Medical Malpractice

Medical Malpractice
Negligence – Unintentional Tort

Negligence is a form of malpractice that occurs when a health care professional either performs an action a reasonable professional would not have performed or fails to perform an action a reasonable professional would haveperformed in a similar situation” (Fremgen, 2020, p. 123).

Negligence does not involve intention and the damage is based on the act of failing to exercise the degree of care any other reasonable professional individual would have performed in the same situation. There are four characteristics to determine the presence of negligence:

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Duty

Duty is established when the health care provider enters a relationship with the patient. Such happens when they accept a patient. A provider can only be held liable if they had the duty to provide care. (Fremgen, 2020, p. 125f.).

Dereliction

Once the provider has the duty, it can be breeched. Such a breech is dereliction or breach of duty, which is the second aspect of negligence. Abandoning a patient after accepting them as a patient would be a dereliction (Fremgen, 2020, p. 127).

Direct Cause

If the dereliction of duty can be directly linked to an injury and if the injury would not have occurred without it, then the direct cause can be established (if shown by preponderance of evidence) (Fremgen, 2020, p. 127f.).

Damages

If there is an injury based on the conduct of the provider, the patient may be awarded damages as compensation (Fremgen, 2020, p. 128f).

Liability

Regardless of whether an individual intended to cause harm or not, they may still be responsible for any harm caused. This state of responsibility is called “liability”. The following terms specify in what way a duty was breached:

Malfeasance

Malfeasance is the performance of an illegal act (Fremgen, 2020, p. 125). An example of a provider engaging in malfeasance would be the following: A CNA is walking past a room, in which she sees a resident who is close to falling out of bed. She knows that the individual is a fall risk and a heavy wetter. Her shift will be over in 15 minutes, and she knows she would take longer to properly take care of the resident. Instead of going into the room, assisting the resident into the middle of the bed, and potentially changing his brief, the CNA acts as if she did not see anything. The resident subsequently falls out of bed and is injured.

Misfeasance

Misfeasance is the improper performance of an otherwise lawful act (Fremgen, 2020, p. 125). An example could be the action of a medication aide who passes seizure medications to a resident but misses the fact that both medications have to be passed as two pills each, triggering a seizure that causes the resident to get injured in her bathroom.

Nonfeasance

Nonfeasance is the non-performance of a necessary act (Fremgen, 2020, p. 125). An act of nonfeasance is the failure of a trained individual to provide CPR to an individual found lying on the ground.

Maleficence

Maleficence is generally defined as an act of committing harm or evil. The term is not used in legal terminology in the United States. Page 28 of our book (Sole et al., 2017) cites “maleficence” as doing no harm and contrasts it with “beneficence” as doing good. It appears to me, that the author of the book intended to contrast non-maleficence and beneficence in this paragraph and failed to do so. Non-maleficence is the refraining from an action that would cause harm while beneficence is the engagement in an action that produces good. In a colloquial sense, the difference between maleficence and negligence is the state of mind of the individual in that the maleficent individual means to cause harm while the negligent individual does not.

Prevention and Reporting

There are a variety of ways to prevent unethical behaviour and report unethical behaviour whenever it happens. Most facilities do have ethics boards and/or ethics hotlines where issues can be reported if they have not previously been resolved through the chain of command or if involving supervisors may pose a risk for retaliation.

2. Therlyn Cotin

Loretta Macpherson was a 65-year-old woman who died due to a medication error which happened at a hospital in Bend Oregon. She arrived at the emergency room 2 days prior to discuss medication dosage questions after a recent brain surgery (CBS/AP, 2014). The doctors concluded that based on the surgery conducted, Mrs. Macpherson required a medication called fosphenytoin. This medication is “an anticonvulsant that is used to prevent or control seizures” (Drugs.com, 2021). However, the medication administered was rocuronium which is “used with general anesthesia medicines for rapid sequence intubation and helps relax muscles during mechanical ventilations” (Mayoclinic.org, 2021). According to Dr. Michael Michel Boileau, chief clinical officer for St. Charles Health System, he stated that Mrs. Macpherson stopped breathing which led to her suffering from cardiac arrest and brain damage (CBS/AP, 2014). According to (CBS/AP, 2014), an error in the medication process from how the medication was ordered from the manufacturer to the method it was mixed in the pharmacy, labeling, and how the medication was administered to the patient are all variables to consider with the investigation.

The Hippocratic oath is “an oath embodying a code of medical ethics usually taken by those about to begin medical practice” (Merriam-Webster, 2021). In my opinion, I believe this oath signifies proper delivery of care taken by doctors and the use of good judgement to promote health and well-being to patients. Although this oath does not apply to nurses as much as doctors, it is still utilized by healthcare professionals to cover a range of ethical issues and increase better patient interaction. Based on the knowledge gained from nursing school, I am aware that non-maleficence means to do no harm or cause negative acts towards a patient. Maleficence would be the opposite which would increase the risk of harm or bodily injury to the patient. Negligence is “the failure to do something that a reasonable person, guided by those considerations that ordinarily regulate human affairs, would do or doing something that a prudent and reasonable person would not do” (Townsend, Morgan, 2020 p. A-18). In my opinion, I believe the main difference between maleficence and negligence is that maleficence is done intentionally to harm someone, and negligence is unintentional and sometimes accidental to someone.

Based on knowledge gained from nursing school, within a healthcare setting it is more common for a doctor or any other type of medical provider to be held liable for any medical errors. This is because doctors are the medical personnel who provide medical diagnosis and treatment of care for patients. It is the nurse’s responsibility to implement that treatment plan. However, nurses may also be responsible for certain negative actions brought out on the patient. One of the most popular sources that I know assists in preventing medical errors and well as promotes patient confidentiality is the Health Insurance Portability and Accountability Act (HIPAA). HIPAA protects and individual’s medical records and sets certain boundaries to who has access to said records. In addition, HIPAA holds personnel who breach confidential medical information accountable for their actions which can lead to civil and criminal penalties.

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