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There are currently many myths surrounding medical negligence caused by incompetence in the professional field. Such European countries such as the United Kingdom and France are believed to have one of the highest levels of healthcare in the world. However during the last few years the amount of legal actions against the healthcare system, and particularly against medical doctors has elevated dramatically. Furthermore, the overall number of pecuniary compensations for the damage caused has risen over 80 times.
As such there is no such conception as medical negligence, however if we were to conduct an analysis of medical workers practical activities, we would be able to say that medical negligence infers to assignation of careless or inappropriate medical assistance by either a medical worker or a medical institution, which has caused harm to the health of the patient.
Strict rules that regulate the actions of medical personnel within a hospital are available. If due to any knowing or accidental reason a medical worker has failed to follow these standards and this had caused trauma to the patient, all the burden of responsibility for its consequences is being put down the medical worker, and if to be precise, on the insurance company that insures the hospital.
Medical negligence can have many shapes and forms: from a wrong diagnosis or a miswritten prescription, to deliberate denial of the required service and care. The most common illnesses associated with misdiagnosis or failures to uncover a disease are: heart attack, breast cancer, lung cancer, colon cancer, and appendicitis. Neglecting actions of such kind usually lead to serious consequences, such as permanent injury, severe disruptions and even death of the patient.
Medical negligence also encloses, but is not limited by illegitimate doctors behavior (sexual harassment), fallacies in the operation rooms (during anesthesia), and also birth injury. It must be mentioned that the patient possesses the right to hold the complete information concerning the condition of own health as well as treatment tactics. This includes the familiarization with the medical history health record, analysis results, and other various documents.
The patient must be aware of all the medical prescriptions, and in other words have a clear conception of the drugs that are being taken, know of their indications and contraindications. If the patient is suffering from allergies or intolerance to a certain group of pharmaceuticals, these data must be reflected in the patients medical record.
Stating the question of doctors and medical workers accountability is only possible in the case of establishing the fact of inappropriate fulfillment of professional responsibilities, as well as a direct causative connection between this fact and the harm done to the patient. In such case the most basic document is the health record. In the event where all the stages of conducted medical-diagnostic process did no get the full extent of reflection in this document, the court might have a solid argument to make a judgment against the medical worker.
Another aspect is that before any medical interference the patient must be informed of its all possible risks and consequences. However what is usually done when a patient becomes a victim of medical negligence? A patient that has got problems with his legal capacity usually appeals to a lawyer that specializes in the current field in order to carry out an inspection of whether a reimbursement for the damage is appropriate in this very case.
In case the harm done to the patient due to medical negligence has been confirmed the suitor along with his legal court action usually presents an experts evaluation that determines whether medical negligence had occurred. The specialist performs a full examination of the patient or the sufferer, studies the case circumstances according to medical documentation, as well as performs other necessary medical investigation, based on which he makes his own assumption.
Realization of such evaluation is mandatory, as in the opposite case it does not appear possible to file a lawsuit. Medical negligence could be the foundation for filing a court claim. The body of laws about harm attempt to bring medical negligence under regulation and divide it into three parts: cautiousness, reckless acts, and infliction of damage.
Based on the conclusions of the experts, taking into account the opinions of both sides, the court determines the amount of reimbursement for the damage done to health due to medical negligence, at that the court follows the legal norms and judiciary practice.
The purpose of this dissertation is to examine the legal issues that surround medical negligence in two European countries France and the United Kingdom, and to look as well as perform evaluation of the differences in both legal systems surrounding this sensitive area of law.
The currently established healthcare system in France has been functioning and developing for a period of over a century and in June 2000 WHO had recognized it as the best in the world system of healthcare. It gives an opportunity to all French people to make use of traditional therapeutic services, as well as the newest scientific accomplishments. The proof of efficacy of healthcare organization is a high overall level of national health as well as annual increase of populations life expectancy by more than three months. French women should be especially thankful to the public healthcare, as according to WHO data their average life expectancy is worlds second highest.
French laws and regulations foresee a wide array of universal public rights in the medical field. Almost 96% of the public are provided with either free or reimbursed therapeutic services. Currently the French also have the right to choose between medical institutions disregarding the level of income or insurance premium. For example, they can appeal for assistance to many general practitioners, as well as experts in public, private, academic, or basic clinical practice (Annas, 1999).
Besides, the waiting lists for surgical interferences typical for most other countries with governmental financing of the healthcare sector are not familiar to the French whatsoever. Medical insurance in France is a branch of the social security system. It is financed by the payroll taxes, income taxes, and after a recent reform by indirect tolls on alcohol and tobacco. At first thought it may appear that the French medical insurance returns less to the medical field than in other countries of the European Union. But this is not the case, as over 80% of the French population has additional insurances, often suggested by their employers. The social group with the least income has a free universal access to medical care, which is fully financed by taxes. It should be noted, that the spendings for the treatments of continuous or chronic conditions are also fully compensated.
The issue of liability takes up a major part of the medical field. In many developed countries the question of medical liability is arising as a part of comparative law, which is believed to bring some sort of harmonization into healthcare. Although medical liability is for the most part a national issue, this problem has a rather wider base. In 1991 the European Commission had presented a Draft directive to the European council on the liability for services, and in 1997 the convention on Human Rights and Bio-Medicine has been adopted by the council of Europe. Back in 1991 this proposal had been rejected, but currently it has gained some new interest and the harmonization of healthcare liability might soon be on the agenda.
A study done by Ewoud Hondius gives some insight on the differences in law regarding practitioners, medical services related to the care standards, causation and proof, damages, who is liable, exemption clauses, as well as patient insurance systems in such legal systems of the EU as France and UK. After analyzing these issues of healthcare liability, Ewoud Hondius concluded that there is considerable disagreement between these two legal systems, however they are demonstrating more interest in one another than ever before. It appears that exemption clauses are the only issues that possess some sort of consensus, whereas the problems of proof and causation and who is to be held responsible are dealt with differently in each one of the jurisdictions.
This author also stresses the difference between the Nordic countries which implement Patient Insurance Schemes and other more traditional liability systems in countries like UK and France, where administrative and criminal law are of the most interest, and private law is not as relevant. Ewoud Hondius also focuses on the legal response to personal injury or death caused by medical negligence of healthcare professionals focusing mainly on the compensation systems which are outside private law. It was noted that the success expectations have impacted the issues of medical practitioners liability not just by raising new standards, but also through creating new problems in the field of healthcare.
It is presumed that court decisions concerning medical workers are meant to prevent negligent or inappropriate treatment. Furthermore, non-financial expenses of medical workers for medical lawsuits (amount of time spent for the process and for interrogation, humiliation, loss of reputation, depression, etc&) are also negative stimuli of inappropriate medical treatment. Currently more and more doctors in UK and France, just as in other countries of the EU are resorting to defensive medicine. It is yet unclear, whether the restraining influence of tort liability system has reached its goals of lowering the numbers of unfavorable outcomes and transforming the style of doctors behavior to a more paradigmatic one (Postema, 2002).
British and French doctors are claiming that the modern system is forcing them to practice defensive medicine, which implies to prescription of costly and unneeded procedures, in order to minimize the possibility of a lawsuit. At the same time such defensive medicine is considered to be one of the factors of medical negligence, increasing the healthcare expenses (Miceli, 1997). The term defensive medicine is defined as prescribing of analyses and procedures, as well as evading difficult patients or procedures for the purpose of lowering the risk of being accused in medical carelessness. According to this definition there is positive defensive medicine which benefits the patients when doctors suggest additional tests and spend more time with patients, following the tactics of defensive medicine.
However cases of evading difficult patients or procedures as well as prescription of tests and procedures that do not benefit the patient are related to negative defensive medicine. In general the tactics of defensive medicine may serve to the purposes of preventing errors just as other expensive and wasteful methods.
Within the system of tort liability the insurance claims for medical errors in administrative districts or for a certain occupation are also considered to be holding back the doctors from low quality treatment (Markesinis & Deakin, 1999). In such manner insurance payments may fully compensate the pressure rendered upon the doctors and hospitals by medical workers liability system. As insurance premiums induce the prevention of negligence, it makes sense to give the structure of medical insurance claims a closer look.
Inherently there are two methods when the law of professional negligence influences the expenditures of healthcare. This may occur directly through the executive expenses of the professional liability system, and indirectly, when the system of professional liability influences the doctors behavior and tactics. Medical workers in France and UK bear direct management expenses of the professional liability system by financing the system through making insurance payments. With the tort system the direct liability expenses of medical workers measured by insurance payments, made by doctors, hospitals, healthcare management organizations, and other medical institutions make up less than 1% of the healthcare budget in UK.
Nevertheless it is believed that concealed expenditures of the medical system are very common to defensive medicine. Many doctors of high-risk occupations claim that they practice defensive medicine, prescribing more tests, spending more time with the patients, keeping a better count or evading the more difficult patients or sending them to other specialists. With such change of behavior, the defensive medicine may appear to be wholesome to the patients, although potentially high-priced.
In the beginning of the 21st century the French government approved a series of new laws that enable the healthcare system providing additional help to the citizens which are in need of everyday care, and compensate all accidents associated with medicine, irrespective of the medical malpractice fact. All these innovations have become a good addition to the list of already existing rights, such as pregnancy compensation costs, prevention measures payments, medical assurance of laborers and students, free organization of family planning, as well as a systematic screening for early diagnostics of several medical conditions.
Since 1996 the French government has been annually issuing a separate law for social security funding. This document gives a description of the healthcare budget for the upcoming year and determines the basic indicators that vary due to planned and practical amounts of fiscal charges. The government is providing medical insurance to the three main public groups: workers and their families, farmers, workers of business and art.
In each one of these three groups the expenses are divided according to the geographical approach depending on the type of expenditures. The latter implies to funding the services of general practitioners, cost of medical prescriptions, staying in public hospitals, private clinics, nursing care at home, as well as medical transport. The government performs its functions by means of central, regional, and departmental offices. Two major organizations are functioning under the leadership of the French health ministry: General Health Care Management Service, and Clinical Management and Medical Assistance Service.
In its turn each one of the governmental structures controls the multiple medical and preventive treatment facilities as well as administrative institutions. Just like in many other countries of the EU the numbers of doctors in France had grown significantly from 60 000 in the end of the sixties, to the current 185 000. There are 3 medical doctors for every thousand people, and this indicator can be viewed as superb even comparing to other developed countries (UK 3:1800, US 3:2700, Germany 3:3400, Italy 3:5900).
Concerning the gender ratios of medical staff, there is an interesting tendency towards increase of female doctors that today make up around 40 % of practicing specialists. The doctors, biologists, and dentists are getting paid in all hospitals as hospital staff, and their professional advancement depends on the experience. According to section 4 of the public service statute, there is a national system of hospital staff categorization.
All French medical institutions can be divided into three types: public hospitals, private clinics, and charity institutions. Currently 1032 regional, university local and general hospitals are related to the public hospitals. Some of them have a long lasting history, dating back to the times of Christian expansion in Europe. The public institutions differ widely according to their sizes structure, and functions. For example, the Paris public hospital holds over 80 000 staff, whereas some local institutions employ under 300 persons.
It is worth wile saying that the above Paris public hospital is the most essential group of countrys government clinics, created after the French revolution, and restructured in 1941 as a medical facility for the poor and industrial injury patients. Right now this facility is a multi-level organization responsible for high standards of treatment, development of medical technologies, and performance of scientific studies.
Since 1985 each public hospital is funded primarily (91%) by the funds of medical insurance, which are determined according to the data from the previous year. There is a medical information system that allows including exact data on the general pressure on a certain clinic, relative productivity of its divisions, and considering this information to make changes in the volume of financing.
The first progressive conceptions of medical ethics that have reached our days are recorded in the ancient Indian book Ayurveda, which took a close look at the issues of goodness and fairness, as well as instructed the doctors to be compassionate, charitable, fair, patient, calm and always in self possession. According to this sample of ancient literature, the responsibility of a doctor is confined in constant care and improvement of peoples health (Visscher, 1972).
A medical worker must defend the life and health of his patient as if it were his own. Medical ethics had received an even greater development in Ancient Greece, and its signs are clearly visible in the Hippocratic Oath. Medical ethics of progressive ancient doctors was directed against moneymakers, quacks, and racketeers that strived to benefit from an ill person (Radest, 2000). The Hippocratic Oath has made significant influence on medical ethics in general. Subsequently graduates of medical institutions were signing a pledge, which was based on the moral perceptions of Hippocrates.
A scrupulous specification of medical workers behavior norms is characteristic to the development of medical ethics in the modern capitalist era. In todays world medicine is transformed into an object of trade, where a medical worker is perceived as an enterpriser. Code of medical ethics becomes even more reactionary with development of new means of human extermination, leaving severe consequences for the future generations (asphixant gasses, nuclear weapons, napalm, biological weapons, etc&). More or less recent events of the passed century have reached an unprecedented level of genocide and racial discrimination.
It should be mentioned that all these antihuman measures involved workers of the medical field. Medical industry becomes more monopolistic, and medical ethics is currently deteriorating into a corporative moral of medical societies which favor the concerns of private practice specialists (Zussman, 1997).
The international code of medical ethics approved by WHO in 1968 defines the main doctors responsibilities as always corresponding to the highest standards of professional conduct, performing own professional duties, not thinking about the profit. It is unethical to perform any self-advertising, unless permitted by the national code of medical ethics, collaborate with any medical institution without professional independence, obtaining any money over the earned income for a service, even with patients consent (Wear, 1998). Any action or advice that could weaken physical or mental resistance of a patient may be used only for his/her benefit.
Currently the doctors are recommended to relate to new treatment techniques with great caution, as doctor should approve only the facts that he is completely sure of. Concerning the patient, the International code of medical ethics states the doctor must always remember of his liability to save human lives (Ellos, 1990). Therefore a medical worker must always demonstrate full loyalty to the patient, and bring all his knowledge to his benefit. Each time, when a test or treatment tactics require knowledge that exceeds doctors abilities, he is obliged to invite other specialists that possess the needed qualifications however it is doctor liability to provide assistance, if he is not sure that other specialists are able or willing to provide it.
In the beginning of the 20th century many aspects of people lives were used by the Soviet propaganda in order to proclaim the benefits of the newly emerged communist system. Viewing the problem of medical negligence Professor Epstein claimed that in a Soviet nation the issue of medical errors must be brought to their minimum. He presented proof of great success of the Soviet healthcare system, as well as medical science and technology.
Professor Epstein had also called to the importance of cultivating a sense of humanism and proletarian ethics in a future medical professional. Epstein indicated that the initial point of medical liability is the harm done to the patient in case of failure to render medical assistance, or careless attitude of a doctor when providing medical assistance, as well as medical errors. His discussions on some concrete violations that had no clear legal interpretation back in those years are somewhat fascinating.
Concerning the ideological landmarks of medical practice, the attempts to trace the story medical discourse establishment belong to Michael Foucault. This author is famous for his interpretation of bio-politics, which represent all applications of biology to the political sphere. This definition is rather broad therefore individual bio-politicians tend to adhere to narrower explanations of this concept (Luther, Gutman & Hutton, 1988).
For example, American politologists Albert Somit and Stephen Peterson define bio-politics as using biological conceptions especially the theory of evolution& and biological methods of research in order to understand political behavior of a human being. Michael Foucault introduced his own interpretation of bio-politics as an aggregate of political measures that influence human biological origin and give control over it for social purposes (Salter, 2006).
According to this theorist medicine takes up the most decisive place in the architecture of humanitarian disciplines. From here comes the authority of medicine in concrete forms of existence: health replaces salvation, which provides medicine with a status of human philosophy. Foucault claims that for the purpose of observing an individual, medical practice outlines clinical experience as the first rational concept.
He boosted the issue of medicalization when he observed the triumph of medicalization reflected in the fact that since the middle of the 20th century thanks to the advancements in technology, stationary treatment, successes in reanimation, analgesia, as well as certain healthcare politics, a human life became an object of total regulation and hospital management, which lead to a change of relation to death and style of dying in the modern epoch. In his lectures (1974-1975) Michael Foucault spoke about medicalization of intrafamiliar relations, which had started in European countries in the middle of 18th century.
In Self-regard he indicates the medicalization process of self-regard practice in the Hellenistic era. Back then, the internal connection between medicine and philosophy had been acknowledged, as both of them according to Plutarque derived from pathos. The care of ones soul is described by a wide array of medical metaphors. Foucault introduced a concept of autopathologization. However whether medicalization of Hellenistic culture of self is a historical truth or Foucault simply transferred this retrospective hypothesis to the present is a matter of debate. The metaphor of other cultural fields philosophies as a soul therapy has been living its own life since then.
It may be traced in the works of different philosophers in different times, for example in Friedrich Nietzsche, however to us it is important that we are currently observing total medicalization of everyday human existence, expressed in multiple practices and institutions.
In ethical doctrine which states that fault or rectitude of a deed should be determined based on the consequences is called consequentialism. The simplest type of consequentialism is classical (hedonistical) utilitarianism, which claims that an action is correct or incorrect depending on whether it maximizes the positive balance of pleasure over pain in the Universe. Moores consequentialism is known as ideal utilitarianism, and considers beauty friendship and pleasure as the main benefits towards maximizing which all deeds are directed (Holden, 2001). According to Hares preferential utilitarianism, actions are correct if they maximize satisfaction of preferences or desires, disregarding the type of preferences.
Consequentialists are also diverging in the question of whether each separate action should be evaluated based on the consequences, or only general behavioral rules should be assessed in such manner. In this case separate actions are evaluated from the point of view of adherence to these guidelines. Followers of the first view point are called utilitarians of action, and of the second one utilitarians of the rule. Consequential ethics is usually contrasted with moral arguments of deontology, which had ruled in the field of moral discourse during the major part of human history.
The term deontology derives from Greek deontos due, and logos knowledge and signifies a conglomerate of moral norms of professional behavior for medical workers. Lately, principles of deontology have found a reflection in various professional codes of journalists, social workers, etc& Deontology includes such issues as respecting medical secret, means of responsibility for the patients life, as well as relations of one doctor to another (Breen, Plueckhahn, Cordner, 1997).
According to the principals of deontology a medical worker must show maximum attention and apply all his knowledge for the purpose of improving patients health or at least bringing relief. A healthcare worker should also inform the patient only the information that might make him feel better, and avoid discussing patients condition with colleagues when the patient is around. This principal of deontology immediately bring up the issue of patients right to their information briefly mentioned earlier and poses a big dilemma.
The term deontology was introduced by a British sociologist and lawyer J. Bentham in 19th century in order to mark a theory of ethics. But the concept of deontology had emerged somewhat earlier (Singleton & McLaren, 1995). Hippocrates played a vital role in the development of deontological guidelines. The Hippocratic Oath reflects the most severe problems of the 20th century, for example it states that a doctor shall not allow religion, nationalism, racism, politics, or social condition to influence the performance of his duties. This Oath also claims that even when threatened, the doctor must not use his medical knowledge against the basic humane laws. This last phrase reflects the experience of World War 2, strengthens the Ten Nuremberg Regulations which stress the inadmissibility of criminal experiments on humans.
Practice shows that the doctors are in constant need of proof for their actions, in fact proof obtained through certain methods, adhering to several conditions (excluding subjectivism, expert comparison, adequate statistics, and logical conclusions). When a surgeon is asked a question about the reasons for his decision he usually refers to personal experience, knowledge, etc& Let us look at these decision making components from the evidence-based point of view. A doctor is mostly guided by personal experience, knowledge, medical intuition, colleagues advice, and official recommendations (Smith & Churchill, 1986).
A major conscious aspect is personal experience of a medical worker, as it is formed throughout many years, and without it the most brilliant abilities cannot be realized. Looking at this category it becomes clear that proof based on experience can be obtained only after analyzing the practical results. A doctor generalizes his conscious experience by constantly studying the treatment outcomes, frequency of complications, or distant results. Knowledge is another conscious aspect of doctors professional competency that commonly competes with medical intuition. However medical intuition is a very rare ability to make correct conclusions without any clear explanation.
Scientific bioethical literature indicates and explains its main principles. There are four main principles at the bottom of bioethics as medical ethics, based on ethical norms in the framework of medical investigations and treatment. Beauchamp and Childres define these principles as the respect for autonomy, non-malfeasance, beneficience, and justice. The principle of autonomy assumes the right of each individual to act according to his interests and concepts of life, politics, health, religion, and manage own body according to own discretion (Brazier & Lobjoit, 1991). Abidance of autonomy by others is included into this concept, and implies to providing others with the right of freedom to choose.
The principle of autonomy regards only to the social relations, as members of fauna are unable to realize this bioethical principle. The human survival is deprived of sense without natures survival. Regulations of autonomy concern human rights, in particular the rights to life, personal life, personal opinion and freedom of expression. Autonomy has today become a valuable trait of democratic society. Specifically, we are often speaking about autonomy in the field of making decisions about own health. It is yet important to determine the limits of this autonomy in the context of bioethics, in cases when autonomy could influence moral, psychological, and physical health of other individuals related to the patient.
The principle of non-malfeasance is an expression of the most ancient medical law. Its meaning is clear to all: any action in the medical field must be carried out with minimal danger to the body and psyche of an individual (Howie, 1983). In such context this principle obtained a new interpretation in the framework of rights to health, social security, and respect of human dignity. The principle of beneficence supplies a conceptual quality of interpersonal relations, as well as relation between humans and nature, orienting all human actions towards good deeds, performed to the extent of others interests. The principle of justice provides all individuals with equal chances in social relations, receiving medical treatment and being medically assisted (Johnson, 1999).
Bioethics in a broader sense as a science is based on the principals of dignity and human completeness, as well as his physical and mental weaknesses. The principle of morality lies at the heart of all relations of individual with biosphere and underlines the fact that strict adherence to panhuman values compiles the essence of human existence. Without this all scientific discoveries, mainly in biology and medicine may become dangerous and risky for the human kind. The vulnerability approach to bioethics presents the reality of each individuals life, as well as lives of all people. Bioethics considers the vulnerability of children, elderly, disabled, poor, and pregnant women, which directly relates to the regulations of international documents on human rights.
In my opinion, the progress of modern medicine is undeniable: highly effective medications, informative methods of diagnostics, etc& however ethical aspects of medicine have not lost their actuality, but gained greater significance in law than ever before. This is due to many reasons. The major reason is an increase of populations medical literacy, accessibility of medical information sources, equipment and medications, as well as preconceived orientation of the mass media at medical progress and shortcomings. From another hand, not only the patient had changed, but so did the doctor. He became not simply more available, but often less educated and single-purposed.
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