Legal issues and concepts Essay Example | Topics and Well Written Essays - 2500 words

Legal issues and concepts - Essay Example The concept of malpractice was related to the medical profession in 1768 by Sir William Blackstone, who defined mala praxis or bad practice to include, "Injuries... by the neglect or unskillful [sic] management of [a person's] physician, surgeon, or apothecary... because it breaks the trust which the party had placed in his physician, and tends to the patient's destruction2." Tort law comes into play whenever one person harms another. Tort derives from a Latin word which means twisted. Therefore, a tort is an act that has been twisted from the benchmark or is in other words a wrong. The objective of the legal system in resolving torts is to restore the plaintiff to his previous condition; however this can prove to be impossible in many medical situations. If this is not possible, then money is awarded to compensate for the damages that the defendant caused the plaintiff. In the mid 19th century, physicians strived to obtain for medicine the status of a profession, arguing that physicians and patients were not peers and, hence their relationship should not be judged under the contract law. This change in status enabled medicine to obtain the licensing laws sought by physicians of the period. However, it also served to force malpractices into the sphere of torts, which are vaguer, easily manipulated and more subject to interpretation. A malpractice tort comprises of four criteria, first, duty to treat; second, deviation from the standard of care; third, damages; and finally, the causation of damages by the deviation, which is also known as proximate cause. Success in a malpractice action requires the plaintiff to establish that the defendant has met all the four criteria otherwise the defendant will not be held to be guilty of malpractice. Depending on the state, additional criteria might be required for allowing a case to go to a jury trial. The term duty refers to a duty to provide the standard of care, which is established when the physician patient relationship is created. It refers to the duty to show the required skill, care, and diligence that a prudent physician would have shown under similar circumstances. In the emergency department (ED), the physician and patient have no choice in choosing the relationship. The federal Emergency Medical Treatment and Active Labor Act (EMTALA)3 applies to EDs requires emergency physicians (EP) and hospitals to provide medical screening examination in all emergency cases, regardless of that person's paying capacity. Under EMTALA, ED and emergency medicine (EM) physicians have to provide care, whereas private practitioners need not do so. Since, EMTALA has unequivocally established the duty of a hospital and EM physician towards the patient, the premise of duty is an uncommon contention in EM malpractice cases. Causation in technical cases, like those involving medical practice can prove to be abstruse for a layperson. Further, confusion is caused by the differences between medical causation and the legal concept of causation. Legal causation or proximate cause refers to the single causative factor of injury. The defendant physician is liable for injuries if they had been of an anticipated nature. In Falcon v Memorial Hospital4, a woman after childbirth had an amniotic embolism and died due to non provision of an intravenous line, which according to the testimony, would have given her 37.5% chance to survive. The court held that this had resulted in the patient being deprived of a chance to survive