Legal, Ethical & Professional Issues

Medical Malpractice and Negligence

Wikipedia provides a definition and overview of medical malpractice and negligence, including detail about the Bolam Test in which duty of care (in the UK) was defined (ie whether or not the physicians actions were in accordance with a practice accepted at the time as proper by a responsible body of medical opinion). TheBolitho case of 1997 has confirmed the Bolam principle. A simple error of judgement does not consitute a breach of the duty of care, one must fail to take an action that would ordinarily be taken by a reasonable (ordinary) medical practitioner of similar skill and training.

Medscape has a whole page dedicated to US medio-legal issues. estimate that 80% of US claims result in zero payment and that as little as 12% of a payment in the US ends with the patient.

Three things must be established for a medical damages claim to be successful:

  1. That the provider had a duty of care to the patient
  2. That their duty of care was breached (ie Bolam or other test). This is not the same as an error of judgement. In the US a deviation from standard of care (“what a prudent physician would do”) is the test used.
  3. That this breach caused loss or damage

In most countries the process of claiming damages, unless the practitioner agrees to pay for damages, is legal and adversarial, between the patient and the physician’s insurance company, although some countries – e.g. New Zealand – provide no-fault compensation for injury arising from medical treatment.

Adverse outcomes most commonly occur even if a phsyicians actions are perfectly appropriate at all times. A patients may claim that they were not properly informed of the potential risks of the procedure beforehand, and that had they been so informed, they would not have consented to the procedure. Written documentation proving that proper informed consent was obtained before the procedure is important.

Informed Consent

Adequate prior informed consent, sound clinical practice, a properly documented medical record, and appropriate management of any complications arising after anaesthesia are essential aspects of professional anaesthetic practice.

UWashington has an excellent overwiew of consent issues in the OR. The Association of Anaesthetist of Great Britain and Ireland in 2006 patient consent guidelines.

Rogers v Whittaker 1993 in Australia overturned the Bolam principle in relation to informed consent, finding that a doctor should warn of any risk that a reasonable person, in the patient’s position, if warned of the risk, would be likely to attach significance to it, or if the medical practitioner is or should reasonably be aware that the particular patient if warned of the risk, would be likely to attach significance to it. The extreme difficulty of meeting these requirements precipitated amedical indemnity crisis and subsequent modifications to certain aspects of Australian medical litigation. The West Australian Department of Health provides anumber of informed consent forms.

Informed consent is a particular problem for anaesthetists because the patient is often seen for the first time immediately before they go to sleep. Explaining the risks of an epidural to a woman in labour is particularly difficult. The UK RCOG has an excellent document discussing how risk is discussed in medicine. Labour itself is not seen as an impediment to the gaining of informed consent. More info: Barkham 2005, SOAP 1998, Jackson 2005, Science and Sensibility 2011. Procedures should be put in place to provide adequate information to patients before arriving in the operating room (see the Association of Anaesthetist of Great Britain and Ireland in 2006 patient consent guidelines) and the ANZCA Consent Guidelines PS26 2005 in the ANZCA site.

The situation in the UK has become even more confusing since the Chester v Asfar 2004 case:

A surgeon had failed to warn a patient of an uncommon risk (hemipareseis) involved in a surgical procedure (3-level laminectomy). The operation was competently performed but the patient developed sensory and motor impairment below L2. It seems that while the patient might have delayed surgery to discuss it with others, had this particular risk been explained, and its incidence, it was accepted that they would in fact have gone ahead and had the operation, with the same surgeon, though most likely a short time later. Depsite acknowledging that the patient would have gone ahead with surgery had the risk been explained, the House of Lords ruled that she was still entitled to damages.

It seems likely that subsequent cases will be needed to clarify the principle underlying this ruling. As a result in Feb 2006 the Welsh Health authorities have recommended:

  • Extreme care in the taking of consent is even more crucial than ever;
  • Careful and comprehensible warnings about all significant possible adverse outcomes must be given;
  • These warnings must be properly recorded in the notes;
  • The patient should be invited to sign the relevant entry to confirm that he/she has been given the warning, has understood it, and accepts the risk;
  • It is equally important to make a full entry in the notes, preferably signed by the claimant, if treatment is refused, including the reason when given.

Undoubteldy the risk management implications of the theChester v Ashfar case has led to the 2006 AAGBI guidelines.

Medical Defence Insurers

All medical practitioners should maintain medical malpractice insurance; in many countries this insurance is madated by legislation.

USA: The Doctors’ Company – Physician-owned professional liability insurer offering information on medical malpractice insurance and risk management for physicians and healthcare facilities.

Australia: Avant Medical Protection, The Medical Indemnity Protection Society, MDA National

UK The Medical Defence Union, The Medical Protection society, The Medical and Dental Defence Union.

Ethical Issues

Statement on Advance Directives by Patients “Do Not Resuscitate” in the Operating Room by the American College of Surgeons

American Society of Law, Medicine and Ethics.

Anesthetic Challenges and Considerations Presented by the Jehovah’s Witness Patient a brief history of the Jehovah’s Witnesses and their religious justifications for refusing transfusions, discussion of some of the ethical principles in conflict between physicians and Jehovah’s Witnesses patients, pertinent and significant legal rulings and definitions, and will present methods or techniques utilized by anesthesiologists to overcome the challenges presented by the elimination of transfusion as a surgical option.

MacLean Center for Clinical Medical Ethics: Located at The University of Chicago.  Massive listings of links.  Six major search areas:  Bioethics Resources, End of Life Issues, Medical Resources, Law Resources, Health Care Reform and Plague Sites.

Ethics in Science: Provided by Virginia Polytechnic Institute and State University, Department of Chemistry.  The emphasis in on research ethics in science.

Advance Directives and Do Not Resuscitate: from

Hospital Ethics Handbook (The University of Kansas Medical Center) provides guidelines for responding to ethical issues in the care of patient.

The Center for Medical Ethics and Health Policy was created in July, 1982, as a joint project of Baylor College of Medicine, the Institute of Religion of the Texas Medical Center, and Rice University. While Baylor College of Medicine is primarily responsible for administering the program, the joint sponsorship of the program enables the Center to draw on the rich intellectual resources of all three institutions, even now that the Institute of Religion is no longer an official sponsor.

AMA Principles of Medical Ethics

Employment Resources (US) –  “Fast, Free and Easy.”   The largest US On-line Anesthesia Employment Resource. Helps anesthesiologists and CRNAs find the jobs that they want and allows anesthesia groups to find suitable providers. – a US online job board for medical and healthcare professionals.

ASA Career Center:  Search facility to place yourself as a candidate for a new position and to search for practice opportunities.

Professional Organisations:

See the Societies and Departments chapter of this textbook.

Leave a Reply

Your email address will not be published. Required fields are marked *