Avoiding Medical Malpractice: A Physicians Guide to the Law

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In particular, we will discuss the duties of the physician, offer recommendations on how to balance these duties, and provide strategies for putting them into practice. To aid you in navigating legal terminology and concepts, we have assembled a table of definitions see Figure 7.

Because reporting laws vary by state, we have compiled a state-by-state reference list of reporting laws, licensing requirements, license renewal information, and DMV contact information. This list can be found in Chapter 8.

Current legal and ethical debates highlight duties of the physician that are relevant to the issue of driving. These include:. With regards to driving, physicians should advise and counsel their patients about medical conditions and possible medication side effects that may impair their ability to drive safely. Case law illustrates that failure to advise the patient about such medical conditions and medication side effects is considered negligent behavior. Several cases have found physicians liable for third-party injuries because they failed to advise their patients about medication side effects, 3 , 4 , 8 , 9 medical conditions, 5 , 10 - 12 and medical apparati 13 that may impair driving performance.

There are several exceptions to maintaining confidentiality. Also, information may be released without patient authorization in order to comply with various reporting statutes such as child abuse reporting statutes and court orders. However, while some courts have previously held the health care system liable for breaching confidentiality, 17 physicians generally enjoy immunity for complying with mandatory reporting statutes in good faith.

It also permits health care providers to disclose protected health information to public health authorities authorized by law to collect or receive such information for preventing or controlling disease, injury, or disability.

Because each state has its own reporting laws, we have provided a state-by-state reference list in the following chapter. Please note that in states where there are no laws authorizing physicians to report patients to the DMV, physicians must have patient consent in order to disclose medical information. In these states, physicians who disclose medical information without patient consent may be held liable for breach of confidentiality.

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Nonetheless, this should not dissuade physicians from reporting when it is necessary and justified, as reporting may provide protection from liability for future civil damages. Before consulting the reference list in Chapter 8, you may wish to familiarize yourself with the legal terms and concepts provided in Figure 7. Mandatory Medical Reporting Laws: In some states, physicians are required to report patients who have specific medical conditions eg, epilepsy, dementia to their state Department of Motor Vehicles DMV. These states generally provide specific guidelines and forms that can be obtained through the DMV.

Immunity for Reporting: Several states exempt physicians from liability for civil damages brought by the patient if the physician reported the patient to the DMV beforehand. Many states will maintain the confidentiality of the reporter, unless otherwise required by a court order. Duty to Protect: Case law in certain jurisdictions demonstrates that physicians have a legal duty to warn the public of danger their patients may cause, especially in the case of identifiable third parties. Renewal Procedures: License renewal procedures vary by state. Typical restrictions include prohibiting night driving, restricting driving to a certain radius, requiring adaptive devices, and shortening the renewal interval.

MABs vary between states in size, role, and level of involvement. Driver Rehabilitation Programs: These programs, run by driver rehabilitation specialists DRS , help identify at-risk drivers and improve driver safety through adaptive devices and techniques. Driver assessment and rehabilitation are discussed in greater detail in Chapter 5.

With these competing legal and ethical duties, how can you fulfill them while legally protecting yourself? In this section, we provide recommendations for achieving this balance. Patients should be advised of medical conditions, procedures and medications that may impair driving performance. A reference list of medical conditions and medications that may impair driving performance, with recommendations for each one, can be found in Chapter 9.

If you fail to follow these laws, you may be liable for patient and third-party injuries. Reduce the impact of breaching patient confidentiality. However, you can do several things to reduce the impact of breaching confidentiality on the patient-physician relationship. Before reporting your patient to the DMV, tell your patient what you are about to do. Even in states that offer anonymous reporting, it is a good idea to be open with your patients. When submitting your report, provide only the information required. By providing your patients with as much information as possible, you can involve them in the process and give them a greater sense of control.

Avoiding Medical Malpractice: A Physician's Guide to the Law

In the event of a patient or third-party crash injury, thorough documentation may protect you against a lawsuit. What should you do if you find yourself in a particularly challenging situation? In this section, we offer recommendations for several potential situations:. If a patient threatens to sue, there are several steps you can take to protect yourself in the event of a lawsuit:. However, if it can be shown that the breach materially contributed to the damage or it is more likely that the damage was due to negligence than another cause that is usually sufficient.

Although the requirement to prove criminal negligence is a much higher one i.

Nurses, Negligence, and Malpractice | Article | NursingCenter

A doctor found guilty of criminal negligence is also likely to be subject to fitness to practice procedures by the General Medical Council. Prosecutions for criminal negligence are rare, but the number of occasions when doctors are investigated by the police for a potential linkage to a charge of manslaughter after a serious untoward event are increasing. Conduct which goes beyond the level of civil negligence almost invariably involves the death of the patient but there are difficulties in establishing what actions constitute this. Extreme subjective recklessness such as indifference to an obvious risk to the patient or objective evidence of incompetence or ignorance may all satisfy the requirement.

The Malpractice System Doesn't Deter Malpractice

It is also of concern that recent prosecutions have generally been of doctors in training, where it is perhaps easier to establish a sufficient degree of incompetence. R v Adomako concerned an anaesthetist who had failed to notice his patient was disconnected from the ventilator whilst the patient was undergoing an eye operation. The patient suffered a fatal cardiac arrest and the anaesthetist was convicted of manslaughter.

The Injured Patient’s Guide to Medical Malpractice Claims

It is not clear whether Dr Adomako was not in the theatre and had failed to make adequate arrangements to monitor the patient in his absence or had been present and grossly incompetent in delivering the anaesthetic and failing to notice the disconnection as the cause of the patient's deterioration. The civil procedure rules in England and Wales allow for claims for medical negligence to be started within 3 years of the alleged negligence occurring or within 3 years of the victim becoming aware of possible negligence. This is of relevance to minors where the 3 years starts when the minor reaches the age of maturity i.

Medical defence organizations will provide cover for these activities and also where appropriate for other independent practice activties e. It is recognized that the deterrent effect on individual doctors of civil negligence claims is weak, although the process is stressful for the individuals involved and time consuming. Medical negligence is a three-part test whereby a duty of professional care is owed to a patient and as a consequence of a breach of that duty, the patient suffers harm.

All parts of the test must be satisfied. Civil considerations of negligence require doctors to act to an appropriate standard usually but not exclusively judged by the standard of their peers, whereas for criminal negligence the standard of practice has to result in serious harm from actions that could be considered to be incompetent or grossly negligent. Due to the greater availability of practice guidelines to guide the courts, doctors should always consider the implications and justification for deviations from accepted practices should the patient suffer harm, and doctors in training should be aware that they are expected to seek advice and assistance where they lack experience in order to preserve public safety.

Adequacy of note keeping to help defend any claims is vital. Oxford University Press is a department of the University of Oxford. It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide. Sign In or Create an Account. Sign In.

Criminal negligence

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What Counts as Medical Malpractice?

Volume Article Contents. Key points. Criminal negligence. Liability for negligence.


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Conflict of interest. E-mail: daniele. Oxford Academic. Google Scholar. Barrister Gray's Inn. Cite Citation. Making amends: a consultation paper setting out proposals for reforming the approach to clinical negligence in the NHS. Google Preview. Donoghue v Stevenson AC Hucks v Cole. The Times, 9 May, CA. The Times, 8 December. Nettleship v Weston 3 All ER Handling Clinical Negligence Claims in England. All rights reserved. For Permissions, please email: journals. Issue Section:.