Introduction
Negligence is a serious concern especially in the medical field and it continues to gain greater importance in medical malpractice cases in several nations ranging from the Asia, the US, and Europe. There is a concern of patient-doctor interaction with two dominant models. The first deals with the doctrine of liberty of the patient, thereby addressing issues of informed consent. The second model entails autonomy of the practitioners. Negligence in medical law is a crucial topic and in Britain, it has become a dominant feature in the medical profession. It has since been emphasized in creating strict modern law based on the famous Bolam principle. This principle proclaims that a doctor is not liable for the offense of negligence if he/she acted according to the acceptable practices regarding a certain treatment and given alternatives as well as the risks so that the patient can rationalize and reach a decision. This is more of the informed consent doctrine.
Research question
What regulations are there to take care of the errors and adverse mistakes in medical practice? Most of the people do not clearly understand medical malpractice and therefore, ends up suffering in silence since they cannot place complaints to the authorities, (Currie and Watterson 163). Medical malpractice is the negligence to health conditions by the medical practitioners and this is simply a form of tort and hence a moral wrong or unethical practice (Currie and Watterson 163). Such negligent behaviour in most of the healthcare facilities usually results in serious health condition like total disability and even death from conditions that could otherwise be treated (Mason, McCall-Smith and Laurie 67).
Significance of Knowledge
The medical practice is a complex field as it deals with human life. More importantly, when the knowledge is obtained, people will be in a better position to determine the type of treatment they want and also to inform the authorities when such malpractice is committed (Leape 3). Some studies have shown that most of the main causes of injuries in medical practice are due to systemic factors and individual faults of practitioners as well as policymakers (Frech, Hamm and Wazzan 693). Understanding how the malpractices take place or how the mistakes are committed will go a long way in helping to create safer care from practitioners (Mason, McCall-Smith and Laurie 67).
Literature
In medical law, a contact is a promise made between two parties to be fulfilled according to the presiding conditions and is enforceable by the law (Bhullar and Gargi 196). The contract can either be implicit or explicit. In medical care practice, assuming the responsibility of taking care of a patient counts as a contract even when there is no written document for the contract signatories (Dimond 65). There is usually an implied contract from the moment the doctor begins examining the patient. To desist from carrying out some specified issues is a crime or breach. In essence, all the civil laws are regarded as tort statutes or contract laws (Leape 3). Liability also arises from committing Fiduciary. Neglecting duty can bring about criminal liability as well. Duty- the liability here is not mainly due to the outcomes of intentional damage to the accord or some evidenced mistake like negligence, Tort law explains this as breach of an obligation to act with caution, or the failure to act as a sensible and practical person would have done under same conditions (Dimond 65).
Medical law requires that government regulations be put in place to try and protect the public from potential danger that may result from the doctors’, nurses’ or other practitioners’ carelessness (Bhullar and Gargi 196). Malpractice has been described in four basic elements and these are the basis of the formation of both federal and state laws in the medical care (Pozgar 47). The following are the terms;
- Duty: each medical practitioner assumes responsibility (duty) of the patient when he/she begins the consultation, diagnosis or starts to treat the patient (Graham 41). The law states that the – duty comes to play from expressed or implied agreement;
- Breach: this is violation of the contract, generally it is assumed that once the practitioner has taken duty to diagnose the patient’s condition, any incorrect diagnosis is a breach of duty payable and yet to be paid to the patient (Avraham 183);
- Casual Connection: if the doctor fails to obtain correct diagnosis (breach of duty), the duty payable and yet to be paid to the patient and as a direct and proximate source of the breach, results into harm (Graham 41).
- Damages: this is the consequence of wrong diagnosis, the patients incurs damage in terms of disability, extra expenses or even death (Moore et al 245). It could be mental, physical or functional loss to the person getting care (Moore et al 245). These damages are in most cases assessed in terms of monetary value by the legal systems for compensation (Fleming 816).
Methodology
This is a process of studying medical law on medical malpractice especially the negligence aspect of it. For this reason, several sources will be used in this study to give wider coverage of the topic. Both qualitative and quantitative methods will be used in the study.
Data Collection
This being a synthesis study, identification of the previous stories, paper reviews and the analyses of existing law will form the basic form of collecting data. The researcher shall visit some important sites that offer relevant information about medical law to get an insight of what has been happening on the scene. The researcher will also carry out interviews about the conduct of the medical practitioners to get the update information from informants as they understand the tort of negligence in medical practice (Nayak 17).
Data Presentation
The problems will be introduced in the first part of the results to provide information about the problems of safety of patient especially when negligence tort is breached (Robinson and Cahill 78). There will also be the part regarding the law as instituted by the government, dissonance between understanding how the mistake came about and how negligence law applies. On the part of the reviews, basic concepts will be analyzed and given the proper reasoning to ensure safety and application of tort law.
Expected Results
The outcome for this study is expected to show that patients and doctors understand the relationship that they share and the way they have to interact. Furthermore they are expected to understand the law that deals with negligence (Gilmour 117). The research is expected to reveal that Medical practitioners (doctors and nurse) owe high duty to their clients who are in this case the patients than to the public in general (Burnard and Chapman 43). By virtue of patient-nurse relationship, the practitioners owe their clients duty of care which include keeping their information private, attending to them and offering the necessary and relevant type of service the patients wants. Breach of these could result in the crime of negligence which is law enforceable (Burnard and Chapman 45). The use of professional knowledge and skills in the medical profession is a test of if there was an incidence of neglect or not. This is because the normal people (laymen) cannot perform such responsibilities (Hiltz 55). If a nurse fails to prescribe properly or a doctor does not measure up to the required standards, this calls for adjudging for negligence. The hospitals have well documented proper guidelines of practice and these are usually used as evidence against cases of negligence (Burnard and Chapman 45).
Discussion
To attain a successful implementation of the negligence law in medical practise, the patients should be able to establish what is counted as satisfactory service (Montgomery 83). In this manner, the doctor is said to owe duty to the patient that conforms to certain standards in professional field (Dimond 45). The doctor or nurse will be derelict and breaches duty if they fail to offer certain services or do some unprofessional service (McHale, Fox and Tingle 67). The patient is entitled to place a lawsuit if he/she suffered damages following the encounter and that it was the doctor’s conduct that translated into the damage as a proximate cause (Montgomery 83). Failing to offer the evidence of the above elements, will amount to a failed case against negligence (Dimond 45).
Patients have to understand that criminal negligence is a serious crime and that it is not just about compensation since not only did the medical practitioner make a wrong diagnosis or give wrong treatment but this is also a show of very gross ignorance on the part of the professional. For this reason, a medical practitioner can face criminal suit for causing injury to the patient (Burnard and Chapman 78; Pozgar 19).
Conclusion
Addressing the medical law that deals with negligence is critical in ensuring that there is provision of safe patient care. This should be client-centric and should be the major objective in the medical sector in many places. The safety of the patient is a serious concern while providing for better health services since it’s the patient who spends the money and who need the services. Furthermore service providers are under obligation to take care of the patients by oath. The criminal justice system is mandated to ensure that justice is served but the major issues that arise are the balancing of rights of the defendant against what the society’s interest in punishing felons found guilty of criminal offense is. In general, to ensure that the patient’s rights are not infringed or to help improve the health services, law regulation is not the only alternative. Furthermore it is not the best either. Currently many critics of law enforcement have proposed the enhancement of the doctor patient relations, which is a better way of managing medical malpractice. If this can be entrenched in the medical practice, chances are that the doctors and nurses would practice professional and appropriate healthcare service provision.
Works Cited
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