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Medical negligence from a victim's point of view
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MEDICAL MALPRACTICE
What is medical malpractice?
Medical malpractice is simply a health care
provider not doing what he is supposed to do or doing what he is not supposed to do. The term is used to indicate medical
negligence by a health care provider that causes an injury. The theory of negligence in these cases is no different than that
of an automobile accident caused by someone who was not necessarily careful at that moment in time.
The negligence in
medical malpractice cases can occur in a variety of situations including but not limited to:
- There may be "medical malpractice" by a delay or failure in diagnosing a
disease; or
- A surgical or anesthesia related mishap during an operative procedure could
constitute "medical malpractice"; or
- Malpractice may involve the physician's failure to gain the informed consent
of the patient for an operation or surgical procedure; or
- A physician who has made the correct diagnosis, may thereafter commit malpractice
by failing to properly treat the disease process;
- Misuse of Prescription Drugs or a Medical Device or Implant can also be medical
malpractice, or failure to order all necessary tests.
Probably the most likely indicator that medical malpractice may have occurred
is the dramatically different or unexpected result of treatment or surgery. An example would be serious brain injury following
relative minor surgery.
Another telltale sign is the failure of the provider to give a good explanation for a worsened
condition of the patient or of the sudden death of the patient.
There are also instances in which nurses or doctors
or other providers make critical statements of prior care. These statements sometimes turn out to be accurate indicators of
medical malpractice even though they may never be repeated in a legal setting.
THE HIPOCRATIC OATH
" I SWEAR by Apollo the physician, and Aesculapius, and Health, and All-heal, and all the gods and
goddesses, that, according to my ability and judgment, I will keep this Oath and this stipulation to reckon him who taught
me this Art equally dear to me as my parents, to share my substance with him, and relieve his necessities if required; to
look upon his offspring in the same footing as my own brothers, and to teach them this art, if they shall wish to learn it,
without fee or stipulation; and that by precept, lecture, and every other mode of instruction, I will impart a knowledge of
the Art to my own sons, and those of my teachers, and to disciples bound by a stipulation and oath according to the law of
medicine, but to none others. I will follow that system of regimen which, according to my ability and judgment, I consider
for the benefit of my patients, and abstain from whatever is deleterious and mischievous. I will give no deadly medicine to
any one if asked, nor suggest any such counsel; and in like manner I will not give to a woman a pessary to produce abortion.
With purity and with holiness I will pass my life and practice my Art. I will not cut persons laboring under the stone, but
will leave this to be done by men who are practitioners of this work. Into whatever houses I enter, I will go into them for
the benefit of the sick, and will abstain from every voluntary act of mischief and corruption; and, further from the seduction
of females or males, of freemen and slaves. Whatever, in connection with my professional practice or not, in connection with
it, I see or hear, in the life of men, which ought not to be spoken of abroad, I will not divulge, as reckoning that all such
should be kept secret. While I continue to keep this Oath unviolated, may it be granted to me to enjoy life and the practice
of the art, respected by all men, in all times! But should I trespass and violate this Oath, may the reverse be my lot! "
The
above was Hippocrates Oath , one of the earliest codes of Ethics. Every person who is entitled to be a physician should ceremoniously
recite this oath as a part of their fulfillment. The oath is very much religious in it's nature but in fact addresses to all
faiths. Although it starts with "I swear By Appollo", a greek phrase, it continues to say "and all gods and goddesses" in
order to address those who might wish to slip through with excuses of another divinity or faith. The physician's duty or ,
what is expected of the Physician, is explained or sworn here. The Hippocrates oath addresses several key issues in medical
ethics , the most important being a sense of responsibility to a patient. According to this oath, the perfect physician was
to keep himself/herself and the profession holy and upright. Most importantly, it offered "Proffesional Confidentiality ".
The Hippocratic oath is based firmly on the qualities of human dignity and religious responsibility.
But, in the wake
of current modern clinical practice and technology, the once revered Hippocratic oath is being increasingly seen as a hindrance
. Many doctors do not find the ideals of Hippocratic oath all that inspirational. Several occasions have occured which continue
to illustrate the dropping out of this particular class of ethical codes. In 1973, the U.S. Supreme court rejected the oath
as a guide to medical ethics and practice.It is also felt that the Hippocratic oath is incapable of covering the latest developments
and methods of medical practice and research. In a paper by an East German Physician, Dr.Ulrich Wolff in 1981 titled " Farewell
to Hippocrates : Medical ethics between Hippocrates and Geneva Oath" , it was expressed that in an age of genetic research,
abortion and euthanasia, we require to change our Hippocratic ideals. ( note :Hippocratic refers to the oath, not hippocracy).
Why should the Hippocratic Oath be so critically judged and termed inappropriate. What are the shortcomings of the
Hippocratic oath ? To understand this, it would be important to understand some of the common shortcomings in any given code
of ethics. They are :
1. ABSENCE OF ETHICAL AUGUMENTATION :
Most ethical codes do not allow individual reasoning.
They are usually pre-determined conclusions of ethical reasoning by a set of philosophers or likely experts. The practitioners
are expected to blindly follow these pre-determined codes without knowledge of their derivative source.
2. SITUATIONAL
PROBLEMS :
There is a problem in accepting any given set of ethical codes is fitting it into any given random scenario
of ethical dilema. This would mean the deficiencies of a lack of justification for situations and conclusions, omisions of
certain issues and total irrelevance. This has lead to the thought that codes of ethics are flawed and should be replaced
instead with laws, regulations and sound ethical reasoning in accordance with present norms.
3. EXPECTANCE :
Medical
proffesionals are increasingly finding it difficult to adhere to ethical discipline. This may be attributed to several reasons.
One of the primary being the "Loss of Power of autonomy ". It has become increasingly clear that the physicians obligation
in keeping the patient's interest at large is difficult.
The current scenario in medical practice seems to shift towards
a "Rationing" of medical resources. It is no longer feasable under the given conditions of limitancy and stress imposed on
the medical structure to properly administer to the complete service towards the patient. Therefore, physicians seem to have
started making decisions on the life expectancy of a patient rather than aiming towards a substainment of a patient,even if
under a vegetative state. This is why most physicians would prefer to refrain from the compulsory application of principles
elicited from the Hippocratic Oath. The question remains in whether proffesions have an intrinsic morality or whether their
morality is to be extrensically determined by a given set of Ethical Codes.
It is a common thought in some medical
establishments and practices that "Futile treatment " is to be dismissed (ie) it is seen as illogical to continue treatment
of a patient if the resultant effect of that treatment will seemingly fail to establish any possible effect. There was a recent
discussion in an Internet based Bioethics Discussion board about a terminally ill AIDS patient who was dragged out of a pitiable
state, and later denied full medical services which included Intensive Care , on grounds of "Futile Care ". The resultant
effect of the discussion ruled in favour of the physicians decision to suspend treatment . The justification was sought out
through a reference from the Hippocratic Oath itself. It was pointed out that the Hippocratic oath justifies the physicians
right to suspend treatment if the outcome is to be of no purpose (ie)futile. So here, the Hippocratic oath strikes a critical
review. Again , the Hippocratic oath has several other loopholes that facilitate arguments against it. The most important
being that the Hippocratic oath does not favour abortions nor does it favour Euthuanasia, two of the most favoured practices
in current scenario.
The Encyclopaedia of Bioethics defines a code of Bioethics as " An ordered collection of Injunctions
and Prohibitions usually created by an authoritative body and adopted as a statement of ideals and rules for a group or an
organisation".Codes of ethics have a purpose in telling people that the practitioners are trustworthy , will give respect
to all and treat others at an extent that goes beyond their own interests. The Hipocratic oath may seem outdated and out of
context in most scenarios. But, it certainly does ascertain a sense of Digniity to human value and offers a spiritual duty
towards the performance of the medical proffesion. In brief, Codes of ethics should not be overestimated or undervalued. In
so doing it might lead to a clear instigation of the first move towards the never ending issues of medical negligence.
As in my case wherein a very loved daughter died at a very young age of 16 after undergoing a surgery(appendectomy) , had
it that this Hippocratic oath been meticulously observed with purity and holiness no such thing as an act of reckless imprudence
could have happened. A very clear act of voluntary mischief.
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The Code of Hammurabi
. . .[Hammurabi] was the ruler who chiefly established the greatness of Babylon,
the world's first metropolis. Many relics of Hammurabi's reign (2123-2081 BC*) have been preserved, and today we can study
this remarkable King . . . as a wise law-giver in his celebrated code. . .
. . . [B]y far the most remarkable of the Hammurabi records is his code of laws,
the earliest-known example of a ruler proclaiming publicly to his people an entire body of laws, arranged in orderly groups,
so that all men might read and know what was required of them. The code was carved upon a black stone monument, eight feet
high, and clearly intended to be reared in public view. This noted stone was found in the year 1901, not in Babylon, but in
a city of the Persian mountains, to which some later conqueror must have carried it in triumph. It begins and ends with addresses
to the gods. Even a law code was in those days regarded as a subject for prayer, though the prayers here are chiefly cursings
of whoever shall neglect or destroy the law.
The code then regulates in clear and definite strokes the organization of society.
The judge who blunders in a law case is to be expelled from his judgeship forever, and heavily fined. The witness who testifies
falsely is to be slain. Indeed, all the heavier crimes are made punishable with death. Even if a man builds a house badly,
and it falls and kills the owner, the builder is to be slain. If the owner's son was killed, then the builder's son is slain.
We can see where the Hebrews learned their law of "an eye for an eye." These grim retaliatory punishments take no note of
excuses or explanations, but only of the fact--with one striking exception. An accused person was allowed to cast himself
into "the river," the Euphrates. Apparently the art of swimming was unknown; for if the current bore him to the shore alive
he was declared innocent, if he drowned he was guilty. So we learn that faith in the justice of the ruling gods was already
firmly, though somewhat childishly, established in the minds of men.
In the criminal law the ruling principle was the lex talionis. Eye for eye, tooth
for tooth, limb for limb was the penalty for assault upon an amelu. A sort of symbolic retaliation was the punishment of the
offending member, seen in the cutting off the hand that struck a father or stole a trust; in cutting off the breast of a wet-nurse
who substituted a changeling for the child entrusted to her; in the loss of the tongue that denied father or mother (in the
Elamite contracts the same penalty was inflicted for perjury); in the loss of the eye that pried into forbidden secrets. The loss of the surgeon's hand that caused loss of life or limb or the brander's hand
that obliterated a slave's identification mark, are very similar. The slave, who struck a freeman or denied his master, lost
an ear, the organ of hearing and symbol of obedience. To bring another into danger of death by false accusation was punished
by death. To cause loss of liberty or property by false witness was punished by the penalty the perjurer sought to bring upon
another
CODE OF HAMMURABI (ruler
of Babylon from 1795 to 1750 BC), who had the laws of the city engraved on a huge stone tablet and placed in the public square.
Hammurabi explained, "then Anu ['the Sublime' etc.] and Bel ['the lord of Heaven and earth'] called by name me, Hammurabi,
the exalted prince, who feared God, to bring about the rule of righteousness in the land ..."
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If a physician makes a large incision with an operating knife and cures it, or if he opens a tumor
(over the eye) with an operating knife, and saves the eye, he shall receive ten shekels in money
If a physician makes a large incision with the operating knife, and kills him, or opens a tumor with
the operating knife, and cuts out the eye, his hands shall be cut off.
LAWS of justice which Hammurabi, the wise king, established. A righteous law, and
pious statute did he teach the land. Hammurabi, the protecting king am I. I have not withdrawn myself from the men, whom Bel
gave to me, the rule over whom Marduk gave to me, I was not negligent, but I made them a peaceful abiding-place. I expounded
all great difficulties, I made the light shine upon them. With the mighty weapons which Zamama and Ishtar entrusted to me,
with the keen vision with which Ea endowed me, with the wisdom that Marduk gave me, I have uprooted the enemy above and below
(in north and south), subdued the earth, brought prosperity to the land, guaranteed security to the inhabitants in their homes;
a disturber was not permitted. The great gods have called me, I am the salvation-bearing shepherd, whose staff is straight,
the good shadow that is spread over my city; on my breast I cherish the inhabitants of the land of Sumer and Akkad; in my
shelter I have let them repose in peace; in my deep wisdom have I enclosed them. That the strong might not injure the weak,
in order to protect the widows and orphans, I have in Babylon the city where Anu and Bel raise high their head, in E-Sagil,
the Temple, whose foundations stand firm as heaven and earth, in order to bespeak justice in the land, to settle all disputes,
and heal all injuries, set up these my precious words, written upon my memorial stone, before the image of me, as king of
righteousness.
The king who ruleth among the kings of the cities am I. My words are well considered;
there is no wisdom like unto mine. By the command of Shamash, the great judge of heaven and earth, let righteousness go forth
in the land: by the order of Marduk, my lord, let no destruction befall my monument. In E-Sagil, which I love, let my name
be ever repeated; let the oppressed, who has a case at law, come and stand before this my image as king of righteousness;
let him read the inscription, and understand my precious words: the inscription will explain his case to him; he will find
out what is just, and his heart will be glad, so that he will say:
"Hammurabi is a ruler, who is as a father to his subjects, who holds the words of
Marduk in reverence, who has achieved conquest for Marduk over the north and south, who rejoices the heart of Marduk, his
lord, who has bestowed benefits for ever and ever on his subjects, and has established order in the land."
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