Medical Negligence Claims Research Articles

Clicks, carelessness and consequences: Navigating pharmacist negligence

The legal framework governing claims of medical negligence is extensively documented within South African (SA) jurisprudence, with a predominant focus on the liability of medical practitioners. In contrast, the liability of pharmacists has received comparatively scant attention. This issue was recently highlighted by a case in which a woman from the Western Cape initiated legal action against Clicks, a leading health, beauty and wellness retailer and SA’s largest retail pharmacy chain, alleging that the provision of incorrect medication nearly cost her life. At the time of writing, the case has yet to advance to trial. This article explores the legal and ethical dimensions of medical negligence attributed to pharmacists within the context of their professional duties. Additionally, it investigates how similar cases are adjudicated in foreign jurisdictions, with a specific focus on the US.

Saying sorry - should a 'safe space' be created to allow effective communication between healthcare practitioners and aggrieved parties after an iatrogenic event in South Africa?

The incidence of medical negligence claims is well documented in South Africa (SA). Civil and criminal processes are in place to deal with this, and the matter may be reported to the Health Professions Council of SA (HPCSA). There is a school of thought that suggests that these processes do not provide sufficient relief to an affected party. The processes are not always satisfactory; an aggrieved party may wish to know the reasons why a particular error occurred and why a healthcare practitioner acted in a particular manner. In addition to this, they may want to receive a sincere apology. Medical practitioners may also want to communicate with patients or family members of a patient who has passed away as a result of an iatrogenic event, but may be fearful of litigation. This article considers the current position in SA in relation to issuing an apology related to an iatrogenic event, and consults foreign jurisdictions for further guidance on the topic.

Descriptive analysis of medical negligence claims in septicemia patients: a review of Indian National Consumer Court judgments

Abstract Background, Aims, and Objectives: Patients admitted to intensive care units are at a higher risk of experiencing medical errors and have an increased likelihood of developing septicemia. Due to the high mortality associated with sepsis, doctors are more frequently sued for negligence. Patients alleging medical negligence in India can seek compensation through the National Consumer Dispute Redressal Commission (NCDRC). This study aims to analyze NCDRC cases where patients suffering from septicemia filed for negligence. In medical negligence cases filed by patients suffering from Septicemia, the objective is to find out the court’s outcome/verdict, the pattern of monetary compensation involved in the case, the legal standard of accepted care in the management of septicemia, and ways in which doctors can protect themselves from negligence claims, etc. Materials and Methods: This is a record review study in which judgments were obtained from www.scconline.com. The final analysis included cases where patients were diagnosed with sepsis based on medical records or postmortem reports. Qualitative data is presented as percentages, while quantitative data is expressed as a median with an interquartile range. Fisher’s exact test was used to compare qualitative variables. Results: A total of 34 judgments met the inclusion criteria, with the court ruling in favor of doctors in only eight cases. Surgical intervention (11 cases, 32.3%) was the most common cause of sepsis, followed by abdominal infection (14.7%). The outcome of the cases was not influenced by whether the doctor or patient initiated the lawsuit (Fisher exact probability = 0.49). Conclusion: The NCDRC found doctors negligent in most cases where patients with septicemia sued. Eventful surgery was identified as the most common cause of sepsis. The study suggests that doctors can protect themselves by promptly diagnosing post-surgical injuries to intra-abdominal organs and preventing the spread of local infections.

Analysis on Medical Negligence Under Consumer Protection Act 2019 and Indian Contract Act 1872

Medical negligence occurs when medical care providers fail to fulfil their professional obligations. All healthcare practitioners must provide a standard of care to their patients. It may be considered medical negligence if they don't fulfil that duty. When patients go to a doctor, they expect to receive medical care using all of the doctor's expertise to solve their medical issues. The arrangement retains the fundamental components of a tort while taking the form of a contract. A physician has obligations to his patients, and any carelessness on the part of the physician may give rise to legal action. Before performing diagnostic procedures or administering therapeutic care, the physician must get the patient's informed consent. The Consumer Protection Act of 1986 covers the services provided by doctors, and patients can file complaints with the Consumer Courts for resolution. Case laws are a valuable resource law for resolving different issues. Before the adoption of the Consumer Protection Act, claims of medical negligence were made under Contract law, and even today, damages can be made under civil law ; however, since implementing the Consumer Protection Act, the civil law remedy has become less critical. The doctor and the patient have a specific relationship, which can be oral, written, or implicit agreements agreed upon by the patient or his representatives and the doctor or hospital. Anyone who has suffered losses due to a doctor's negligence can register a complaint with the appropriate authority. Despite this, the council can sanction the doctor and revoke their registration for their careless actions, but it cannot compensate the victim of such misbehaviour. The Indian Medical Council has enforced stricter measures to raise the bar for medical ethics and practice standards for the past few years.

Delay and settlement: The disposition of medical negligence claims in Ireland

AbstractReflecting the international experience, statistics show that most medical negligence cases in Ireland settle. Less is known, however, about the duration of these cases, though anecdotal evidence suggests that they are protracted in nature. Procedurally focused reforms, aimed at reducing costs and facilitating more expedient resolution of these disputes have been proposed in Ireland, yet await implementation. As such, the pace of litigation is largely determined by the parties to the dispute. Drawing on the findings of an empirical study (an analysis of closed case files and qualitative interviews), this article explores two questions: first, how long do medical negligence cases take to resolve; and secondly, what contributes to delay in this context. Whilst causes of delay may vary by case, it is important to attempt to identify and explore common factors which contribute to delay. If these factors can be problematised and understood, possible solutions may be reached. In doing so, the article contributes to the debate on medical negligence reform across common law jurisdictions, evidencing the broader considerations, in addition to procedurally focused reforms, which are required when considering the issue of delay.

Advocating for mediation as a way to de-escalate conflict, with a focus on medico-legal claims: The anatomy of human conflict

The incidence and extent of medico-legal claims in South Africa has increased exponentially over the past number of years. Conventionally, medical negligence claims follow the civil litigation route, while alternative, perhaps better-suited, dispute resolution techniques and mechanisms are seldom considered. Where the occasional disputant does opt for mediation instead of civil litigation, mediators are not adequately versed in the human behavioural factors of conflict, even though these are crucial in establishing an appropriate strategy to de-escalate conflict and achieve settlement. Paying particular attention to medical negligence claims, this article draws on interdisciplinary sources to propose practical guidelines for mediators, whether existing or aspirant, to develop their mediation styles and strategies with regard to the thought processes and psychological factors behind disputes. This occurs against the backdrop of the current failure by formal legal education and vocational training curriculums to equip lawyers and mediators with even a basic understanding of the anatomy of human conflict. Incorporating such teaching into our curriculums could go a long way towards greater and more effective use of mediation to settle disputes, instead of summarily opting for the adversarial, costly and time-consuming route of civil litigation.

Medical Negligence Dispute in Malaysia: Choosing Mediation as the Best Constructive Approach to Address the Paradoxes in Medical Negligence Claims

Abstract In professional negligence the most challenging and arduous is medical negligence, which consists of various claims. Medical negligence will usually involve doctors and other medical practitioners. In medical negligence the claimant is allowed to bring a personal injury claim to a court which has the jurisdiction under adversarial system. However it is evident from reported cases that medical negligence claims were mostly unsuccessful. The reason lies on the notion of the burden of proof, which cast a heavy burden on the plaintiff according to the fault system. In medical negligence claims, plaintiffs will more often than not, find it very difficult to discharge their burden of proof. In most countries, professional negligence claims are recommended to be dealt with by way of mediation under Alternative Dispute resolution (ADR). Mediation is believed to be easier than litigation and is less complicated. Malaysia is among those countries which has enhanced significantly the utility of ADR. This paper will endeavour to address the problems in proving medical negligence cases by using one of the strongest tools of ADR which is mediation.

Medical negligence and malpractice from a proceduralist paradigm

Medical malpractice in South Africa, has gained significant momentum over the years. Healthcare professionals have had to ensure that their practices are insured for indemnification for significant amounts, in lieu of medical malpractice claims. This has resulted in healthcare professionals over insuring for medical malpractice and negligence claims, to ensure that they get suitably allocated legal representatives as well as cover in certain instances for the quantum sued by the aggrieved party. The burden of proof is that the plaintiff bears the duty to discharge on a balance of probabilities. This means that the version that was presented is more probable than the Defendant’s version, however, it does not end there, as the healthcare professional must have committed negligence, in that the reasonable medical practitioner would not have shown in the circumstances presented by the plaintiff. The paper navigates the procedural perspective of discharging the onus of proof in medical malpractice and negligence claims.

Anatomy of the Medical Negligence Claim

Special Article

Medical negligence claims and the health and life satisfaction of Australian doctors: a prospective cohort analysis of the MABEL survey

ObjectiveTo assess the association between medical negligence claims and doctors’ self-rated health and life satisfaction.DesignProspective cohort study.ParticipantsRegistered doctors practising in Australia who participated in waves 4 to 11 of the...

Vocational and psychosocial predictors of medical negligence claims among Australian doctors: a prospective cohort analysis of the MABEL survey

ObjectiveTo understand the association between medical negligence claims and doctors’ sex, age, specialty, working hours, work location, personality, social supports, family circumstances, self-rated health, self-rated life satisfaction and presence of...

Look who’s (not) talking: The use of mediation in medical negligence claims in Ireland

This paper looks at why mediation is not more widely used in medical negligence claims in Ireland. It is based on research, undertaken in connection with an MA in Mediation and Conflict Intervention at Maynooth University, during which eight solicitors working in the field of medical negligence shared their experience and perspectives on the use of mediation in this area. The research finds that mediation is in use but only as part of the convoluted litigation system and the style used is focused on the legal interests of the parties rather than any emotional needs. The Irish State has introduced some measures to facilitate the use of mediation but there is no coherent strategy and low public awareness. Legislative changes to streamline the litigation system are on the way, but if the parties’ needs and interests are to be served, a more facilitative, people-centred mediation style should be adopted, supported by a coherent, government sponsored, restorative justice strategy.

Exploring the Basis for the Increasing Medical Negligence Claims in South Africa

Abstract Litigation arising from medical negligence have continued to witness an incremental trajectory in the contemporary South African medical jurisprudence. As the number of claims continue to rise, so also does the financial expense in the form of cost of litigation on the part of the litigants and damages paid by the healthcare personnel and government agencies in successful cases. Such expense, however, palls into oblivion when compared with the reputational damage attendant such negligent conducts on the parts of both the healthcare personnel and the healthcare institutions. On the positive side, however, is that the growing instances of such claims have brought to the fore the need to interrogate the reasons and seek solutions with a view to attaining a more efficient health service delivery system in the country.

Editorial – Medical litigation in the 21st century

The possibility of a medical negligence claim lies at the back of many doctors' minds. But which specialties see the greatest and fewest claims, and what are the potential costs to the NHS of a successful claim? In their article, Dr Lane et al. analyse 10 years' NHS litigation data, broken down by specialty, number of claims, and the attendant cost of those claims which were successful. Litigation in the 'post Montgomery' era is considered along with some of the common factors which may lead to a patient or their family taking legal action.

Litigation in breast surgery: unique insights from the English National Health Service experience.

BackgroundThe increase in medical negligence claims against the National Health Service (NHS) over the past decade has had a detrimental impact on limited financial and human resources that could otherwise be available for direct clinical care. The aim of this study was to review litigation claims in breast surgery as part of the national Getting It Right First Time quality improvement initiative, with the aim of identifying opportunities to improve clinical practice and patient safety.MethodsAll general and plastic surgical claims notified to NHS Resolution between April 2012 and April 2018 were reviewed. Claims related specifically to breast surgery were retrieved manually, and case summaries were analysed independently by two breast surgeons.ResultsFrom 6915 claims, 449 relating to breast surgery were identified and reviewed. The mean(s.d.) claimant age was 46(13) years. The median number of claims over the 6-year period per NHS trust was 2 (range 0–22). The most frequent causes of litigation were dissatisfaction with cosmetic outcome (121 claims, 26.9 per cent) and patient-reported delays in diagnosis (121, 26.9 per cent). A large proportion of claims related to breast implant surgery (78, 17.4 per cent), and issues regarding consent/communication were common (69, 15.4 per cent). The estimated annual cost of breast surgery litigation claims ranged from £5.57 to £9.59 million (€6.35–11.02 million).ConclusionPatient-reported delays in diagnosis and dissatisfaction with cosmetic outcome are the most common causes of litigation related to breast surgery. These key themes should be the focus for workforce learning, with the aim of improving patient care and experience.

81 Getting It Right First Time (GIRFT): Preliminary Results from Incorporation of A Personalised Surgeon Template In Hip Arthroplasty Surgery Documentation

Abstract Introduction Following the publication of GIRFT guidelines for Total hip replacement operative note documentation produced from analysis of medical negligence claims notified to NHS resolutions by NHS trusts, we reviewed our compliance against the 24 criteria. This was a crucial exercise as inadequate documentation had huge medico-legal consequences and adverse outcome on patient safety. We proposed a pragmatic solution of incorporating prepopulated personalised template into ‘Trackcare' system and providing a dedicated desktop installed in surgeon's room for completion of operative notes. Method We led a team of 4 doctors to review our compliance against 24 criteria laid out by GIRFT. After retrospectively examining 20 operative records from a spread of consultants in the department. A re-audit following incorporation of personalised surgeon templates was conducted to close the loop. Results Our results showed out of 24 criteria; 8 criteria were met with 80-100% compliance while 15 criteria had <60% compliance. The incorporation of personalised surgeon template has raised compliance to > 90-100% in all 24 criteria. Conclusions A preliminary review of a single surgeon template has shown that it is simple to use, has excellent compliance, quick to complete the operative notes, advocates patient safety, is user-friendly and is very promising in minimising medico-legal claims for surgeons and the Trust.

Medical Negligence Dispute Resolution in Malaysia: Time for legal reform

As medical negligence has become a public concern today, there is an increasing number of medical negligence claims which commonly settled through litigation. However, numerous problems regarding the practice of litigation have been discovered. Hence, the research aims to examine the current medical dispute resolution in Malaysia to find a better solution for it. The findings show that there are weaknesses of the existing practice and found that mediation as an alternative dispute resolution is available and more suitable. Thus, the research provides the grounds for legal reform and recommendations for improvement of Malaysia’s medical negligence dispute resolution framework. Keywords: medical negligence; dispute resolutions; Malaysia eISSN: 2398-4287© 2021. The Authors. Published for AMER ABRA cE-Bs by e-International Publishing House, Ltd., UK. This is an open access article under the CC BYNC-ND license (http://creativecommons.org/licenses/by-nc-nd/4.0/). Peer–review under responsibility of AMER (Association of Malaysian Environment-Behaviour Researchers), ABRA (Association of Behavioural Researchers on Asians/Africans/Arabians) and cE-Bs (Centre for Environment-Behaviour Studies), Faculty of Architecture, Planning & Surveying, Universiti Teknologi MARA, Malaysia. DOI: https://doi.org/10.21834/ebpj.v6i16.2726

Risks to Healthcare Organizations and Staff Who Manage Obese (Bariatric) Patients and Use of Obesity Data to Mitigate Risks: A Literature Review.

This literature review explores obesity risks to healthcare staff and organizations that manage and caring for obese (bariatric) patients. These risks are anticipated to increase due to Australian population obesity rate projections increasing from 31% in 2018 to 42% by the year 2035, which will result in increased hospital admissions of patients with obesity. Literature searches were conducted through the Cumulative Index to Nursing and Allied Health Literature (CINAHL), MEDLINE, Scopus, and Web of Science. Thirty studies met the inclusion criteria and were tabulated and critiqued using appropriate appraisal techniques. High risk of injury to healthcare staff was identified relating to bariatric patient handling tasks. High liability and financial risks of organizations were also identified relating to workers’ compensation and common law claims by injured staff and medical negligence claims by patients with obesity. Availability of obesity data was identified within clinically captured information, which could be utilized to inform obesity risk management programs. Future research should focus on improving the use and quality of obesity data to better understand obesity risks to healthcare organizations and staff, including accurate identification of obese patient admissions, enhanced ability to measure bariatric patient handling hazards and related staff injuries and improved assessment of bariatric intervention effectiveness.

Obstetrics, genetics, and litigation.

Claims of medical negligence are universal. Unexpected adverse pregnancy outcome may trigger litigation. Such outcomes, especially with neurodevelopmental sequelae, may be compounded by a genetic disorder, congenital abnormality, or syndrome. This is a report of 297 cases in which a pregnancy complication, error, or incident occurred that was followed by progeny with a genetic disorder, congenital abnormality, or syndrome that spawned litigation. The author assessed, opined, and in many cases, testified about causation. Pregnancies complicated by hypoxic ischemic encephalopathy were not infrequently compounded by offspring with a genetic disorder, congenital abnormality, or syndrome. Multiple cases were brought because of missed ultrasound or laboratory diagnoses, or failures in carrier detection. Teratogenic medication prescribed before or during pregnancy invited legal purview. Failure to refer (or confer) for genetic evaluation or counseling in the face of significant risk, occurred repeatedly. Ethical breaches and hubris promptly led to litigation. Many lessons and recommendations emerge in this report. These include the realization that the vast majority of errors in this series involved at least two caregivers, serial ultrasound studies are important, decreased fetal movements may signal a genetic disorder, congenital abnormality, or syndrome, family history and ethnicity are vital, cognitive biases profoundly affect decision-making. Finally, the simplest of errors have the potential for causing life-long grief.

Multidimensional Approach to Suicide Prevention in Jails and Prisons: The Best Defense against Liability Lawsuits

Inmates in jails and prisons are a high-risk group for suicide. Often, legal claims of medical negligence and §1983 based on deliberate indifference by the correctional officials follow. Unique stable and dynamic factors and circumstances and their interaction explain most suicides. A systematic suicide screening using a well-designed suicide screening questionnaire that captures known risk factors will identify most inmates at risk if adequately used. Identification and subsequent mental health assessment set the stage for preventive intervention, monitoring, and treatment of the inmates. A multidimensional suicide prevention program saves not only lives but also the best defense against a liability lawsuit.