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DR. RAM MAHOHAR LOHIYA NATIONAL LAW UNIVERSITY
PROJECT ON:
MEDICAL NEGLIGENCE
SUBMITTED BY:
UNDER THE
GUIDANCE OF:
RISHI RISH I SEHGAL SEHGA L ROLL NO: 115 SECTION ‘B
Dr. Dr. R.K. YADAV ASSISTANT PROFESSOR DR. RA! !ANOHAR LOHIYA LOHIYA
B.A. LLB "H#$%.&' SE!ESTER II
NATIONAL NATIONAL LA( )NIVERSITY
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SIGNATURE OF STUDENT
SIGNATURE
OF PROFESSOR
Acknowlede!en" I am thankful to Sir for letting me take this important issue as my project and also for guiding my way through it. I am also thankful to her for encouraging me to make this with great zeal and enthusiasm. I am also thankful to the library staff, and my college which has given me such a good and useful library, which has helped me throughout the making of this project. I would also like to present my hearties gratitude to my friends and classmates for their views and support throughout the time.
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Con"en"$ S.No. Title
age no.
1. !bjectives
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#. $edical Negligence% &n Introduction
'()
*. +lements of $edical Negligence
-(*
". efenses against medical negligence
"(/
'. efensive $edicine
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1. 2ibliography
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O&'ec"()e$ 1. To study and understand the concept of medical negligence *. To study and understand the essential elements of medical negligence +. To study and understand the scope of duty of care and the standard of care in medical practice ,. To make a study of the defenses available against medical negligence 5. To make a study of defensive medicine and its relationship with medical negligence.
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In"+od,c"(on "o !ed(c-l nel(ence •
T.e "o+" o/ nel(ence
& tort is a civil wrong the remedy for which is usually awarded by the courts in the form of unli3uidated damages although a few other remedies are also available and may be awarded. The tort of negligence is committed when a duty of care is owed to a person and breached and conse3uential damage in the form of infringement of legal right takes place. Negligence may be defined as the 4breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do5. &ccording to 6infield, 4Negligence as a tort is a breach of a legal duty to take care which results in damage to the claimant.5 There are three key elements which need to be proved in order to establish a tort of negligence%(
1. The defendant owed a duty of care to the plaintiff. *. The defendant breached that duty of care. +. & legal harm of foreseeable kind had followed as a conse3uence to that breach of care.
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The establishment of duty of care is one important element which absolves an individual from the liability for any loss suffered by anyone as a result of his negligent or wrongful actions. This is to say that no liability is attached when the harm caused is not such which might reasonably have been foreseen by a normally prudent man as a conse3uence of his actions. 7ord &tkin has used the term 8neighbour9 to define whom does an individual owe a duty of care to. It includes all those persons whom we might reasonably foresee as being adversely affected by our actions if we are negligent. It must also be shown that the defendant stood in a particular obligation to use care against the complainant. This is called the relationship of 8pro:imity9, which means the level of closeness re3uired for a particular kind of damage. This provides for the e:pansion of the scope of duty of care and helps the law of negligence to adopt according to the changing needs of the society. Thus, to establish duty of care, it must be shown that% . Some damage was foreseeable to a foreseeable claimant #. There is a sufficiently close relationship between the parties to establish a duty in that case of pro:imity
P a g e | *. That it is just and reasonable to impose a duty of care. 7ord &tkind in onoghue v Stevenson # said; 4The liability for negligence, whether you style it such or treat it as in other systems as a species of 8culpa9, is no doubt based upon a general system of public sentiment of moral wrongdoing for which the offender must pay. 2ut acts or omissions which any moral code would censure cannot in a modern practical world be treated so as give a right to every person injured by them to demand relief. The rule that you are to love your neighbor becomes in law, you must not injure your neighbor and the lawyer9s 3uestion, 6ho is my neighbour<, receives a restricted reply.5 The term 8neighbour9 has been held to imply all those persons closely and directly affected by one9s act that one ought to reasonably have them in contemplation as being so affected while assessing the conse3uences of one9s actions. 7ord +sher in the same case said; 4=nder certain circumstances, one may owe a duty to another , even though there is no contractual relationship. If one man is near to another, or is near the property of another, a duty lies upon him not to do that which may cause a personal injury to that other or may injure his property.5 &n authority on this point is the case of >ome !f?ce v orset @acht Ao. B)/-C. & group of young 2orstal inmates were taken to 2rownsea Island in oole >arbour for a weekend9s leave and training. uring the night ?ve of the boys escaped their guards and found their way to the claimants9 yacht club where they vandalized several yachts. 6hen the >ome !f?ce was sued for the alleged negligence of their employees in failing to restrain the boys, the preliminary point which arose was whether the >ome !f?ce could be said to owe a duty of care in negligence in this situation. It was suggested that a duty should e:ist whenever the damage was foreseeable. The >ouse of 7ords held that the >ome !ffice was liable to the orset @acht Ao 7td for the damage the boys had caused. <hough the wrong against the claimants had not been committed directly by the defendants but by a third party, a liability of the defendants could be based upon their omission, which in this case was the failure to control the action of the boys since they were under the care of the defendants. ¬her important authority is limiting the duty of care is the case of 2ourhill v @oung *. In the given case, the plaintiff allegedly suffered a 8nervous shock9 as a result of seeing a pool of blood caused due to an accident caused by the defendant, who was negligently driving too fast and crashed into a car and was killed. The 3uestion to be decided was whether Dohn @oung was liable to $rs. 2ourhill. 7ord Eussell said that the defendant9s speed or rash driving in no way endangered the plaintiff who was not in his vision, but standing behind a
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P a g e | solid barrier of the tramcar. ismissing the appeal, it was held that the defendant owed no duty of care to the plaintiff.
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The standard by which to determine whether a person has been guilty of negligence is the conduct of a prudent man in the particular situation% the amount of care, skill, diligence or the like, varying according to the particular case. The prudent man in law refers to the man who has ac3uired the skill to do the act which he undertakes. In ascertaining whether the defendant has breached his duty of care, it is relevant to consider what standard of care was re3uired to be observed. & person may be regarded as negligent if he fails to act according to that standard even if it is more difficult for him as an individual to do so than for others. $any a times, the concept of 8reasonable man9 also comes up while deciding the issue. Thus, determining the standard of care re3uires two 3uestions to be answered, whether the defendant had created an unreasonable risk and the second, what level of safety a potential claimant is entitled to e:pect. Thus, a breach of duty can be said to have taken place only when the defendants can be shown guilty of the failure to take reasonable care to prevent the accident. =nless there is something that can be blamed as falling beneath the standard of conduct there is no breach of legal duty. Thus, the claimant can only e:pect the skill and conduct of a reasonable man form the defendant to be observed and not that of any special man. &n authority on this point is the case of 6ells v Aooper ". The defendant had some e:perience as an amateur carpenter and had fi:ed the door handle of one of the doors at his house using a wrong sized screw. The plaintiff had to deliver fishes at the defendant9s house and as he was leaving, he pulled back the door, the handle of which came away in his hand and as a result he fell on the ground. It was held that doing the work himself instead of appointing a professional carpenter did not amount to a breach of the duty of care because a trifling domestic replacement was not a work of an order which would create serious dangers if not properly done. The degree of care and skill re3uired by him was to be adjudged not with reference to the degree of competence in such matters which he possessed but by reference to the degree of care and skill which a reasonably competent carpenter might be e:pected to apply to the work in 3uestion. The defendant had used three(3uarter inch screws, believing them to be ade3uate for the purpose of fi:ing the handle. It was not established that no reasonably competent carpenter would have used those screws to fi: the door handle. &s such it was held that the re3uired standard of care was observed and the defendant was not liable in negligence. Thus we see that a defendant cannot free himself from the liability merely by showing that he had done the best of which he was capable, however good or bad or indifferent that best might be. If the conduct of a person does not adhere to the standards of conduct of a
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P a g e | 3 reasonable man, he might be held liable if his conduct falls below the standard of reasonable conduct. Thus, if a person is learning to drive and in that process he causes a damage to some person or to the property of other, he cannot plead a defense that he was a learner, he was doing the best that he could. The civil law would treat him same as any other e:perienced driver and e:pect the same standard of care as any other reasonable driver on road.
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$ere breach of duty of care does not make a person liable in the law of negligence. amage following from that breach of duty of care also needs to be established. +ven though it has been established that a person has a duty to e:ercise reasonable care and that he has failed to e:ercise that reasonable care, it is still necessary to establish that the lack of reasonable care has actually caused the harm of which the plaintiff complains. It is a general conception that the plaintiff alleging negligence must establish%( . That he was injured as a result of defendant9s conduct #. That he was protected under some rule of law against this conduct and the injury suffered *. That the defendant9s conduct was in violation of his duty to the plaintiff ". The amount of loss suffered by the plaintiff. & defendant who owes a duty of care to the claimant and has breached that duty of care can still avoid his liability if he can establish that the damage caused was not one which could be reasonably foreseen or the damage was too remote a conse3uence of the breach. This can arise in two situations, whether the claimant is a foreseeable claimant and whether the damage is predictable and reasonably foreseeable. Thus, if & leaves a loaded gun unguarded and 2 steals it and kills A, & cannot be made liable for the murder of A because it was 2 whose act is 4the cause5 of A9s death. 2ut instead if the unguarded gun is stolen by a child and an injury or death is caused to some other person in course of action, & can be made liable in the law of negligence because A9s death was well within the risk created by &9s negligence.
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Med(c-l Nel(ence
& doctor when consulted by a patient owes him certain duties, namely, BaC a duty of care in deciding whether to undertake the case; BbC a duty of care in deciding what treatment to give; and BcC a duty of care in the administration of that treatment.
P a g e | 4 & breach of any of those duties gives a right of action for negligence to the patient. $edical malpractice is defined as any act or omission by a physician during treatment of a patient that deviates from accepted norms of practice in the medical community and causes an injury to the patient. $edical malpractice is a specific subset of tort law that deals with professional negligence. So far as persons engaged in $edical rofession are concerned, it may be stated that every person who enters into the profession, undertakes to bring to the e:ercise of it, a fair, reasonable and competent degree of care and skill. The practitioner is legally bound to e:ercise a reasonable degree of skill and knowledge and also that of care. +ven delegation of responsibility to another may amount to negligence in certain cases. It is possible in cases of medical treatment that there may be more than just one course of treatment which may be advisable for treating a patient. In such cases medical negligence cannot be established merely on the grounds that the practitioner had resorted to one of theses treatments leaving out the others unless it is proved that he has not performed his duties to the best of his ability and with due care and caution. 4$edical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the Aourt finds that he has attended on the patient with due care skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence.F'
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Ele!en"$ o/ Med(c-l Nel(ence The patient alleging medical malpractice must generally prove four elements or legal re3uirements to make out a successful claim of medical malpractice. These elements include% BC the e:istence of a legal duty on the part of the doctor to provide care or treatment to the patient; B#C a breach of this duty by a failure of the treating doctor to adhere to the standards of the profession; B*C a causal relationship between such breach of duty and injury to the patient; and B"C the e:istence of damages that flow from the injury such that the legal system can provide redress.
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T.e P-+"(e$
In a claim of medical negligence, there are generally two parties. The first one being the plaintiff is the usually the patient who had undergone a medical treatment at the hands of the concerned doctor, or the relatives of the deceased patient or the e:ecutor or administrator of a deceased patientGs estate. The other party, i.e. the defendant is the concerned medical practitioner. 6ith the help of vicarious liability principles, hospitals or medical corporation can also be made liable.
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+very person who enters into a learned profession undertakes to bring to the e:ercise of a reasonable degree of care and skill. In medical profession, a legal duty e:ists towards a patient and this duty comes into play as soon as a professional relationship is established between the patient and health care provider. &s such if substandard medical care is given to a patient and an injury has been caused, the patient has a remedy under law. Such a duty is essentially assumed whenever a physician undertakes the care of a patient. & duty does not e:ist where no relationship is established between the doctor and patient. Thus, every medical practitioner owes following duties to his patients%(
P a g e | 11 . To possess the medical knowledge re3uired of a reasonably competent medical practitioner Bhealth care providerC engaged in the same specialty, #. To possess the skills re3uired of a reasonably competent health care practitioner engaged in the same specialty' *. +:ercise the care in the application of that knowledge and skill to be e:pected of a reasonably competent health care practitioner in the same specialty ". =se the medical judgment in the e:ercise of that care re3uired of a reasonably competent practitioner in the same medical or health care specialty. In some situations, for policy reasons related to promoting medical care for indigent patients, or encouraging intervention by medical bystanders in case of an accident, the law may limit the liability of the treating physician, even though a reasonable duty of care was established. &n e:ception to the duty of care is when the physician sees the patient as a nonprofessional, such as outside the hospital or clinic, or in some social setting. In such cases, no doctor( physician relationship is established, and there is no duty of reasonable medical care owed. The injured patient must show that the physician acted negligently in rendering care, and that such negligence resulted in injury. To do so, four legal elements must be proven% BC a professional duty owed to the patient; B#C breach of such duty; B*C injury caused by the breach; and B"C resulting damages. $oney damages, if awarded, typically take into account both actual economic loss and noneconomic loss, such as pain and suffering. & professional may be held liable for negligence on one of the two findings% either he was not possessed of the re3uisite skill which he professed to have possessed, or, he did not e:ercise, with reasonable competence in the given case, the skill which he did possess. !nce the injured person has established that negligence led to injury, the court calculates the monetary damages that will be paid in compensation. amages take into account both actual economic loss such as lost income and cost of future medical care, as well as noneconomic losses, such as pain and suffering.
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T.e +e7,(+ed $"-nd-+d o/ c-+e
6hile deciding whether a breach of duty by a medical practitioner or by a medical care provider has occurred, the patient has to invoke the concept of standard of care. The standard of care generally refers to that care which a reasonable, similarly situated professional would have provided to the patient. This standard is usually established by means of e:pert witness testimony. In the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. Some breaches of the standard of care are so egregious that e:pert testimony is not needed. This concept is captured in the legal term called res ipsa loquitur. In such cases, the legal proceeding is abbreviated and the jury can proceed to determining damages since the breach of duty is plainly obvious.
P a g e | 12 The standard of care re3uired varied with conte:t. In the case of Hnight v >ome !ffice 1, it was said that the practices in a prison hospital cannot be e:pected to be at par with the practices in psychiatric hospital outside the prison. &s such the prison authorities cannot be held liable in medical negligence merely because the standard of care in the prison hospital falls below that in a psychiatric hospital. >owever, the failure to observe the re3uired standard of care must also be coupled with some injury to the patient to successfully establish a claim of medical malpractice or medical negligence. The injured plaintiff must show a direct relationship between the alleged misconduct and a subse3uent injury. <ernatively, the patient can show a legally sufficient relationship between the breach of duty and the injury; this concept is referred to as pro:imate causation. In order to overcome the hurdle of ascertaining the re3uired standard of care, the courts have resorted to the 2olam test established in the case of 2olam v. riern >ospital $anagement Aommittee( B)'/C # &ll +E( & doctor is not negligent if he is acting in accordance with such practice accepted as proper by a responsible body of medical men skilled in that particular art. utting it the other way round, a doctor is not negligent, if he is acting in accordance with such a practice, merely because a body of opinion takes a contrary view. &t the same time it does not mean that a medical man can obstinately and pig headedly carry on with some old techni3ue if it has been proved to be contrary to what is really substantially the whole of informed medical opinion. Dudge $cNair in the same case said, FJ... where you get a situation which involves the use of some special skill or competence, then the test whether there has been negligence or not is not the test of the man on the top of a Alapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man e:ercising and professing to have that special skill. & man need not possess the highest e:pert skill at the risk of being found negligent. It is well(established law that it is sufficient if he e:ercise the ordinary skill of an ordinary competent man e:ercising that particular art. There may be one or more perfectly proper standards, and if he conforms with one of these proper standards, then he is not negligent5 It may also happen that there may be more than one professional opinion as to the most appropriate procedure to adopt in a particular situation. In such a case, no liability will be attached to the conduct of the doctor if his conduct is regarded as proper by anu one well established school of thought notwithstanding the contrary opinions of the other. In Dacob $athew v State of unjab /, it was said that 4JSo long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on
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P a g e | 1# that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure.5 & man need not possess the highest skill at the risk of being found negligent. It is well established law that it is sufficient if he e:ercises the ordinary skill of an ordinary competent man e:ercising that particular art.
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& medical malpractice claim generally concludes with a calculation of damages. Since monetary damages are easy to calculate and administer, courts hearing medical malpractice cases will determine money damages to compensate the injured patient. unitive damages are very rare in medical malpractice cases, and are reserved by courts for especially egregious conduct that society has a particular interest in deterring.
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De/en$e$ --(n$" !ed(c-l nel(ence The response of human body to a treatment cannot be predicted beyond all doubt. &s said in Kirard v Eoyal Aolumbian >ospital 0, medical science has not yet reached the stage where the law ought to presume that a patient must come out of an operation as well as or better than he went into it. 6hen a claim of medical malpractice is brought against a medical practitioner, the individual or entity against whom the claim is made will be judged on. a few aspects related to the care they delivered, which include their level of competence and professionalism, the care they provided, and how these elements compare to the level of training and e:perience they have had. If the level of care given to the patient is not comparable, or does not meet the standard of care provided by other medical professionals, the claim may be actionable. $edical $alpractice, being a form of negligence, has viable defences against an action instituted. These may in defences like the patient himself being negligent, he himself failing to mitigate his own harm or damage. !ther than that, defences like that of informed consent are also available whereby the patient has full knowledge of and voluntarily assumes any risk of complication or an untoward effect. &lso there may be cases where the alleged harm or damage was unavoidable and beyond the control of the practitioner. In such cases harm or damage occurs despite the reasonable care being taken by the practitioner and as such he cannot be made liable for the harm caused. &lso, the doctor cannot be made liable when the patient himself had failed to discuss all relevant information with the doctor and something important had not been brought to his notice. No negligence can be attached to the conduct of the practitioner when the patient9s condition has not been worsened due to the alleged negligence of the doctor.
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P a g e | 1* In the case of Sidaway v Kovernors of 2ethlem Eoyal >ospital ), the plaintiff underwent an operation which had an inherent risk of paralysis but of which she was not informed of at the time of consultation. The risk unfortunately materialized. In a suit filed for damages, the plaintiff contented that she would have never agreed to undergo the surgery had she been informed of the risk. >er claim however failed as the court held that it would be undesirable and unrealistic to draw the suggested distinction in the conte:t of the doctor9s overall duty to care for his patient and e:pressly affirmed the applicability of 2olam test to aleegations of negligence in the conte:t of the doctor patient relationship generally.
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Con"+(&,"o+0 Nel(ence
The patient who contributes to his or her own injury may either be precluded from recovery of damages, or may not recover fully, for the injuries from an alleged negligent physician. In most professional negligence cases the professional owes concurrent contractual and tortious obligations to his client. Notwithstanding that, in medical negligence actions the defence is little relied on in practice, presumably because the plaintiff usually retains the services of the defendant precisely in order that the latter may apply his professional skills with due care, and it is therefore rare to encounter circumstances in which the plaintiff is to be blamed for having relied on the defendant to do so.
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In/o+!ed Con$en"
Throughout the diagnostic and treatment phases, the doctor and patient communicate and agree upon a course of action. a patient can also breach informed consent by not completing his or her part of the agreement. This includes, but is not limited to, failure in attending appointments, taking any tests, and following any instructions for lifestyles changes Bdietary, activity restrictions, etc.C, andLor taking medicine that might interfere with treatment or not taking diagnosed medication. & breach of informed consent on the patientGs behalf is considered patient negligence and can be used as a defense in a malpractice case. It is e:pected of the patient to disclose his entire medical history. Nondisclosure of such information can seriously jeopardize care, and is cause for patient negligence. atient negligence might also be attributed to a patient involving him or herself in an activity or conduct following alleged medical malpractice that resulted in breaking the chain of events linking malpractice to the patientGs harm. The broken chain of events would make it difficult to attribute the malpractice claim to the harm received by the patient. ¬her defense in patient negligence could be that the harm or damage that the patient received was a known, unavoidable risk to the procedure. This hearkens back to the informed consent defense.
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A&$ence o/ one o/ ".e /o,+ e$$en"(-l ele!en"$ o/ nel(ence
. 6here there is no duty owed to the patient by the physician, a negligence claim generally fails. If a physician can show that no physicianMpatient relationship e:ists, this 4no duty5 defense may suffice to defeat the plaintiff9s action. #. The defendant physician must controvert the second element of the plaintiff9s proof of negligenceMbreach of the standard of care. or this, the physician hass to prove compliance with the standard of care through the testimony of a credible medical e:pert. The defendant physician is not necessarily held to a standard of care advocated by the patient9s medical e:perts. If there are alternative methods of diagnosis or treatment, and if the substantial minority of physicians agree with such alternatives, the physician may not be found negligent for using such alternatives, even though the majority of physicians do not adhere to such an alternative. *. The plaintiff cannot recover damages from a defendant physician unless the physician9s malpractice caused the plaintiff9s injuries. a plaintiff is re3uired to prove that such malpractice was the actual cause(in(fact of injuries and that those damages were reasonably foreseeable. This element fre3uently affords an ade3uate defense for the physician. ". The prevention or reduction of awarded damages is the defendant9s primary goal in a lawsuit. To recover a monetary award, a plaintiff must introduce testimony and other evidence of damages, which often is difficult. In some cases the patient receives insurance or government benefits to cover e:penses. In states that have eliminated the 4collateral source5 rule, evidence of such payment may reduce or obviate monetary damages.
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2efore a physician subjects the patient to a diagnostic or therapeutic procedure, the patient is informed about the risks of the procedure. If the informed patient chooses to proceed with knowledge of the risks, that patient may assume the responsibility for a resultant adverse outcome. If the patient knew that a certain risk was associated with a medical procedure, and he or she willingly submitted to that procedure, the patient will not be permitted to file a malpractice lawsuit for any injury that resulted from the known risk. The patient may e:pressly assume the risk of a medical procedure or treatment, for e:ample, by signing a consent form, which clearly indicates that the patient had knowledge of the risk, understood and appreciated the nature of the risk, and voluntarily elected to incur that risk. =nder certain circumstances, assumption of the risk may be implied.
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L-$" Cle-+ C.-nce -nd A)o(d-&le con$e7,ence$
& patient, who is not responsible for his or her injury, may have some opportunity to either avoid or mitigate the damages resulting from the injury, based on the doctrine of avoidable conse3uences or the doctrine of last clear chance. These two doctrines are applied after the negligent act has caused the harm. Thus the plaintiff may not recover the damages that he or she could have avoided or mitigated.
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P+(o+ -nd $,&$e7,en" nel(en" 9.0$(c(-n$
There are situations where one physician causes an injury to the patient, who then goes to another physician and sustains an aggravation of the same injury. &n alleged negligent physician may also be liable for aggravating injuries caused by a subse3uent negligent physician. >owever, the court may choose to apportion the percentage of fault and damages by the defendants.
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De/en$()e Med(c(ne efensive $edicine refers to medical practices designed to avert the future possibility of malpractice suits. In defensive medicine, responses are undertaken primarily to avoid liability rather than to benefit the patient. octors may order tests, procedures, or visits, or avoid high( risk patients or procedures primarily Bbut not necessarily solelyC to reduce their e:posure to malpractice liability. efensive medicine is one of the least desirable effects of the rise in medical litigation. efensive medicine increases the cost of health care and may e:pose patients to unnecessary risks. 2eyond the financial costs, the lack of physician liability reform and the practice of defensive medicine restrict patient access to care from physicians who limit their practices as well as from a decreasing supply of physicians. Not only does the practice of defensive medicine contribute to higher healthcare e:penses and restricted patient access to care, it also has an impact on patient safety. Increased diagnostic testing e:poses patients to unnecessary radiation, risks from additional procedures, as well as increased time away from work. It is estimated that .' to # percent of cancer could be attributed to radiation from AT scans, which can be one of the unnecessary tests prescribed by the practitioners as a part of defensive medicine. $edical $alpractice system has fre3uently been cited as a contributor to increasing health care costs. The medical malpractice system can add to the costs of health care directly through increases in malpractice insurance premiums, which may be passed on to consumers and thirdparty payers in the form of higher fees. The medical malpractice system may also increase costs indirectly by encouraging physicians to practice defensive medicine. $ost defensive medicine is not of zero benefit. Instead, fear of liability pushes physicians9 tolerance for medical uncertainty to low levels, where the e:pected benefits are very small and the costs are high. The most damaging and costly result of the medical malpractice system as it has evolved is the practice of defensive medicine% the ordering of tests, procedures, and visits, or avoidance of certain procedures or patients, due to concern about malpractice liability risk. <hough
P a g e | 14 some critics claim that defensive medicine is nothing more than a convenient e:planation for practices that physicians would engage in even if there were no malpractice law or malpractice lawyers.
B(&l(o+-9.0 . Torts and ersonal injury law by 6illiam E. 2uckley and Aathy D. !krent #. The law of negligence by Eichard &. 2uckley *. rofessional negligence cases by avid ittaway and &lastair >ammerton ". The 7aw of Torts by Dustice K Singh
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