The challenges of medical negligence from a legal viewpoint

Since the dawn of the 90’s and till nowadays the majority of representatives of medical specialties and insurance companies have repeatedly stated that healthcare enters a crisis as for medical malpractice lawsuits, as evidenced by the sharply increased amount of compensations awarded by the court, and the price of insurance policies at various levels. Thus, according to, a prominent provider of legal services, running a huge database of medical negligence solicitors, the country’s budget expenditures associated with medical negligence account for £790ml. annually.

As a result, even some US states have enacted laws that restrict the amount of claims, compensations for lawyers and limitation periods within which the victims of negligence are entitled to sue the defendant. In addition, some states a mandatory insurance of doctors was introduced, as well as the established the procedure for the consideration of claims in arbitration before a claim can be submitted to the jury. Furthermore, the reduction of the compensation amount for ‘physical pain and suffering’ are actively discussed. It should be noted that certain proposals for reform in the area of medical malpractice lawsuits are usually discussed during the pre-election political campaigns in the aspects of the desire of gaining votes, and the current presidential election campaign.

Neither legislators nor the medical staff nor the patients have no doubt that the issues arising in connection with the resolution of medical malpractice disputes, are the most sophisticated in the law enforcement practice. This is because on the one hand the complicated nature of medicine and absolute uniqueness of each contentious case, and on the other hand the insufficiency of regulatory guidelines for medical practice. Taking into account the specificity of medical practice, it is virtually impossible to reflect all the standards in the acts of the legislative level. It is impossible to imagine a detailed description of medical procedures in the text of the law the area is so complicated and diverse that the mission seems to be impossible to implement.

Therefore, some other than the ‘technical’ level solution is required, some regulation on the sub-legal level. In other branches of human activity, for example in international trade or maritime transport, in the absence of legal regulation (i.e. rules, writing laid down by law) the terms have been developed for centuries in business practices that made up the unresolved legal niche. Despite the unwritten nature of these practices, they are the rules of law. In medicine, the role of such customs, ‘technology’ regulators, should be carried out by methodical recommendations, national standards, forms of diagnosis and treatment.

International experience suggests that standardisation of medical practice is not only giving real help to the courts in resolving medical malpractice disputes, but also provides an effective impact on the quality of medical care in the country, regardless of the legal status of standards and forms, different from country to country (they can be either mandatory or advisory).

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Medical negligence in the legal practice (real use case inside)

The crime in providing medical assistance can be committed through carelessness or professional negligence. In the first case it is considered that a guilty person foresaw the potential outcomes of socially dangerous consequences of the actions made (or inaction), but lightly, without strong reasons considered their prevention (or absence) to be possible and/or true. In the second case (negligence), the offender, did not foresee such effects, but with the necessary approach and forethought should have and could have foreseen them.

An example of the negligence could be the next case (we are referring to the real cases provided by partners – medical negligence solicitors, although we omit names, surnames and geographical location of the case). A patient with uncomplicated closed fractures of the hip was brought to the hospital. Young surgeon on duty decided to take advantage of osteosynthesis. During the surgery a severe bleeding occurred, and as a result, clinical shock. The patient died, and it turned out there were no indications for osteosynthesis. The surgeon, counting on the fact that there would be no intraoperative complications, decided to perform operation and took an increased risk.

Criminal negligence is defined as the occurrence of unforeseen adverse effects, though the guilty party could and should have foreseen their offensive. In practice, criminal negligence is often associated with medical ignorance. There is a misconception that the ignorance of their duties does not entail criminal liability. This is not true. Getting medical diploma, young professionals not only get the right to engage in medical practice, but also take on the responsibility to be able to do it.

Non-crime legal precedents

There’s a term ‘medical incident’ (also classified as ‘medical accident’) that doesn’t imply criminal activity. In this case the doctor is believed to act deemed to be committed innocently (accidentally) if the perpetrator (for example medical worker) was not aware of the social danger of his actions, did not foresee its socially dangerous consequences and the circumstances of the case should not have been there or could have been foreseen.

Here’s another example to consider: before appointing/introducing an antibiotic, the doctor asks the patient whether he has some drug tolerance problems, allergic reactions or, in particular, unusual reactions to antibiotics. After receiving a negative response, the physician nevertheless fulfills the necessary samples to determine the patient’s hypersensitivity to antibiotics, and the sample is negative. However, with the introduction of antibiotics, a severe anaphylactic shock is developed in the patient, recovery from which demanded significant efforts. There is no fault of the doctor, as in this case he did everything that is required, and he couldn’t foresee the consequences. From a legal point of view, the incident must be regarded to as causing of harm innocently, as there is no form of guilt there.

From time to time in the medical literature there are reports that significant efforts are made to organise medical negligence information with legal aspects in minds. The authors of these publications argue a lot, defending their own points of view and moving in decentralisation direction, rather than in a uniform way. Unfortunately, these attempts are groundless, because they are going beyond the limits of medical knowledge and the competence of law intrusion.

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Legal tractation of medical negligence and errors

The article is inspired by the clinical negligence research published at, 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.

medical-malpractice2For 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.

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