Re dead patients and res ipsa loquitur
I'm not sure it matters who is 'responsible' in the
context of medical negligence because damages always
end up being paid by the employing authority anyhow.
Much more sphincter tightening is the prospect of a
prosecution for manslaughter. Since the police can't
often catch proper criminals they increasingly take
pot shots at professionals. Also the GMC tends to
waste the occasional doc these days to show they are
on-message about poor performance. That won't bother
the managers too much either.
I'm afraid its every (wo)man for himself.
Best keep good notes!
Alan
--- [log in to unmask] wrote: > > from: Dunn
Matthew
> > subject: Re: Isn't that where "Trick & Treat"
> started?
>
> > In the US, the legal situation is rather
> different: EDs have a legal
> > responsibility (under the Emergency Medical
> Treatment and Active Labor Act)
> > to carry out Medical Screening Examinations on
> patients in the department
> > even if accepted by other specialities- exact
> extent of MSE not defined, but
> > in a case like this, res ipse loquitur argument
> would suggest that the MSE
> > was inadequate unless there was good documentation
> (and the 'check
> > physiological parameters, call consultant for
> abnormal physiology' seems
> > reasonable here).
>
> Oh not at all, Matt. Although a technical point, but
> hugely important, the legal principle of "res ipsa
> loquitur" rarely, if ever, applies to medical
> negligence cases. Res ipsa loquitur (literally, the
> thing speaks for itself) implies that the mere fact
> that an "accident" has occurred is deemed to be
> evidence of negligence. Such a philosophy would
> amount to no-fault liability, which does not apply
> to medical practice in this country.
>
> It's like saying, "the patient died, so the doctors
> MUST have got it wrong"! That simply does not apply
> to medical negligence litigation. There are,
> however, some notable exceptions, the classic
> example being swabs left in the abdominal cavity.
> Even if the surgeon produces evidence that he takes
> all necessary precautions to prevent this occurring,
> he will nevertheless be found negligent. That makes
> sense when you think about it, but what if the same
> surgeon has a difficult op, with excessive bleeding,
> and the patient eventually dies on ITU? He should
> not automatically be found negligent, for there may
> be many factors that led to the patient's death, and
> negligence is only one possible factor. "Res ipsa
> loquitur" is, however, being increasingly used as
> supporting argument with other areas of medical
> practice, particularly specific complications of
> surgical and anaesthetic procedures, but it is not
> automatically accepted by courts without other
> evidence and supporting argument.
>
> Clearly in this particular case (Kettering) the
> court found that the patient died of natural causes
> aggravated by neglect, but this was nothing to do
> with "res ipsa loquitur" which considers only the
> outcome of a case and prejudges on that basis alone.
> In current medical negligence litigation, however,
> the processes that lead to the adverse outcome are
> considered in detail before reaching a judgement on
> liability.
>
> Adrian Fogarty
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