Not every poor outcome is malpractice. Medicine is an obligation to exercise care, not to achieve a result — and the line between a recognised complication and actionable fault is the heart of these claims.
Contents
1) The Nature of the Medical Obligation
A physician's obligation is, as a rule, to exercise diligent and attentive care in accordance with settled scientific standards, not to cure the patient. A poor outcome alone therefore does not establish liability.
2) Elements of Liability
- Fault: a departure from the ordinary medical conduct of a comparable physician.
- Damage: material or moral, temporary or permanent.
- Causation: the damage must flow from the fault rather than from the progression of the illness itself.
3) Forms of Medical Error
- Diagnostic error: omitting a necessary investigation or disregarding clear symptoms.
- Treatment error: prescribing an unsuitable medicine or an incorrect dose.
- Surgical error: leaving a foreign body, or operating on the wrong site.
- Follow-up error: neglecting the patient after intervention.
- Exceeding speciality: practising beyond the physician's qualification.
- Inadequate facilities: intervening where the conditions for safety are absent.
4) Informed Consent
A physician must inform the patient of the nature of the intervention, its foreseeable risks and its alternatives, so that consent is informed rather than formal.
- Signing a general form does not by itself suffice.
- Serious risks must be disclosed even where rare.
- In emergencies the rules differ according to the situation.
5) Medical Panels and Expertise
Medical complaints are referred to the competent authorities and technical panels to determine whether what occurred was fault or a recognised complication.
- The panel's report is an element of proof subject to the court's assessment, not conclusive authority.
- A party may request examination of the panel members or the appointment of another panel.
- The complete medical file is the basis of any assessment.
6) Who Is Liable?
The physician
For personal fault in diagnosis, treatment or follow-up.
The health facility
For the fault of its staff and for organisation, equipment and staffing shortfalls; liability may be joint.
7) Compensation and Criminal Liability
- Material compensation: treatment costs, lost earnings, and the cost of future care.
- Moral compensation: pain, suffering, and psychological and social impact.
- Criminal liability: arises where negligence reaches the threshold of causing injury or death by negligence.
- Disciplinary liability: before the competent professional body, independent of civil and criminal liability.
8) Practical Guidance
For patients and families
- Request the complete medical file immediately.
- Document the condition with photographs, reports and dates.
- Obtain an independent medical opinion.
- Consult a lawyer before signing any waiver or settlement.
For physicians and facilities
- Document every step in the file as it happens.
- Ensure written, detailed informed consent.
- Never alter the file after the event.
- Take legal advice before giving any statement.
