KILLING ME SOFTLY: A MANUAL ON HEALTH-CARE MEDICAL NEGLIGENCE, PROSECUTION AND PREVENTION
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"The World of Medicine is considered to be otherworldly and even magical as it could bring someone back from the midst of death or send someone straight to it."
Most of us place a huge amount of confidence in the medical practitioners, entrusting them with our health and, at times, with our own lives. But what if you’ll be wedged in a circumstance where these experts that you thought are the relief to your health problems will be the one to cause you even more severe damage or the reason for your loved ones’ death?
The doctor-patient relationship has been defined differently through the years. The relationship between physician and patient is a consensual one wherein the patient knowingly seeks the assistance of a physician and a physician knowingly accepts him as a patient. The voluntary acceptance of the physician-patient relationship by the affected parties creates a “prima facie” presumption of contractual relationship between them; prima facie based on the first impression, accepted as correct until proved otherwise. Laws were developed to protect patients. Liability was introduced along with the giant of all torts, negligence. Despite of this, proving medical negligence remains an uphill battle.[1]
Photo Credits from cdn1.medicalnewstoday.com
What is negligence? It is that type of claim which a victim has made available to him or her to redress a wrong committed by a medical professional which has caused bodily harm. In its simplest terms, negligence is a tort. A tort is a civil wrong; therefore malpractice is a civil wrong. Negligence being the backbone of the suit, this type of litigation is invariably considered part of tort law.[2]
In today’s society, it is a universal rule that a physician or any medical health practitioner has the duty to use reasonable care and skill in diagnosis and treatment in the practice of his/her profession and when negligent, take full responsibility. Malpractice has four essential elements:[3]
Duty. Every health care provider assumes a duty when starting consultations, diagnosis, or treatment of a patient. The duty arises from an expressed or implied contract.
Breach. For example, if you fail to make a correct diagnosis once you have assumed the duty to do so, you have created a "breach of duty", due and owing to the patient.
Causal Connection or Proximate Causation. Your failure to correctly diagnose, the duty due and owing to the patient and as a direct and proximate cause of your breach, caused damages.
Damages or Injury. The result of your failure to diagnose correctly, the patient sustained damages in the form of an additional hospital stay, complications that may or may not be of a permanent and continuing nature.
As a general rule, health care practitioners are protected by a special rule of law. They are not guarantors of care. They do not even warrant a good result. They are not insurers against mishaps or unusual consequences. Furthermore, they are not liable for honest mistake of judgment. This makes pursuing a medical negligence claim by and ordinary patient a difficult battle to win. [4]
In order to successfully pursue a claim, a patient must prove that a heath care provider, in most cases a physician, either failed to do something which a reasonably prudent health care provider would have done, or that he or she did something that a reasonably prudent provider would not have done; and that failure or action caused injury to the patient.[5]
Being in medical field, I’ve talked to several health care practitioners and even witnessed some claims in a hospital setting. More often than not, complaints for medical negligence are settled within a hospital premise before taking it to a legal dwelling. The victim usually accepts amicable settlements wherein the institution or healthcare practitioner involved settle the damage incurred through monetary bargaining as they believe it would be a burden for both parties to pursue the case.
In instances where the victim decides for legal complaint or settlement, here are some steps we can follow in pursuing a medical negligence claim:
1. Seek for legal aid and discuss your claim.
First things first, you need to work out whether or not you actually have a claim. For a claim to be successful, you and your lawyer have to be able to prove that the illness or injury that you are suffering from was directly caused by the negligence of the medical professional or institute.
Once you’ve proven that the injury or illness was directly caused by the negligence of someone else, you have to prove that the injury or illness would not have otherwise occurred without the intervention of the medical professional or institute.
Generally, if you cannot prove that you would not have eventually gone on to suffer from that illness in the future, you will not be able to make a claim.
2. Talk to your doctor.
Firstly, it’s important that you discuss your concerns with your doctor, or with the person that you believe is responsible for your illness or injuries. If you want to make an informal complaint, and if you’re not seriously injured, write a letter to the health care provider and await their response.
You should get a response in writing within a month, and in some cases, you’ll get an apology. It’s important to remember, however, that an apology does not mean that you automatically have a claim to make. An apology is not an admission of negligence; it is merely an apology for the experience that you might be going through.
Once you’ve spoken to your healthcare provider, you can then go on to make a formal complaint, if desired. A formal complaint differs depending on the medical professional you are making a complaint against, so the first step is to speak to their manager and then inquire as to who you can make a formal complaint to.
Usually, you’d make a formal complaint to the hospital trust or to a dedicated complaints manager. Again, an apology as a result of a formal complaint does not necessarily mean that you have a claim for medical negligence. Formal complaints must be made within 13 weeks of the incident.
3. Making the Claim.
When you actually start the formal claims process and instruct a lawyer to make the claim on your behalf, the first thing they’ll want to know is your story.
Have everything clear in your mind, and write down the story from start to finish, beginning with your negligent treatment and ending with the illness or injury you’re suffering from as a result of that treatment and how that illness is impacting on your life. Include as much detail as possible, such as dates, times and exact injuries or symptoms.
The next step is to access your medical records. Everyone has the right to request their medical records, and so you can go to your GP or family doctor and ask them for a copy of your medical records. Your lawyer can also access these records on your behalf.
These records are needed so that your lawyer can take a look at your injuries or your illness and at the incident that may have caused that illness, to decide whether or not they can pursue a claim on your behalf. Your lawyer will use your story, along with your medical records to make their decision.
If they don’t think that a claim would be successful, they will usually turn down your case and explain why they don’t think you have a successful claim. You have three years from the date of the injury or the knowledge of the injury to start the claims process.
4. Court Proceedings.
Once the lawyer has decided that you have a successful claim, they will then instruct a medical expert to review your case. This medical expert should be an expert in the type of treatment that you received, and they will be able to give an unbiased opinion as to whether or not the treatment that you received was negligent, and whether or not that negligence directly caused your illness.
The expert should then make judgment as to how long they think it will take you to recover and what they think you’ll need in terms of treatment to get on the road to recovery.Once witness statements have been gathered from both sides, including you, the individual or institute that you’re claiming against and any other individual that may be involved, such as your partner or your doctor’s manager, your lawyers will then send a Letter of Claim to the individual that you’re claiming against.
This letter will contain all of the allegations that you’re making, and the defendant – the individual or institute that you are making the claim against, will then have three months to respond. The response may involve a wish to settle out of court, or your lawyers may be able to negotiate with the defendant to settle out of court – and this is the most common outcome.
If the defendant denies the claims that you are making or is unwilling to negotiate, your case may then go to court. Once the case goes to court, your lawyer will be with you every step of the way to explain the process. Claims in court can be scary, but having an experienced medical negligence lawyer at your side will make the whole process a little easier."[6]
Here, claims under medical negligence are most often brought as a civil action for damages under Article 2176 of the Civil Code, and in some instances, as a criminal case under Article 365 of the Revised Penal Code with which the civil action for is implied.[7]
In the Philippine setting, to win a medical malpractice lawsuit can be an extremely task to do given its complexities. The injured must prove who caused the injury and the common reaction of medical practitioners, is to cover up their mistakes. Unfortunately, majority of those who do sue do not fairly win. Others do not even have the resources to file a case while the few patients who do succeed, may even wait several years before getting the compensation.
Every day, we depend on medical practitioners and trust them. If a doctor happens to create a breach of duty that causes damages, they should take full responsibility as they oath to render their services to society. They should give some form of compensation to the victims and our law’s restrictive interpretation of medical malpractice must be eliminated in order to prevent killing a patient softly.
PROJECT IMPLEMENTATION
As it is the hope of this research to give awareness about the nature of medical negligence, the laws that will protect the victims and how this occurrence will be prevented, the proponent distributed pamphlet to educate specifically the patients, who might in the future, will benefit this research.
ABOUT THE AUTHOR
Aicy Mae D. Salas is a first year law student of University of Southern Philippines Foundation. She is a Registered Nurse by profession and currently working as a Pharmaceutical Medical Representative.
REFERENCES
[1] Picard, Ellen I. Legal Liability of Doctors and Hospitals in Canada. 2nd ed. Toronto, Ont.: The Carswell Company Limited, 1984.
[2] Layugan vs. Intermediate Appellate Court, citing Black’s Law Dictionary, Fifth Edition, 930.
[3] Largo, Joan. Laws and Jurisprudence on Torts and Damages (4th ed. 2006)
[4] THE PHYSCIAN’S LIABILITY AND THE LAW ON NEGLIGENCE” by Constantino Nunez, p. 1 citing Louis Nizer, My Life I Court, New York: Double Day & Co., 1961 in Tolentino, Jr., MEDICINE and LAW, Proceedings of the Symposium on Current Issu[1]es Common to Medicine and Law U.P. Law Center, 1980).
[5] Largo, Joan. Laws and Jurisprudence on Torts and Damages (4th ed. 2006).
[6] Rhodes, Richard. Step by Step Guide to make a Medical Negligence Claim. The Getting Ahead blog, 2013, http://onecentatatime.com/guide-to-medical-negligence-claim/. August 17, 2018.
[7] Angeles, Darwin. DISSECTING PHILIPPINE LAW AND JURISPRUDENCE ON MEDICAL MALPRATICE https://www.scribd.com/doc/102804722/Jurisprudence-on-Medical-Malpractice