Medicine plays a very important role throughout the life of every person, and it is pointless to say otherwise. At the present stage, the problem of medical errors is a popular subject of research among doctors and lawyers (Guillod, 2013). With the transition from free medicine to the market of paid medical services, health care institutions can no longer justify professional failures of doctors without any explanation. It is difficult to talk about errors in any field of human activity, and this is a particularly difficult task in medicine. This situation is due to the fact that consequences of an insufficiently responsible attitude of a doctor to the performance of his or her work are extremely serious, including the incapacity, disability, and even the death of the patient. The peculiarity of a medical error lies in the impossibility for any healthcare system specialist to foresee and prevent future negative consequences. Thus, a medical error is a very wide-spread concept that should be viewed from the legal perspective in medicine taking into account its frequency, consequences, causes, types, and prevention.
The Concept of Medical Errors and the Frequency of Occurrence
On the one hand, to date, normative legal acts do not include the concept of a medical error, which gives grounds to consider it an illegal category and refute studies considering it the third cause of death. Furthermore, a medical error is not included in certificates as a cause of death (Makary & Daniel, 2016). The absence of its official legal qualification is an obvious gap in the legal regulation of the relevant relationship. This concept cannot be used in legal practice, since it is necessary to define the notion of a medical error clearly and fix it in the law. On the other hand, it is a quite common phenomenon (Guillod, 2013). This concept is often found in the educational and scientific literature on the medical law, organization of public health services, and various clinical directions. The problem is that despite frequent mentioning, different authors quite often understand various phenomena under the same term.
The relevance of the problem of the legal regulation of medical errors is great and explained by statistical data, taking into account the frequency of such cases. Also, it is necessary to note economic losses associated with the wrong activity of medical workers. The most important task of the medical law is not regulation by means of mechanisms of medical errors, but questions of the responsibility of medical workers with their implementation. The proper definition of the concept is necessary for the purpose to regulate its consequences. Numerous variants proposed by both doctors and lawyers are more or less based on the point of view that the primary cause is a bona fide or unintentional error of the doctor, which excludes criminal liability (Guillod, 2013). At the same time, todays development of the medical law dictates the need for a comprehensive perception of problems of medical errors in view of their close inseparable connection with failures in the provision of medical assistance. Moreover, this failure in medical care is related to incorrect actions of the medical personnel that are characterized by a conscientious error in the absence of signs of intentional or non-violent crime (Guillod, 2013). From this definition, it follows that a medical error arises when the doctor performs his or her duties in good faith but fails without a reason to talk about the presence of signs of a crime. It should be noted that the sematic meaning of this term is in many respects historically conditioned (Guillod, 2013). To date, there is every reason to consider the legality of the concept of a medical error, since professional failures happen in practice of the middle and junior medical staff.
Medical professionals from the Johns Hopkins University conducted a systematic analysis of studies devoted to medical errors. The number of deaths of Americans from improper treatment is estimated at 44-98 thousand cases per year (Makary & Daniel, 2016). There are both objective and subjective factors. One of such is that a doctor deals with a very subjective assessment of patients feelings, which cannot always be confirmed by the so-called objective methods of research. As a rule, objective causes create a background, and an error is realized as a result of subjective factors, which give a real opportunity to reduce medical errors.
Consequences of Medical Errors
The concept of medical errors is very important since it concerns both a patient and a doctor. The health care system is a very complex one that can involve such events anywhere (Agency for Healthcare Research and Quality (AHRQ), 2017). If a healthcare professional is found by the healthcare facility to make a medical error, one of the consequences for the one will be a punishment in the form of reprimands, deprivation of the category, training courses, and so on. Perhaps the mistake will lead to a transfer from one job to another (Guillod, 2013). If an error is detected during an external investigation, the responsibility in this case can be conditionally divided into two types, namely civil and criminal.
Medical errors are divided into a crime through negligence and a conscientious delusion. Both of these crimes are closely related and entail criminal liability, which comes as a result of a forensic medical examination (Guillod, 2013). A bona fide error of the doctor implies that even a professional in his/her field of work can confuse symptoms of the disease, which leads to a fatal outcome. A crime through negligence is considered to be an action of a doctor who has not foreseen the consequences due to circumstances. Also, a mistake can be made because of his or her lightness or negligence. In this case, the case requires a more severe punishment. The patient can file a claim against a specific doctor, medical staff, or a clinic in general (Guillod, 2013). As a result, the doctor will be held liable if he/she is found to make a medical error. In the second and third events, both a group of persons and the clinic as a whole can be held liable. Recently, clinics have practiced solidarity with their doctors who have made an error. It means that responsibility will directly affect the entire medical staff of the clinic. It can be in the form of material payments, fines, deprivation of qualifications, administrative penalties, or criminal liability.
A medical error is not a disease, but it can cause irreparable harm to the health of the patient, lead to the aggravation of the condition, and complicate disorders (Makary & Daniel, 2016). Civil liability means a monetary compensation for damage including moral one, patients money spent on the service, cost of care required, price for additional services, time, and others. There is no clear algorithm for determining the amount of money that the plaintiff may require. Therefore, he/she has the right to present the sum he/she needs, but within reasonable limits.
Causes of Medical Errors
For legal science in general, the study of the notion of a medical error is important from the point of view of the legal responsibility of medical workers for causing harm to the health of patients. Medical errors can have a wide range of causes (Niss, 2010). As for objective factors, it should be pointed out that the etiology and clinics of a number of diseases, in particular, rarely encountered, are insufficiently studied. However, the main objective causes of medical errors are the lack of time for the examination of a patient or a trauma victim, and the absence of necessary diagnostic equipment, as well as atypical course of the disease, when the patient has one or even more conditions at the same time (Niss, 2010). Operations are especially complex conditions because there is no abstract disease, but a specific patient in the hospital, where the doctor should remember about some kind of individual reaction. Thus, the individual factor is the core objective cause of medical errors, and no guidance or experience can guarantee absolute infallibility of doctors thoughts and actions.
The most numerous group among the subjective reasons for medical errors is ones caused by the lack of doctors experience, but they cannot be qualified as ignorance cases. Medical errors are based on insufficient constructive thinking (Guillod, 2013). It determines the correctness of diagnosis, bias of opinion, vanity, and indecisiveness of character, the desire to make interesting diagnoses, pessimism or excessive optimism.
Types of Medical Errors
Today medical errors have their classification according to different principles, the main of which are at what stage of the implementation of medical care and in which fields of activity such cases occur. Diagnostic kinds of errors occur at the stage of diagnosis and are the most common (Niss, 2010). Organizational errors happen due to the insufficient or illiterate organization of medical care, as well as the inadequate provision of medical services. Treatment-tactical errors as a rule occur after diagnostic procedures. That is, the expert makes a mistake in the diagnosis and begins to treat the patient in accordance with it. Deontological errors concern the psychological nature and behavior of the doctor when communicating with employees, patients, and relatives of clients (Niss, 2010). Technical errors often concern paper work. It may be an incorrectly completed patient card, record or any medical documentation. Pharmaceutical ones are in situations when the pharmacist incorrectly determines indications or contraindications, as well as compatibility with other drugs.
Medical errors today are not uncommon. Every specialist can make an error in any health care delivery system (Niss, 2010). As a consequence, there is already a considerable amount of statistical facts with various situations, in which medical errors appear. Errors that cannot be classified in any way are referred to as other. Thus, responsibility for errors depends on their type.
Prevention of Medical Errors
First of all, it is necessary to be a professional. Almost half of patients seek medical help for reasons that are deeper than the stated main complaint. Prevention measures are discussed in limited and confidential forums, namely by the hospitals committee or during the departments morbidity and mortality conference (Makary & Daniel, 2016). It is necessary to remember the importance of the preservation of interpersonal distance because this fact reduces the risk of manipulation by the patient. It is important to remind the latter about the confidentiality of the conversation. Also, the prevention of medical errors requires the separation of responsibilities. Patients who are more actively involved in the process of their own treatment have not only a better chance of preventing a medical error, but also coping with the disease. The doctor should talk to the client and determine to whom from his/her relatives or friends he/she can transfer information about his/her state of health (AHRQ, 2017). The healthcare professional should remember that he/she can only recommend using this or that method, but the final decision should be made by the patient.
Also, it is very important for the doctor to recheck information. The failure in the collection and/or misinterpretation of anamnesis, including the one made by the patient himself/herself, is one of the most frequent causes of medical errors. Healthcare professionals should try to recheck information coming from patients relatives (AHRQ, 2017). Correctly issued medical documentation is the only proof of the innocence of the doctor. Thus, the more signs of the direct involvement of the patient in the process of diagnosis and treatment are in the history of the disease, the better it is for the doctor.
Taking into account the whole significance of the medical error concept, it is necessary to note that it has its force. The consequences of these errors are very serious. However, this fact illustrates that their number should be reduced through appropriate laws and legal actions since the statistics shows that medical errors take the third place among death reasons in medicine. The main way is a systematic analysis of errors in each medical institution. In a good clinic, any mistake made by a doctor, even the smallest one which has not caused consequences for the patient, will be analyzed next day. Serious errors are to be discussed at a hospital conference with the compulsory participation of students. In this case, it does not matter who has made mistakes, a professor, associate professor, head of the department or a doctor on duty, the worst thing that can happen is the case when the doctor has hidden his/her error, and after a while his/her colleague will repeat the same mistake just because the problem has not been solved on time and no respective punishment method has been used.