Working+Draft

For centuries, the medical profession has worked diligently to improve the quality and quantity of human life, thus earning the respect and esteem of society…At the same time, American society has become far less accepting of error, disappointment, and accidental injury in life (Nasca vii). The combination of these factors results in patient anger and thus results in a malpractice suit. This paper will take an in depth look into the field of medical malpractice, especially the definition, consequences, previous Pennsylvania cases, and preventative measures. Medical malpractice is a very important issue to the current world and to all incoming medical professionals as it is not an issue that should be ignored. One must always make sure to pay attention to the smallest details and provide patient care to the best of their abilities. One must not worry because they always have a chance. Medical malpractice may be the bane of the medical world, but there are ways to overcome its dark and biting grip. In order to prevent medical malpractice, a doctor must understand previous case law in the practicing area while employing any and all preventative measures to ensure the best quality and quantity of care for their patients. The initial phase of this lawsuit begins with the physician receiving a summons or complaint “which alleges medical malpractice” (Feld). Once the physician in question has been served, he or she must contact their attorney. Once the attorney has been contacted, they must review the claims and decide to either answer, or rebut the claims. Essentially, they are denying malpractice. The next phase is the discovery where “attorneys for both parties attempt to determine the facts, seek expert opinions, and develop their sides of the case” (Feld). This can progress from at least one year, however, it can continue for several years and occasionally may last almost a decade. As this discovery period continues, one party may obtain enough information to propose a settlement, but if there is no settlement, the case will go to trial and a verdict will be reached. If the physician loses, the claim is paid, and “a report will be filed with the National Practitioner Databank (NPDB); this will be reportable during medical credentialing processes” (Feld). This is an extremely taxing process in which the physician will lose credibility, even if the claim is dropped. They have still been charged with malpractice and they record is smeared for it. Even worse, this is incredibly time consuming! A physician may be in this process for years, sometimes just for the discovery phase. In order to fully understand the issues of medical malpractice, first one must understand the malpractice and its many facets. There are four components of malpractice and “[medical professionals] should all be aware of the four components of malpractice. (1) The physician had a duty, (2) breached the duty, (3) resulting in harm to the patient, and (4) the harm was caused by the breach of duty. Typically, if a lawyer proves all four elements are present, the physician is liable for damages” (Moore). In other words, a physician must always keep their purpose in mind, the purpose for which they are practicing medicine, more commonly known as their personal mission statement. This may come in their mission statement or some other, but essentially, they are here to provide care for their patients. If they wrong their patient in any way, they must be punished; however, the case must be appropriate. Another definition of malpractice relates directly to the physicians inadequate care. For example, “[a] physician who fails to meet the profession’s customary standard of adequate care… can be sued for negligence. The injured patient is entitled to compensation under the law of medical malpractice, which is a particular application of tort law…web of rules that governs injuries to person or property where crime or contract is not at issue” (Danzon 1). This quotation provides the clear definition of medical malpractice. Of course, there are to other fundamentals of medical malpractice, “[injury], negligence, and proximate cause are the three fundamental elements that determine a malpractice case” (Gots 28). All three of these elements are necessary to create a case for the patient. First, the most obvious requirement of malpractice is injury. Injury can be defined as either “[an] operation complication, a serious drug side effect, an unusually prolonged hospitalization, an unexpected death, the loss of a limb from a seemingly minor injury. [These] may or may not lead to successful court action” (Gots 28). For a patient to determine whether or not their case is valid, they must “divide [their] complaints into two categories: physical impairments, and pain and suffering” (Gots 29). Physical impairments are more outwardly noticeable, such as deafness, blindness, or the loss of limb. These are easily documented and can be reassured to a jury in case of trial. Next, negligence is an essential ingredient in a medical malpractice case and is defined as a deviation from standard are. Patients often believe that any unusual and unanticipated complication as evidence of negligence, or the failure to exercise that degree of care that, in the circumstances, the law requires for the protection of other persons or those interests of other persons that may be injuriously affected by the want of such care. Patients “go to their physicians with confidence and high hopes, and when events take a surprising turn for the worse, they are certain that the doctor must be at fault” (Gots 45). However, the patient must show that the doctor, by making a mistake, caused a problem or failed to prevent it due to their own failed capabilities. In some cases, the doctrine of “//res ipsa loquitur// (Latin for ‘the thing speaks for itself’) may establish negligence without requiring expert testimony” (Gots 36). This means that the negligence is visible to anyone and that the injury could not have occurred without it. Also, “[factual] support based on demonstrable evidence puts the plaintiff in the best position. There are other tests of negligence, however, which can be used to win a case” (Gots 36). These include the opinion of the patient and their argument rather than the visible facts which support their claims. Finally, there is proximate cause, “the third element of a medical malpractice case, and the most difficult to prove. It is the link that connects negligence to injury” (Gots 37). For proximate cause to take place, “[not] only must the doctor have done something wrong and an injury have occurred, but the specific act of negligence must have directly produced the injury for the plaintiff to win his case” (Gots 37). Sometimes an injury is so severe that negligence is so apparent that the plaintiff may not have to prove probably or certain cause. “It may be enough to show that the doctor, through his negligence, removed even a small chance of averting the injury” (Gots 41). “To hold a physician liable for malpractice, a judge or jury must find that the physician’s conduct falls below the standard of medical care. Determining what constitutes that peculiar standard of care against which the physician’s actions are measure is not a simple matter, particularly because the legal and medical communities often differ in their perspectives” (Nasca 33). A medical professional is very different from a legal professional. They both had completely differing views on the other and the case and they see each other as enemies. However, both parties know that some cases are simply ridiculous, yet the legal representatives must attempt to bring down and discredit the medical professional. Additionally, there are many consequences of medical malpractice more taxing than a simple payment. For example, “[the] fear of being subject to a lawsuit is pervasive in medicine and may affect how one practices. The angst is perhaps more proportionate to the perception of the pain and humiliation associated with the process and character of a lawsuit than to the frequency of occurrence” (Feld). Being sued for medical malpractice is an extremely taxing experience for the mind and body. The simple stress of knowing that someone believes you have wronged them is unbelievable. Even worse is the fact that you attempted to help this person and this is how they repay you! How dare they? Doctors do not deserve this type of disrespect because at the end of the day, these lawsuits may be taking away professionals that were meant to save another human life, but now they will not have that opportunity because their name and career have been tarnished. However, “[the] consequences of being sued are not merely the time spent in defense preparation but may involve personal loss of self-esteem, depression, family stress, credentialing issues and financial worry” (Feld). These are many factors that do not only affect the physician in question, but also their family. The family does not deserve to be targeted in such a way for something the doctor may not have even done. These cases are horrible for so many people and are unfair to the family members involved. This even includes a great deal of public humiliation. For example, just the fact that someone is handed with a court summons is an immense ordeal, “[the] deputy hands you the malpractice claim document (summons) and you return to your office embarrassed and angry. Next to losing a loved one, this is one of the most gut-wrenching experiences you will encounter. It is hard to believe that someone you attempted to help and care for could now make such a claim against you” (Nasca 245). However, luckily there is some hope. If one feels that this may ruin their career, “[they] should consider the following statistics: Overall, plaintiffs won just 30.5% of medical liability cases in 2002. Of the 7% of cases proceeding to a jury verdict, the defendant won 82.4% of the time” (Nasca 247). This is a fairly comforting statistic. Not all cases end in unfavorable results and thus doctors have a chance. The one positive of this situation is that doctors do occasionally win and have favorable conditions. To better understand medical malpractice in Pennsylvania, one must observe and study different cases where doctors have been put into question. Some states even have different methods of determining malpractice. For example, “[in] Pennsylvania, ‘standard of care’ means the practitioner must ‘possess and employ in the treatment of a patient the skill and usually possessed by physicians in the same or a similar locality, giving due regard to the advanced state of the profession at the time of the treatment’” (Rapp 19). Here is one case from Pennsylvania: Kenneth Hamil was brought to a hospital late at night with severe chest pains. The supervisor told his wife to bring him in, however, the electrocardiograph would not work and a second machine could not be found. Mr. Hamil was taken to a physician’s office where he died while an ECG was being taken. His wife sued the hospital and the doctor ordering the ECG at the hospital (Rapp 22). The Pennsylvania Supreme Court decided that the jury should decide the case and they stated that a chain of causation was unnecessary. This is important because “[causation] can be shown by proof that the defendant negligently terminated the patient’s chances for survival” (Rapp 22). Causation usually occurs whenever an expert is called into court to examine the claims of the plaintiff. Another situation occurred as follows: A 16-year old boy had a curvature of the spine secondary to polio. He would need surgery if he were to have any chance of a normal life. His doctor wanted to operate, but not under the ‘no transfusions’ restriction placed by the child’s Jehovah’s Witness mother. The Pennsylvania Supreme Court refused to substitute its judgment for the mother’s, citing the lack of an immediate threat to the child’s life (Rapp 36). When a doctor believes that a parent or guardian is keeping a child from receiving a life-saving treatment, the doctor is required to contact the child welfare authorities. According to Pennsylvania law, “a court can transfer temporary legal custody of a ‘dependent child’ to a qualified individual” (Rapp 36). A dependent child is a child without proper parental care or control who requires medical attention. This situation alone can result in many emotional displays and conflicting rights and interests. However, physicians frequently find themselves in these situations, but they are always acting with the patient’s best interest in mind. Also, sometimes religion may come in the way of medicinal decisions, “[religious] beliefs, for example, may interfere with what is considered proper diagnosis and treatment. Jehovah’s Witnesses prohibit the transfusion of blood, and Christian Scientists rely on prayer as the only therapy for disease” (Rapp 36). Luckily, the hospital and its staff support their decision. Luckily, there are many ways that malpractice may be prevented. All medical professions should understand these methods and observe them to make sure they can prevent medical malpractice. Here are several tips that will help to almost ensure a physician or medical professional will be able to prevent and survive a malpractice suit. For example, “[complications] are a risk area. Do not ignore post-complication care out of embarrassment, fear, or concern that your answers to questions may later be quoted in a suit. Make certain the patient is well cared for by your medical and surgical colleagues, as well as by you. Engage your clinic or hospital risk management team if appropriate” (Feld). This means that a physician must always make sure to discuss every aspect of the patent’s care to the patient and give them ample warning of all results and possible complications. They deserve to know everything about their illness and their treatment. Next, remember that the media is not a medical professionals’ best friend. The media is corruptible and can always be discovered. Specifically, “E-mails are discoverable. Remember the old saying: never e-mail anything you would not want on the front page of your newspaper” (Feld). Emails are meant to be confidential but they can be easily hacked into. Make sure to keep private records in written form. Otherwise someone may be able to invade your privacy. One easy method is to create a separate email from the physician’s professional one so that they may keep other important materials private. One other important method to keep privacy is to pay attention to the EMR. For example, “[the] electronic medical record (EMR) may become a fertile area for the plaintiff’s attorneys. EMR policies regarding timing of response and completeness for staff-to-staff and patient-to-staff communications may prevent challenges about poor follow-up” (Feld). This essentially means that a physician must make sure that everything in their practice is malpractice free. They should make sure to keep records up to date and make sure that all logs are kept. Finally, one must always keep in check their staff and other professionals who work with them. For example, “[vicarious] liability pertains to your responsibility for your subordinates. Ensure adequate training and policies for office staff. Your duty to your patients involves appropriate office wait time and routing of the emergent call received by your office staff. You may be vicariously liable for the emergent call taken by your staff, even though you never received the message” (Feld). A physician must always be prepared for the worse whenever dealing with a patient. This does not change for outside factors such as medical malpractice. They must always be ready and these tips will help them to prevent such incidences as no physician, unless they truthfully have committed negligence, should be brought to court. Currently, within the new government, Democrats and Republicans are working on methods to reform the medical liability of practicing physicians and medical professionals. Three are two methods currently being discussed upon. The first “approach calls for state experimentation with innovative programs adopted by liability insurers, sometimes called disclosure-and-offer programs, in which health care providers disclose unanticipated outcomes of care to patients and make prompt offers of compensation in appropriate cases. Patients do not waive their right to sue by accepting the offer, but reportedly, few go on to file lawsuits” (Mello). This means that there will not be lawsuits to such a great degree any longer. This program is promising however, the program has not been formally evaluated. The second approach is to “shift the adjudication of medical malpractice claims to a new kind of tribunal — either an administrative panel that would award damages on the basis of judgments by neutral experts about the avoidability of the injury or specialized judicial courts presided over by judges with medical expertise” (Mello). This will eliminate the calling of medical experts to trials and will also serve to combine the issue of both the law and medicine into one person. Also, this will aid where juries make decisions with little guidance on the scientific issues, which can result in unreasonable compensation. Medical malpractice is an ongoing fight between medical professionals, physicians and lawyers. This is not a dead issue, “[at] present, few policymakers are openly discussing the pros and cons of bundling liability reform and health care reform. The overture to the exquisite oratorio of lawmaking calls for each player to press the key positions its constituents demand. But within a few months, we predict that many will be looking for compromises” (Mello). Medical malpractice is a very important issue to the current world and to all incoming medical professionals as it is not an issue that should be ignored. One must always make sure to pay attention to the smallest details and provide patient care to the best of their abilities. One must not worry because they always have a chance. Medical malpractice may be the bane of the medical world, but there are ways to overcome its dark and biting grip.

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