MEDICAL NEGLIGENCE
(MALPRAXIS, MALPRACTICE)

Negligence is the omission to do something, which a reasonable man would do, or commission of something, which a reasonable man would not do.

MEDICAL NEGLIGENCE (OR) CIVIL MALPRAXIS

It is the failure to exercise reasonable skill and reasonable care by a doctor in the treatment of his patient, resulting in damage to the patient.
For a medical negligence to be proved, it must be shown that: -
(1) There must be a duty of care to exercise reasonable skill and reasonable care on the part of the doctor.
(2) There was dereliction of that duty
(3) There must be direct causation
(4) That it has resulted in damage to the patient

WHEN DOES THE DUTY OF CARE BEGIN?
The duty of care by a doctor is formed when a "doctor-patient relationship" is established. This relationship is formed by a formal acceptance of a patient by a doctor in a private clinic, or in a hospital. It could be formed when a doctor approached an ill or injured person to assist him in an acute emergency.
The duty of care exists even if there is no payment or reward. eg., when he attends an injured or unconscious person involved in a road accident.

"REASONABLE SKILL AND CARE"
The duty of a doctor in the treatment of his patient is to exercise "reasonable skill and reasonable care". That duty starts when the doctor-patient relationship begins. i.e., from the moment the doctor undertakes to give treatment to the patient. Remember the word – "reasonable skill and care". It does not mean the utmost skill or care, nor the best skill or care.
The standard of skill varies a great deal from doctor to doctor. A doctor of a particular status is expected to have the standard of knowledge and capabilities that is consistent with his status. If he is a general practitioner, reasonable skill for this doctor would be the average skill of a doctor of that standard.
An ordinary doctor (G.P.) is not expected to have the skills of a specialist. But a specialist in a particular field is expected to have the same skills and knowledge as of another specialist in the in the same field. Even among G.P.s. some are highly skilled and some are not. The word "reasonable" does not compare with "highly skilled"; as long as he possesses the average skill of all the doctors of his status, that is enough. The word "reasonable" also have connection with availability of facilities. Even though he may be highly skilled, if he is posted to a remote area, due to lack of facilities, he may be below par.
Reasonable care does not mean that the doctor should look after the patient for the whole day or the whole night; it depends on the patient's condition.
Reasonable care can be said to have been exercised when it can be shown that what was done was in accordance with general approved practice.
Failure to adopt generally approved methods of diagnosis or treatment would be regarded as lack of reasonable care. Thus, the omission of X-ray examination in circumstances where a fracture or dislocation was suspected, or ought to be suspected may be sufficient to establish lack of reasonable care. Failure to give anti-tetanus serum in circumstances where this is generally recognized as a proper step, can also be regarded as lack of reasonable care. Failure to administer an antibiotic, when it was indicated, would also be deemed negligent.

BREACH OF DUTY 
There is failure to exercise reasonable skill and care but we must also remember that while the doctor is treating the patient, he is not guaranteeing a complete cure. He is not the insurer of complete safety of care. A doctor does not guarantee to provide the best possible care but only the care, which is consistent with his professional status. 

COMMON CAUSES FOR NEGLIGENCE ACTIONS ARE: -

1. Departure from accepted medical practice
Failure to take X-rays or to give anti-sera in appropriate circumstances, tight plaster casts resulting in gangrene.
2. Amputation of the wrong limb or digit
Carelessness in hospital notes, errors in pre-operative skin marking, failure to check notes against the patient in the operation theatre. A similar mistake involves operating on the wrong patient.
3. Retention of objects in operation sites
Swabs, packs, towels or instruments may be left behind in the abdomen after operation. The responsibility remains with the surgeon, and even if the theatre sister has the actual task of maintaining a swab count, the surgeon must satisfy himself that she is correct before closing the abdomen.
4. Surgery, orthopaedics and obstetrics
Any surgical procedure may give rise to allegations of negligence, but orthopaedics, plastic surgery, obstetrics and gynaecology are 'high-risk' specialties. Missed fractures, tight plaster casts and poor results from spinal procedures are common complaints in orthopaedics. In obstetrics, damage to the newborn from anoxia or forceps are common causes. Failed tubal sterilization is a common cause for litigation in gynaecology.
5. Casualty departments
In medico-legal sense it is the most dangerous part of a hospital because –
(a) The least experienced doctors are posted there 
(b) Emergency cases such as head injuries occur mostly at night
(c) The ability of the doctors may be impaired by sleepiness
6. Anaesthesia
Administration of wrong drugs or wrong dosage may lead to death. Ancillary procedures such as blood transfusions, injections, airways, intravenous catheters, and diathermy may form grounds for negligence. One of the most tragic mishaps is the production of cerebral damage from hypoxia due to failure to maintain oxygenation during the operation. (inattention of the anaesthetist; failure of equipment)
7. Therapeutic hazards
Some drugs have well known potential dangers. e.g., anaphylatic shock in allergic patients; patients allergic to sulphur, A.T.S. (importance of test dose)
Certain operations carry well-recognized risks e.g., laryngeal paralysis in thyroidectomy.)

8. Failure to obtain an informed consent
To be legally binding, the consent given to an operation must be an informed consent i.e. with an understanding of what is to be done and the risks involved; not only the risks of operation but also the risks of anaesthesia must be explained to the patient or his relatives who is responsible for giving consent. The patient must be told all the possible post-operative risks and remote complications and also why this particular operation should be done and the existence of alternative treatment must also be explained. After explaining the patient and stating the pros and cons of all available methods and the reason for choosing a particular method and after the patient had fully understood all these, if he had decided to submit to all these consequences, he will sign the consent form. This is the so-called 'informed consent'.
If an informed consent is not obtained, he may later on allege and testify that he or she had not been informed of such consequences and further that the risks following such an operation had not been disclosed to them. If such consequences, risks and complications had been disclosed to them, they will say that they would not have consented to such an operation.

DAMAGE
There must be damage to the patient. A patient cannot sue a doctor for negligence if no damage has been done however negligent the doctor might be. In a trial court, the damage is usually expressed in terms of money.
The damage may be: -
a) Loss of earning. – due to enforced absence from work.; inability to do his previous occupation
b) Expenses for medical treatment. – hospital , nursing home, special treatment
c) Reduction in expectation of life
d) Reduction in enjoyment of life – loss of limb or sense
e) Physical disability or disfigurement – reduce chances of marriage or inability to have further children
f) Pain and suffering – physical or mental
g) Death

DIRECT RELATIONSHIP
The damage to the patient must be directly related to the breach of duty by the doctor.
All these stages must be proved one after another and the burden of proving this rests upon the plaintiff. A layman will not be able to prove all these. He will have to hire an expert medical witness to prove all these step by step.

RES IPSA LOQUITOR
Normally, the task of proving negligence rest upon the person bringing the action (plaintiff) – the burden of proof rests on the plaintiff. The plaintiff has to establish: -
1. That there was lack of skill and care by the doctor to such an extent as to lead to bad result.
2. That there was connection between the negligence and the injury complained of.
But sometimes, the facts are so obvious that the plaintiff need not prove it. The doctrine of "Res ipsa loquitor" will be used. It is a Latin term meaning "the things speak for itself". The injury complained of could not have of happened without the negligence of the doctor.
Example:- Amputation of the wrong limb, retention of swabs in the operation site.
In these cases the doctor has to prove that he is not negligent and the plaintiff does not need to prove step by step. In other words, the defendant doctor has to explain that he is not negligent. i.e. the burden of proving negligent or non-negligent has shifted to the doctor's side.
In most cases, the facts are so obvious that it is usually impossible to defend the doctor and settlements are made out of court.

DEFENCES AVAILABLE FOR THE DEFENDANT DOCTOR

There was no legal duty
There is no legal duty for any doctor to give treatment to each and every patient. The duty of care begins only when the doctor-patient relation is established. A doctor is not negligent if he does not offer his services in an emergency to a person who is not already his patient as no doctor-patient exists (though the ethics might be questionable). Even in an acute emergency, once a doctor approaches an ill or injured person with the object of assisting him, then a completely valid relationship is set up, notwithstanding the fact that the patient may be unconscious and quite aware of the doctor's presence. The fact that no payment or reward is offered or expected, makes no difference to the duty of care, the essential ingredient of which is willingness to examine, diagnose and treat the patient.
There was no negligence
Even though the patient had alleged that the doctor is negligent, he can rebut this allegation by evidence. The doctor must prove that he has exercised reasonable skill and care.
e.g., A patient died due to anaphylatic shock to penicillin injection. In this case the doctor must prove the following facts in a trial court. 
(a) That he has asked the patient for a past history of allergy
(b) That he had done a proper test dose of penicillin before giving the intra- muscular injection
(c) That he was able to recognize and interpret the reaction of the test dose
(d) That he was able to recognize and interpret the moment that anaphylatic reaction occurred
(e) That he had given all the resuscitative measures to combat shock
(f) That when the patient's condition has worsened beyond his capability, he has taken the patient to a hospital (in his own car) to an intensive unit and yet the patient died
3. Contributory negligence
When contributory negligence combines with the negligence of attending physician so as to constitute a part of the proximate cause of injury complained of, the patient cannot recover damages from the physician. In most jurisdictions, contributory negligence is the complete defence to an action to recover for injury arising out of the negligent action of the physician. In some countries, though this may not defeat the claim, it may well appreciably reduce the damages. e.g., failure to exercise the fingers by the patient after applying plaster cast as instructed by the doctor.
4. That he had obtained informed consent
5. Assumption of risks
In the medical profession, any medical undertaking whether treatment or diagnostic procedure or corrective surgery, all have their own attendant risks. The moment the patient submitted to a surgical operation or manipulative procedure, it is assumed that the patient had accepted such a risk. That is why the importance of obtaining informed consent. 
6. Wrong diagnosis is not a ground for negligent action unless it is shown that he did not exercise proper care in making it; e.g., failure to examine the abdomen of a child suffering from appendicitis; or failure to keep the child under observation if such a condition were suspected.
7. Two schools of thought
e.g. treatment of peptic ulcer – medical treatment / surgical treatment
The mere fact that there are so many schools of thought and the choice of one method of treatment does not amount to negligence.
8. Delegation of duties
(i.e. shifting the blame to someone else)
A doctor may say that the negligence was not due to him, but of some third party. That person may be another doctor, nursing staff, technicians, radiographers, physiotherapists.
In hospital practice, where the fault lies with the non-medical members, the hospital authorities assume full responsibility for these servants. 
However, a doctor, especially a consultant in charge of a department, can only shift responsibility to members of his staff if he can prove that: -
(a) He has ensured that the staff are properly trained, qualified and experienced;
(b) He has devised a safe system of working; and
(c) He has made the staff are fully aware of this system, preferably by written orders.
These safeguards apply mainly to non-medical staff such as radiographers, laboratory officers etc.
Where junior medical staff are concerned, seniors should not delegate tasks in which the juniors are not reasonably experienced.

RESPONDEAT SUPERIOR (Legal maxim)
- Let the master answer
- The master is responsible for the action of his servants
When an agent or an employee or a servant is under the exclusive control of the principal or the employer or master, it is said that a condition called "Agency" exists. It is nothing, but a contract – called "contract of service". In all these cases, the master will be liable for all the negligent actions of his servant.

In any hospital, the consultant in charge will be answerable for the negligent acts of his assistant or junior doctors under his care, whereas the menials, wards servants, sweepers, and nurses, if they are negligent and the patient is injured, the hospital authorities (medical superintendent) will be answerable for their negligent actions because there is a master-servant relationship between them and the hospital authorities.
The medical staff (doctors) are not under the exclusive control of the hospital authorities 
( Medical superintendent ) and therefore the M.S. will not be responsible for the negligent action of the doctors. This condition is called "contract for services" (means independent contract).
In hospital service, a doctor is not responsible for the negligence of a nurse, who is directly the burden of the hospital management. If however, the nurse's injurious behaviour was a direct result of wrong direction by the doctor, he might find himself jointly liable. Outside hospital, in either a nursing home run by a doctor or in G.P., the relationship of master and servant again holds.
In hospital service, the legal relationship of the consultant to the assistants is based upon the negligence of the consultant in delegating authority to a junior not sufficiently proficient to carry out the delegated duty.
In private practice, where a doctor employs a non-medical person, the legal relationship of master and servant is applied.

CRIMINAL NEGLIGENCE (CRIMINAL MALPRAXIS)

When a medical man shows gross unskillfulness or unreasonable carelessness in the course of treatment resulting in serious injury or death of the patient, it amounts to criminal malpraxis.
The negligent act is so gross that it amounts to wickedness, and show such disregard for life and safety of the patient that it deserves punishment. It cannot be settled by mere compensation. The doctor may be charged with culpable homicide not amounting to murder if death was due to rash and negligent act.
The state will seek punishment for the wrongdoer. It must be proved beyond all reasonable doubt as it has become a criminal case, that there was a wicked and deliberate act; that there was recklessness, a complete disregard or an indifference to the preservation of life and health of another person.
The case of R .v. Wight gives a good example of criminal negligence. The accused doctor was charged with having caused the death of a woman while delivering her with forceps, he being at the time under the influence of alcohol. He was convicted and sentenced to imprisonment.

PRINCIPLES AND GUIDE LINES FOR 
MANAGEMENT OF MEDICOLEGAL CASES

INTRODUCTION 
Medical officers in Myanmar, especially those working as township medical officers, township health officers and assistant surgeons in the emergency departments of various hospitals throughout the country, have the duties and responsibilities of handling criminal cases correctly and efficiently.
It is true that the clinical, administrative, public health and social duties of a medical officer are many, and in some cases more than what should be expected from a person of his status. But in respect to handling of police cases, the general public still expects him to perform perfectly without any flaws or mistakes.
It is also a fact that the public, and in some cases the law court and the police regard the medical officer as an "expert'' who is supposed to know every thing about the medical field. This is not a totally correct assumption and when doctors do not perform to their expectation, some of the member of the public has very little hesitation to write a complaint letter to the authorities at the cost of an envelope and a postage stamp. 
Under these trying conditions, a medical officer must not only be honest, unbiased, correct and efficient in the field of Forensic Medicine, but also be conversant with the areas where complaints are most common, and also know the means and the methods to prevent such unwanted complaints.


COMMON MEDICO-LEGAL PROBLEMS FACED BY ASSISTANT SURGEONS AND TOWNSHIP MEDICAL OFFICERS.

1. Complaints to the Ministry of Health regarding reports on 
(a) Wound descriptions
(b) Opinions on nature of the weapon used
(c) Opinions on simple hurt and grievous hurt and the use of the term 'simple so far'
(d) Medical negligence
(e) Opinions given in cases of alcoholic intoxication
(f) Opinions given in case of sexual assaults 
Examples:
- failure to differentiate between lacerated wounds and incised wounds
- stay in hospital for more than 20 days
- not taking X-ray of the affected part
- fracture felt on clinical examination, especially in the skull (outer table fracture felt ) and not detecting a fracture on skull X-rays 
- finding of fracture or dislocation, at a later date in private clinic
- subluxation (is it equivalent to dislocation? )
- permanent disfiguration of the head or face
- looseness of the tooth due to assault and having the tooth extracted at a private dental clinic
- fracture or dislocation with previous dental diseases such as dental caries
- abortion after an extended period after receiving injury to the abdomen
- injury to tendons and muscles (tendon cuts – partial cuts, complete cuts, prognosis after repair operations, prognosis after physiotherapy etc.).
- stab wounds which just penetrate the peritoneum
- bite marks – sharp or blunt
- Correction on the medico-legal report by using white-off or other means without signature 
2. Inability or failure to perform a competent medicolegal autopsy
2.1 Certifying death without performing a required forensic autopsy
2.2 Not fully conversant with the objectives of a forensic autopsy
2.3 Deficient skill and knowledge in performing a forensic autopsy
Lack of knowledge regarding pathology of sudden deaths
Lack of knowledge and skill on death investigations, and the death certificate
Problems in Exhumation
Lack of knowledge in writing an informative medicolegal report
Lack of knowledge and experience in giving evidence in trial courts
8. Very few forensic specialists in the country for proper effective referral

COMMUNICATING WITH THE MEDICO-LEGAL PATIENTS AND THEIR RELATIVES
• Although medico- legal reports and registers are confidential in nature, the patient has the full right to know the extent and severity of his injuries as recorded by the medical officer. Disclosure of information to the concerned part, will dispel any doubt or mistrust.
• The same principle applies to the patient's relatives. However, the relatives have to be verified first by the medical officer.
• Proper advice and instruction has to be given to the patient or the relatives as regards to medical treatment as well as to further findings in the government hospital and from private clinics and hospitals. This instruction to report back to the medical officer should be both verbally as well as in a written form.

INFORMATIVE MEDICO-LEGAL REPORT
• The brief clinical history or the history of the incident should contain relevant information so as to be informative in a medico-legal sense. (e.g. "assaulted by three using sticks and dah two days ago", rather than "history of assault").
• The inclusion of a sketch or a diagram in the description of wounds is more informative than words.
• The reason(s) for giving the particular medico-legal opinion should be written in the report when necessary. (e.g. in a case of a malingerer who had stayed in the hospital for more than 20 days hoping to make the case more serious, the medical officer may give the opinion as 'Simple' stating that " although the stay in hospital was 22 days, he was in severe bodily pain for only 10 days and was able to follow his daily activities of life during his stay in hospital").
• In some cases the patient failed to return to the medical officers as instructed and this should also be noted in the report.
• Instructions to the public, when necessary, should also be noted in the report. (e. g. if the police officer failed to report to the medical officer as requested, with regards to findings and photographs of the scene of crime, this fact should be noted in the report as this could affect the medicolegal opinion)
• An additional paper can be used to supplement the Crime 38 / Police 75 medicolegal report form to include all relevant facts.

CO-OPERATION AND CO-ORDINATION WITH THE POLICE
Having a good working relationship with the police is essential not only for the investigation of criminal cases but also for gathering of relevant information. This would aid in providing a correct and complete report to the authorities and avoid unfounded allegations.
Much useful information can be obtained from the police as they are trained to investigate and gather information, which a busy medical officer would not be able to do even if he wants to. The police officer can provide pertinent information of the scene investigation conducted by him and photographs of the scene, which is extremely important in forming the opinion as to the manner of death. (e.g. hanging)
The police, on their part, would like to have the medicolegal report as reasonably soon as possible, which is before the end of remand period of 14 days. A report containing the full description of injuries and findings, as well as the appropriate medicolegal opinion will be appreciated.

CO-OPERATION AND CO-ORDINATION WITH THE CHEMICAL EXAMINER'S OFFICE
The Chemical Examiner's Office in Yangon has to report on the analysis of samples sent from all over the country. Although another office has now opened in Mandalay, the toxicological analysis is still being done in Yangon. Because of the heavy workload and limited facilities prompt reports are still far and between. However, depending upon the urgency of the situation, the medical officer can make an urgent request directly to the Chemical Examiner. 
The medical officer on his part should make life a little easier for the Chemical Examiner by sending samples and writing request form in a proper designated manner.

COMMUNICATION WITH THE HEALTH AUTHORITIES AND OTHER RELATED AUTHORITIES
Prompt communication and providing written information when necessary, to the senior health authorities such as the medical superintendent or the district / divisional health officers regarding potential problem cases, is one form of expressing that the medical officer is aware of the problem and has death with it in the proper manner. Copies of the letter could be sent to the respective police station and other related authorities. 

FORMING A MEDICAL BOARD TO GIVE MEDICOLEGAL OPINION ON A "DIFFICULT" CASE
One of the general rules in management of medicolegal cases is the use of a "Two doctors" system. A report written and signed by two doctors relayed the message that this is done in a proper and unbiased manner. In a very difficult case the medical officer may even have to request the senior officer such as the medical superintendent to form a medical board. The opinion of the medical board will protect the medical officer against unwanted accusations.

INTUITION TO SPOT AND PREVENT POTENTIAL PROBLEM CASES
The intuition comes from experience and careful studying and critical analysis of cases experienced by oneself as well as by others. One has to remember that even a bad experience is beneficial, if it serves to point to a weak area in the work system, which one can improve or modify.

CONCLUSION
The principles in the management of medicolegal cases although very similar to that of clinical cases, have some distinct differences. Human behavior in the Myanmar culture is such that although people may readily forgive and forget obvious medical negligence act by a doctor in the medical care of a patient, a little mistake or flaw in the medico-legal management tends to be viewed with suspicious eyes.
In other fields of medicine, the clinical history provides a very important aspect of the medical investigation, whereas, regarding criminal cases, the history given could not be assumed to be correct and true all the time.
This is compounded by the fact that although Forensic Medicine is a specialized subject, the assistant surgeons are unrealistically expected to be an expert in this field of medicine with the academic knowledge gained in the undergraduate class.
Steps are now being taken to remedy these defects and inclusion of this topic in the undergraduate as well as the post graduate courses is one of the means to generate problem-solving skills in the management of medico-legal cases.

GUIDELINE ON MANAGEMENT OF MEDICO-LEGAL CASES

Writing an informative medico-legal report
• First make sure you have all the necessary information of the incident from the patient, the police and other witnesses.
• Be aware that, in criminal cases, the history may or may not be true.
• Scratch out any blank space in the form written by the police.
• In addition to all the points that should be included in a medico-legal report - in the brief history – note down relevant features pertaining to the case such as weapon, numbers of assailant, date and time of incident and other special features.
• In describing the wounds, it is very helpful to draw a sketch of the affected parts to show the site, size, shape, and lie etc.
• Relevant facts should be noted down
e.g. – Patient failed to return to M.O after taking X-ray
- Poor quality of X-ray
- Patient refused admission
• In giving opinion on hurt cases especially simple hurt for which the patient regarded as grievous-write down the reason:
e.g. - No permanent disfiguration the reason:
- Although patient stayed in the hospital for 25 days, he was not in immediate danger to life, or in severe bodily pain, or unable to follow his ordinary pursuit.
e.g. –The medical board composed of ….. doctors, decided that it is simple hurt because of the following reasons: ……

II. Management of potential problem cases
• Explain to the patient of the injuries and the medico-legal interpretation
(although it may sometimes be not successful)
• It is important to note the medical findings and other relevant features in the chart.
e.g. – Fit to be discharged from hospital but patient insist on staying.
• Have another colleague support your findings and action, preferably by your immediate superior.
• If required the case should be decided by a medical board.
• A copy should be sent to your superior officer for intimation as (xl;jcm;jzpfpOf) and to forward it to the district/ state /….. Office.

III. Referral system
In requesting an opinion from a specialist or a police surgeon the following should be included (together with the patient if possible)
• Brief but complete history of the incident
• Physical findings (photograph if possible, if not – a sketch)
• Investigative findings (e.g. X-ray findings) 
• Reason for referral (mention the particular medico-legal problem) 

IV. Instruction to the patient and relatives
• Oral as well as written instruction should be given as regards to immediate return to the hospital in cases of any medical complication or further medical findings (e.g. in a private clinic or hospital)
• ( a&m*gtajctae xl;jcm;rSK&SdvSsif aq;&HkodkU csufcsif; jyefvnfjyoyg&ef )
• Emphasize teaching on hurt/ grievous hurt on the above problems.
• Add teaching of the principle of giving relevant information to patient. Police force, law court and to health authorities to present unjustified complaints.

INABILITY TO PERFORM A STANDARD MEDICOLEGAL AUTOPSY
• Modify teaching methods with photos and video show on medicolegal autopsy 

MEDICAL DEFENCE UNION ????