The article is inspired by the clinical negligence research published at solicitors.guru, the aspiring, well-established legal platform putting together hundreds of UK medical negligence solicitors, focused on the gigantic budget expenditures on the area that definitely deserves more attention from authorities.
The challenges of definition
In legal literature, there is no unified point of view on the qualification of medical errors. In some cases, the error is called a wrongful act of guilt in medical workers, resulting in harm to the patient’s health, in the others – accidentally caused harm to innocent, and sometimes – a circumstance, softening responsibility of a doctor. As is clear from these definitions, they differ significantly on such an important feature as the presence or absence of guilt. Meanwhile, a uniform legal definition of medical error has a theoretical and practical significance.
It appears that from a legal point of view, the errors must be distinguished from wrongful acts of guilt in medical workers (institutions) and cases of causing harm to the patient in the absence of guilt. The first of these acts is an offense (a crime, a misdemeanor), giving rise to criminal, disciplinary and civil liability; in the second embodiment, there is the case – the lack of guilt and responsibility.
Accordingly, it is necessary to distinguish the subjective and objective causes of errors in the process of healing. In terms of subjective reasons punishable medical errors occur as a result of negligence or lack of experience and knowledge of the physician, such as a careless inspection, inadequate assessment of clinical and laboratory data, negligent performance of operations and other treatment and preventive measures, negligent care and observation of the patient, poor organisation activities of medical institutions. Illegal abortion, failure to render aid to the patient happen due to deliberate actions of medical workers, but their relation to the adverse effects can also represent the form of negligence.
For medical errors, not entailing legal responsibility with regard to objective reasons, should be classified as acts of medical workers (institutions) that do not violate the rules established by law and regulations, but caused damage to health or provoked a lethal outcome, for example, due to lack of security specialists of medical institutions, hardware, therapeutic drugs, atypical form of the disease, the abnormal anatomical features of the patient or sudden allergic reaction that could not be foreseen by health professionals.
This classification and definition of medical errors, taking into account the criterion of guilt in medical workers, is confirmed by the jurisprudence. In some cases medical institutions can not be held responsible for diagnostic errors due to the complexity of the disease or its abnormality. However, if there is an evidence of errors caused as the result of careless attitude to the work of the medical staff, the hospital is obliged to compensate the damage caused to the health of the patient through the fault of its employees in the performance of their duties.Continue reading