Malpractice

-literally, simply means wrong

practice
- generic term for breach of practice,
breach of profession, carelessness,
culpable professional neglect,
dereliction of duty, improper
professional action
- applies to all professions
 Factors Responsible
• Breakdown of traditional patient-family physician
relationship
• Professional jealousy due to intensified
competition
• Economic stress coupled with high cost of
medical care
• Increase suit consciousness
• Unkind and unguarded remarks of fellow
physicians and other paramedical workers
 Adverse effect of malpractice
• Time the doctor is compelled to spend in the
preparation of his defence and attendance to
court proceedings
• Damage to professional reputation in the
community
• Loss of public confidence
• Disturbance to peace of mind in both doctor and
his family
• Expenses involved
 Circumstances a doctor may be liable for
malpractice
• When the act or omission of the doctor results in
harm or injury to the patient
• When the doctor acts through an agent/assistant
• For the acts of a partner
• For the acts of another who is neither his agent
or his partner when he observes or notes that
the other person is doing or about to do
something that would cause harm or injury to the
patient and he does nothing to prevent the same
 What is the standard of care required of
doctors?

The diligence and care of a good father of a

family, meaning ordinary care and diligence
only, but which should be:
- Of the level of knowledge and/or skill that a
professional is required to posses/employ
which is evaluated in the light of the advanced
state of medical knowledge at the time
 Cont...
- A professional has more knowledge or skill
than the average, or represents himself to
possess such degree of knowledge and skill, is
required to use that skill and will not be
shielded by what others do, especially if the
evidence shows that he knew the others were
exposing the patient to unreasonable risk.
Physician’s reaction to the malpractice
problem

• Abandonment of practice
• Defensive medicine
• Professional liability prophylaxis
• Medical malpractice liability insurance
 Quantum of evidence required in
medical malpractice

• purpose of testimony – to prove:

- the standard of care customarily practices
- probable cause of victim/patient’s injury
 Reason for need of expert
testimony

• founded on the presumption that neither

courts nor jurors posses the requisite
knowledge and expertise to evaluate the
conduct of medical practitioners adequately.
 Quantum of evidence in medical
malpractice

• assist fact finder in ascertaining the level of

skill and expertise possessed and employed by
physicians in diagnosing and treating illness
under circumstances similar to those in the
plaintiff’s injury
Legal doctrines applicable to determine
liability of physician and /or hospital

1. Doctrine of vicarious liability (doctrine of

imputed negligence or command responsibility)
a. Doctrine of ostensible agent
b. Barrowed servant doctrine
c. Captain of the ship doctrine (the surgeon is
of control, under the master-servant
relationship in the operating room)
 Cont...
2. Doctrine of res ipsa loquitor ( common
knowledge doctrine, injury is a proof of
negligence)
3. Doctrine of contributory negligence (doctrine
of common fault)
4. Doctrine of continuing negligence
5. Doctrine of assumption of risk
6. Doctrine of last clear chance
 Cont...

7. doctrine of foreseeability
8. Fellow servant doctrine
9. Rescue doctrine (USA)
10. Doctrine of proximate cause
Sole responsibility vs. Shared responsibility

• Partners
• Agents
• Employees
• Other physicians who are neither partners nor
agents
 THANK YOU

THANK YOU