medical negligence” and “malpractice” 

In our previous medico-legal articles we have used the term “medical negligence” and “malpractice” several times. In general, these two terms have been used interchangeably, whereas, in legal aspect they have a subtle difference in the definition of these two terms. A knowledge of this difference may often lessen the legal burden for an accused doctor. A medical negligence in not always intentional and always tried at civil court whereas malpractice cases can come under criminal negligence and can land you up in a criminal court. Definition of Negligence, Malpractice and standard of care Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. In tort law, negligence applies to harm caused by carelessness, not intentional harm. Malpractice is a type of negligence; it is often called “professional negligence”. It occurs when a licensed professional (like a doctor, lawyer or accountant) fails to provide services as per the standards set by the governing body (“standard of care”), subsequently causing harm to the plaintiff. Standard of care means an ordinary competent person exercising ordinary skill in that particular profession. There is no medical definition for standard of care, although the term is firmly established by law and is defined as “the caution that a reasonable person in similar circumstances would exercise in providing care to a patient.” The same “standard of care” is applicable to hospitals as to individual physicians with the difference that liability of the hospital is a corporate liability and the hospital is accountable and responsible for an act of negligence of its staff. The Difference between the Two These two terms are often used interchangeably but as per legal concepts, though they are related, have different meanings. Medical malpractice is a subcategory of negligence. The two terms are connected by a third: negligence is a category in between medical malpractice and medical negligence. The key word in all three of these categories is “intent”. That word alone defines the three categories in vastly different ways. Medical negligence is the lack of action by a medical professional, often “without intent”; negligence can be done either with or without intent, and medical malpractice is done “with intent to harm”. How negligence or malpractice are proved Cases of negligence or malpractice are generally difficult to prove, as it is taken that no medical practitioner has a “harmful” intent towards a patient. To win a favorable judgment, a clear causal relationship must be established between the negligent act and the injury caused. There are four elements to proving both negligence and malpractice: Duty: The defendant had a duty or an obligation to the plaintiff. General duties to be discharged by doctors are: A duty of care in deciding whether to undertake the case A duty of care in deciding what treatment to give A duty of care in the administration of that treatment Breach: The defendant breached this duty. When a medical practitioner commits a breach of duty, the immunity he enjoys, turns to be a cause for calling judicial interference, giving a right of action for negligence to the patient in the last resort. Causation: The harm suffered by the plaintiff was a direct result of this breach of duty. Damages: The damages being sought are directly related to the harm caused. Special damages: Directly correlated to the injury or harm and have a specific money amount that can be established (e.g., via medical bills) General damages: More difficult to put a monetary figure to emotional damages e.g., pain and emotional suffering. Punitive damages: Imposed by the court in rare cases when the negligence was gross (extreme). This is rare because negligence, by its nature, is unintentional. Although these elements are of similar nature in the both negligence and malpractice categories, they are distinguished on the basis of the keyword “intent”. Civil versus criminal It is claimed that negligence is negligence and jurisprudentially no clear distinction can be drawn between negligence under civil law and negligence under criminal law. In general, it is the amount of damage incurred which is determinative of the extent of liability in tort; but in criminal law, it is not the amount of damage but the amount of degree of negligence that is determinative of liability. There is no absolute immunity against criminal prosecution and therefore, if a need arises, following guidelines are to be followed. 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 charge 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 normally be expected to give an impartial and unbiased opinion applying Bolam’s test (A test that arose from English tort law, which is used to assess medical negligence) to the facts collected in the investigations. A doctor accused of rashness or negligence, may not be arrested in a routine manner. A physician should preferably be booked under bailable IPC 304A (Unintentional medical negligence) rather than non-bailable IPC 304 (Intentional negligence), as physicians are supposed to treat their patient in “good faith”. Examples To exemplify the difference between negligence and medical malpractice, it is beneficial to exemplify the category of general professional negligence as well, as negligence is the central aspect of the spectrum between the two respective sides. An example of negligence would be in the case of a driver who texts while at the wheel. Because the driver is distracted with his cell phone, they do not see the car that is driving ahead of them, and they cause an accident. In this case, negligence of attention to the road caused the accident, thus, the driver became a danger to others. His negligence and lack of attention would be proven as the cause. While negligence may or may not be attached by intent, medical negligence is negligence in the medical field without intent. Common examples are A failure of diagnostic revision Failure to warn patients of the risk of treatment Failure to treat a patient Wrongful diagnosis If a medical practitioner takes reasonable care and follows the laid down standard of care, he cannot be held liable. Following are the reasons for which a doctor cannot be sued for medical negligence: Difference in opinion Error in judgment Patient not getting cured despite correct treatment Operation not being successful without any negligence on the part of surgeon On the other hand, with the mistakes of medical negligence in mind, medical malpractice includes the opposite of mistake: a bad (mal) or wrongful “intent”. In medical negligence the doctor simply fails to do something that should have been done, on the contrary, doctors who commit malpractice, perform their job in a way that is not the accepted standard of care leading to serious injury or death. Examples of medical malpractice are those in which the doctor does not perform their duties to the legal medical standards. Such acts include: Wrongful death Mistake during childbirth Error in anesthesia Surgical errors due to the negligence of not abiding by the “standard of care” laid down by recent guidelines. General factors that protect from medical negligence Factors likely to prevent an initiation of litigation against doctors are listed below: Creating an environment that engenders trust. An environment where patient feels like being cared, heard, and respected by the doctor and his staff is essential to building a trust on their recommendations. Doctors having a valid insight regarding their own abilities and limitation. Handling the patient as per his credibility and an appropriate referral as and when needed can save them from an untoward event. Clear and adequate communication between patient, staff, and doctors: Good maintenance of medical records Encouraging patients to maintain their own medical records Encouraging patients to bring written lists of their concerns, medications, and issues they wish to discuss Giving written instructions to patients regarding recommended treatment Sending letters to patients summarizing the results of the patient visit, with copies of letter to consultants (To be mostly done by hospital administration) “A stitch in time saves nine”, this adage is a good reminder that how a proper preventive preparation can save physicians from landing into litigation trouble in future. Doctors who truly care for their patients will not ever want to treat them inappropriately, and will not want to harm them by exceeding their capability or giving them the unrealistic outcome of the treatment. They will always ensure the bridge of communication is always clear between him and patient. At the end, the saying of Francis Peabody is so true, “The secret of the care of the patient is caring for the patient”. References Tiwari S., Tiwari M., Baldwa M., Kuthe A., Textbook on Medicolegal Issues, IAP, 2007. Strauss, Dirk C., and J. Meirion Thomas. “What does the medical profession mean by “standard of care?”.” Journal of Clinical Oncology 27.32 (2009): e192-e193. Medical Malpractice VS. Negligence: What’s The Difference? by Evan Bassett on Fri, Nov 29, 2013, Bassett Law Offices Localio, A. Russell, et al. “Relation between malpractice claims and adverse events due to negligence: results of the Harvard Medical Practice Study III.”New England Journal of Medicine 325.4 (1991): 245-251. Which specialty, according to you, suffers from the most number of medical negligence trials? *Disclaimer: The legal information provided in this article in the form of case examples, solutions are, at best, of a general nature to provide an outline and cannot substitute for the advice of a licensed legal professional. Nothing in this article should be construed as an attempt to offer or render a legal opinion or otherwise engage in the practice of law.  

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