In contrast to theoretical discussions about potential professional liability of clinical ethicists, this report gives the results of empirical data gathered in a national survey of clinical medical ethicists. The report assesses the types of activities of clinical ethicists, the extent and types of their professional liability coverage, and the influence that concerns about legal liability has on how they function as clinical ethicists. In addition demographic data on age, sex, educational background, etc. are reported. The results show (...) that while nearly one third (28.9%) of the ethicists regularly make recommendations about patient care, only 10.8% of them regularly make entries in the medical record; only approximately half (53.0%) of them are covered by professional liability (malpractice) insurance; and the vast majority (84.3%) of them say that concerns about legal liability do not influence the way they function as clinical ethicists. (shrink)

Traditionally, there have been few legal actions brought against psychotherapists that allege negligent psychotherapy and negligent treatment of psychiatric disorders. However, in the case of Osheroff v. Chestnut Lodge, a patient-physician (Dr. OsheroE) sued Chestnut Lodge, a private psychiatric facility, for negligence based on the staff's decision to apply a psychodynamic model of treatment (through psychotherapy) and not a biological model. The case sparked a heated debate between adherents of the psychodynamic model and those of the biological model. This article (...) explores the implications of the Osheroff litigation for mental health professionals. It is proposed that an interactive informed consent process be used to protect psychotherapists against Osheroff-type litigation. (shrink)

In recent years, the law in the area of recovered memories in child sexual abuse cases has developed rapidly. See J.K. Murray, “Repression, Memory & Suggestibility: A Call for Limitations on the Admissibility of Repressed Memory Testimony in Abuse Trials,” University of Colorado Law Review, 66 : 477-522, at 479. Three cases have defined the scope of liability to third parties. The cases, decided within six months of each other, all involved lawsuits by third parties against therapists, based on treatment (...) in which the patients recovered memories of sexual abuse. The New Hampshire Supreme Court, in Hungerford v. Jones, 722 A.2d 478, allowed such a claim to survive, while the supreme courts in Iowa, in J.A.H. v. Wadle & Associates, 589 N.W.2d 256, and California, in Eear v. Sills, 82 Cal. Rptr. 281, rejected lawsuits brought by nonpatients for professional liability. (shrink)

At first glance, the first informed consent case to be decided by the High Court of Australia appears to be little more than a clear and simple description of the substantive law accepted in most American jurisdictions - although that is no small accomplishment in and of itself. In Rogers v. Whitaker, the highest court in Australia succinctly and persuasively rejected informed consent as a species of battery law, accepted it as a form, of ordinary professional negligence law, and (...) adopted the “American” patient-oriented standard for measuring the breach of a healthcare professional's duty to her or his patients. On second look, however, the opinion is an even more significant one because it reveals that the law of informed consent is now based on principles broad enough to create a duty on the part of healthcare providers to offer adequate health education to all of their patients. In Implicitly recognizing the physician's duty to educate her or his patients, the High Court's judgment is consistent with a view increasingly held In the medical and ethical communities that teaching patients about how to maintain their health is just as much a part of the doctor's function as diagnosing and treating disease. It may have taken 2,500 years for medicine to progress from, the Hippocratic notion that physicians should apply treatment to patients who are kept in blissful Ignorance of their condition and Its remedy, but there Is little doubt that medicine finally has entered a post-Hippocratic era. (shrink)

This article begins with a criticism of Mclntyre and Gorovitz's account of medical error. Their theory implies that error, at least sometimes, it a necessary consequence of the inductive character of medical inquiry. The counter intuitive consequences of this account suggest that the issues surrounding induction may not be the most fertile area for developing a coherent interpretation of medical error. Given these shortcomings, I develop a new theory which assumes that the best philosophical soil for constructing a theory of (...) medical trror is the problem of universals. I then explain the problem and how the medical universal functions within arguments concerning diagnosis and treatment. A Wittgensteinian solution to the problem is presented which emphasizes the "borderline" character of some, if not many, medical judgments. Next, an argument is offered to establish that questions of medical error are not purely professional questions. This is because the theories used to make such professional judgments permit borderline cases even under the best circumstances. Finally, while there are a number of legitimate responses to this situation, I recommend one which involves legislative action. CiteULike Connotea Del.icio.us What's this? (shrink)

The Supreme Court of California held, in Delaney v. Baker, 82 Cal. Rptr. 2d 610, that the heightened remedies available under the Elder Abuse Act, Cal. Welf. & Inst. Code, §§ 15657,15657.2, apply to health care providers who engage in reckless neglect of an elder adult. The court interpreted two sections of the Act: section 15657, which provides for enhanced remedies for reckless neglect; and section 15657.2, which limits recovery for actions based on “professional negligence.” The court held that (...) reckless neglect is distinct from professional negligence and therefore the restrictions on remedies against health care providers for professional negligence are inapplicable.Kay Delaney sued Meadowood, a skilled nursing facility, after a resident, her mother, died. Evidence at trial indicated that Rose Wallien, the decedent, was left lying in her own urine and feces for extended periods of time and had stage I11 and IV pressure sores on her ankles, feet, and buttocks at the time of her death. (shrink)

Medical malpractice has attracted the attention of people and the media all over the world. In Turkey, malpractice cases are tried according to both criminal and civil law. Nurses and midwives in Turkey fulfill important duties in the distribution of health services. The aim of this study was to reveal the legal procedures followed in malpractice allegations and malpractice lawsuits in which nurses and midwives were named as defendants. We reviewed 59 nursing and midwifery lawsuits reported (...) to the Higher Health Council between 1993 and 1998. Health professionals were held liable in 59% of the lawsuits. Midwives had the highest percentage of malpractice liability (52%), followed by physicians (29%) and nurses (19%). To reduce potential liability, nurse education should be improved, a nursing malpractice law should be enacted, and instructions for nursing procedures should be formulated. (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)

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)

There is widespread concern among public health and emergency response officials that there could be a shortage of health care providers in a public health emergency. At least the following three factors could cause an inadequate supply of physicians, nurses, and other health care providers: the severity of the emergency might greatly increase the demand for health services and outstrip the available supply; health care providers might become unavailable because of their own high rates of illness, as was the case (...) in the SARS epidemic; and many health care providers might not report for duty for personal, family, or professional reasons.One way of addressing the shortage is to encourage health care providers from unaffected areas or parts of the country to volunteer their services. A variety of measures have been enacted to facilitate the use of such volunteers. (shrink)

Binding arbitration is generally less available in tort suits than in contract suits because most tort plaintiffs do not have a pre-dispute contract with the defendant, and are unlikely to consent to arbitration after the occurrence of an unforeseen injury. But the Federal Arbitration Act applies to all “contract[s] evincing a transaction involving commerce,” including contracts for healthcare and medical services. Given the broad trend towards arbitration in nearly every other business-to-consumer industry, coupled with some rollbacks in tort reform measures (...) that have traditionally favored medical professionals in the judicial system, it is very possible that we may witness in the near future more medical contracts containing arbitration provisions. As a consequence, all manner of tort claims might be hashed out in the sequestered universe of arbitration. (shrink)

The UK's personal financial services sector has been the site of controversy over alleged professional malpractice. Financial advisers’ status as professionals is in question, and their claim to knowledge and expertise is apparently challenged by an extensive consumer literature on personal finance. This article analyses a corpus of seventeen consumer guides to personal finance and money management published in the UK, together with a range of financial material available on the internet. These guides urge readers to give high (...) priority to their finances, given the irreversible global retreat of the state from welfare provision. They argue that expert professional advice is indispensable. They prepare readers to play their part as clients in mutually profitable collaboration with professional advisers. They offer reassurance about the effectiveness of industry regulation and consumer protection. The guides are reflexively implicated in the promotional culture of personal financial services. They support financial advisers’ claim to professional standing, and contribute to the cultural work of creating a clientele for them. (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)

In this Second Edition of her best-selling ethics paperback text, renowned paralegal educator Therese Cannon clearly addresses pertinent case law, rules changes, and other developments involving this important area of the law. Organized in 10 concise chapters, Ethics and Professional Responsibility for Legal Assistants, Second Edition, covers key concepts, including unauthorized practice of law; confidentiality; conflicts of interest; fees; trends in legal malpractice; discovery abuse and other advocacy issues; pro bono work; and more. to help your students grasp (...) the material, the pedagogy features: chapter reviews discussion questions cases for further analysis helpful appendices, including the Model Guidelines, standards, and codes for ABA, NALA, and NFPA. Ideal for use in your next ethics class, this flexible paperback can also easily be used to add an ethics component to your Introduction to Law course, student internship program, or other courses in your curriculum. This superb book is also accompanied by a valuable Instructor's Guide, which provides answers to every discussion question in the text and the specific page numbers to find answers to all review questions. It also contains sample syllabi and references to additional source materials to help you adapt this book to your course. (shrink)

Access to reliable health advice can make the difference between life and death. But good advice is hard to come by. Within the confines of the professional-client or doctor-patient relationship, the First Amendment operates in a way that protects good and sanctions bad advice. Outside of this relationship, however, the traditional protections of the First Amendment prohibit content- and viewpoint discrimination. Good and bad advice are treated as equal. A core assumption of First Amendment theory is the autonomy of (...) speakers and listeners. Another assumption, as this Article demonstrates in the health context, is the availability of access to professional advice. This assumption, however, is erroneous because access to health advice in fact is unevenly distributed.This Article argues that assuming access to professional advice creates indefensible inequality. Lack of access to expert advice puts some listeners at much higher risk than others. Current First Amendment doctrine is largely unproblematic for those who can afford expert advice, and makes expert advice much costlier where health provider access is needed to obtain good advice. Those who lack access must place a higher degree of trust in widely-available information because they have no more reliable alternative. In other words, First Amendment doctrine places a higher burden on those who can least afford expert advice and who are most dependent on experts in public discourse. (shrink)

For each one of the approximately 800,000 people who die from suicide every year, an additional twenty people attempt suicide. Many of these attempts result in hospitalization or in contact with other healthcare services. However, many personal, educational, and institutional barriers make it difficult for healthcare professionals to care for suicidal individuals. We reviewed literature that discusses suicidal patients in healthcare settings in order to highlight common ethical issues and to identify knowledge gaps. A sample was generated via PubMed using (...) keywords “[(ethics OR *ethic*) AND suicid*] AND [English (Language) OR French (Language)]” (final N = 52), ethics content was extracted according to scoping review methodology, and categorized thematically. We identified three main areas posing ethical challenges for health professionals caring for suicidal individuals and their families. These were: (1) making clinical decisions for patients in acute care or when presented with specific circumstances; (2) issues arising from therapeutic relationships in chronic care, and (3) organizational factors. There is considerable uncertainty about how to resolve ethical issues when caring for someone who is suicidal. The stigma associated with suicide and mental illness, problems associated with risk–benefit assessments, and the fear of being held liable for malpractice should a patient die by suicide were overarching themes present across these three categories. Caring for suicidal patients is clinically and ethically challenging. The current literature highlights the complexity and range of decisions that need to be made. More attention should be paid to the difficulties faced by healthcare professionals and the development of solutions. (shrink)

Market events of the past few years have resurrected long unheeded calls for the professionalization of the occupation of business manager, not in terms of increased technical proficiency, but in terms of a renewed vigor to shape the practice of management and the education of those who will fill its ranks along the lines of the “ideal of service” which characterizes socially established professions like law and medicine. In this paper I argue that the push to professionalize business management can (...) be grounded in an ISCT (Integrative Social Contracts Theory) treatment of the “vulnerable values” argument which itself has served as a source for the professionalization of medicine and law. Additionally, I offer a sketch of an argument that once business managers are considered to be members of a profession, we can begin to develop an account of “business malpractice” which would, when it occurs, represent an ethical violation of the “publicpledge” that members of all professions make to serve the broader good of society. (shrink)

Defensive medicine has become pervasive. Defensive medicine is often thought of as a systems issue, the inevitable result of an adversarial malpractice environment, with consequent focus on system-responses and tort reform. But defensive medicine also has ethical and professionalism implications that should be considered beyond the need for tort reform. This article examines defensive medicine from an ethics and professionalism perspective, showing how defensive medicine is deeply problematic. First, a definition of defensive medicine is offered that describes the essence (...) of defensive practice: clinical actions with the goal of protecting the clinician against litigation or some adverse outcome. Ethical arguments against defensive medicine are considered: defensive medicine is deceptive and undermines patient autonomy; defensive medicine subjugates patient interests to physician interests and violate fiduciary obligations; defensive medicine exposes patients to harm without benefit; defensive medicine undermines trust in the profession; and defensive medicine violates obligations of justice. Possible arguments in favor of defensive medicine are considered and refuted. Defensive practice is therefore unethical and unprofessional, and should be viewed as a challenge for medical ethics and professionalism. (shrink)

BackgroundMoral distress (MD) is the psychological damage caused when people are forced to witness or carry out actions which go against their fundamental moral values. The main objective was to evaluate the prevalence and predictive factors associated with MD among health professionals during the pandemic and to determine its causes.MethodsA regional, observational and cross-sectional study in a sample of 566 professionals from the Public Health Service of Andalusia (68.7% female; 66.9% physicians) who completed the MMD-HP-SPA scale to determine the level (...) of MD (0-432 points). Five dimensions were used: i) Health care; ii) Therapeutic obstinacy-futility, iii) Interpersonal relations of the Healthcare Team, iv) External pressure; v) Covering up of medical malpractice.ResultsThe mean level of MD was 127.3 (SD=66.7; 95% CI 121.8-132.8), being higher in female (135 vs. 110.3; p<0.01), in nursing professionals (137.8 vs. 122; p<0.01) and in the community setting (136.2 vs. 118.3; p<0.001), with these variables showing statistical significance in the multiple linear regression model (p<0.001; r2=0.052). With similar results, the multiple logistic regression model showed being female was a higher risk factor (OR=2.27; 95% CI 1.5-3.4; p<0.001). 70% of the sources of MD belonged to the dimension "Health Care" and the cause "Having to attend to more patients than I can safely attend to" obtained the highest average value (Mean=9.8; SD=4.9).ConclusionsFemale, nursing professionals, and those from the community setting presented a higher risk of MD. The healthcare model needs to implement an ethical approach to public health issues to alleviate MD among its professionals. (shrink)

This paper examines some of the possible legal implications of the production, marketing and use of expert systems. The relevance of a legally useful definition of expert systems, comprising systems designed for use both by laymen and professionals, is related to the distinctions inherent in the legal doctrine underlying provision of goods and provision of services. The liability of the sellers and users of, and contributors to, expert systems are examined in terms of professional malpractice as well as (...) product liability. A recurring theme indicates that legislators may be inclined to restrict possibilities of liability suits in order to avoid disincentives to the creation of expert systems. (shrink)

Economist-philosopher Amartya Sen's writings on social and political issues have attracted wide audiences. Section 2 introduces his contributions on: how people reason as agents within society; social determinants of people's (lack of) access to goods and of the effective freedoms and agency they enjoy or lack; and associated advocacy of self-specification of identity and high expectations for ‘voice’ and reasoning democracy. Section 3 considers his relation to social theory, his tools for theorizing action in society, and his limited degree of (...) attention to work by sociologists and to capitalism and power structures. Section 4 characterizes a style marked by conceptual refinement, emphases on complexity and individuality, including personal individuality, and reformist optimism. Section 5 shows the features from Sections 3 and 4 at work in his conception of personhood that advocates freedom to make a reasoned composition of personal identity. Similarly, Section 6 addresses his conception of public reasoning and neglect of the sociology of democracy. It contrasts the ideal of a reasoning polity with features in many countries. Sen's programmes for critical autonomy in personhood and for reasoned politics play, nevertheless, a normic role, while his analytical formats help investigation of obstacles to more widespread agency, voice, and democratic participation. (shrink)

Este estudio analiza el artículo 146 del Código Orgánico Integral Penal (COIP) de Ecuador, esta trata sobre el homicidio culposo por práctica profesional equivocada. La mala praxis médica es un problema grave en el sistema de salud de Ecuador, y la interpretación inadecuada de este artículo ha generado confusión en los procesos legales relacionados. El objeto de la investigación es analizar la normativa del artículo 146 del COIP y las lagunas de interpretación jurídica para determinar la culpabilidad o inocencia de (...) los profesionales de la salud. Para ello, se emplearán métodos comparativos e históricos, que incluyen revisión bibliográfica, análisis de contenido del artículo 146. Los resultados esperados son demostrar las dudas razonables en la prueba del delito de mala praxis, resaltar la importancia de la bioética en los procedimientos legales. Este estudio busca contribuir a una mejor comprensión del marco legal y brindar ideas para la resolución de casos de mala praxis y homicidio culposo en Ecuador. (shrink)

This article draws on the ecological model of teacher agency and elaborates on how teacher agency is achieved, its components and how it could be strengthened. This model highlights professional competence, structural and cultural context, and professional purpose as the main elements of achieving agency. In this paper, we specify some elements of the ecological model and elaborate on how three types of reflection could be used to strengthen conditions for achieving teacher agency. These include, first, procedures aimed (...) at articulating the theory of action, including effective strategies, rules and principles for practice; second, procedures of practical reflection, aimed at fostering the conceptualization of practice and the understanding of oneself as a teacher; and third, procedures of critical reflection, which help to address the inequalities and malpractices of education and society. The main importance of this paper is to extend the practical relevance of the ecological model for teacher learning settings. (shrink)

Epidemiological studies indicate that the incidence of shaken baby cases is overestimated and that this is due to biased classifications, based on ethical rather than scientific considerations. In...

Critical analysis of the commercialization and malpractice current in the profession of medicine.

The legal environment -- Regulation of nursing practice -- Nurses in legal actions -- Standards of care -- Defenses to negligence or malpractice -- Prevention of malpractice -- Nurses as witnesses -- Professional liability insurance -- Accepting or refusing an assignment/patient abandonment -- Delegation to unlicensed assistive personnel -- Patients' rights and responsibilities -- Confidential communication -- Competency and guardianship -- Informed consent -- Refusal of treatment -- Pain control -- Patient teaching and health counseling -- Medication (...) administration -- Clients with AIDS and HIV testing -- Abusive situations -- Reproductive services -- Restraints -- Emergency psychiatric admissions -- Organ and tissue donation and transplantation -- Discharge against medical advice -- The medical record and documentation standards -- Electronic health information and communications -- Interdependent nursing functions: verbal orders and telenursing -- Event reporting and compliance -- Quality and safety in nursing practice -- Forensic issues -- Employer and employee rights -- Contracts -- Corporate liability -- Employment contracts and unionization -- Employment status liability -- Staffing issues and floating -- Americans with Disabilities Act -- Employees with AIDS/HIV infection and exposure to bloodborne pathogens -- Impaired nurses -- Sexual harassment in the workplace -- Violence in the workplace -- Intentional torts -- Environmental health and safety -- Ethical decision making -- Professional boundaries and patient relationships -- Moral courage and patient advocacy -- Social media and online professionalism -- Reporting illegal, unethical, or unsafe conduct -- Maternal versus fetal rights -- Futility of care -- Advance directives and end-of-life decisions -- Assisted suicide. (shrink)

'The law imposes the duty of care: but the standard of care is a matter of medical judgment'. So says Lord Scarman, outlining the hitherto accepted 'Bolam' standard, in his recent speech in the House of Lords decision of Sidaway v Bethlem Royal Hospital, reflecting earlier judicial dicta suggesting that it is for the medical profession rather than the courts to determine whether or not a medical practitioner has achieved the required standard of care (1). It is suggested here that (...) this concept is bad in principle, and that the weight of judicial authority is against it. (shrink)

In recent years, and in close connection with a number of well-known financial malpractice cases, public debate on business ethics has intensified worldwide, and particularly in ethics-unfriendly environments, such as Spain, with many recent fraud and corruption scandals. In the context of growing consensus on the need of balancing social prosperity and business profits, concern is increasing for introducing business ethics in higher education curricula. The purpose is to improve ethical behaviour of future business people, and of accounting professionals (...) in particular. In this study, from a sample of 551 business students at a Spanish university, the importance of accounting ethics is investigated. The aim of this paper is twofold. First, we attempt to examine students’ overall perceptions of business ethics in unfriendly environments and, specifically, their views on the importance and goals of accounting ethics education. Second, we intend to investigate whether potential differences in such perceptions depend on previous business ethics courses taken, gender, and age of students. Our results show that those students who have previously taken an ethics course are especially prone to considering that accounting education should include ethical considerations, and show greater interest in further introducing this subject in their curricula. These facts should encourage universities offering business degrees in ethics-unfriendly environments to extend the implementation of ethics courses in their curricula. Besides, significant differences in students’ perceptions on the importance of accounting ethics are found depending on their gender and age. In line with previous research findings, female and older students show more ethical inclinations than, respectively, male and younger students. Thus, ethics-unfriendly environments can be treated as contexts where general trends on students’ ethical attitudes are also clearly visible. This fact, together with the evidenced impact of ethics courses on students’ ethical inclinations, places ethics-unfriendly environments as crucial research settings for further inquiring into the nuances that help explain students’ attitudes towards accounting ethics and the role of ethics courses in business degree curricula. (shrink)

When taken too far, certain well-intentioned ethical guidelines can become transformed into artificial boundaries that serve as destructive prohibitions and thereby undermine clinical effectiveness. Rigid roles and strict codified rules of conduct between therapist and client can obstruct a clinician's artistry. Those anxious conformists who go entirely by the book, and who live in constant fear of malpractice suits, are unlikely to prove significantly helpful to a broad array of clients. It is my contention that one of the worst (...) professional/ethical violations is to permit current risk-management principles to take precedence over humane interventions. (shrink)

This essay describes how longstanding conceptions of professionalism in American medical care came under attack in the decades since the enactment of Medicare in 1965 and how the reform strategy and core provisions of the 2010 Affordable Care Act illustrate the weakening of those ideas and the institutional practices embodying them.The opening identifies the dominant role of physicians in American medical care in the two decades after World War II. By the time Medicare was enacted in 1965, associations of American (...) physicians were almost completely in charge of medical education, specialist certification, and the enforcement of professional norms on their members. Who could be a doctor, what education and training would be required, and what collegial oversight was operative was first a professional matter and only secondly implicated the state through malpractice or major corporations via the employment of physicians. (shrink)

BackgroundLack of proper understanding on the part of researchers about public understanding of research and informed consent will increase the potential for malpractice. As a part of a larger study on ethics and informed consent in Sri Lanka, this study aimed to ascertain the level of understanding of 'research' by exploring the views of the public and professionals.MethodsConvenience sampling and snow ball technique were used for recruitment with an emphasis on balanced age and gender representation, diverse educational, socio-cultural and (...) professional backgrounds, and previous research experience, either as researchers or participants. Content analysis of the data was carried out.Results66 persons (37 males, 29 females) participated. Although fundamentally a qualitative study, themes were also quantitatively analysed for informative results. Most participants thought that the word 'research' meant searching, looking, inquiring while some others thought it meant gathering information, gaining knowledge and learning.A third of participants did not offer an alternative word for research. Others suggested the words survey, exploration, search, experiment, discovery, invention and study as being synonymous. Doctors, health professionals, health institutions, scientists, professionals, businessmen, pharmaceutical companies, students, teachers were identified as people who conduct research.Participants indicated that crucial information on deciding to participate in research included objectives of the research, project importance and relevance, potential benefits to individuals and society, credibility & legitimacy of researchers, what is expected of participant, reason for selection, expected outcome, confidentiality and ability to withdraw at any time. A majority (89%) expressed their willingness to participate in future research.ConclusionsThe results show that with or without prior experience in research, participants in this study had a reasonable understanding of research. The findings show that a decision about taking part in research is dependent on knowledge, education and also on social networks.The results demonstrate that the majority were supportive of health research and believe that research is beneficial to the welfare of society. (shrink)

In Italy in recent years, an exponential increase in the frequency of medical malpractice claims relating to the issue of informed consent has substantially altered not only medical ethics, but medical practice as well. Total or partial lack of consent has become the cornerstone of many malpractice lawsuits, and continues to be one of the primary cudgels against defendant physicians in Italian courtrooms. Physicians have responded to the rising number of claims with an increase in ‘defensive medicine’ and (...) a prevailing preoccupation with the purely formal aspects of consent. The result is a plethora of consent forms, believed to be a guarantee of ‘informed consent’, as well as a growing reliance on informed consent as a shield against judicial action brought by the patient. Physicians ‘inform’ patients without really sharing information, often delegating the task of communication to other professionals who are not doctors. Italian judges always condemn the physician when information to the patient has been inadequate, thus leading insurance companies to consider the lack of valid informed consent as the total responsibility of the physician and/or the hospital. It is necessary to change tack, to remove this idea of consent which permeates the defensive culture of medical practice. Italian physicians need to be trained, first of all, to become aware that information and consent are two distinct processes, albeit closely connected. Valid communication demands a higher level of professionalism from physicians. (shrink)

One limitation of medical ethics modeled on ideal moral theory is its relative silence on the aftermath of medical error: not just on the recognition and avoidance of malpractice, wrongdoing, or other such failures of medical ethics, but on how to respond given medical wrongdoing. Ideally, we would never do each other wrong; but given that inevitably we do, as fallible, imperfect agents we require non-ideal ethical guidance. For such non-ideal contexts, Nancy Berlinger’s analysis of medical error and Margaret (...) Walker’s account of moral repair present powerful hermeneutical and practical tools toward understanding and enacting what is needed to restore relationships, trust, and moral standing in the aftermath of medical error and wrongdoing. Where restitutive justice aims to make injured parties whole and retributive justice to mete out punishment, reparative justice, as Walker describes it, “involves the restoration or reconstruction of confidence, trust, and hope in the reality of shared moral standards and of our reliability in meeting and enforcing them.” Medical moral repair is not without its challenges, however, in both theory and practice; the standard ways of holding medical professionals and institutions responsible for medical mistakes or malpractice function retributively and restitutively, either impeding or giving benign inattention to patient-practitioner relationship repair. This paper argues for the value of medical moral repair, while considering some complications of extending and synthesizing Berlinger’s and Walker’s respective accounts on medical error and moral repair. (shrink)

Law wrangles with setting and applying standards for the practice of medicine in many different arenas. One of the most prominent is medical malpractice litigation in which the trial process examines a physician's performance and measures it against the standard of care. The profession's prevailing custom, with some substantial tolerance for “respectable minority” views, has been the gold standard for scrutinizing physician practice and treatment decisions in the malpractice context. Using the profession's custom as the measure against which (...) a physician's performance is judged defers to the expertise of medicine. Deference to the medical profession is attractive as a tool for reining in law. Reliance on customary practice is criticized, however, for driving physicians to the relative safety of the middle of the herd. Creating such a strong incentive for compliance with customary practice can dampen medical innovation and the diffusion of new clinical knowledge. The safety of the herd can also deprive individual patients of the best care in their particular circumstances.Several current trends are strengthening claims that professional practice patterns are an inappropriate tool for distinguishing between high‐quality and substandard care. In particular, advocacy for evidence‐based medicine aggressively asserts that the traditional way of making medical treatment decisions is largely untethered from scientific method or data, rendering professional judgment, even in the aggregate, suspect. (shrink)

The data produced by the scientific community impacts on academia, clinicians, and the general public; therefore, the scientific community and other regulatory bodies have been focussing on ethical codes of conduct. Despite the measures taken by several research councils, unethical research, publishing and/or reviewing behaviours still take place. This exploratory study considers some of the current unethical practices and the reasons behind them and explores the ways to discourage these within research and other professional disciplinary bodies. These interviews/discussions with (...) PhD students, technicians, and academics/principal investigators were conducted mostly in European higher education institutions including UK, Italy, Ireland, Portugal, Czech Republic and Netherlands.Through collegiate discussions, sharing experiences and by examining previously published/reported information, authors have identified several less reported behaviours. Some of these practices are mainly influenced either by the undue institutional expectations of research esteem or by changes in the journal review process. These malpractices can be divided in two categories relating to methodological malpractices including data management, and those that contravene publishing ethics. The former is mostly related to “committed bias”, by which the author selectively uses the data to suit their own hypothesis, methodological malpractice relates to selection of out-dated protocols that are not suited to the intended work. Although these are usually unintentional, incidences of intentional manipulations have been reported to authors of this study. For example, carrying out investigations without positive controls; but including these from a previous study. Other methodological malpractices include unfair repetitions to gain statistical significance, or retrospective ethical approvals. In contrast, the publication related malpractices such as authorship malpractices, ethical clearance irregularities have also been reported. The findings also suggest a globalised approach with clear punitive measures for offenders is needed to tackle this problem. (shrink)

The necessity of consent is widely justified on the basis of the principle of respect for autonomy. Also, it is widely believed that shared decision making (SDM) is the practical device to seek patients’ consent for medical treatment. In this essay, I argue that SDM, while necessary, is insufficient for consent; because, in the paradigm of evidence-based medicine, SDM is contingent upon other practices to identify appropriate treatments that form the subjects of SDM. Indeed, case law emphasises normative decision-making practices (...) that precede SDM. Furthermore, case law supplies a nuanced understanding of SDM, which includes not only exchange of information but also attention to human vulnerability that persists despite formal retention of decision-making capacity. In addition, the law marks out a space in which people with capacity are absolutely entitled to self-determination. Thus, a four-step framework of decision making can be induced from legal doctrine. This legal framework corresponds to a construct of respect for autonomy that draws upon feminist theory. Feminist scholars have objected to the focus on individuals in traditional theories of autonomy; instead, they insist that people have to be considered in the context of their social influences and relationships. Feminists separate out four ideas of autonomy, and these ideas can be used to construct a four-layered model of respect for autonomy, in which each layer corresponds sequentially to a step in the legal framework of decision making. This model of respect for autonomy provides both conceptual clarity and theoretically robust justification for doctors’ various obligations in decision-making practices for consent. (shrink)

Recent debates about redress mechanisms for medical accident victims have been sidetracked by fears of an American-style medical malpractice crisis. What is required is a framework within which the debate can resume. This paper proposes such a framework by focusing on the compensation and deterrence objectives and placing them in the wider context of the social costs of providing medical services. The framework is then used to assess and compare the effectiveness of differing approaches. In particular, the American and (...) British experiences of litigation, including the concept of 'defensive medicine', are evaluated. Also discussed briefly are alternatives to court-based complaints procedures including 'no-fault' schemes, professional ethics and internal complaints mechanisms. (shrink)

Lawyers and judges in the early American republic were surprisingly reluctant to penalise colleagues for malpractice and misconduct towards clients. Though they were part of a legal culture obsessed with preserving lawyers’ moral rectitude, they nonetheless remained sceptical of attempts to address malpractice. This article explores that apparent contradiction. I analyse allegedly wronged clients’ unsuccessful attempts to seek legal satisfaction, whether in civil, criminal, or professional suspension proceedings. I find that the period’s public-spirited legal ethics was in (...) fact a major contributor to these former clients’ difficulties. Legal reformers worried constantly about the dangers to the republic of too-zealous advocacy, which might undermine the public interest. These concerns helped render the opposite problem – of lazy or even duplicitous client ‘advocacy’ – invisible and irremediable. Stories from the past, I argue, help illuminate a tendency to overlook malpractice that continues to this day. (shrink)

The paper focuses on issues of development dimensions of Medical Law and its ongoing process of standardization and harmonization on one hand, versus the traditionally rooted and available principles of biomedical ethics, on the other. The collision of new legal institutes and the spread of human rights protections is evident. This paper follows the theory and practice of medical ethics and medical law. The theoretical aspect points out medical ethics as one of the sources of medical law. Legal theory makes (...) a distinction between formal and autonomous sources of medical law. Even though ethics is morally much higher, law prevails because it has stronger sanctions and legal power. In its practical aspect, this paper gives examples of different situations of medical decision-making processes. Ethical rules are of the utmost relevance in the domain of confidentiality and options of medical treatment. But, in concrete medical procedures, where legal positions of patients are evidently very significant, law has a more distinct function. Therefore, explaining particular cases from medical malpractice, such as cases of penal, civil or professional liability have an ethical dimension as well. Members of medical professions in Serbia often find these cases unfair. Mostly this is the consequence of ignorance in this kind of medical law and ethics relations. A discussion about practical cases has in that sense a self-learning component, which could be developed to strengthen ethical reasoning and judgment. Clanak stavlja naglasak na razvojnu dimenziju medicinskog prava i pitanja u kojoj meri njegova standardizacija i harmonizacija, na jednoj strani, uticu na primenu tradicionalno ukorenjenih vazecih principa biomedicinske etike, na drugoj. Teorijski aspekt clanka upucuje na medicinsku etiku kao jedan od izvora medicinskog prava koji se smatra autonomnim izvorom. Iako je etika na visoj lestvici, pravo preteze jer ima pravnu snagu element prinude i jacu sankciju za postupanje protivno pravilima. U svom prakticnom aspektu ovaj clanak stavlja naglasak na razlicite situacije pri donosenju medicinskih odluka, gde pravni polozaj onog ko se leci postaje veoma bitan, a pravo tu ima striktno odredjenu funkciju zastite. Zbog toga, objasnjenje posebnih slucajeva pogresne medicinske prakse ima svoj eticki, ali pre svega pravni znacaj, kakvi su slucajevi procesuiranja krivicne, imovinske i staleske odgovornosti. Pripadnici medicinskih profesija u Srbiji cesto smatraju sudske postupke protiv sebe nepravednim. Vecinom je to posledica upravo nepoznavanja odnosa normi medicinskog prava i etickih pravila. Razmatranje slucajeva iz prakse ima i svoju edukativnu komponentu koja na taj nacin unapredjuje eticko promisljanje i osnazuje pravno odlucivanje. (shrink)

On March 30, 1995, the Supreme Court of Nevada, in Greco v. United States, determined that medical professionals who fail to make a timely diagnosis of gross and disabling fetal defects, thereby denying a pregnant woman her right to terminate a pregnancy, had acted negligently, and a malpractice claim could be brought against them. The court supported the plaintiff's claim of “wrongful birth,” but determined that the disabled child born to the plaintiff has no personal cause of action for (...) “wrongful life.” Sundi Greco, the plaintiff, alleged that her doctors at Nellis Air Force Base in Nevada failed to make a timely diagnosis of her son's physical defects and abnormalities before his birth. Their negligence denied her the opportunity to terminate her pregnancy, causing her damages attendant to the avoidable birth of a child with birth defects. On her child's behalf, Greco asserted that the physicians' negligence, and resultant denial of his mother's right to terminate the pregnancy, allowed him to be born into a “grossly abnormal life of pain and deprivation.”. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Kennedy Institute of Ethics Journal 11.2 (2001) 115-116 [Access article in PDF] The Ethics of Medical Mistakes: Historical, Legal, and Institutional Perspectives Introduction In late 1999, the Institute of Medicine (IOM) released its report on medical errors, To Err is Human: Building a Safer Health System. The report estimated almost 50,000 deaths per year nationally due to medical mistakes, making it a leading cause of death. IOM speculated that (...) more than half of the deaths related to medical error are preventable. The IOM report shocked the public and medical professionals alike, sparking a national discussion of how to make the health care system safer. This multifaceted issue has profound implications for all aspects of health care, from the very personal--e.g., the relationship of caregiver and patient--to the societal--e.g., a nation's responsibility to its citizens.On 15 May 2000, the University of Pittsburgh Medical Center hosted an ethics conference devoted to the topic of medical mistakes. The goal was to bring together experts from various disciplines, before an audience of both providers and patients, to discuss medical mistakes and their implications. In this issue of the Kennedy Institute of Ethics Journal, we present selected papers resulting from that conference. These papers reflect not only the original oral presentations, but also much of the discussion those presentations generated. Three key perspectives on the ethics of medical mistakes are offered: historical, legal, and institutional.Rosa Lynn Pinkus offers a revealing historical perspective on the ethics of medical mistakes. In analyzing the history of mistake reporting in neurosurgery, she shows how the notion of a mistake developed only as the notion of a standard of practice emerged. Although much of managed care is directed toward systematically fostering a standard of care, this pursuit is relatively new in health care. One might speculate that as more standards are created, mistakes--defined as deviations from standard practice--must increase. If deviation from standard practice is overly castigated, however, then needed innovation in practice may be stifled. Interestingly, as Pinkus discusses, medical malpractice suits quickly followed the emergence of practice standards, driving the initial open reporting of mistakes underground. [End Page 115]Taking up the issue of medical malpractice, Thomas May and Mark Aulisio consider the ramifications of the current malpractice system for mistake prevention. The current system, they argue, while failing to adequately achieve its purported goals of deterring medical mistakes and compensating victims, itself creates a climate that deters the open reporting of mistakes by engendering fear and shame in clinicians. According to May and Aulisio, this failure to report medical mistakes openly has serious ramifications. Chief among these is the inability to do root cause analysis of mistakes, and then, where possible, to implement safeguards to minimize the occurrence of future mistakes. Ultimately, both the prevention of medical mistakes and the goals of malpractice litigation itself will be better served if substantial malpractice reform is undertaken.Andy Thurman argues that even in the current climate institutions ought to have a policy (and practice) of admitting to and openly reporting medical mistakes. Thurman argues that doing so not only is the right thing to do, but is also in the interest of institutions. Interestingly, he contends that failing to admit and openly report mistakes is both at odds with the mission of health care institutions and puts them at higher risk of litigation, and liability. In light of this, Thurman then suggests an institutional process for handling medical mistakes.Michael DeVita concedes that disclosing mistakes is widely supported by the health professionals' principles of ethics, but argues that there are a number of factors that conspire to make doing so a very difficult task. In analyzing an index case, DeVita contends that platitudes about being honest are not nearly enough to foster honest behavior and that policies that offer specific guidance on handling unfavorable events are needed in health care institutions.Finally, we conclude with the policy on disclosure of unfavorable events (this terminology is chosen because it includes both iatrogenic and natural diseases and conditions) that resulted from... (shrink)

In this article we wish to discuss different normative dilemmas that teachers and psychotherapists meet in their work with the student and the patient. We argue that crucial for a good practice is not the actual choice between normativity and freedom, between generalized or authorized standards and individual dialogue. Rather it is the professional’s continuous reflection on the form and quality of the interactions with the pupil and the patient, and the preservation of the balance between personal ethos and (...) professional responsibilities that best safeguard respect for the other's autonomy and self-determination. By illustrating psychotherapeutic malpractice and systematic mistreatment of children in the name of education, we wish to remind the reader that official governmental authorization of the professions pedagogy and psychology / psychotherapy is not automatically a guarantee for high professional standards or for the best possible teaching and psychotherapy. (shrink)

In its roughly 25 years of existence, the trial consulting profession has grown dramatically in membership, recognition, and breadth of practice. What began as a small activist group of social scientists volunteering their expertise to assist in the defense of Vietnam War protestors has evolved into a diverse set of professionals from a range of educational and professional backgrounds. In spite of such enormous growth, the work of trial consultants has gone largely unexamined. Trial Consulting takes an in-depth look (...) at the primary activities of trial consultants, including witness preparation, focus groups and mock trials, jury selection, change of venue surveys, and attorney presentation style. It also examines the profession's struggle to define itself, resisting certification and licensure requirements and settling instead for a set of practice standards. The authors draw upon empirical and other scholarly work in the social sciences, recommended "best practices" from trial lawyers, and the written and spoken recommendations and reflections of the trial consultants themselves. Addressing a broad spectrum of topics ranging from handwriting analysis to medical malpractice cases, they also suggest reforms for improving the profession and the efficacy of the trial consultant in the courtroom. The result is a critical analysis of what trial consulting truly adds to, and detracts from, the administration of justice. This book is an indispensable guide for practicing and aspiring trial consultants as well as the judges, attorneys, and psychologists who work with them. Trial Consulting provides a thought-provoking statement on the state of the profession, and students and professionals alike will benefit from the challenges it offers. (shrink)

The Program for Medical Humanities at UC–Berkeley recently hosted a small conference composed largely of health professionals and humanities scholars to reflect on "violence in medicine." The topic itself is unsettling: coupling the two words seems at best oxymoronic and at worst darkly suggestive. The conversation ranged from forms of malpractice and exclusion to ways we normalize questionable protocols and treatments. One of the issues that repeatedly arose was the ways in which patients can emerge from clinical encounters and (...) hospital stays feeling violated, sometimes despite the best intentions of care providers.Having looked closely at a good deal of poetry by patients, I decided to bring forward some examples... (shrink)