Medical Malpractice
1. Introduction
This case is important because Justice McNair gave the leading judgment. He explained that: “A doctor commits a breach of duty unless… The second principle is based on the concept of autonomy. Justice Lord Scarman stated in the case of Sidaway v Bethlem Royal Hospital… Modern cases have also emphasised the importance given to a patient’s autonomy. For instance, in Chester v Afshar it was held that…
The duty of care owed by a doctor to his patient was first explored in Mv South Tyneside Health Authority. Over the decades, I can tell that this duty has been a concern for many. As times have changed and society has developed into a more blame… As societal expectations have developed, it would appear as though the ‘Bolam’ test is no longer the final say on what is considered… This definition does not give a conclusive meaning, partly because what is considered reasonable may differ from one patient to another… When doing research for this essay, a common reason I came across for why a claim could be made was a lack of informed consent… The importance of consent can be seen in case law.
1.1 Definition of Medical Malpractice
Medical malpractice refers to negligence by a healthcare professional. There are many common examples of medical malpractice. But what’s noteworthy about this kind of situation is that when all is said and done, a key aspect of defining and proving the existence of medical malpractice comes down to standard of care. What does standard of care mean? Well, as evident from its title, “standard of care” would mean the customary standard for a given type of treatment or diagnosis in the community. That’s to say, it’s what people would accept and expect as a standard situation in such a given circumstance. So in a legal sense, the “standard of care” would mean the standard that a similarly trained and experienced professional would provide when giving the same kind of medical attention. If a doctor or a healthcare provider is found to have not met the standard of care – that’s to say, the attention or treatment rendered fell beneath what the typical physician in the relevant community would provide, then that doctor or that provider can be found to have been negligent. Ergo, medical malpractice is highly steeped in questions of fact – from the scientific relevance of a particular form of treatment to the legal significance of a doctor’s action in relation to that treatment. It’s for this reason that standard of care has been established as a focal point in understanding what does and what does not constitute medical malpractice. A case can really only succeed if there’s a skilled and licensed professional prepared to testify and provide evidence that the treating doctor did not comply with accepted medical standards in providing care. All of these elements need to come together in a convincing narrative fashion. But if it can be shown that the doctor failed to act in a manner that was consistent with accepted practice, and that this failure caused actual harm to the patient, then an individual can indeed have a successful claim of medical malpractice.
1.2 Scope of Medical Malpractice Cases
Next to wrongful death of a patient, the most common form of medical malpractice claim is for permanent injury from the improper treatment of a patient. Although these cases may arise from an act or omission on the part of a physician during diagnosis such as failure to diagnose, in most medical malpractice cases, the treatment phase of medical care is concerned. If no treatment is given at all or if a delayed diagnosis causes a patient’s injury or death, then treatment phase malpractice which could otherwise fall into the “permanent injury” category is very likely to be the basis for a claimed injury. The difficulty in most jurisdictions in the United States is that a treatment phase medical malpractice plaintiff is required to prove “due to the negligence of the provider, the plaintiff’s injury”. This means that there is a level of technical medical proof that is required beyond the ability of most lay people. In many states, the legislature has made significant strides in assisting medical malpractice injured persons by passing special statutes which allow a valid claim for an emotional injury if a close family member has died as a result of medical malpractice. Emotional injury bringing about compensation could not be awarded to such close relatives prior to passage of these statutes. These statutes were motivated by the understanding that the death of a close family member not only results in grievous mental anguish but could also cause the survivor’s economic ruin. The causing of mental anguish as well as the risk of a substantial monetary award strikes a fair balance of compensation for the survivor and serves to discourage physicians and other health providers from engaging in wrongful acts.
1.3 Importance of Studying Medical Malpractice
Thirdly, as technology and scientific understanding progresses, so does the accusation that medical knowledge and training of healthcare professionals fall below acceptable standards. By really appreciating the causes and consequences of medical malpractice – through thorough study and research – public awareness and academic study can help assist and influence in the prevention or early detection of issues. For example, a 2017 study into identifying risk factors for malpractice, including gathering data surrounding the background and experience of a practitioner, witnessed a reform in how new professionals are vetted and begin to work in a healthcare environment. Through creating certain eligibility criteria for work and training, potential and future mistakes may be identified early in a person’s career and offers opportunities for targeted training programs to be provided. In this, and many other instances, academic study and public communication have the power not just to research into mistakes of the past, but to drive future change and development in medical care.
Secondly, the United States, and each individual state within it, has its own laws and rules regarding medical malpractice. The majority of states require that in order to bring a claim and to pass the initial stages of litigation, a qualified doctor must sign a sworn statement confirming that the care given was “not in line with that reasonably expected from a similarly qualified and experienced healthcare professional.” This means that studying medical malpractice is necessary in order to improve the processes for making a claim and for claims themselves. This is essential in ensuring that the standards of care are raised when patients are harmed and sufferers of malpractice will not find that they are unable to claim due to strict and bureaucratic legal processes. This is especially important in the US as the American Medical Association has highlighted the increasing number of doctors moving to other countries where liability laws are more relaxed. This not only increases the pressure on existing healthcare systems and staff in countries such as the UK, but may also mean sufferers of medical malpractice will be unable to find a healthcare professional willing to support a claim.
Firstly, investigating why so many people die under the care of doctors is a crucial part of making medical practice as beneficial and safe to the public as possible. As shown by the findings of the ‘To Err is Human’ report, vast effort has been made over the past 20 years to make healthcare safer through studying medical malpractice. The report found that: “The problem is not bad people in health care – the problem is that good people are working in bad systems that need to be made safer.” As such, the report emphasised the importance of moving away from the “blame culture” in healthcare which often follows episodes of errors, and recommended that attempts to understand why mistakes happen and how to prevent them should be encouraged and learned from by the medical profession as a whole.
2. Causes of Medical Malpractice
A second primary cause of medical malpractice is negligence. Negligence occurs when a healthcare provider either fails to take the appropriate action or takes an inappropriate action. This may happen, for instance, if a provider does not order the necessary tests to make a diagnosis. Negligence can also occur if the provider does not refer the patient to a specialist or chooses not to follow up with the patient. In some cases, negligence is a result of a healthcare provider’s conscious disregard for patient safety. However, in many cases, negligence occurs because the provider is overworked, overtired, or simply has too many patients. Research has found that the number of hours a provider works and the number of patients the provider must see are strongly correlated with the rate of medical errors and adverse events. Medical malpractice resulting from negligence is a very common occurrence in the United States. In 2012, the Civil Justice Resource Group performed a study that found that 50% of medical malpractice was a result of negligence on the part of a healthcare provider.
2.1 Lack of Communication and Coordination
One research project funded by the Agency for Healthcare Research and Quality is entitled, “Improving Outcomes in the ICU: The Impact of Communication and Culture on Adverse Events as Mediated by Informational Work Complexity.” The stated purpose of the study is “to assess the relationship between the dynamics of medical information flow and the occurrence and severity of adverse events in Intensive Care Units.” It is expected that findings from this type of research will be used to guide information management strategies and standardize communication protocols within the medical community to decrease the likelihood of miscommunications that may lead to adverse events.
On the other hand, lack of information or misinformational commands and the causal chain leading to an adverse event in a clinical setting has recently been a major area of research in the field of human factors. It has been generally recognized that the quality of communication has a significant impact on human performance and errors in high risk industries. Recent studies also emphasize the importance of effective information exchange and call for more research to understand how information is perceived, processed, and acted upon in a medical environment.
In response to these issues, Proassurance and the Risk Management Foundation have jointly developed a number of resources and tools to enhance patient communications. A successful approach to addressing deficiencies and improving patient communications is the adoption of a protocol to ensure continuity of treatment in the event a primary care physician dies, retires, or relocates. These protocols, often referred to as “patient continuity of care protocols,” focus on obtaining informed consent from patients, openly discussing the implications of the protocol and the patient’s right to seek care from any qualified physician, and proper notification to patients and their new and prior care providers of the protocols and any continuity of care concerns.
Lack of communication between patient-plaintiffs and health care providers is a common fact pattern in medical malpractice lawsuits. Often, a breakdown in communication results in catastrophic consequences to the patient, and it may be the last medical error. In addition to lacking information flow with patient-plaintiffs, health care provider to health care provider information flow is a primary area of concern. This includes situation at shift changes, referrals, signing out patients when rotating off a service, and especially when a consultant is added to the care team.
2.2 Negligence and Human Error
Medical malpractice may be defined as a negligent, improper or unskilled treatment of a patient by a physician, nurse, pharmacist, dentist or other healthcare professional. In order to trigger a review of the health professional’s conduct, the injury must result in significant damages such as a wrong diagnosis, improper treatment, breach of doctor-patient confidentiality, or lack of consent. A bad result by itself will not create liability – the patient must prove that the negligence caused the injury. Missed or wrong diagnoses are estimated to represent a quarter to a third of all medical malpractice claims, making it the leading allegation. The other most frequent allegations of malpractice include negligence in the treatment and in the performance of surgery. In any malpractice case, the first step is to prove that the healthcare provider owed the patient a standard duty of care. Healthcare practitioners must exercise the ordinary degree of skill and care of the average healthcare provider who practices the provider’s specialty, taking into account the state of medical science at the time. This duty is not excused because the provider delivers services for free or at a reduced cost. It is not always simple to determine what the appropriate standard of care should have been, given all the variables present in a particular case. Moreover, it is important to be aware that the standard is not based on the best possible care, but rather on reasonable care. Once the patient has established the standard care owed, there must be a demonstration that the healthcare provider violated or breached that duty. In other words, there had to be a failure to comply with the applicable standard of care. This breach is often the “factual” cause of the injury, known as “causation in fact”. This step in a malpractice case focuses on the provider’s response to the patient’s medical problem and whether his or her conduct physically contributed to the resulting injury. Res ipsa loquitur means “the thing speaks for itself”, and implies the malpractice is apparent. This shifts the burden of proof to the physician. Established in case law, a malpractice plaintiff must show that the injury:
(1) would not occur in the absence of negligence;
(2) was caused by an agency or instrumentality within the exclusive control of the defendant; and
(3) was not due to any voluntary action or contribution on the part of the patient. These legal doctrines, however, do not alter the fundamental definition: malpractice is poor quality treatment that resulted in a bad outcome for the patient.
2.3 Inadequate Training and Education
In response to the increasing factor of medical malpractice, the inadequate training and education provided to the medical students and medical professionals, who are going to provide health care, has become the growing concern of the public nowadays. People are requesting the reduction of medical malpractice instead of only the fact that victims should be compensated. According to professor of medicine David M. Studdert and his team in 2006, they found that about 4% of hospitalized patients suffered from a preventable adverse event (Studdert et al). However, there is a total of 91% of their claims due to medical malpractices found no injury occurred. From this statistic, it is shown that until now, not all of the medical malpractices can be found and hence it is not right not to give the public the knowledge about how to reduce the chance of being fallen into the trap of medical malpractice. On top of this, from the standpoint of medical students, not having enough education and training to assist patients has indirectly increased their fear to involve in patient care for any of the situations. When medical students cannot provide what the patients need, potential negligence, which breaches one of the most important four D’s of medical malpractice, duty, is created and it is expected to bring a threat of medical malpractice to the student. Two categories of the training and education are the most important. When doctors, nurses, and medical assistants are not keeping up to all of the professional standards of care relevant to their career, they may face difficulties in maintaining their knowledge to provide good care. Moreover, education and keeping up to date with the new kind of potential cures are also important. However, out of the training and education then translates to medical malpractice is actually a very complicated kind of law. If a doctor is found to have not performed as a reasonable and prudent doctor would have done under similar circumstances, it is called the failure to meet the standards of care. On top of this, this may include the doctor that did many things that could have helped someone to stay away from getting sick. It is called actual cause. However, if the patients cannot show that this is the truth, and it is just only a lost chance of recovery, the doctor won’t be held responsible to the patients.
3. Consequences of Medical Malpractice
Among the most common causes of medical malpractice are delays in diagnosis, failure to diagnose serious illness, misdiagnosis of the illness from which a patient is suffering, and injuries sustained during childbirth. The increasing number of such cases can be attributed to several factors, one of the most important being the greater availability and sophistication of medical services and medical information. Another important contributory factor is thought to be the growing expectation on the part of the public to receive good medical care and the readiness of some people to sue doctors. It is significant that not all types of unfavorable outcome following medical treatment will give rise to a successful legal action. This is because it is for the person who has suffered negligence to prove it, and for a doctor to be liable regarding the treatment given, it must be shown that another similar doctor would not have given that treatment. Also, the fact that an operation or a course of treatment has a poor outcome will not in itself necessarily imply that negligence has occurred. Medical professionals are well aware of these issues, and it is partly for this reason that medical protection organizations exist. Such organizations employ legal experts to defend cases brought against their employee doctors, and they draw on the opinions of independent medical specialists to argue that there has been no negligence.
3.1 Physical and Emotional Harm to Patients
It’s clear, therefore, that when the emotional sufferings of medical malpractice victims are considered, it really shows the wide-reaching effects of such incidents: it’s not at all a simple case of physical pain or discomfort. Emotional well-being and morale are largely affected by medical malpractice. With physical discomfort as well, patients can feel trapped, both in their own bodies and in the seemingly relentless march of acquaintances, work and other associated things that they never needed to consider before. Well-knownly, it can be a cause of depression, anxiety and a cessation of ability to properly function in society or maintain relationships. Medical malpractice only exacerbates these problems, and usually in a way that is completely avoidable.
With the work that goes into a medical malpractice lawsuit, it’s extremely difficult for a person already dealing with a severe physical and emotional trauma. This is also one of the reasons people don’t step forward to report probable malpractices. There is a system in place to hold healthcare providers liable for their errors. However, that system is often blocked even before it can begin because patients simply don’t have the emotional or physical strength to push through to trial. This ultimately isn’t just harmful to the patient. As the last section pointed out, there is a strong public interest in the exposure and punishment of medical malpractice; it draws attention to the issue and keeps it in the public eye, as well as serving as a deterrent to medical malpractice. When people don’t have the emotional or physical strength to step forward, everyone suffers – including the negligent doctors and hospital who started the problem in the first place.
Not only can medical malpractice cause physical difficulties for a patient, it can also create emotional setbacks. Often, the two are intertwined. Take a stroke victim, for instance. If that person suffers a stroke due to medical malpractice, there is a tremendous physical result. That person may be partially paralyzed. However, there is also an extreme emotional result. An active, involved life has been halted due to a mistake, and the emotional pain and confusion of that can be overwhelming. This kind of case is also a prime example of how the financial and emotional difficulties that come with medical malpractice can be linked.
3.2 Financial Burden on Patients and Healthcare System
These lawsuits can be financially consuming for patients, both in terms of time and money. As patients go through the litigation process, they often have to spend substantial amounts of their own money in order to advance the case and prove that malpractice indeed occurred. Hiring expert witnesses, obtaining copies of medical records, and traveling to and from medical offices across the region all are costly endeavors for the plaintiff. This often translates to a large barrier to entry for low-income groups or for those who are uninsured. Those who are unable to afford the pricey fees associated with malpractice lawsuits often aren’t able to find an attorney to take on their case. This contrasts the goal of malpractice litigation: helping the patient and preventing further malpractice. Rather, those who can afford to sue, regardless of the chances of malpractice, can bring the lawsuit and potentially drain the resources and time of the medical providers and the courts. These legal proceedings can also take quite a long time to conclude. This means that patients will be unable to work and function for extended periods of time. Without a large cash settlement looming in the background, many patients and families are left financially vulnerable as a result of job and financial loss. As mentioned earlier, some patients might have had to pay for medical expenses out of their own pockets as a result of the malpractice. Even when providing that malpractice did occur, patients still must go through long approval processes before they are allowed to reclaim the costs from the insurance company. This can cause substantial debts to go unpaid and potentially damage credit scores. Expenses and damages, often culminating in significant financial losses for both the patient and their support network. Malpractice lawsuits can also be a burden for the healthcare system. Doctors often order tests and procedures to protect themselves from lawsuits. According to a survey of doctors, allow and unnecessary medical practices driven by the need to decrease likelihood of suits conducted in 2010, nearly 9 out of 10 doctors agreed that fear of lawsuits leads to practicing defensive medicine. This means that doctors might recommend excessive or more expensive testing which can drive up healthcare costs and potentially stress the system. Defensive medicine, being ordered for the purpose of mitigating lawsuit fears as opposed to quickly and effectively treating patients, diminishes the focus on patient well-being. Defensive medicine isn’t just a cost to the patient and the healthcare system; it is a cost to society overall. According to the NIH and the National Library of Medicine, defensive medical practices represent a growing problem for the American healthcare system leading to wasted resources and potentially damaging the availability and quality of healthcare. Defensive medicine can result in lower quality care, more diagnostic error, and worse outcomes for the patient as a result of unnecessary tests and procedures. More importantly, it can be difficult to recognize whether a test was ordered out of necessity or out of fear of a lawsuit after the fact. Together, these burdens demonstrate that medical malpractice is deeply ingrained in the modern healthcare system and can bring grave financial consequences to patients and healthcare networks alike. These observations ultimately highlight the necessity for both continued work and improvement in the medical field and the inclusion of more comprehensive and care-focused insurance systems, designed to minimize financial strain and maximize standards of care across the board.
3.3 Loss of Trust in Healthcare Providers
The final consequence of medical malpractice discussed in this article is the loss of trust in healthcare providers. Numerous incidents of medical malpractice receive extensive media coverage, and they can have a lasting impact on patients’ perceptions of the general standard of care in the healthcare industry. In reality, the actions of a small number of healthcare professionals who are proven to have provided substandard care should not tarnish the reputation of the whole sector. However, incidents of medical malpractice may erode the trust that patients have in healthcare providers, and the doctors, surgeons, and other professionals who work in the industry may find it harder to make vital healthcare decisions in collaboration with patients. When patients’ trust in healthcare professionals diminishes, their relationship changes from one of shared goals of treatment and recovery to one in which patients may doubt the motivations behind clinical decisions. This change can make it difficult for healthcare professionals to engage patients in their care and achieve the most successful health outcomes. It can become a concern not only of the prospect of legal action, but also the concern about whether healthcare professionals are providing care to the best possible standard. As a doctor or surgeon, fearing litigation and feeling apprehensive about your work is likely to have an impact on the quality of the care that can be offered to patients. With less trust in the decisions made by a healthcare professional, there may be greater scrutiny over mistakes and adverse outcomes for patients. This can ultimately lead to a climate in which every error or failure to improve a patient’s health may be treated with suspicion and met with the possibility of a legal challenge. Specialists in the field claim that incidents of medical malpractice – and the subsequent loss of trust in healthcare professionals – may contribute to the spread of defensive medical practices. This refers to the phenomenon of healthcare providers ordering excessive investigations or treatment as a way of protecting themselves from potential litigation. Defensive medical practices can lead to patients being subjected to unnecessary procedures and tests that are of no clinical benefit, as well as increased healthcare costs when these interventions are conducted in order to avoid any suggestions of malpractice. Defensive medicine can have further implications for trust and openness between healthcare professionals and patients and represents an inefficiency in the allocation of resources within the healthcare system. While it is not a phenomenon unique to any one country, the factors contributing to defensive medical practices are influenced by individual states’ legal and healthcare systems. It is suggested that a systematic approach to tort law reform – such as implementing tort caps or alternative dispute resolution mechanisms – may help to prevent the spread of defensive medical practices.
4. Preventing and Addressing Medical Malpractice
Inadequate communication between the patient and the provider can result in inappropriate treatment. In order to establish an effective relationship with the patient, physicians should make the effort to allow patients to express their concerns. Many physicians do not listen to the patient effectively; the average physician interrupts the patient within eighteen seconds. This is because the physicians are pressurized for time and they need to make a quick diagnosis. However, such practice can lead to inaccurate diagnosis; one of the most commonly cited misdiagnosis diseases, breast cancer, has a misdiagnosis rate of 17% because the symptoms are being overlooked or misinterpreted. Also, the patient expectation of getting an X-ray when diagnosed with a soft tissue injury is only 18%, however the actual rate is twenty to seven percent. This shows that the lack of patient involvement may lead to unnecessary treatment. When miscommunication on the patient side occurs, such as patients having language barriers or mental challenges, their family members should be involved in their treatment. In fact, research has shown that the number of adverse medical events decreases when the family is involved. The advent of training medical students is recognizing the importance of patient-doctor communication which is being incorporated into medical school curriculum. For example, Stanford School of Medicine has a programme called “Practice of Medicine” which helps students develop skills in communication and to investigate and reflect on methods of teaching. Like the “Objective Structured Clinical Examination” requires third year medical students to take a focused history from the patient and present the case to mock examiners. These practices may increase the likelihood of the future generation of physicians to initiate preventive and treatment options discussions with the patients. It is also important to nurture a culture in which learning from medical errors is seen to be an integral part of the practice of medicine. Education that focuses on addressing one’s own learning need is self-directed; it is becoming more valuable in today’s adult education. Given that patients are becoming more complex and the science of medicine is progressing rapidly, healthcare professionals need to not only carry out the traditional role of teaching patients but also become a provider of the most current information. Contrary to the belief that prevention malpractice requires continual attention to many details in various areas, for instance, recurrence of heart attacks can be prevented by giving medicines to break down blood clot, there are only a limited number of areas that some much needed research suggests will results in substantial progress in reducing medical malpractice. For example, a study indicates that better patient education and acquisition of informed consent will lead to lesser disputes in the diagnosis and treatment of severe infections by member of the letioncoll. Also, maintaining good communication between consulting and the referring physicians by ensuring not only timely and effective conversation between the two groups but also to emphasize the importance of the patients’ understanding. Every year, between 44,000 and 98,000 people die in hospitals due to medical errors of which many are preventable. It is therefore crucial to have a system in place to manage risk effectively. For instance, the “Risk Management Plan” implemented by NHS include strategies to deal with clinical and non-clinical risks which comprise of getting together available date, analyzing the likelihood of harm and designing measures to prevent harm to occur. The number of reports of inpatient’s falls, cardiac related events and wrong site operation has revealed to drop in the last year. Such program apparently shows positive outcome and it indicates the benefits of developing and maintaining an open, supportive and fair health care system which learns from patient safety incidents and ensure that patients receive effective and prompt remedial treatment. After finding that doctors were often insensitive.
4.1 Improving Communication and Collaboration in Healthcare Settings
Prevention strategies often center on providing proper incentives, transparency, and openness throughout the whole healthcare system, since it is more and more realized that no single measure will avoid the occurrence of medical errors. In 1999, the Institute of Medicine (IOM) published a report that made a giant impact on the medical profession. In this report named “To Err Is Human: Building a Safer Health System,” the IOM quoted the above figures relating to how quite 100,000 people die per annum within the U.S. thanks to a preventable medical error. That’s quite a number of people that die from car accidents, breast cancer, or AIDS each year. The impact of this report caused the general public to start seeing health care in a way of patient safety, and medical and nursing professionals have begun to work out quality and risk management more as the means used to establish and maintain a security culture instead of as an additional administrative task to be performed. Also, according to the report, medical errors cause injury in 1,000,000 people within the U.S., which suggests that more than a quarter of individuals killed per annum from medical errors could have been saved if medical professionals had been working to enhance their quality of patient care. The report indicates that based on these numbers, medical errors are the eighth leading cause of death within the U.S. every year. But, according to reports from the Bureau of Consular Affairs, the number of U.S. citizens who died of medical errors abroad in 2013 was 166, numerous but 240. So, these reports suggest that the safest health care providers within the U.S. are still safer than those found in other countries, and closer to home, the help of a medical malpractice attorney in taking successful medical malpractice cases was of a great deal of use to injured patients in search of a top-quality health care provider in their locality. On the other hand, patients also play a crucial role in their own care and may establish good communication with their health care providers. These include explaining fully all illnesses, medical history and therapy of medication, understanding what is proposed, knowing the names of health practitioners involved, and taking the opinion of another health practitioner into consideration before consenting to treatment. In this case, it could lessen the danger of experiencing an occurrence of medical malpractice as a result of a communication failure between the healthcare provider and the patient concerned in his or her own treatment.
4.2 Enhancing Training and Education for Healthcare Professionals
However, improving the training process is not as simple as just offering more standardized education. Dr. Nash explains that “more effective and relevant training has to be developed based on new adult learning paradigms which favor active and self-directed learning, collaboration, contextual learning, and interdisciplinary teaching.” One example of this that Dr. Nash and his colleagues are currently exploring is the development of a combined training package for healthcare professionals from different disciplines; an approach which capitalizes on the increasing move towards patient care in multidisciplinary teams. Also, Dr. Nash suggests that there needs to be more focus on teaching non-technical skills within training programs, as they are just as important to preventing errors as the technical skills that are currently the main focus of training. In his opinion, simulation training in particular has the potential to be a real asset here because it provides a safe, non-threatening environment for healthcare professionals to both develop and reflect on their (non-technical) cognitive and interpersonal skills. Dr. Nash suggests that “more regular and continuous assessment of healthcare performance” could allow any proposed changes to training to be properly reflected in policy and so ultimately in practice, which might help to address the issue of outdated and irrelevant training programs. However, he also suggests that this would require comprehensive transparency between healthcare professionals, such as peer reviews and 360-degree feedback, as well as a shift in the stakes and culture surrounding assessment – from something to be feared and therefore sometimes disguised, to a genuine opportunity for learning and development. Dr. Nash’s argument is supported by research, which suggests that a combination of individual skill practice and collective learning through repeated actions and peer discussion seems to be the most effective way to learn from error and so minimize the chance of it being repeated again.
4.3 Implementing Effective Risk Management Strategies
Ultimately, a strong and proactive risk management approach helps to protect a healthcare practice’s most valuable asset- its reputation. By minimizing the chances of incidents or claims and promoting a culture of continuous improvement in patient care, patient satisfaction is enhanced and the practice will become an attractive proposition for new patients and for those seeking to join.
It should be noted that risk management in the medical context is not simply a reactive process to incidents of malpractice, but is also concerned with identifying and addressing day-to-day risks. By encouraging staff to be vigilant and consider the possible impact of their actions, systemic failures can be identified and rectified before harm comes to a patient. A robust risk management system will often find its reflection in the development of a strong and effective system of informed consent. Patient outcomes are improved because all risks of a particular treatment or procedure are systematically identified, discussed with the patient, and then minimized through the adoption of appropriate risk management strategies.
There are many benefits of embracing risk management strategies and embedding a risk management culture in the healthcare environment. First and foremost, the systematic identification and assessment of risk promotes a safer patient care environment, enhancing both the patient experience and outcomes. As mentioned in the previous section, it is often the case that internal failures of healthcare providers result in less than optimal care for patients. By recognizing and remediating such risks, the quality of patient care can be significantly improved. In addition, the implementation of systematic risk management strategies can help to achieve efficiencies in the delivery of care. For example, the process of conducting regular clinical audits as part of a risk management system may identify certain medications that are ineffective. This may lead to a review of that medication as a treatment option and could result in costs associated with that medication being reduced.
A risk management system involves the identification of all potential risks in a healthcare practice and the development of a plan that puts in place strategies and resources to minimize these risks. It is important for a practice to have the right culture to support the process of risk assessment and the adoption of risk management strategies. Key features of a positive risk management culture include: a full understanding of the legal and ethical duties of care; open and effective communication between all members of a healthcare team; a commitment to using incidents and near misses as an opportunity for learning and for improving patient care; a willingness to invest time and resources in ongoing staff education and training; and regular review and update of all risk management strategies to ensure that they are relevant and effective.
One of the most effective ways of avoiding medical malpractice claims is for healthcare providers to make use of risk management strategies in the course of their work. In its simplest form, a risk management strategy recognizes that any human activity involves risk, and that prudent individuals take steps to minimize that risk. In the healthcare context, the implementation of risk management strategies not only helps to minimize the possibility of claims arising from incidents, but also assists healthcare providers in meeting their duty of care to patients, which in turn leads to better patient care and the reduction of incidents.
4.4 Ensuring Legal Accountability and Compensation for Victims
At the end of the day, it is vital to recognise that preventing and addressing medical malpractice is not just about instating harsher legal consequences for doctors who have made mistakes. Nevertheless, ensuring that there are not just the right legal channels through which patients can seek redress as a result of clinical negligence, but also systems being introduced and enforced that mean that any lessons that can be learnt from mistakes are implemented to minimise the chances of someone else suffering in the future. One such system that is in place to meet the objectives of providing legal accountability and of compensating those who have been unnecessarily injured or harmed as a result of clinical negligence. However, trying to alleviate the suffering caused by avoidable medical errors, whilst also ensuring that the same mistakes can be reduced in the future, is not an easy task. The government has, however, in the past few years attempted to tackle this difficult issue in two main ways. Firstly, those who wish to pursue a case of medical malpractice are now able to seek a resolution through the NHS redress process. This process is entirely voluntary and the option to make a claim via the traditional legal route is still available. However, the aim is to provide an alternative, with the benefit of a speedier and more efficient conclusion to the process. The idea is that investigations are still carried out and, where appropriate, lessons can be learnt, negligence admitted and compensation paid to reflect the severity of the injury sustained. Secondly, the government has recently committed to the full-scale introduction of a new system called ‘Duty of Candour’. This stipulates that healthcare and hospital professionals are now under a duty to be transparent and open with patients or their families where there have been mistakes. Furthermore, it states that when mistakes have resulted in moderate level harm to a patient, an apology ought to be issued as well as an explanation of what went wrong. It is hoped that, by ensuring patients are aware that they have been the victim of substandard care, they will find a resolution to any of the psychological harm that has arisen but importantly, it will mean that lessons are learnt. By having an open, transparent approach, it should not only engender trust between patients and doctors, but also help in trying to reduce the potential for any similar errors to happen in the future.

Published by
Write essays
View all posts