Medical Malpractice Flashcards
Failure of a physician to
properly perform the duty which devolves upon him in his professional relation to
his patient which results to injury
Medical malpractice
Bad or unskillful practice of medicine resulting to injury of the patient or failure on the part of the physician
Medical malpractice
2 Elements of Medical malpractice
- Failed to perform his duty
2. Injury was sustained
that cause, which, in natural continuous sequence, unbroken by an
efficient intervening cause,
PROXIMATE CAUSE
Elements of proximate cause
- Direct connection between the injury and the fault of the physician
- The cause or the wrongful act of the physician must be efficient
- The result must be the natural continuous and probable consequence.
In the causal connection (between the negligence of the physician and the injury sustained by the patient), there may be an ______ which is the proximate cause of the injury.
Doctrine of Efficient Intervening Cause
means the responsibility of a person, (who is not negligent) , for the wrongful conduct or negligence of another
Doctrine of Imputed Negligence
3 Under Doctrine of Vicarious Liability
- Ostensible Agent Doctrine
- Borrowed Servant Doctrine
- Captain of the Ship Doctrine
Under Doctrine Res Ipsa Loquitor
- Doctrine of Common Knowledge
means the responsibility of a person, who is not negligent, for the wrongful conduct or negligence of another
Vicarious liability
3 people involve in the doctrine of vicarious liability
- Injured patient
- Person who injured the patient
- Person who may be held financially liable to the patient
Article stating the Obligation is demandable not only for one’s own acts or omission but also for those persons whom one is responsible
Art. 2180, Civil Code of the Philippines
Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned task, even though the former are not engaged in any
business or industry…
Art. 2180, Civil Code of the Philippines
Exceptions to the Article 2180 code (Employer shall be held liable for the damage caused by employees)
when the employer proves that he/she
observes all the diligence of a good father of a family to prevent injury.
In cases wherein the employees are at the same time independent contractors of the hospital
DOCTRINE OF OSTENSIBLE AGENT
Who can be held liable for their negligent acts under the doctrine of ostensible agent?
- Pathologist
- Radiologist
- Anesthesiologist
Ordinarily, resident physicians, nurses and
other personnel of the hospital are employees or servants of the hospital
BORROWED SERVANT DOCTRINE
Under the II. BORROWED SERVANT DOCTRINE nurses, resident and physician are deemed ____
borrowed from the hospital
Who is held liable under the borrowed servant doctrine?
Employer
The doctrine enunciates liability of the surgeon not only
for the wrongful acts of those who are under his physical control but also those wherein
he has extension of control.
CAPTAIN OF THE SHIP DOCTRINE
REASONS FOR APPLICATION OF THE DOCTRINE
OF VICARIOUS LIABILITY
- Employer has deep pockets
- Employer has power to select his employee
- Employer to bear the risk of loss
- ## Employer has to treat operating expenseBasically employer is rich and has total control hence he is liable
(“The thing speaks for itself ”) the nature of the wrongful act or injury is suggestive of negligence
DOCTRINE OF RES IPSA LOQUITOR
Res Ipsa Loquitor (exception):
not needing an expert evidence because the proof of injury due to negligence is obvious
(expert testimony is necessary to prove that a physician has done a negligent act) or that has deviated from the
standard of medical practice
DOCTRINE OF RES IPSA LOQUITOR
3 Requisite of RES IPSA LOQUITOR
- The Accident must be something that cannot happen without negligence
- It must be caused by something exclusively in the control of the defendant
- It must not be of voluntary action
_______________________________
Basically if something that the accident is within the control of the doctor but he fucked it up and doesnt mean to do it
Example of Res Ipsa Loquitor
Objects left in the patient’s body at the
time during operation
When does Res Ipsa Loquitor not apply
- Treatment does involve hazard
- Bad result rule
- Honest error of judgement
- Diagnostic mistake
_________________________
Basically when it is an honest mistake or not within the control of the practitioner or part of the procedure
It has been defined as conduct on the part of the plaintiff or injured party, (contributing as a legal cause) to the harm he has suffered
DOCTRINE OF CONTRIBUTORY NEGLIGENCE
It is the act or omission amounting to want of care on the part of the complaining party which, concurring with the defendant’s negligence, is the proximate cause of the injury.
DOCTRINE OF CONTRIBUTORY NEGLIGENCE
Act stating that “When the plaintiff’s own negligence was the immediate and proximate cause of his injury, he cannot recover damages. But if his negligence was
only contributory , the immediate and proximate cause of injury being the defendant’s lack of due care, the plaintiff may recover damages , but the court may mitigate the damages to be awarded.”
Art. 2179, Civil Code
In quasi delicts, the (contributory negligence of the plaintiff shall reduce the damages that he may recover)
Art 2214, Civil Code
4 Instance of contributory negligence
- Failure to give accurate history
- Failure to follow through treatment
- Failure to not leave the hospital as advised
- Failure to seek further medical assistance
__________________________________
Basically if the doctor doesn’t ask for the history nor follow up. And when asked to leave because of it, he refuses and doesn’t seek help on his negligence
is available only when the patient’s conduct is a truly flagrant disregard of his health and cannot
apply where the patient is mentally ill, semiconscious, heavily sedated or of advanced age.
defense of contributory negligence
When can a physician be held liable under the doctrine of continuing negligence
If a patient does not heal after a treatment that normally produce alleviation
(Predicated upon knowledge) and informed consent, anyone who voluntarily assumes the risk of injury from a known danger, if injured, is barred from recovery.
DOCTRINE OF ASSUMPTION OF RISK
which means that a person who assents and was injured is not regarded in law to be injured
violenti non fit injuria
A physician who has the (last clear chance) of avoiding damage or injury but negligently fails to do is liable.
DOCTRINE OF LAST CLEAR CHANCE
A physician cannot be held accountable for negligence if the injury sustained by the patient is on (account of unforeseen conditions) but if a physician fails to ascertain the condition of the
DOCTRINE OF
FORSEEABILITY
This doctrine provides that if a (servant employee) was injured on account of the negligence of his (fellow servant employee), the employer cannot
be held liable
FELLOW SERVANT DOCTRINE
Liabilities under the fellow servant doctrine is covered by what law?
workmen’s compensation law.
If a physician who went to (rescue a victim) of an accident was himself injured , the original wrong doer must be held liable for such injury.
RESCUE DOCTRINE
When the negligent act cause of the injury suffered by the patient (is attributed to the wrongful act of a person)
Sole Responsibility
When the injury suffered by the patient is caused by the (negligent act of two or more persons), each of them acting concurrently and successively
in the production of injury.
Shared
Responsibility
liability for negligent misdiagnosis
Failure
Failure is where it must be in relation to the signs and symptoms of the illness presented by the patient
FAILURE TO TAKE THE MEDICAL HISTORY
Exempted in failure to take the medical history
Inadequate history is due to the failure of the patient or members of the family to give full information regarding the history
_____________________________________
Basically the patient or Family forgot to give full version of history
Failure to make a thorough, proper and complete (physical examination) of the patient would make physician liable
FAILURE TO MAKE A CAREFUL AND ADEQUATE
EXAMINATION OF PATIENT
the condition of the patient is beyond the ability, knowledge and capacity of the AP to treat
Referral to a specialist:
to avoid misapplication of a (different or in some cases the same) treatment procedure
FAILURE TO CONSULT PREVIOUS PHYSICIANS
FOR PREVIOUS MANAGEMENT
applicable to patients requiring specialized
instruments and procedures not available in the previous hospital or may require the assistance of adequately trained personnel in the management
Referral
A physician may be held negligent for such failure in appropriate diagnostic test if it can be shown that:
- It is a standard practice
- The physician failed to utilize test hence failing to diagnose or treat the illness
- The patient suffered injury or was deprived of a substantial chance for a cure
____________________________
Basically if it is a standard test that the doctor didn’t do it right, surprisingly, hence robbing the patient of getting cured
does not always imply
negligence (a matter of
medical judgment)
FAILURE TO DIAGNOSE INFECTIONS
When is a physician held liable to failure of diagnosing infections
if failure is on account of the inability to make an examination of the patient without any justifiable reason
_____________________________________
Did not do the examination without any reason
Indiscriminate administration of (addictive drugs) by physician
TREATMENTS RESULTING TO ADDICTION
Exception to treatment resulting to addiction
- Use in short term basis
2. Drug is approved and a standard
(Termination of the physician patient relationship) without the consent of the patient and without giving the patient adequate notice and opportunity to find another physician
ABANDONMENT OF PATIENTS
5 How abandonment of patient applies
- If there was an existing relationship
- Terminated without consent
- unilateral termination
- terminated despite patient needing continued medical treatment
- Death or injury via abandonment
________________________________
Basically if there was an existing, an agreement on both sides, douchbaggery or dead
____ payment of a Bill cannot be a defense or ground for abandonment
Non payment of a Bill
In the physician patient contractual relationship, once it has been perfected, financial
consideration is ___.
Irrelevant
when the (instructions given are insufficient), inadequate and incomprehensible injury to the patient physician held liable
FAILURE TO GIVE PROPER INSTRUCTIONS
5 Errors in blood transfusion (G2k)
- wrong blood
- wrong patient
- Wrong needling
- Negligence
- Infection
5 Five basic rights of drugs
- Right drug
- Right patient
- Right dose
- Right time
- Right route
Negligence in the administration of a drug which causes injury to the patient
LIABILITIES IN ADMINISTRATION OF DRUGS
9 Drug injury can be attributed to
- Reaction
- Overdose
- Side effect
- Wrong route
- Wrong meds
- Wrong person
- Infection
- Nerve injury
- Administering failure
__________________________
Basically the unforeseen reactions, the wrong guy an infection/disease or just pure negligence
A person injured by a defective product can recover
compensation from his injury from (anyone in the distributive chain) who sold the product while the defect was present,
DOCTRINE OF STRICT LIABILITY
2 Modern procedures used for the identification of newborns in the hospital:
- Bracelets
2. Footprints or thumbprints
A physician who wants to avoid the ordeal of being involved in a malpractice suit, or has had the traumatic experience of being involved in a litigation, may pursue both of any of the following:
- Partial or complete abandonment of medical practice
2. Practice of defensive medicine
Types of defensive medicine
- Negative
2. Positive
the physician avoids performance of hazardous procedures, even though the procedures are deemed
essential to the welfare of the patient
Negative defensive medicine
the physician orders or performs additional management procedure to avoid liability
Positive defensive medicine
a contract under which the insurer agrees, in exchange for the payment of premiums, to indemnify the physician named in the insurance policy against loss by reason of liabilities imposed upon him by law as a consequence
of his claimed professional liability
Medical Malpractice Liability Insurance
The patient realized that his physician was grossly intoxicated at the time he was going to give the
patient an injection. The patient allowed the physician to proceed in spite of the physician’s condition. The patient was injured. this is an example of what negligence?
Antecedent
For example, while the esophagus was applied, the patient made a violent move without warning which
resulted to the puncture of the esophagus and which led consequently to the death of the patient. This is an example of what negligent
Contemporaneous
For example, the patient sustained a wound in which the physician sutures gave a prescription for tetanus antitoxin. He instructed the patient to go immediately to the drug store, have the prescription filled and bring back to the office for injection. The patient took the prescription and went home instead
of going to the drug store. The patient developed tetanus and died. this is an example of what Negligence?
Subsequent
3 Types of patient negligence
- Antecedent
2, Contemporaneous - Subsequent
