When should medics be liable for their practice? (Part four)

Elements of negligence as a medical malpractice

This is a carefully researched and penned article on one of the hot subjects in the field of law and medicine—medical malpractice. It is in seven parts to enable the reader keep track of its flow

By Isaac Bizumuremyi

Each medical malpractice case has its own issues of facts, but in all medical malpractice cases, there are shared elements of claims of negligence.

In their article, “The Elements of Medical Malpractice: An Overview” Gregg J. Gittler and Ellie J. C. Goldstein listed a number of elements which include the lack of due care, lack of informed consent, and abandonment as common elements of negligence in medical malpractice cases.

The element of lack of due care

Lack of due care is the most commonly stated cause for the filing of malpractice legal suits.

Most of the complainants associate the term "medical malpractice" with a lack of proper medical care or improper medical treatment of a patient.

Lack of due care does not mean the total absence of due care but simply means care that fell short of the standard of care due to patients.

The standard of care is a legal measuring rod imposed by the courts to which the doctor's conduct must conform to escape liability for malpractice or negligence.

The doctor's conduct is then assessed by weighing the evidence or facts of each case against this standard.

For the claim of lack of due care to prevail, the claimant must at least prove the existence of a patient-physician relationship, violation of the "standard of care” and failure to meet "the standard of care"

The existence of a patient-physician relationship means that the physician has formally consulted about, treated, or given advice to a patient, no matter how superficially or briefly.

The existence of such a relationship creates the duty of care by the physician towards the patient.

The violation of the "standard of care” element requires the complainant to establish that the care received was insufficient in comparison with that provided by the majority or a respectable minority of physicians practicing under similar circumstances.

The failure to meet "the standard of care" as a substantial factor in causing the damage must be established to meet the basic rule of "no harm, no foul” of which the claimant must be able to prove that actual damage did occur.

The proof of the standard of care is the proof of what a reasonable doctor would or would not have done under given circumstances.

In most instances, this proof must be established by the "expert testimony" of another experienced doctor.

It is also important to understand the legal meaning of the term “standard” in its adjective form.

The Author, Isaac Bizumuremyi, is Managing Partner at Lex Chambers; a Corporate lawyer, Commercial Litigator, Transactions Advisor, and Commercial Arbitrator in Kigali Rwanda

Lex Chambers

06 KN 33 Street

Kiyovu, Kigali City, Rwanda

Email: isaac@lexchambers.attorney

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