MEDICAL MALPRACTICE (PART 1)
A medical malpractice is an action carried out by a doctor, health and auxiliary personnel, or health center, hospital or clinic, contrary to the lex artis of the medical health profession, and that produces a damage or harm to the patient that he did not have the duty or assumed the risk to bear.
Medical malpractice is based on medical liability and can be treated in both the public and private health care settings.
In order to determine whether we are dealing with a case of medical malpractice, it is important to be able to discern the existence of the necessary elements that define it.
These elements are listed below:
- The actor: properly trained medical personnel.
- The act: the action of the doctor on the patient and his health.
- The objective element: the damage or harm caused to the patient's health.
- The subjective element: it is the fault for inexperience, imprudence, inobservance, negligence.
- The relation of causality: it is the relation between the medical act and the damage caused, which must be direct.
It is important to emphasize that when we speak of medical negligence we refer to errors produced by medical omissions or actions that, even though they cause damage or harm to the patient, are not carried out with the intention of producing this damage, but rather are framed within the scope of imprudence.
On many occasions, patients may not know if they are victims of poor medical care, and they do not know if the problems they suffer may be the result of the disease or its necessary treatment.
The desperation to not be cured as expected, the worsening, even the situations that may become irreversible, produce in the patient a situation of great vulnerability, so it is necessary the advice of experts in the field to be able to discern whether or not there has been some kind of negligence that can be claimed.
Although, in most medical specialties, doctors cannot guarantee a result in treatments or surgical interventions (since their obligation is one of means, not result), sometimes complications arise that cause unexpected and uninformed damage or results that do not fall within the risks inherent in the medical act of the specialty, and may be the cause of mistakes or errors by the medical team, so they must be analyzed for whether there is really responsibility.
Under these circumstances, through our initial assessment, it is always necessary for a Medical Expert to analyse the case and, in the first phase, study the viability of the claim. However, below we present a short guide to detect possible medical negligence, as well as some advice on how to act in each case.
HOW TO DETECT MEDICAL MALPRACTICE
There are certain signs - not definitive - that medical malpractice may exist, which are directly related to complications in the patient's health, such as
- Long hospital stays as a result of apparently simple treatments.
- Treatments that are made endless and or very expensive.
- The need for a second or third operation.
- Unforeseen and unplanned procedures.
- Bad reactions to medication.
- Life-threatening infections.
- Sudden severe illness after discharge.
- Different interpretations of the same diagnostic imaging tests.
- Inconclusive test results.
ITEMS OF MEDICAL MALPRACTICE - WHAT TO DO ABOUT POSSIBLE MEDICAL MALPRACTICE
If you suspect that you are a victim of medical malpractice, it is important that you get professional advice from a specialized attorney who will study the case. However, even before that, we recommend that you take the following actions:
- Continue treatment (if applicable) so as not to interrupt any medical care that may be appropriate.
- Ask for a second medical opinion on the condition or treatment being followed.
- Gather as much information about the medical problem as possible. Including:
o Complete medical history (this is a patient's right).
o Diagnostic tests.
o Medical appointments and emergency visits.
o Medical expenses.
o Expenses associated with the injury.
o Proof of economic loss (loss of income as a result of the injury or your medical treatment).
o Collection of information about loss of quality of life due to the problem.
- Make a personal record of the incident and the treatments and care followed, noting everything that can be remembered about the injury and its treatment. Since it is easy to forget details that can be key in a legal proceeding.
- Take pictures of the injuries, if applicable. It may be important to have regular photographic evidence of the injury and its progress.
- Determine the possible point in time when medical malpractice could be detected, in order to study if legal action could be prescribed.
- Contact the advice of specialist lawyers who can handle the case diligently
- Minimize, as much as possible, comments to affected health care providers, hospital staff, doctors, etc. And above all, possible liability for medical malpractice.
The consultation with the specialized legal professional will serve for an initial screening on whether the case may or may not be a case of medical malpractice. Once the case has been selected as possible malpractice, it should always be confirmed with a medical specialist who will analyze the viability of the case.
THE MOST COMMON MEDICAL NEGLIGENCE
Statistically, the most common medical malpractice is:
- Poor patient care
- Late Diagnosis
- Incorrect treatment
- Medication errors and overdose
- Absence of signature on informed consent
- Injuries caused during an intervention
- Inadequate follow-up of a patient.
CLASSIFICATION OF MEDICAL MALPRACTICE
We analyze the case of medical negligence, according to its characteristics:
#1 FOR PROBLEMS IN THE INTERVENTION
- Injuries to the patient. - Problems with anesthesia. - Incomplete treatment. - Poorly placed prosthesis (or implant). - Use of inadequate or low quality materials. - Perforations or internal damage. - Forgotten material in the body. - Poor aesthetic result. - Wrong amputation. - Complications in bariatric surgery. - Complications in childbirth. - Lesions in organs enclosed to affection, in laparoscopic operations.
#2 FOR PROBLEMS IN DIAGNOSIS
- Misdiagnosis/late heart attack.
- Misdiagnosis/late diagnosis of cancer
- Misdiagnosis/late diagnosis of fetus
#3 BY TYPE OF LESIONS PRODUCED
- Death - Brain injury - Nerve injury - Spinal cord injury - Injury leading to incapacity for work - Repeated intervention (continuous period of sick leave). Etc…
#4 PER MEDICAL AREA
- Dentistry. - Aesthetic Surgery - General and digestive surgery. - Gynecology - obstetrics. - Oncology. - Anesthesiology. - Psychiatry. - Radiology. - Cardiovascular. - Nuclear medicine-diagnostic radiology. Although it can occur in any medical area.
An error in diagnosis can lead to inappropriate treatment or intervention, and a delay in correct diagnosis can cause health problems for the patient.
Medical malpractice can occur in any area, the most frequent being those indicated above, and affect the patient in all areas of his or her life, including work, with all the economic repercussions that this can entail.
Problems in medical interventions can lead to the patient not being cured, but also to the appearance of new associated ailments. This can occur in cases of poorly qualified professionals, and the use of poor quality and inadequate materials.