03.04.13

Medical Malpractice Claims And How To Avoid Them

Christopher E. Kelman
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Medical Malpractice Claims And How To Avoid Them

Claims arising from medical treatment are increasingly the subject of litigation. The reasons for this are easily apparent. The internet age has led to more informed patients who are assertive of their legal rights and more willing than formerly to sue for any perceived sub-standard care. Coupled with this development is increased access to legal services especially via the contingency fee arrangement where lawyers are paid only if cases succeed and only from proceeds actually recovered from the losing party.

It therefore behoves all health care professionals to become aware of best practices they can adopt in order to avoid malpractice claims. The branch of law that governs liability to patients is Negligence and Contract. Claims in Contract are limited to paying patients while claims can be brought in Negligence irrespective of whether the patient is fee paying or not. This is one of the reasons why the majority of malpractice claims are brought in Negligence. This article is only concerned with Negligence claims.

In order for a Negligence claim to succeed it must be proven by a patient that a Health Care Professional (HCP) has been negligent in the delivery of his services. Negligence as a legal concept imposes on all HCPs a duty of care owed to their patients to exercise reasonable care in carrying out all forms of treatment. Two matters are important to the success of a medical malpractice claim. It must be proven by the patient that the HCP fell below the required standard of care which is that of a reasonably competent HCP. This means the HCP is not required to have the expertise of the best surgeon or general practitioner but satisfies the test by demonstrating at least reasonable competence. The second matter is that a HCP will be deemed negligent if the patient is able to prove that in carrying out the act complained of the HCP did not act in accordance with Common Professional Practice in Jamaica. What constitutes Common Professional Practice will be a matter of medical evidence called both by the patient and the HCP at the trial. Although in some cases a court can deem a Common Professional Practice negligent this is likely to be done only in rare instances.

I suggest the following actions as best practices:

Establish and make known protocols constituting Common Professional Practice. One of the best practices possible is for the medical fraternity to adopt protocols governing all aspects of treatment and for these to constitute common professional practices locally. Following their adoption, these are then to be made known to all HCPs through training, continuous medical education and other fora.

Treat emergencies promptly. The casualty or emergency department is usually the first port of call for persons seeking medical treatment. A lot of claims arise from lengthy delays in attending to patients, especially in public health facilities. While there is a balance to be struck between attending to the several emergencies that may confront departments, it has been held that a hospital which operates a casualty department must equip the department both in terms of manpower and equipment to cater effectively to emergencies. It has been held in decided cases that there is Negligence for a failure to treat where the seriousness of the person's medical condition is made clear to the HCP.