Although the laws of medical malpractice differ significantly between nations, as a broad general rule liability follows when a health care practitioner does not show a fair, reasonable and competent degree of skill when providing medical care to a patient. If a practitioner holds himself out as a specialist a higher degree of skill is required. Jurisdictions have also been increasingly receptive to claims based on informed consent, raised by patients who allege that they were not adequately informed of the risks of medical procedures before agreeing to treatment.
As laws vary by jurisdiction, the specific professionals who may be targeted by a medical malpractice action will vary depending upon where the action is filed. Among professionals that may be potentially liable under medical malpractice laws are,
- Medical Practitioners – including physicians, surgeons, psychiatrists and dentists.
- Nurses, nurse practitioners, and physician assistants.
- Allied health professionals - including physiotherapists, osteopaths, chiropractors, podiatrists, occupational therapists, social workers, psychologists, pharmacists, optometrists, midwives, and medical radiation practitioners.
Among the acts or omissions that may potentially support a medical malpractice claim are the failure to properly diagnose a disease or medical condition, the failure to provide appropriate treatment for a medical condition, and unreasonable delay in treating a diagnosed medical condition. In some jurisdictions a medical malpractice action may be allowed even without a mistake from the doctor, based upon principles of informed consent, where a patient was not informed of possible consequences of a course of treatment and would have declined the medical treatment had proper information been provided in advance.
The Supreme Court of the United Kingdom decided in 2018 that the duty of care extended to information given to patients by clerical staff. A patient at Croydon Health Services NHS Trust‘s emergency department suffered severe brain damage having been given misleading information by staff at reception. He was told that he would be seen by a doctor in four or five hours and left the hospital, when actually he would be seen inside 30 minutes by a triage nurse.
In many jurisdictions, a medical malpractice lawsuit is initiated officially by the filing and service of a summons and complaint. The parties subsequently engage in discovery,” a process through which documents such as medical records are exchanged, and depositions are taken by parties involved in the lawsuit. A deposition involves the taking of statements made under oath about the case. Certain conversations are not discoverable due to issues of privilege, a legal protection against discovery, but most conversations between the parties and witnesses are discoverable.
Consequences for patients and doctors vary by country.
- In Canada, all provinces except Quebec base medical malpractice liability on negligence, while Quebec follows a civil law system.
- Germany permits patients injured by medical negligence to bring a private action against the provider in contract, tort, or both.
- Sweden has implemented a no fault system for the compensation of people injured by medical treatment. Patients who want to bring malpractice claims may choose between bringing a traditional tort claim or a no fault claim.
- In New Zealand, the Accident Compensation Corporation provides no-fault compensation for victims.
- In the United States, tort lawsuits may be used to seek compensation for malpractice. Awards of compensation in the United States tend to be much larger than awards for similar injuries in other nations.
A no-fault system may provide compensation to people who have medical outcomes that are significantly worse than would be anticipated under the circumstances, or where there is proof of injury resulting from medical error, without regard to whether or not malpractice occurred. Some no fault systems are restricted to specific types of injury, such as a birth injury or vaccine injury. Medico-legal action across multiple countries is more common against male than female doctors (odds ratio of 2.45).
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