The following student essay was submitted as an entry in our scholarship essay contest.
Mindboggling Medical Malpractice
by Ruby D. Carter, RN BSN
Patient suffering is the last thing a nurse wants to witness. We have an obligation to do no harm and to protect those we serve. However, despite this oath that all medical professionals vow to oblige sometimes we cause them harm. For instance, surgical errors are more common than uncommon. Envision a patient going to surgically remove infected pouches in the bowels called diverticulitis. Now envision the patient waking up post surgery with an irreversible colostomy. The aftermath is unfortunate. The patient experiences nausea, vomiting, and malnutrition because their nutritional source is intravenously. As a nurse I always wondered why most medical malpractice cases cannot be pursued?
Nurses are forced to practice something unethically cunning. When a patient falls we are taught not to document in the nurses notes that an incident report was written. The rationale is that if a patient files a lawsuit the attorney will want the incident report disclosed. The theory is if there is no evidence an incident report was written then it doesn’t exist. This in fact is unethical because this practice fails to protect the patient but protects the medical facility. This practice forces the nurse to protect their own interests because the nurse is in fear of their job.
The elements of malpractice furthermore enable medical malpractice cases difficult to pursuit because all elements have to be proven. These elements include duty owed to the patient, foreseeability, causation, breach of duty owed to the patient, injury, and damages. Duty owed to the patient is a reasonable person taking precautions against creating unreasonable risks of injury to other persons. The scenario mentioned earlier is difficult to prove if the surgeon did not deviate from the standards of care. Therefore, how can you prove a breach of duty owed to the patient? In addition, if the surgeon treated the perforated bowels then the standard of care was reasonable.
Foreseeability is the concept that certain events may be reasonably expected to cause specific results. Surgeons are extensively trained so if the surgeon perforates the bowel that is not foreseeable. Causation is more difficult to prove due to that the injury must have been incurred directly as a result of the breach of duty owed to the patient. If a patient’s bowels already had infected pouches and perhaps other complications from the diverticulitis how can one prove that the surgeon is completely at fault of the perforated bowel? The bowels could’ve been perforated before the surgery because the patient has intestinal abnormalities.
Injury is the element of malpractice that demonstrates physical, financial, or emotional injury resulted from the breach of duty to the patient. Typically, the courts do not allow solely on negligently inflicted psychological injuries. However, if there is physical harm then the courts are more likely to honor emotional injuries. Obviously, a patient experiences emotional distress from a change in body image from the colostomy. However, if it can’t be proven that the irreversible colostomy resulted from a breach of duty owed to the patient then injury is not proven. Damages main purpose is to provide compensation for the patient and there are four types. The scenario mentioned above my not be considered due to the patient’s pre op state.
Medical malpractice cases are difficult to pursuit because unlike in criminal cases the defendant has burden of proof. Plaintiffs will never admit fault making medical malpractice challenging. Consequently, the only ones that suffer are the patients, and that is unjust. Mostly, the reason that medical malpractice cannot be pursued is because all elements of medical malpractice must be proven.
In addition, the informed consent makes things even more complicated. When the informed consent is signed by the patient the patient is agreeing to a procedure despite of possible outcomes. It is also implying that the patient understands possible adverse effects of the procedure and the patient is still willing to take that chance. So if a patient signs the informed consent then it says the patient was aware of possibilities and continued to want the medical intervention completed. If the patient was of sound mind and body and still signs the informed consent then they are willing to take the risks of the medical intervention. Therefore, how can medical malpractice be pursued if the patient was fully aware of the possible consequences and still decided to go on with the procedure?
Certain laws in general make medical malpractice cases difficult to pursue. However, it is possible to find fault in some cases. As a nurse I have seen countless medical mistakes from physicians, nurses, surgeons, and so on. It is the human condition that makes professionals less than infallible. Yet, it is how the mistakes are dealt with is what makes medical malpractice cases something to pursuit. As long as humans are the professionals’ mistakes will happen. With nurses getting higher patient ratios and overwhelmed physicians it is inevitable mistakes will occur. The main point of the matter is how do we fix it?
Guido, G. (2006). Legal and ethical issues in nursing.(4th ed). Pearson Prentice Hall: New Jersey
Stuart A. Carpey, who has been practicing as an attorney since 1987, focuses his practice on complex civil litigation which includes representing injured individuals in a vast array of personal injury cases.