The Ethics of Medical Malpractice

Upon completion of medical school, it is tradition that graduates take what is known as the Hippocratic Oath. With deep historical roots, original versions of this oath swore upon the name of ancient healing gods, that a medicine man would not knowingly harm those whom he treated. This indicates a deeply entrenched awareness of the exceptional responsibility leveled upon medical professionals, since the earliest manifestations of their professions. Above all, they were bound to an ethical duty to not cause harm. The oath has evolved and been tailored for modern use, but its fundamental ethic remains - do not harm.

The ethical obligations of healthcare providers are at the heart of medical malpractice suits. However, medical malpractice as a whole is a complex interplay of ethical obligation, involving not only providers but their patients as well. Adding insurance companies into the fray, corporate enterprises become the hub of thought-provoking ethical questions and conundrums, perhaps because these entities deal in medicine, and medicine deals in human life. We will explore the variant ethical standards and obligations of the different parties in medical malpractice suits, and its greater impact on society as a whole.

Standard of Care for Medical Professionals

All medical professionals are bound to adhere to the standard of care in their field. This is probably the first and most basic tier of a provider's ethical obligation to his or her patient. The standard of medical care in a given field is not subject to federal guidelines, rather it is set and established by a consensus amongst the healthcare providers themselves. Defining their own standard of professional behavior is a substantial responsibility, one that must be met with a stringent moral code in mind. It is worth noting that standard of care is a legal term and not a medical term, however, it is a notion of which all medical professionals are aware.

Establishing the Term "Standard of Care"

The term was established the Connecticut Supreme Court, who inadvertently laid the groundwork for medical malpractice law in the United States when they handed down a decision of cogent terminology and logic, from which later courts and legislatures heavily borrowed. The standard of care was a legal measuring tool to determine the efficacy of a given physician's performance in an instance of malpractice. Failure to adhere to it was considered a "departure" and this could legally be tried as negligence - a failing to their patient. In day to day practice, medical personnel do not discuss or frame their actions within this 'standard of care' as though it were a concrete ethical rulebook they regularly reference, rather it only comes into focus when the question of negligence is put on trial for a particular physician.

The standard of care serves a crucial legal function, especially for the purpose of demystifying and explaining the nature of medicine to a lay jury or attorneys and judges who may not privy to the nuances of medical practice. The standard of care, when established before the court by an expert witness, fully delineates what is expected of the doctor - so as not to create confusion or allow legal inference that a doctor who did not provide "perfect" or "flawless" care was at fault. There is a difference between a reasonable standard/expectation and out and out perfection. No medical professional can promise to exact a cure or ensure a perfection of care. "A defendant physician," writes expert Frank McClellan, "should not be held to an unrealistic standard of perfection." Their ethical duty, however, is to keep to the standard, whether or not it exacts a good or bad result. [1]

Medicine is both a science and an art, requiring the professional and his patient to accept a high degree of uncertainty about the human body and the ability of science to understand, predict and control results." There are inherent risks and complications to all medical care, and although a gamut of errors and injuries are attributable to negligence, there are many which are not.

Although "customary practices of other professionals" in the field is an easy way to characterize the standard of care, from a legal perspective 'customary practices' and 'reasonable care' are two separate bodies of responsibility denoted by the standard of care. They do share significant overlap, but with some distinctions. A certain course of action, in an emergency, for example, may be expected of a physician although it is not explicitly customary - but given the circumstances, it would be unreasonable for he/she not to take this course of action. In this sense, there is some distinction between customary professional practices and reasonable care. Above all, a physician is required to act ethically and where his/her actions are called upon, they must prioritize the life and wellbeing of the patient above all. On a case by case basis, putting this principle into practice can become muddled and it is not always explicitly clear whether or not the provider acted negligently or dutifully. Such riddles go up for scrutiny in medical malpractice lawsuits.

Informed Consent

Another prong of the ethical obligations of healthcare providers is that of informed consent. It is not enough for a healthcare provider to ask for plain, unelaborated permission to treat a patient, upon their entry to a healthcare ward. Precisely because of all the risks and complications inherent to medical care, a physician is ethically obligated to disclose the nature of the procedure/treatment and all associated risks. There are provisos to this obligation, as it is subject to exceptions depending on the circumstances. In most cases, the obligation to obtain informed consent is temporarily waived in most cases of emergency care. If the patient is a minor and they have a parent or guardian available to give informed consent then the obligation is not necessarily waived.

The law permits physicians to not include certain risks and complications in informed consent agreements if a given risk is exceptionally well known to the general public already, or if it is so remote that it is not worth mention. If an exceptionally remote risk does come to fruition, harms the patient and was not disclosed for reasons of it unlikeliness, there be grounds for a malpractice suit because the patient was not informed of it. This is why healthcare providers take care to disclose as many known risks as possible. Informed consent may not be obtained verbally; it must be a written agreement for legal purposes.If a physician fails to obtain informed consent or only obtains partially informed consent, there may not necessarily be grounds for a malpractice suit for lack of informed consent.

Only if the patient was injured by one of the undisclosed risks may they bring a malpractice claim forward. Informed consent, from a legislative standpoint, is not only subject to a reasonable physician standard, but also to a reasonable patient standard - meaning that the nature of the information disclosed should reasonably satisfy what a patient wants to know as well as what a physician thinks they ought to know. Patients usually sign a general consent form upon entry to a healthcare facility, however surgery, anesthesia, and other invasive procedures require a separate signed consent form. If the patient does not have full decision-making capacity (by reason of Alzheimer's or dementia, for example), this could constitute an exception to obtaining full informed consent if there is no legal next of kin. If the patient could foreseeably be harmed in the amount of time it would take to obtain proxy consent (from a parent, family member or next of kin), then an exception may be made. Informed consent is a fundamental totem of bioethics and a critical aspect of a trusting relationship between a patient and healthcare provider. [2]

Human Error and Medical Mistakes

The question arises: what happens when a healthcare provider knowingly makes a mistake in the course of care. The nature of variant medical errors is explored in depth, however we will evaluate this question exclusively with regards to ethics. For our purposes, medical errors may be classified into a few categories: human error, harmless error, negligent error and blatantly reckless errors. Ideally, all medical care would be carried out sans even the most minute error, however it holds true that human error is unavoidable to some degree, although not necessarily frequent.

Human error may be legally actionable in a malpractice suit or hold no merit as a claim. It is an all-encompassing term which could be said to include most kinds of negligent error, and it is not a technical term by any means. A spinal surgeon may, by a complete fluke, operate on the wrong vertebrae. A tired nurse may forget to take one of her patient's vitals during a routine physical. The consequence of the former could be disastrous, while the consequence of the latter could have no effect whatsoever. In both cases, the tortfeasor departed from the standard of care with no conscious knowledge that they were doing so. Therefore, to answer the question - is human error legally actionable? The answer is sometimes, depending on the level of harm incurred by the patient.

Human error, carried out with no conscious knowledge, is not an ethical failing, however, and this may reflect positively on the defendant in court. Perhaps such errors are not ethical failings, however, if the perpetrator becomes aware that they have made such an error, they do then confront a complex personal and ethical question. To disclose or not to disclose? If a healthcare provider knowingly and privately errs  or later becomes aware that they did, then they must determine, perhaps singlehandedly, whether or not that error harmed or will harm the patient.

They have a vested interest in how they make that call, knowing that if they disclose the error they could end up with a malpractice suit on their hands. Despite their vested interest, they are ethically obligated to disclose all knowingly-made error, even if that error has not or will not injure the patient. A disclosed error could only engender liability if it does proximately injure the patient, however, 100% disclosure is required because of certain ethical rectitude which demands it. Further exploring the complexities of classifying personal medical error, one study stated "A physician's decision to disclose may be based on the perception whether an event actually constitutes an error and the degree of harm incurred. Physicians are often poor at predicting future medical outcomes. At the time a potential error occurs, a surgeon is often not in the position to say unequivocally whether the event will result in a subsequent adverse clinical event or whether there will be long-term significant harm.”

Ethical Obligations of Provider and Patient

Ethical obligations are not only the territory of the provider but also of the patient. In a government-sponsored report on patients' ethical obligations, the abstract explores how "moral obligation is not limited to truth-telling and promise-keeping. Such an ethics is poorly suited to medicine because it fails to appreciate that medicine's basis as a moral enterprise is oriented towards health values." The piece addresses patients' ethical responsibility for their own health, such a duty would not begin and end with full disclosure of medical allergies and accurate description of an injury event or successfully rating their pain on a 1 to 10 scale. "Just as a moral requirement rests on [providers] to promote their patients' health, so too does an ethical obligation obtain for patients to seek their own health." To what extent is health a personal human obligation? Taking a rather philosophical approach, we may conclude that humans have a reasonable obligation to maintain their own health precisely because we value human life, at the value is the foundation of all ethical logic.

Since health defined as an adaptive minimum, rather than an ideal, is required for long-term species survival, it can be seen as a fundamental constituent of any workable goal for the human species...the biological foundation upon which every other human purpose must rest. If there is to be an ethics for humans life must be a goal. And for human life to realize itself requires minimal healthy function." "Choosing in one's best interest rather than engaging in self-destructive choices (for example, continuing to smoke in the presence of lung disease)," is arguably an ethical duty of a patient, especially where determinations of malpractice are concerned. There are extremely complex ethical underpinnings to making this presumption of a patient duty to their own best interests, but for our purposes, it will serve. Summarizing the logical foundation upon which we may mount this patient duty, the report states "Disregard of life and health constitutes a threat to the moral order of the human community; that is, to the life-affirming consensus which makes morality possible. For this reason, persons who are grossly self-destructive in terms of health can be viewed as morally blameworthy at the broad level of the human community."

Nowhere was the consideration of patient responsibility more clearly legally elucidated than in the doctrine of comparative fault. There exists many forms of this doctrine, varied from state to state, however, it operates on the principle that a patient and a provider may be jointly responsible for an injury, and a patient is not absolved of guilt or scrutiny because they possess the injury. Comparative fault/contributory negligence doctrines allow the court to examine, to what extent, if any, did the patient contribute to injury. This is not to say some fault is always found with the patient when the court goes looking for it. These doctrines function merely to ensure evenhanded ethical fairness for both sides, allowing a closer look at certain, very nuanced injuries.

Some states bar plaintiff recovery (damages) completely if the plaintiff is found to be 50% or 51% at fault for their injury, depending on the state. Some still allow plaintiffs to recover even if they are as much as 99% at fault for their injury. Regardless, these doctrines provide some legal assurance that a physician will not be held entirely to blame for an injury which he did not fully, proximately cause. Patient contributor to injury seems abstract and improbable as it framed here (why would someone hurt themselves or intentionally worsen their injury), however, the doctrine is in place precisely because situations are so common in which the patient did contribute somehow. [3]

Advocacy and Ethics

Perhaps one of the most complicated aspects of medical malpractice is the convergence of advocacy and ethics. In all cases where we assume the provider was guilty, "the challenge to the attorney in this situation is how to represent her client effectively if credible evidence suggests that he has engaged in dishonest and unethical conduct." Legal representation of a would-be guilty defendant could at times tread a precarious ethical line; the defendant attorney's role is to ensure, in face of all guilt, that the defendant's rights are upheld and fully exercised, and all credible evidence to their credit is competently presented. [4]

It is sometimes difficult to fully reconcile advocacy with ethics. This is a far more pressing issue in violent criminal cases but sees a degree of applicability here as well. In medical malpractice cases, the attorney is suddenly thrust into a position in which she must educate herself in medicine enough to sufficiently assess her client's claim, at the outset. It could be argued that attorneys have a responsibility to not take on meritless claims/frivolous suits, as these only serve to burden the legal system, are usually dismissed, and waste a great deal of time and resources.

Although of frivolous suits is hardly rampant, as some would like to believe, there are cases which are fully litigated only to be ruled that there was no merit to the claim or at least insufficient merit. This does not mean the suit was frivolous. Plaintiff attorneys are often limited by the resources available to them to fairly evaluate the merit of the claim. Because they are not equipped with unlimited resources, they must sometimes make a judgment call from relatively little evidence, assuming it is sufficiently compelling. This may be construed as taking on frivolous suits, which many contend is ethically questionable.

Role of the Plaintiff's Attorney

Plaintiff attorneys carry a particularly tremendous burden. A patient client is normally unable to finance litigation, and unlike the defendant physician, they will not be equipped to furnish their lawyer with an intricate explanation and understanding of medical minutia. The plaintiff attorney is usually only compensated upon winning the case, assuming they do. The plaintiff attorney must then educate not only herself but also a jury as to the complex medical issues, even with the aid of an expert this can be cumbersome. Both attorneys should take good note of the personality and character of each litigant, and should generally operate under the assumption that they are representing good and honest people. Lawyers must keep to a duty of care, much the same way physicians have to.

They must identify care and diligence when selecting an appropriate expert witness, as this is one of the most crucial aspects of the case. Claims which are not explicitly upheld by the opinion of at least one expert witness will be thrown out. Failure to secure an appropriate witness is a detriment to the plaintiff, the attorney, and the case as a whole. A lawyer must likewise obtain informed consent from a prospective client about all the inherent risks, financial, legal and otherwise, of undertaking such litigation.

Medical practice suits weigh many ethical considerations from multiple parties, but the preservation of human dignity remains its foremost goal.

Footnotes

[1] McClellan, Frank M. Medical Malpractice: Law, Tactics, and Ethics. Philadelphia: Temple UP, 1994. Print.

[2] De Bord, Jessica. "Informed Consent." Ethical Topics in Medicine. University of Washington School of Medicine, 2014. Web. 31 May 2017.

[3] Sider, R C, and C D Clements. “Patients' Ethical Obligation for Their Health.” Journal of Medical Ethics 10.3 (1984): 138–142. Print.

[4] "Model Rules of Professional Conduct: Preamble & Scope." Americanbar.org. American Bar Association: Center for Professional Conduct, n.d. Web. 31 May 2017.

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