Ethico-Legal Issues of Physician Malpractices

The occurrence of medical malpractice is not new in medical profession. There are a various types of malpractices of which unnecessary surgeries and surgical errors will be emphasized in the following reports. Lack of competency and negligence by medical professionals often lead to medical malpractices and errors further resulting in serious life threatening health conditions in the patient, which may even be fatal. Hence, medical malpractices raise several ethical and legal concerns which patients must consideration for the purpose of lawfully filing their grievances and obtain the compensation as per the injuries occurred.

Running head: ETHICO-LEGAL ISSUES OF PHYISICIAN MALPRACTICES
ETHICO-LEGAL ISSUES OF PHYSICIAN MALPRACTICES
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1ETHICO-LEGAL ISSUES IN PHYSICIAN MALPRACTICES
Executive Summary
The occurrence of medical malpractice is not new in medical profession. There are a various
types of malpractices of which unnecessary surgeries and surgical errors will be emphasized in
the following reports. Lack of competency and negligence by medical professionals often lead to
medical malpractices and errors further resulting in serious life threatening health conditions in
the patient, which may even be fatal. Hence, medical malpractices raise several ethical and legal
concerns which patients must consideration for the purpose of lawfully filing their grievances
and obtain the compensation as per the injuries occurred.

2ETHICO-LEGAL ISSUES IN PHYSICIAN MALPRACTICES
Table of Contents
Introduction..........................................................................................................................3
Medical Malpractices.......................................................................................................3
Types and Examples of Malpractices..............................................................................3
Misdiagnosis................................................................................................................4
Delayed Diagnosis.......................................................................................................4
Failure to Treat............................................................................................................4
Unnecessary Surgeries and Surgical Errors.................................................................4
Birth Injury..................................................................................................................5
Medical Product Liability............................................................................................5
Discussion............................................................................................................................5
Unnecessary Surgeries and Surgical Errors.....................................................................5
Analysis of Ethical and Legal Issues...............................................................................8
Recommendations..........................................................................................................10
Conclusion.........................................................................................................................11
References..........................................................................................................................13

3ETHICO-LEGAL ISSUES IN PHYSICIAN MALPRACTICES
Introduction
The following paragraphs of the report aim to shed light on the various types of medical
malpractices common among physicians, with a clear emphasis on the medical practice of
unnecessary surgeries and medical errors. The report also aims to analyze extensively and
elaborately on the primary ethical and legal concerned associated with the selected medical
malpractice, followed by recommendations concerning the prevention and management of the
same.
Medical Malpractices
According to Taghizadeh et al. (2017), medical malpractices can be defined as the
occurrences of faulty or inappropriate clinical practices in medical profession, due to
incompetence or negligence by the concerned physicians. Despite usage of quality practices,
healthcare professionals such as doctors may still perform clinical errors which are preventable,
resulting in fatal complications such as serious injuries or even death of a patient. Such medical
malpractices can be avoided in the clinical settings, but unintended errors may still emerge due to
lack of adequate competency or experience in medical professionals during the performance of
surgeries and administration of drugs. The conductance of errors and the associated patient
injuries often lead to serious ethical and legal concerned leading to filing of medical lawsuits
(Zhang et al. 2018).
Types and Examples of Malpractices
Some of the common types of physician’s medical malpractices include delayed
diagnosis, misdiagnosis, surgical errors, failure to treat and medical product liability.

4ETHICO-LEGAL ISSUES IN PHYSICIAN MALPRACTICES
Misdiagnosis
This occurs due to the failure of the doctor in illness identification after patient
examination and often results in the doctor administration an incorrect treatment procedure
which is unrelated to the care of the patient. Additionally, this malpractice also involves doctors
misdiagnosing the patient stating the absence of a discernible illness (Letterie 2017).
Delayed Diagnosis
Similar to the above, this malpractice involves doctors providing an incorrect assessment
and diagnosis of the patient upon examination. However, later the fault is corrected followed by
the required treatment which however, results in delayed patient management and by the, the
condition of the patient may worsen (Smith-Jackson et al. 2018).
Failure to Treat
In this case, despite correct assessment, the doctor may still administer an incorrect
treatment to the patient resulting in worsening of patient’s condition (Grauberger et al. 2017).
Unnecessary Surgeries and Surgical Errors
This includes the performance of incorrect and unnecessary surgeries on the patients,
which can lead to life threatening complications. Examples under this malpractice include usage
of non-sterile surgical equipment, leaving medical equipment in the patient’s body, incorrect
anesthesia administration and damage inflicted on the organs of the patient during performance o
surgery (Rynecki et al. 2018).

5ETHICO-LEGAL ISSUES IN PHYSICIAN MALPRACTICES
Birth Injury
This involves negligence and lack of adequate care during prenatal stage as well as
childbirth further resulting in fatal outcomes for the child and mother and also birth defects
(Cardoso et al. 2017).
Medical Product Liability
This involves usage of malfunctioning medical equipment resulting in serious patient
health consequences (Li et al. 2014).
Discussion
Unnecessary Surgeries and Surgical Errors
As researched by Graafland et al. (2015), the physician malpractice of surgical errors and
unnecessary surgeries can be explained with the help of the following examples:
 Performance of incorrect surgical procedures by healthcare professionals.
 Performance of surgeries which are unnecessary.
 Damage incurred to the organs of the patient during performance of surgery, such as
nerve injuries.
 Administration of inappropriate amounts of anesthesia, known as anesthesia errors.
 Usage of surgical equipment which are non-sterile.
 Occurrence of surgical incidences where the used medical equipment has been left inside
the patient, such as instruments or sponges.
 Provision of inadequate care and treatment to the patient after the performance of
surgery.

6ETHICO-LEGAL ISSUES IN PHYSICIAN MALPRACTICES
 Performance of surgery on the wrong patient.
 Performance of surgery on an incorrect body part.
As observed by Hemingway, O’malley and Silvestri (2015), a surgical error can be
defined as the occurrence of mistake during surgery which could have been prevented. Every
surgical procedure brings with itself a unique set of possible risks and consequences and hence
considering the possibility of unexpected outcomes, however minor, patients are required to sign
a form of consent prior to the surgery in order to provide their acknowledgement and awareness
of the same.
However, as researched by Bidra (2017), it must be noted that, the occurrences of such
malpractices such as surgical errors and incorrect surgeries can lead to serious and fatal health
implications in the patients. Often healthcare professionals justify their performance of such
malpractices by referring to the form of consent which a patient signs prior to surgery and
treatment, stating the acknowledgement of the patient concerning the possible risks and even
death which can result due to the chosen surgery and denying them the right to file appropriate
lawsuits against the clinical organization in question. According to Mushtaq et al. (2018), the
mere acknowledgement of a patient’s consent and awareness of the complications concerning
surgery does not justify the performance of deliberate or incompetent malpractices by the patient
which may result in life threatening complications such as death.
According to Chen, Havnaer and Greenberg (2014), malpractices such as surgical errors
and unnecessary surgeries can occur due to the following reasons:

7ETHICO-LEGAL ISSUES IN PHYSICIAN MALPRACTICES
 Lack of competency: Surgeries which are performed by healthcare professionals lacking
adequate experience and expertise are susceptible to incidences of surgical errors or the
performance of surgeries which are incorrect or not required.
 Lack of planning prior to operation: Prior to the performance of a critical surgery, it is
of utmost importance for healthcare professionals to conduct procedures such as
reviewing the medical history of the patient, assessment of the patient’s present medical
condition and evaluating the availability and functional capacity of required medical
equipment. An absence of such preoperative procedures increases the susceptibility of
risks and malpractices associated with surgery.
 Inadequate work process: During the performance of a surgery, physicians may
perform surgical steps deviating from standard procedures without adequately evaluating
the possible consequences. Hence, this such lack of evaluation may result in occurrences
of surgical errors and unnecessary surgeries.
 Lack of adequate communication: The outcomes of medical procedures are dependent
on a collective team effort by the overall healthcare workforce. Hence, due to lack of
adequate communication by nurses, surgeons may receive incorrect or incomplete
information concerning the patient’s health condition, or may perform surgeries using
defective equipment due to negligence by the concerned healthcare authorities, resulting
in malpractices and errors.
 Fatigue: Healthcare professionals such as physicians and nurses are required to work
under challenging and demanding situations, and are often subjected to long working
hours. This may result in burnout and fatigue further leading to lack of concentration and
possibilities of errors during surgery.

8ETHICO-LEGAL ISSUES IN PHYSICIAN MALPRACTICES
 Alcohol and Substance abuse: Stressful working conditions often lead to performance
of harmful coping strategies such as drug usage and alcohol consumption by surgeons
and physicians which may hamper their everyday functioning and increase the possibility
of errors.
 Negligence: Surgeons and associated healthcare professionals may often be ignorant
towards the performance of minute yet critical clinical procedures such as monitoring the
functioning of equipment or sterilization of surgical instruments hence leading to medical
errors leading to surgery.
Analysis of Ethical and Legal Issues
According to Berlin (2016), the performance of medical malpractices such as
conductance of unnecessary surgeries and surgical errors often lead to the emergence of several
ethical issues notably the health of the patient. Incidences of medical errors can lead to life
threatening consequences in the patient leading to serious and permanent injuries of deformities
and even death.
In Australia, medical malpractices can lead to emergence of serious medical
complications. According to Trulove (2015), in order to be legally eligible to file a medical
lawsuit resulting in the defendant to be guilty, the concerned medical malpractice must comprise
of the following components:
 Legal ability of the patient: In certain states of the nation, there may be laws which
restrict the ability of the patient to file a medical lawsuit against the healthcare
professionals who have been responsible for the performance of surgical errors.
However, is it worthwhile to know that the right of the patient to sue a healthcare

9ETHICO-LEGAL ISSUES IN PHYSICIAN MALPRACTICES
professional is not absolutely absent and if the occurrence of medical negligence and
associated damage to the patient has been proven, then the filing of a lawsuit may still not
be a lost cause.
 Breach of Duty: For a medical consequence to be deemed legally as an error and
malpractice due to negligence, the concerned patient will be required to prove that the
duties performed by the medical professional was a deviation from the standard
procedures, hence resulting in a breach of the required duties to be followed.
 Damage to the patient: For proving the medical defendant to be guilty, the patient must
prove that the he or she has suffered from extensive or life threatening damage, as a result
of the administration of the concerned surgical procedure.
 Causation: This is one of the most critical and difficult factors determining the legal
severity of an incidence of medical error and negligence. In order to prove that the
concerned health professional was guilty, the patient will not only be required to prove
the performance of wrong doing by the physician but must also prove that the harm
faced by the patient was a result of the wrongdoing.
 Defense: One of the biggest legal obstacles required to be overcome by the patient, is the
presence of a law which defends the actions performed by the concerned medical
professional, despite the negative implications. If it is proven that the concerned
physician performed a duty which is vastly accepted in the nation in terms of clinical
professional practice, and as well as by experts in a similar profession, then he or she is
not liable to be guilty. Hence, in defense, the concerned medical professional must not
aim to prevent the patient from filing a lawsuit, but rather must prove the acceptability of
his actions at the time of performance of the surgical procedure.

10ETHICO-LEGAL ISSUES IN PHYSICIAN MALPRACTICES
 Failure to warn: Every surgical procedure presents itself with its own set of risks and
complications which the concerned surgeon must communicate with the patient for the
purpose of enhancing patient awareness and obtaining the required consent and
acknowledgement. Hence is the medical professional failed to warn a patient concerning
the possibilities of surgical risks then he or she is liable to be filed under a medical
lawsuit.
Recommendations
Despite the possibilities available for the patient to file a lawsuit against the concerned
health professional, the legal and ethical issues outlining the medical malpractice in questioning
may still bring forth discordance due to the presence of additional complications such as
adequate disclosure of medical errors to the patient by the medical professional, administration
of defensive medicines as protection to the patient, administration of quality improvement
activities by the clinical organization and provision of care to the concerned patient by the
associated families (Kramer, Kinn and Mishkind 2015).
In accordance to Australian Medical Negligence Law, patients posses the right to file a
medical lawsuit if the concerned medical malpractice contains the necessary components as
mentioned above (Breen and Weisbrot 2015). However, as researched by Ross (2018),
concerning the various legal complications and defenses associated with medical malpractice, it
is recommended that the patient keep the following components in mind for successful filing of a
medical lawsuit.

11ETHICO-LEGAL ISSUES IN PHYSICIAN MALPRACTICES
 Time of filing lawsuit: The patient must attempt to bring forth the malpractice issue as
soon as possible, since delaying may lead to the dismissal of the case by the court,
irrespective of the validity of the facts.
 Consideration of Review Panels: Before bringing the issue to the court, patients may be
required to address the malpractice to a malpractice review panel, who will expertly
review the incidences using available evidence in order to assess the credibility of the
claim.
 Requirements of special notice: Patients in certain states may be required to first
address the issue to the concerned physician, before going to the court.
 Testimony by experts: Prior to bringing forth the issue, it is advisable for patients to
discuss the issue with professional engaged in a similar field, to further garner sufficient
strength and legal credibility.
 Thresholds of Damage: The Civil Liability Act provides thresholds and caps on
financial compensations upon proving the extent of injury incurred as a result of the
malpractice.
 Duty of Care: Duty of Care specifies obligations of responsibilities of patient safety for
healthcare professionals which must be considered by the patient prior to filing a lawsuit.
Conclusion
Despite the adherence towards professional standards, the profession of healthcare and
surgery are not devoid of complications in the form of medical errors and malpractices. A
number of medical practices occur in healthcare profession which the concerned physicians must
attempt to avoid. However, lack of competency and negligence may lead to errors and adverse

12ETHICO-LEGAL ISSUES IN PHYSICIAN MALPRACTICES
patient health outcomes leading to the emergence of several ethical and legal issues. Despite the
presence of adequate legal frameworks, proving a healthcare professional as guilty is a long
drawn and cumbersome process with little hope for success. Hence, to conclude, patients must
keep in mind several key legal considerations and recommendations for the successful legal
compensation of injuries due to medical malpractices.

13ETHICO-LEGAL ISSUES IN PHYSICIAN MALPRACTICES
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14ETHICO-LEGAL ISSUES IN PHYSICIAN MALPRACTICES
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