Medical malpractice is an act
of negligence committed by a medical provider, a physician in most
situations. It is defined as doing something a medical provider of
ordinary skill would not have done, or failing to do that which a
medical provider of ordinary skill would have done.
An individual may be subject to one of the various forms of medical malpractice
whenever he or she seeks the care of a medical provider. Malpractice can be
constituted by something as simple as failing to put the rails of a hospital bed
in the upright position, to something as complex as improperly performing open
heart surgery. A related issue in these cases is whether a patient has provided
informed consent to a particular treatment. Only if a patient has been
informed of the details, risks, benefits and alternatives to a recommended form
of care can he or she rightly be said to have given informed consent.
Fortunately, there are laws that entitle
patients to receive complete medical care. If you have been seriously injured
due to substandard medical care, our attorneys may be able to obtain
compensations on your behalf for the damage caused. To establish a medical
malpractice claim, there must be injury and damage to the patient directly
resulting from the negligence. A shocking fact about medical malpractice is that
it frequently goes undetected or at least overlooked. Different studies have
concluded that the percentage of medical negligence that escapes lawsuits may
approach ninety (90%)*. In Ohio, as elsewhere, pursuing a medical malpractice
case is a tedious, time consuming, and expensive process. Defense attorneys know
this and make it as difficult, costly and cumbersome as possible to successfully
prosecute a claim. People witness firsthand the conspiracy of silence in the
local medical communities. Patients ordinarily receive very little candid,
truthful assistance by involved physicians regarding identifying medical
negligence when it occurs. For similar reasons, the negligent physicians have a
much easier time locating physician experts to support the quality of their
care.
Therefore, it takes a tough, experienced,
and respected law firm to successfully prosecute negligence cases. At the firm
of Wolske & Associates, attorneys possess the requisite level of skill and
expertise to successfully win full and fair compensation on behalf of medical
malpractice clients.
The last few decades have seen many
scientific and technological advances, decreasing mortality, morbidity and
overall improvement in quality of life. At the same time there are some negative
changes such as decreasing standard of medical attention, decreasing ethical
values, commercialization and corporate culture in the managements of patients.
These changes have significantly affected the doctor patient relationship which
was based on mutual trust. In today's situation this relationship is strained
and is bringing doctors under the ambit of Consumer Protection Act. Of the
challenges, in all likelihood, none can be so threatening and draining for a
doctor, on an emotional, personal and professional level, as being a defendant
in a medical malpractice claim. The duties of a doctor when he undertakes the
treatment of the patient have been clearly described by the Supreme Court in
Lakhsman Joshi v. Trimbak. A person, who holds himself out ready to give
medical advice and treatment, impliedly undertakes that he is possessed of skill
or knowledge for the purpose, such person when consulted by a patient owes him
certain duties. A breach of these duties gives a right of action for negligence
to the patient.
In a major ruling on August 5, 2005 the Supreme Court directed law enforcement
agencies not to proceed against doctors accused of rash or negligent act or
omission without obtaining an independent and competent medical opinion to
support the charges. Noting that cases of doctors being subjected to criminal
prosecution were on the increase, the Supreme Court held that a private
complaint alleging negligence against a doctor, should not be entertained as
routine matter unless the complainant produces before the court a credible
opinion by another competent doctor supporting the charges.
The Supreme Court judgment in
Jacob Mathew vs. State of Punjab is a landmark judgment as the Supreme
Court has framed guidelines under which a Doctor could be held criminally liable
on account of his professional negligence or deficiency of service. The judgment
arose on appeal filed by a doctor of CMC, Chandigarh, who had been booked for
the death of a terminally ill cancer patient. According to the complaint made on
behalf of the family members of the deceased, Jiwan Lal who was a patient, the
hospital could not provide oxygen in time as there was no gas in the cylinder.
On facts, the apex court held that the
doctor could not be prosecuted for it. The Supreme Court said that extreme
care and caution should be exercised while initiating criminal
proceedings against medical practitioners for alleged medical negligence and
drew up elaborate safeguards for them, including avoiding arrest unless it was
inevitable. Drawing elaborately from established provisions of law and practice,
the Bench ruled that this was necessary for, the service which medical
profession renders to human being is probably the noblest of all and hence there
is a need for protecting doctors from unjust prosecutions.
Negligence in the context of medical profession necessarily calls for a
treatment with a difference. A simple lack of care, an error of judgment or an
accident is not proof of negligence on the part of the medical professional,
it stated.
The Court, however, made it clear that
this did not mean that doctors cannot be prosecuted at all.
All that we are doing is to emphasize the need for care and caution in the
interest of society... the Court added.
The apex court laid down elaborate
guidelines to govern prosecution of doctors. These are:
A private complaint may not be entertained unless the
complainant has produced prima facie evidence before the court in the form of a
credible opinion given by another competent doctor to support the charges of
rashness or negligence on the part of the accused doctor. The
investigating officer, should, before proceeding against the doctor accused of
rash or negligent act or omission, obtain an independent and competent medical
opinion, preferably from a doctor in government service qualified in that branch
of medical practice who can give an impartial and unbiased opinion (applying a
prescribed test to the facts collected in the probe).
The author can be reached at: ashish_themiracle@legalserviceindia.com
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