseases and cancer. A study performed in UK hospitals had demonstrated that around 280 thousand patients have suffered from incorrect prescription of medicines, overdosing, and infections obtained during the stay at the hospital or in the course of surgical operations. At the current stage, according to the Sunday Times newspaper the British department of healthcare is planning to integrate 1.2 million pounds into a three year programme that intends to study the conditions in 20 hospitals.
It is also hoped to check over 10 thousand health records in order to reveal whether lethal outcomes could have been avoided. It is known that medical errors that entail the death of patients are caused by faulty diagnostics, wrong choice of treatment methods, or erroneous clinical prognosis. According to several medical studies performed by forensic pathologists such phenomena are quite prevalent.
The number of lawsuits about medical negligence does bit appear to correspond to the numbers of executed clinical errors. According to the data of Localio and colleagues obtained during a Harvard study of medical practice, the general indicator of medical negligence lawsuits added up to be 0.13% per each signed out patient. Apparently in UK this indicator is much lower. Out of 280 patients included in the study who have felt unfavorable consequences of medical error, only 8 have filed a lawsuit in violated ethics or medical law.
This gave the reckoned correlation of unfavorable consequences and lawsuits about negligent treatment of 7.6:1. According to Localio and colleagues it was a rather elevated correlation, as the consequences that impelled to file lawsuits about negligence did not correspond to the study criteria of unfavorable consequences caused by medical error.
Towse and Danzon (1999) have determined that in UK annually there are 90 000 of adverse clinical consequences, including 13 500 lethal cases, however only 7000 persons file lawsuits, and only in 2000 cases the damage is compensated. From 1996-1997 in UK medical negligence had cost 235 million pounds to the NHS. According to Dyer (1999) the number of actions against doctors of general practice about their negligence had increased 13 times in the timeframe between 1989 and 1999. For example, in 1989 there were 38 actions against doctors of general practice, members of Doctor Protection Society, but by 1998 this number had grown to 500.
Most legal actions have however been declined or dissatisfied. It should be mentioned that the calculations of legal actions on negligence in the NHS system should be reconsidered. Fenn and colleagues (2005) claim that the amounts of medical negligence are overrated, and as its rate is yet growing, there will never be an uncontrolled explosion of medical carelessness as some might fear.
The described integral clinically-juridical definitional base is sufficient for sober and realistic study of medical relation’s modern dynamics at different levels – from elementary acts of medical service to international tendencies of healthcare. It may also be productive for the purpose of creation of new law models required to regulate this field. The biggest problem of legal security in both discussed systems is absence of clear medical obligations with regulation of legal status and liabilities of a medical doctor, patient, as well as other participants of clinical relations. Present normative regulatory acts do not fully reflect the mechanisms of securing and guaranteeing medical liabilities, as well as do not present the principles of responsibility in case of violation.
Deciding upon this problem is possible only with adequate understanding of basic medical activity, in particular its high risk, quasi-tort and quasi-criminality, as well as of the actual headship of medical worker, not the patient. The issue of healthcare standardization can only be solved after development of medical liabilities, when the consequences of different types of following and not following the standards shall be clearly judicially defined. Until now it is unclear what must be standardized in this field. Technologies of diagnostics and treatment should be oriented at each patient’s individuality, not at separate clinical entries. Excessive regulation when performing medical manipulations, as well as keeping health records is accompanied by groundless attempts, waste of time and healthcare resources.
Medical practice requires an incredibly high qualification of medical worker, as well as has a creative nature therefore medical standard cannot contain universal schemes and ready decisions. Standardization of the whole medical process would be a perfect solution for the issues that arose in the course of this dissertation. However such standardization is utopian and impossible, as this is the most rigid and bulky of its variants. Besides, in incorrect standard shall limit the right of a medical worker to inspiration and innovation. Hence it is wise to hold under strict regulation only those sectors of relation, which frequently cause complaints and dissatisfaction from the side of the patient.
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