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Suing for malpractice vs complaining to the royal college of physicians?


shady

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http://www.cbc.ca/news/health/ratemyhospital/story/2013/04/15/hospitals-medical-mistakes-rmh.html

 

The complaint above was pretty much ignored by the college, and the hospital insurer decided the patient was not entitled to compensation. Well no sh!t ofc they refuse to give her money. If she didn't threaten to sue, what incentive do they have to hand out money.

 

Thoughts?

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Complications or errors do not entitle a patient to compensation. For negligence, there must be a duty of care on the part of a physician, and there must be evidence that this duty was breached, and that it led causally to patient harm.

 

I understand for complications, but how do errors not entitle a patient for compensation? If a physician makes a mistake from which a patient suffers, shouldn't the physician be held accountable?

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Aside from financial considerations, I was having this conversation with someone the other day and we were saying that it would be useful to have something like the WSIB for people who are involved in medical errors - it would probably prevent a lot of litigation.

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It's only negligence if the standard of care can be shown to have been breached, e.g. the counts weren't done or some other procedures failed to be followed. A mistake or error is not necessarily negligence.

 

Although a mistake or error per se is not necessarily negligence, I submit that in the case at hand, there was negligence. A miscount constitutes negligence in my view, e.g., either 2 people should have made independent counts and this would have avoided the error; or, only one person made the count and she was negligent in counting. I also believe that any damages were negligable and the fees of a lawyer for the plaintiff would be greater than the damages awarded.

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Well, no. Mistakes are not equivalent to negligence. For example, if ureteric injury occurred during a hyterectomy, this would be a complication but under the right circumstances could also be negligence. Additionally, if this risk was not disclosed during the consent, it would be considered battery.

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Then it's the nurse who should be sued.

 

Well, the injured party does not know this. She would sue the doctor and the hospital. In discoveries, she would learn of the nurse's involvement and might then add the nurse as a defendant, although as the nurse is a hospital emploee, she is already covered. Depending, the hospital might be more responsible than the nurse. Let's assume, the process in place at the hospital does not provide for a two person count; in that case, the nurse may have made an error that does not rise to the level of negligence, however, the process put in place by the hospital was less than best practice and may be faulty.

 

It is exceedingly difficult, confusing and costly for any injured party on her own to navigate the medical and legal system, and then, more likely than not, to be awarded relative peanuts in relation to the time, effort and expense. It is just not worth it to sue unless one is talking major damages and big bucks. In the US, contingency fees and specialists have it down to a fine art.

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http://www.commonwealthfund.org/Publications/International-Innovation/Jun/Improving-Patient-Safety-and-Lowering-Malpractice.aspx

 

No-fault compensation has been discussed as an alternative. The problem with trying to find the "responsible" party and sue them is that it does little to prevent future occurrences, instead making people reluctant to disclose errors and improve the system, which should ultimately be the goal as no human being performs perfectly 100% of the time. It also makes second victims of healthcare workers, assuming this was simply human error and not gross negligence - people have been driven to suicide in past cases.

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I love seeing the increased focus on preventing mistakes in medicine, but media reports on this issue really fail to mention a major point in the positions taken by the institutions they quote, such as the IHI. Namely, that mistakes are most often caused by the way we organize medicine, NOT by incompetent practitioners.

 

The surgical checklist is a classic fix - one that presumes that people, even very qualified, competent people, can make mistakes and puts in redundancies to ensure that those mistakes don't lead to actual errors. Even this checklist, as the example in the article demonstrates, can fail. Yes, negligence can be a cause, but it's not the most likely reason, nor should it be the first assumed reason. It's very difficult to know one way or the other without more details about the case.

 

A-Stark says it well - mistakes do not equal negligence. Everyone makes mistakes. Even when the stakes are as high as they are in medicine, everyone makes mistakes. We can't blame every mistake on negligence of the practitioner, because it's not generally the case, and it doesn't prevent future mistakes either.

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Sure. But in the end, someone at the hospital made a big mistake. That someone should be found, and that patient should be compensated. no?

 

Complaining to the college =/= suing. If you sue and you win you'll get compensated. If you complain and you win, the doctor will have some disciplinary consequence (eg: license temporarily revoked etc) but the patient will never get compensated. They're 2 different legal systems.

 

In order to win in disciplinary court (ie after a complaint to the college), the professional has to be found negligent. As many mentioned before, mistake or complication =/= negligence.

In order to win in front of a civil court, you must prove that there's been a fault, a damage, and a link between the fault and the damage. If you lack one of those 3 elements, you can't win in civil court. The odds must be 50+1.

 

So if the patient only complained to the college, even if there has been proven negligence, she/he will never get compensated this way.

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Complaining to the college =/= suing. If you sue and you win you'll get compensated. If you complain and you win, the doctor will have some disciplinary consequence (eg: license temporarily revoked etc) but the patient will never get compensated. They're 2 different legal systems.

 

In order to win in disciplinary court (ie after a complaint to the college), the professional has to be found negligent. As many mentioned before, mistake or complication =/= negligence.

In order to win in front of a civil court, you must prove that there's been a fault, a damage, and a link between the fault and the damage. If you lack one of those 3 elements, you can't win in civil court. The odds must be 50+1.

 

So if the patient only complained to the college, even if there has been proven negligence, she/he will never get compensated this way.

 

fair point. Although if I were that patient, I wouldn't think twice before filing a lawsuit.

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Leaving a sponge inside is a mistake and is negligent as there are policies in place to prevent this, and it's entirely avoidable. Other times there are things which are unavoidable, such as a patient who develops an intracranial bleed after being giving tPA. As long as they were aware of the risks, there is no possibility for compensation in that kind of case. You'll notice that 'leaving a sponge inside of you' is not one of the listed risks on a consent form for surgery, as it should never happen.

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It's of course difficult to say what really happened since we have only the patient's testimonial. Supposedly the counts were correct, but clearly they were not. If the obstetrician left the room before the counts were done, that would arguably be negligence. Surgeons leaving the room before the patient is awake is one of my pet peeves. I can see reasons for it in an academic centre where there's no shortage of housestaff on the team, but I remember one day in a "shoulder room" the resident and fellow kept leaving before the patient was awake let alone extubated. Whether that has any impact on safety I don't know, but one would think the patient's condition on emergence would affect post-op orders, for pain control if nothing else.

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Leaving a sponge inside is a mistake and is negligent as there are policies in place to prevent this, and it's entirely avoidable. Other times there are things which are unavoidable, such as a patient who develops an intracranial bleed after being giving tPA. As long as they were aware of the risks, there is no possibility for compensation in that kind of case. You'll notice that 'leaving a sponge inside of you' is not one of the listed risks on a consent form for surgery, as it should never happen.

 

There are many avoidable mistakes which have preventative policies in place that can still lead to harm. Policies can be ineffective on the whole, or can fail in certain situations. People can miscount; that's not negligence. If someone didn't do the count, that would be negligence. If a person consistently miscounted, that would be negligence.

 

Another thing to consider is that mistakes are not equivalent to harm. One is an action, the other is a result, and each can exist separate from the other. Some mistakes lead to harm. Administering tPA to a patient who should be getting tPA as proper medical care can result in harm without any mistakes occurring. Conversely, most mistakes do not lead to harm.

 

Leaving a sponge inside a patient is a result, a harm, one that almost certainly followed from an action, a mistake. As a result, that absolutely should never happen. The harm is avoidable. Not having made the mistake would have prevented the harm. But moving forward, preventing this from happening again won't be accomplished by simply trying to avoid mistakes, because everyone makes mistakes. A good system not only reduces the likelihood that mistakes happen, but also reduces the chances that they lead to harm when they happen.

 

Again, this situation may have involved negligence on the part of the health care practitioners. It's impossible to know with the details provided. Yet, the mere existence of harm doesn't necessarily mean a mistake was made (though it likely was in this case) and if a mistake was made, it doesn't automatically mean negligence.

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