Malpractice

According to Aristotle, the medical art aims at health, which is a virtue of the body, and does so in an unlimited way. Consequently, medicine does not determine the extent to which health should be pursued, and “mental health” falls under medicine only via pros hen predication. Because medicine is inherently oriented to its end, it produces health in accordance with its nature and disease contrary to its nature—even when disease is good for the patient. Aristotle’s politician understands that this (...) inherent orientation can be systematically distorted, and so would see the need for something like the Hippocratic Oath. (shrink)

A legal analysis on the informed consent of the patient primarily requires considering the common law, regardless of solutions provided by the malpractice statutes and a promising constitutional protection route, despite the ascertainment of some preventable shortcomings. This paper aims to offer a comprehensive review on the genesis, advancement and basis of the U.S. legal protection of the informed consent in the healthcare extent, to afterwards carry out a brief comparative study with the Spanish regulation.

Healthcare systems need to consider not only how to prevent error, but how to respond to errors when they occur. In the United Kingdom’s National Health Service, one strand of this latter response is the ‘No Blame Culture’, which draws attention from individuals and towards systems in the process of understanding an error. Defences of the No Blame Culture typically fail to distinguish between blaming someone and holding them responsible. This article argues for a ‘responsibility culture’, where healthcare professionals are (...) held responsible in cases of foreseeable and avoidable errors. We demonstrate how healthcare professionals can justifiably be held responsible for their errors even though they work in challenging circumstances. We then review the idea of ‘responsibility without blame’, applying this to cases of error in healthcare. Sensitive to the undesirable effects of blaming healthcare professionals and to the moral significance of holding individuals accountable, we argue that a responsibility culture has significant advantages over a No Blame Culture due to its capacity to enhance patient safety and support medical professionals in learning from their mistakes, while also recognising and validating the legitimate sense of responsibility that many medical professionals feel following avoidable error, and motivating medical professionals to report errors. (shrink)

An alliance of established experts on critical care, Front Line COVID-19 Critical Care Alliance (FLCCC), has published two protocols for treatment of COVID-19. The first one, methylprednisolone, ascorbic acid, thiamine, and heparin (MATH+), is intended for hospital and intensive care unit treatment of pulmonary phases of the disease. It is based on affordable, commonly available components: anti-inflammatory corticosteroids (methylprednisolone, "M"), high-dose vitamin C infusion (ascorbic acid, "A"), vitamin B1 (thiamine, "T"), anticoagulant heparin ("H"), antiparasitic agent ivermectin, and supplemental components ("+") (...) including melatonin, vitamin D, elemental zinc, and magnesium. -/- The MATH+ protocol has received scarce attention due to the World Health Organization (WHO) advising against the use of corticosteroids in the beginning of the pandemic. In addition, randomized controlled clinical trials were required as a condition for adoption of the protocol. As the hospital mortality rate of MATH+ treated patients was approximately a quarter of the rate of patients receiving a standard of care, the authors of the protocol considered performing such trials unethical. Other parties have later performed clinical trials with corticosteroids and anticoagulants, which has led to a more widespread adoption of these components. -/- In October 2020, ivermectin was upgraded from an optional component to an essential component of the protocol. According to the authors, ivermectin is considered the first agent effective for both prophylaxis (prevention) of COVID-19 and for treatment of all phases of COVID-19 including outpatient treatment of the early symptomatic phase. Therefore, at the end of October 2020, a separate ivermectin-based I-MASK+ protocol for prophylaxis and early outpatient treatment of COVID-19 was published. (shrink)

Principlism, a most prominent approach in bioethics, has been criticized for lacking an underlying moral theory. We propose that the four principles of principlism can be related to the four traditional cardinal virtues. These virtues appear prominently in Plato's Republic and in Aristotle's Nicomachean Ethics. We show how this connection can be made. In this way principlism has its own compelling ethical basis.

This article discusses an anomaly in the English law of reproductive liability: that is, an inconsistency between the law’s approach to wrongful life claims and its approach to cases of negligent selection of gametes or embryos in infertility treatments (the selection cases). The article begins with an account of the legal position, which brings into view the relevant inconsistency: while the law treats wrongful life claims as non- actionable, it recognises a cause of action in the selection cases, although the (...) selection cases bear a relevant resemblance to wrongful life claims. The article then considers arguments that may be invoked in an attempt to reconcile the above two strands of the law. Three of these counterarguments consist in attempts to distinguish the selection cases from wrongful life claims. It is argued that these attempts fail to reveal a valid basis for treating these situations differently. A fourth possible counterargument levels against the present analysis a charge of reductio ad absurdum. It is shown that this argument suffers from a fundamental flaw caused by confusion between different senses of the term “identity”. Finally, the article discusses possible changes to the legal position that could rectify the problem. It argues that one of these changes, which focuses on legal redress for violation of personal autonomy, is particularly apt to resolve the problem at hand, but also highlights the need for further inquiry into the broader implications of introducing this form of redress into the law of torts. (shrink)

Background: The knowledge of scientific dishonesty is scarce and heterogeneous. Therefore this study investigates the experiences with and the attitudes towards various forms of scientific dishonesty among PhD-students at the medical faculties of all Norwegian universities.MethodAnonymous questionnaire distributed to all post graduate students attending introductory PhD-courses at all medical faculties in Norway in 2010/2011. Descriptive statistics. Results: 189 of 262 questionnaires were returned (72.1%). 65% of the respondents had not, during the last year, heard or read about researchers who committed (...) scientific dishonesty. One respondent had experienced pressure to fabricate and to falsify data, and one had experienced pressure to plagiarize data. On average 60% of the respondents were uncertain whether their department had a written policy concerning scientific conduct. About 11% of the respondents had experienced unethical pressure concerning the order of authors during the last 12 months. 10% did not find it inappropriate to report experimental data without having conducted the experiment and 38% did not find it inappropriate to try a variety of different methods of analysis to find a statistically significant result. 13% agreed that it is acceptable to selectively omit contradictory results to expedite publication and 10% found it acceptable to falsify or fabricate data to expedite publication, if they were confident of their findings. 79% agreed that they would be willing to report misconduct to a responsible official. Conclusion: Although there is less scientific dishonesty reported in Norway than in other countries, dishonesty is not unknown to doctoral students. Some forms of scientific misconduct are considered to be acceptable by a significant minority. There was little awareness of relevant policies for scientific conduct, but a high level of willingness to report misconduct. (shrink)

The objective of this study was to take a closer look at defense-related expenses for medical malpractice cases over time. We conducted a retrospective review of medical malpractice claims reported to the Physician Insurers Association of America's Data Sharing Project with a closing date between January 1, 1985 and December 31, 2008. On average a medical malpractice claim costs more than $27,000 to defend. Claims that go to trial are much more costly to defend than are those that are dropped, (...) withdrawn, or dismissed. However, since the overwhelming majority of claims are dropped, withdrawn, or dismissed, the total amount spent to defend them surpasses that spent on claims that go to trial. Defense attorney expenses account for the majority of defense-related expenses (74%), while expert witness expenses and other expenses split the remaining 26%. A strong association was also found between the average indemnity payment and the amount it costs to defend individual claims by specialty. Our study found that defense-related expenses for medical malpractice claims are not an insignificant cost. As state and federal governments debate how to repair the malpractice system, addressing the high cost of defending claims should not be ignored. (shrink)

Whenever health care reform is debated, the state of the medical professional liability system in the United States re-emerges as an issue of importance. What exactly is broken with the MPL system and what the implications are is a point of contention among different stakeholder groups. Recent data demonstrate that medical liability premiums have been improving in recent years and the majority of premiums remained flat in 2010. General agreement still exists, however, that medical professional liability insurance premiums have become (...) unaffordable for many physicians, and coverage has become less available, especially for certain medical specialties and in specific areas of the country.Multiple factors go into the determination of medical professional liability insurance premiums including return on investments, reinsurance costs, claims frequency, average amount paid out on malpractice claims, defense expenses, and administrative costs such as underwriting expense. (shrink)

American medicine has long sought to control the standard of care that physicians are expected to provide to their patients. One effort to insulate the standard of care from external interference, called a “safe harbors” approach, would enable physicians to avoid liability for malpractice if they adhered to medical practice guidelines. The idea is to eliminate the “battle of experts” and reduce defensive medicine by requiring judges and juries to accept guidelines as conclusive evidence of the standard of care. Yet (...) current efforts to improve the guideline development process, including the use of evidence-based guidelines, are unlikely to be able to overcome the shortcomings that led a similar safe harbors initiative to fail in the early 1990s. Moreover, there is no adequate justification for conferring this degree of self-regulatory power on the medical profession. (shrink)

Healthcare trends, stressors, and workplace violence -- Patient privacy and exploitation -- Abuse and assault -- Fraud and theft -- Suspicious death and homicide -- Investigations, sanctions, and discipline -- Prevention strategies and the future of healthcare crime.

This essay discusses unlimited insurance subrogation (UIS) as a means of improving the deterrence and compensation results of medical malpractice law. Under UIS, health care insureds could assign their entire potential medical malpractice claims to their first-party commercial and government insurers. UIS should improve deterrence by establishing first-party insurers as plaintiffs to confront liability insurers on the defense side, leading to more effective prosecution of meritorious claims and reducing meritless and unnecessary litigation. UIS should improve compensation outcomes by converting litigation (...) cost- and risk- laden “tort insurance” into cheaper and enhanced first-party insurance. UIS also promises dynamic benefits through further reforms by contract between the first-party and liability insurers that would take charge of system. No UIS-related costs are apparent that would outweigh these benefits. (shrink)

This study explored the relation between state medical liability reform measures, hospital malpractice costs, and hospital solvency. It suggests that state malpractice caps are desirable but not essential for improved hospital financial solvency or viability.

In the last year there has been a great deal of public debate about homeopathy. The House of Commons Select Committee on Science and Technology concluded in November that there is no evidence base for homeopathy, and agreed with some academic commentators that homeopathy should not be funded by the NHS.i ii While homeopathic doctors and hospitals are quite commonplace, some might be surprised to learn that there are also many homeopathic dentists practicing in the UK. This paper examines some (...) of the claims made by homeopathic organisations regarding dentistry, and suggests that they may not be entirely ethical. (shrink)

In this paper I argue that doctors who are found guilty of serious professional misconduct should be required to apologize as a condition of their registration. I argue that such a requirement is to be justified on the basis of the need to protect patients, maintain public confidence in the profession, and declare and uphold proper standards of conduct and behaviour. I also answer an objection that might be made to the position I defend. Finally, I consider whether there should (...) be any exceptions to the demand for an apology from doctors who have been found guilty of serious professional misconduct. (shrink)

This essay reviews and defines avoidable medical error, malpractice and complication. The relevant ethical principles pertaining to unanticipated medical outcomes are identified. In light of these principles I critically review the moral culpability of the agents in each circumstance and the resulting obligations to patients, their families, and the health care system in general. While I touch on some legal implications, a full discussion of legal obligations and liability issues is beyond the scope of this paper.

The objective of this study was to determine the extent of decline in level of access and quality of services reported by healthcare consumers during a media campaign to limit recovery for damages incurred through medical malpractice. Serving as a natural experiment, this campaign involved a widely publicized statewide "malpractice crisis," promoted as causing mass exodus of medical providers from the state. The resulting reduction in services, especially for the most underserved areas and populations, though unproven, had been touted as (...) justification for amending the state constitution. Patient survey responses collected during the crisis indicated relatively high levels of satisfaction with access and quality of care during the publicized crisis. Similar organized malpractice crises examined from previous years suggest that policymakers should demonstrate caution when responding to a perceived crisis, especially when economic benefit for a particular interest group is at stake. Further, a lack of ethics in media through inaccurate reporting and sensationalism may lead to a seductive invitation to like ethical lapses by medical professionals in their attempts to shape policy through artificial crises creation. (shrink)

We conducted focus groups with 47 potential jurors who were presented with diferent scenarios in a hypothetical malpractice case involving failure to order a PSA test. Better documentation that a patient made an informed decision to decline a PSA test appeared to provide more medical-legal protection for physicians, especially with the use of a decision aid.

Human subject research involving brain imaging is likely to reveal signifcant incidental fndings of abnormal brain morphology. Because of this fact and because of the fduciary relationship between researcher and subject, board-certi-fed or board-eligible radiologists should review the scans to look for any abnormality, the scans should be conducted in accordance with standard medical practice for reviewing the clinical status of the whole brain, and the informed consent process should disclose the possibility that incidental fndings may be revealed and what (...) consequences will follow. In the event such fndings are revealed, qualifed physicians should explain to the subject the signifcance of the fndings and the alternatives available. (shrink)

Most experts would agree that the current medical malpractice system in the United States does not work effectively either to compensate victims fairly or prevent injuries caused by medical errors. Policy responses to a series of medical malpractice crises have not resulted in effective reform and have not altered the fundamental incentives of the stakeholders. In Medical Malpractice, economist Frank Sloan and lawyer Lindsey Chepke examine the U.S. medical malpractice process from legal, medical, economic, and insurance perspectives, analyze past efforts (...) at reform, and offer realistic, achievable policy recommendations. They review the considerable empirical evidence in a balanced fashion and assess objectively what works in the current system and what does not. Sloan and Chepke argue that the complexity of medical malpractice stems largely from the interaction of the four discrete markets that determine outcomes--legal, medical malpractice insurance, medical care, and government activity. After describing what the evidence shows about the functioning of medical malpractice, types of defensive medicine, and the effects of past reforms, they examine such topics as scheduling damages as an alternative to flat caps, jury behavior, health courts, incentives to prevent medical errors, insurance regulation, reinsurance, no-fault insurance, and suggestions for future reforms. Medical Malpractice is the most comprehensive treatment of malpractice available, integrating findings from several different areas of research and describing them accessibly in nontechnical language. It will be an essential reference for anyone interested in medical malpractice.Frank A. Sloan is J. Alexander McMahon Professor of Health Policy and Management and Professor of Economics at Duke University. He is the coauthor of The Price of Smoking and author or editor of many other books on health economics. Lindsey M. Chepke, an attorney, is a Research Associate at the Center for Health Policy at Duke University. (shrink)

Una mirada a la historia de la investigación con seres humanos nos revela que la ética (al menos entendida como el ethos de una comunidad) ha estado siempre presente de uno u otro modo. No obstante, también son numerosas las situaciones en las que las pautas morales son sistemáticamente transgredidas.

Medical malpractice is of increasing concern and 60 billion dollars are added annually to healthcare costs. The practice of defensive medicine, decreased availability of doctors, and increased health insurance premiums are all results of medical malpractice. An argument is made from the perspective of Friedrich Nietzsche’s On the Genealogy of Morals that a primal cause of the litigiousness of the public against doctors results from resentment or “ressentiment”. The relationship of promises, responsibility, and guilt between doctors and patients is explored, (...) as well as what may be necessary to reduce the public’s ressentiment. Modern malpractice in the US is covered by Nietzsche’s line of reasoning in On the Genealogy of Morals, although his reasoning is condemned by most Western philosophers. Doctors may be able to better manage their interactions with patients and limit their exposure to litigation by understanding and exploring alternative philosophical and historical origins—or aetiologies—of patient/doctor conflict. (shrink)

Over fifteen years after first reporting to the State of New York, the Harvard Medical Practice Study continues to have a significant impact in medical malpractice policy debates. In those debates the HMPS has come to stand for four main propositions. First, “medical injury… accounts for more deaths than all other kinds of accidents combined” and “more than a quarter of those were caused by substandard care.” Second, the vast majority of people who are injured as result of substandard care (...) do not file a claim. Third, “a substantial majority of malpractice claims filed are not based on provider carelessness or even iatrogenic injury.” Fourth, “whether negligence or a medical injury had occurred… bore little relation to the outcome of the claims.”Medical malpractice researchers have long known that the HMPS provides far stronger support for the first two of these propositions than for the last two; the HMPS was not designed or powered to reach strong conclusions about the validity of medical malpractice claims. (shrink)

In China, there have been numerous reports that doctors or other health care workers have been attacked by patients or members of patient’s families. From 2000 to 2003, there were 502 reports of violence against health care workers in the city of Beijing, in which 90 health care workers were wounded or disabled. From January 1991 to July 2001, in Hubei Province, 568 attacks on health care facilities and workers were reported, and some health care workers were even killed. In (...) Jiangsu Province, from 2000 to 2002, violent events against health care facilities and workers increased by 35% every year, with an average of 177 such events occurring each year. Those acts of violence have been attributed, in part, to the inadequacy of the legal system for handling medical disputes that was in effect prior to 2002. (shrink)

Medical science brings innovations in patient care at an astounding pace today - new chemotherapeutic agents, coated stents, and minimally invasive surgery are just few recent examples. For physicians, though, the specter of malpractice liability can overshadow the marvel of practicing in this era. Many physicians are working in a volatile liability environment; they face spiraling costs for malpractice insurance, have difficulties purchasing liability coverage at any price, and see record payouts in a growing number of claims against their colleagues. (...) The American Medical Association has declared that at least 20 states are currently in a malpractice “crisis,” with another 24 states showing early signs of an impending crisis.There have been two comparable periods of instability in the last thirty years, but these predecessor crises differ from the current one in important ways. First, while physicians mainly experienced dwindling options for obtaining coverage in the mid-1970s and exorbitant prices in the mid-1980s, the current crisis appears to have elements of both availability and affordability. (shrink)

The United States is in its fifth year of what is now widely referred to as “the new medical malpractice crisis.” Although some professional liability insurers have begun to report improvements in their overall financial margins, there are few signs that the trend toward higher costs is reversing itself - particularly for doctors and hospitals. In 2003-2004, the presidential election and tort reform proposals in Congress brought heightened public attention to the need for some type of policy intervention to ease (...) the effects of the crisis.The darling of tort reformers at both the federal and state levels has been legislation to limit, or “cap,” damages awarded to plaintiffs in malpractice cases. Health care provider groups, liability insurers, and the Bush Administration have all seized on the example of California's MICRA law, which since 1975 has capped noneconomic damages in malpractice cases at a flat $250,000, as the path to financial recovery. (shrink)

It is often thought that there is a “crisis” or something akin to this in the field of medical malpractice in the USA and from time to time, as will be shown, there are suggestions that a similar situation could exist in the UK. This paper will examine what might be meant by the expressions “malpractice” and “crisis” in relation to the UK. It will be argued that there is no evidence to suggest that anything as dramatic as a crisis (...) exists, and that what current concerns exist about medical malpractice and litigation are not based upon an existing or impending crisis. Further, it will suggest that evidence points to medical litigation had reached a plateau, and that, due to a number of factors, if there were a serious problem it is likely to be on the wane. (shrink)

It is often thought that there is a “crisis” or something akin to this in the field of medical malpractice in the USA and from time to time, as will be shown, there are suggestions that a similar situation could exist in the UK. This paper will examine what might be meant by the expressions “malpractice” and “crisis” in relation to the UK. It will be argued that there is no evidence to suggest that anything as dramatic as a crisis (...) exists, and that what current concerns exist about medical malpractice and litigation are not based upon an existing or impending crisis. Further, it will suggest that evidence points to medical litigation had reached a plateau, and that, due to a number of factors, if there were a serious problem it is likely to be on the wane. (shrink)

Malpractice insurance rates have created a crisis in American medicine. Rates are rising and reimbursements are not keeping pace. In response, physicians in the states hardest hit by this crisis are feeling compelled to take political action, and the current action of choice seems to be physician strikes. While the malpractice insurance crisis is acknowledged to be severe, does it justify the extreme action of a physician walkout? Should physicians engage in this type of collective action, and what are the (...) costs to patients and the profession when such action is taken? I will offer three related arguments against physician strikes that constitute a prima facie prohibition against such action: first, strikes are intended to cause harm to patients; second, strikes are an affront to the physician-patient relationship; and, third, strikes risk decreasing the public's respect for the medical profession. As with any prima facie obligation, there are justifying conditions that may override the moral prohibition, but I will argue that the current malpractice crisis does not rise to the level of such a justifying condition. While the malpractice crisis demands and justifies a political response on the part of the nation's physicians, strikes and slow-downs are not an ethically justified means to the legitimate end of controlling insurance costs. (shrink)

Human clinical research trials, by which corporations, universities, and research scientists bring new drugs, devices, and procedures into the practice and marketplace of medicine, have become a huge business. The National Institutes of Health doubled its spending over the past five years, while in the private sector the top twenty pharmaceutical companies have more than doubled their investment in research and development over a roughly comparable period. To date, some twenty million Americans have participated in clinical research trials that now (...) are as common in the private practice setting as in academia.For many years human clinical trials received relatively little public attention. In the wake of several well-publicized research abuses, Congress created in 1974 the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research to formulate recommendations to protect human research subjects. The Commission’s 1979 Belmont Report helped to guide the Institutional Review Boards that review the ethics of federally funded research. (shrink)

On February 11, 2003, the Second Circuit ruled in Cicio v. Vytra Healthcare that patients may in some cases sue health maintenance organizations for medical malpractice under state law. The decision is particularly notable for opening the door to state tort claims in an area that had heen considered preempted by the Employee Retirement Income Security Act of 1974.ERISA is a federal statute that regulates employee benefit plans, establishing a complex set of rules and minimum standards for most health and (...) pension plans in private industry. ERISA requires that participants receive certain information about their benefits plans, and imposes fiduciary responsibilities on individuals with discretionary control over plan assets. These individuals have certain specific duties, and are required to work “solely in the interest of the participants and beneficiaries and for the exclusive purpose of: providing benefits to participants and their beneficiaries; and defraying reasonable expenses of administering the plan.”. (shrink)

On March 29,2000, in U.S. v. Wood, the U.S. Court of Appeals for the Tenth Circuit held that a physician cannot be convicted of murder simply for adopting, in an emergency setting, a risky course of treatment intended to prolong life that, when carried out, effectively hastened death. Finding the government's evidence flawed, based on several evidentiary errors and an erroneous denial of a motion for judgment of acquittal on murder charges, the court reversed the conviction of involuntary manslaughter and (...) ordered a new trial.Virgil Dykes, an 86-year-old man, was suffering from severe abdominal pain when he arrived at the Veterans Administration hospital in Muskogee, Oklahoma, on February 5, 1994. (shrink)

Malpractice lawsuits serve as a great source of pain, consternation and loss for physicians and patients alike, usually leaving all parties involved in the process with a sense of betrayal. A significant number of physicians will be sued at least once in their career, especially if they practice in some of the more vulnerable specialties. In addition, there is some evidence that the threat of malpractice lawsuits changes the practice style of many physicians, leading to the practice of “defensive medicine” (...) and raises the total cost of health care. Clearly, the prevention of medical malpractice is an issue that deserves considerable attention from physicians and from those who train them.Empirical evidence suggests that medical negligence may play a relatively minor role in malpractice lawsuits. As demonstrated by Localio, et al., one in thirty-five cases of negligence or incompetence actually results in a lawsuit. (shrink)

The Court of Appeals of Indiana upheld the trial court's judgment and refused to create a new tort for “wrongful prolongation of life” because existing law offers a remedy to those who do not wish to be kept alive through artificial measures. Specifically, the court affirmed the trial court's dismissal in favor of Muncie Medical Investors, LP, the operator of Woodlands Nursing Home since the plaintiffs could have sought relief under I.C. § 16-36-1-8 which provides for court resolution of disputes (...) regarding an individual's treatment at the end of life.In 1992, Rebecca Taylor suffered a stroke that left her paralyzed on her left side and confined to a wheelchair. Taylor executed a living will in late 1993 directing that if she was suffering from a terminal illness with “no reasonable possibility of recovery,’’ then no “extraordinary means” to prolong her life should be used. (shrink)

This essay examines the so-called phenomenon of defensive medicine and the problematic aspects of attempting to maintain the safest legal position possible. While physicians face genuine litigation threats they frequently overestimate legal peril. Many defensive practices are benign, but others alter patient care and increase costs in ways that are ethically suspect. Physicians should learn to evaluate realistically the legal risks of their profession and weigh the emotional, physical, and financial costs to the patient before employing a defensive measure.

Prostate cancer has become a major health concern of male Americans. It is now the most common nondermatologic cancer and the second leading cause of cancer death among men. The incidence of detected prostate cancer rose rapidly in recent years, partly because of prostate-specific antigen testing; it is only now tapering off. Screening for prostate cancer with PSA is widespread in the United States, yet controversial: the American Urological Association recommends PSA screening and the American Cancer Society recommends offering screening; (...) however, the United States Preventive Services Task Force and the American College of Physicians recommend against routine screening; and the American Academy of Family Physicians believes that the decision to screen should be left to the patient. (shrink)

The purpose of this article is to explore both the legal difficulties and policy objections in using public nuisance against conduct which exposes others to the risk of contracting a harmful disease. Drawing on the judicial and legislative responses in Australia, Canada, New Zealand and the United Kingdom, I will identify the important issues of legal principle and public policy which must be addressed when considering the imposition of criminal liability in these circumstances.

Determining appropriate legal responses to the conduct of health care workers who endanger patients continues to provoke fierce debate. This is particularly true in the context of criminal law, which offers punishment as an obvious strategy.

Determining appropriate legal responses to the conduct of health care workers who endanger patients continues to provoke fierce debate. This is particularly true in the context of criminal law, which offers punishment as an obvious strategy. In the first of three papers which make up this issue's extended Health Care Law feature, Professor Alexander McCall Smith and Dr Alan Merry argue against the prosecution of health care workers except in circumstances where there is very dear evidence of a culpable frame (...) of mind. They do so against the backdrop of their description of proposed changes in New Zealand legislation on medical manslaughter. The catalyst for this change was a judge's refusal to countenance the prosecution of an anaesthetist for manslaughter for inadvertent error. In the authors' opinion the intervention by the New Zealand judge has given rise to a long overdue review of a harsh penal measure. However, in a commentary on McCall Smith and Merry's paper, Ron Paterson argues that all is not what it seems and that--in the light of New Zealand's 'no fault' system of compensation for medical accident--the present system should be maintained. (shrink)

There can be no disputing the proposition that doctors and nurses should be held accountable for their professional activities. In most circumstances this accountability should be achieved through appropriate and effective complaints and disciplinary procedures, but there will be cases where the criminal law should become involved. The criminal law, however, is a serious weapon, and should only be used to punish those whose conduct is truly criminal; it should not be used against those who have merely made a human (...) error. The task of the law should therefore be to identify those situations where a doctor or nurse has behaved in a way which demonstrates a criminally culpable state of mind. In NZ recently the law has failed to do this and has been used as a weapon against those who may be in no sense morally blameworthy. -/- In New Zealand recently the law has failed to do this and has been used as a weapon against those who may be in no sense morally blameworthy. In this respect, NZ has been out of step with other comparable jurisdictions and has demonstrably failed to distinguish between cases where death is caused accidentally (through the making of an ordinary human error) and cases where it is caused criminally (through recklessness or culpable negligence). This is a surprising situation in a jurisdiction which has prided itself on its willingness to adopt a reformist legal agenda. (shrink)