Medical Negligence

Dr. Ab Halim bin Hj. Mansar

       Medical malpractice.     Irregular medical practice.     A dispute between doctor

and patient over thestandard of medical

care.

In Law

No difference from any other type of negligence.

Negligence or otherwise is a civil wrong known as ‘tort’

A breach of contract if his professional behavior falls short of the requirement of the contract between him and the patient.

For negligence of any kind to be proved it must be shown that:

i. The defendant (doctor) owed a duty of care to the plaintiff.Ii. That the defendant was in breach of that duty.iii.That the plaintiff suffered damaged as a result.

Negligence

Any person can be guilty of negligence for a person to be judged negligence:

     He must owe a duty to another person.

      He must have committed a breach of duty.

       As a result the person to whom the duty was owed must have suffered some damage. 

Medical Negligence

1. The person must be the doctor’s patient (the doctor accepts responsibility of medical care of a person).2. The doctor must have done something which is not approved by medical practice or have omitted to do something which is accepted in the circumstances.3. As a result of the action or omission the patient has suffered injury.

In medical situation

Medical negligence is the breach of duty owed by a doctor to his patient to exercise reasonable care and or his skill resulting in some bodily, mental or financial disability. The doctors must have a

reasonable degree of proficiency and apply the proficiency with a reasonable degree of diligence. 

Contd.

No doctor is expected to possess all current medical knowledge or being able to apply all known diagnostic or therapeutic techniques but a doctor of a particular standing as regards to his degree and experience is expected to have a standard of knowledge and capability commensurate with his status.

Essential ingredient of negligence         Willingness to examine        Willingness to diagnose        Willingness to treat

  As a result damaged suffered by the

patient::

The patient must suffered some loss which can be measured and compensated for in term of money.

    

Contd. e.g. - loss of earning

(absence from work) (impair of his ability to carry job

expenses).- Expensed (nursing

home expenses)(special treatment).

      

Medical Negligence can only occur when a doctor-patient relationship is established.

The doctor has a duty to exercise skill and care.

e.g. in acute emergency (ED) once a doctor approaches an ill or injured person with the objective of assisting or treating him, than a completely valid relationship is setup (even the patient is unconscious or unaware the doctor present.e.g. in MVAa doctor is not negligence if he does not offer his services in an emergency to a person.

10. When is duty owned?

 - from the moment that the doctor undertakes advice or treatment whether under contract or gratuitou

e.g. at the scene of accident.

11. Standard of duty

-         No doctor is expected to be perfect or infallible.-         Standard of competence which the patient is entitled to expect is that of an ordinary competent practitioner on the grade or specialty to which the doctor belongs.

-         e.g. a GP performing major surgery will be expected to exercise the degree of skill of an average surgeon unless to act in an emergency when no surgeon was available

Breaches of duty Approved practice

-         e.g. failure to take X-ray or to give antisera Accurate diagnosis or misdiagnosis

-         e.g. failure to examine the abdomen in acute appendicitis

Risk of treatment-         not negligence if reasonable care to avoid

mishap.-         e.g. broken needle

Communication with other doctor’s Attendance on patient Reips a laquitor

-         “the thing speaks for itself” -         e.g. swabs forceps left in the abdomen. 

Medical Record-         the principal evidence in allegation of negligence action. ¨      e.g. The house surgeon is not expected to have the same skill as a consultant surgeon but he is expected to confine his activities except in emergencies to a level of medical care which is within his competence. 

Contd. ¨      A house surgeon electing to

perform a major surgical operation not in urgent medical emergencies might be held guilty of negligence if damage ensues even though he could not be expected to posses the same experience as a senior consultant who should have performed the operation.  

Contd.

      e.g. A brilliant surgeon may be negligence it he fails to apply his skill as well as inexperienced surgeon may be negligence even if he claims himself to possessed of sufficient competence. .

Contd.

Degree of competency is not a fixed quality. It varies according to the states of doctor from new graduate, senior consultant. However there is a minimal level of competence for all doctor which is guarded by the medical council

Cases

Second case

Third case

TYPES OF OFFENCES DEALT BY M.M.C1. Convicted in Malaysia or elsewhere of any

offence punishable with imprisonment fine or both.

2. Guilty of infamous conduct in any professional respect

3. Obtain registration by fraud or misrepresentation4. Not at any time of his registration entitled to be

registered5. Removed from the register of medical

practitioners outside Malaysia.

DISCIPLINARY INQUIRY OF M.M.C ON PRACTITIONERS(1985-1989) Total inquired-36 Guilty as charged-21 Charges dismiss-15

PUNISHMENT1. Deregistered: 1

2. suspended: 13

1 month: 4

2 months: 1

3 months: 1

6months: 5

1 year: 2

3. reprimanded:7

4. Suspended action: 4