Civil and criminal liability arising from medical care

Abstract

The exercise of reasonable skill and care is owed irrespective of the existence of a contract. Guarantees of success should be given in clear and unequivocal terms. A doctor can delegate his duty to treat the patient to an equally competent substitute. He cannot just abandon the patient without giving reasonable notice of his withdrawal. Contracts regarding sales of human organs would be contrary to public policy. There can also be an implied contractual duty that the products used by the health care provider are fit for their purpose. A doctor is required to exercise the same skill of a reasonably competent doctor in the same circumstances, even in an emergency. Compliance with accepted medical practice does not mean that a doctor is not negligent. Patient must prove - a duty of care; breach of this duty; not too remote consequential damage. Res ipsa loquitur applies when negligence is inferred from an unexplained injury that does not occur in the absence of negligence. This maxim is applied with reserve in Maltese jurisprudence. No liability is contracted if an inaccurate diagnosis is made provided that the patient is examined carefully. It is important that error in treatment is not the result of a risk inherent in the treatment. After treatment a patient has to be kept under observation even if everything is proceeding normally. An honest error of judgment is not actionable. When referring a patient a doctor has to give relevant information on patient's condition. The patient must be aware of the possible consequences of the proposed medical procedure, material risks, and any special or unusual risks. Doctors resort to therapeutic privilege when they believe that disclosure would adversely affect the patient's health. The signing of a consent form does not authorise a doctor to undertake procedures to which patient has not . consented, except in an emergency. If a relative of an incompetent person refuses to consent then the doctor, before proceeding, must take a number of circumstances into account. In Malta a hospital is vicariously liable only if it employs incompetent personnel.. Abroad a doctor can also be found liable for the negligent acts of his staff acting under his instructions. If a patient, by his carelessness, proximately contributes to his injury, the doctor is not fully liable for the damage. In criminal law contributory negligence is no defence. But there may be instances where the imputable cause of harm is so great that defendant is not liable. Plaintiff must show, on a balance of probabilities, a causal link between defendant's breach of duty and the damage sustained, and that the injury would not have occurred 'but for' the doctor's negligence. In criminal law the 'but for' principle is mainly relevant in the case of omission. If a doctor's intervention breaks the chain of causation then it will be considered as a novus actus interveniens, for which only the doctor would be liable. The same principle applies in criminal law. Plaintiff must also prove that the injury was foreseeable. The rare occurrence of a risk and the foreseeability of the precise damage are irrelevant. The same principle applies in criminal law. Under our Criminal Code a doctor is liable for involontary homicide or involontary bodily harm if he causes death or grievous bodily harm through his imprudence, carelessness, unskilfulness, or non-observance of regulations. It is unlawful to administer medicine to procure miscarriage. The specific intention to procure miscarriage implies knowledge of the pregnancy. A doctor will be liable for a separate offence when the means used seriously injure or cause the death of the woman. In administering substances injurious to health it is important that the doctor had the intention to harm. This offence is not committed if he just prepared the poisonous substance, nor if the substance is administered in a harmless quantity. Criminal liability also arises when a doctor assists a patient to commit suicide, which assistance must be effectual.. A pain-killing drug known to accelerate death is not defined according to its side-effect but according to the aim for which it is administered, i.e. to relieve pain. If an incompetent patient refuses life-sustaining treatment the doctor should not abide by his request. If he is competent and needs immediate treatment, without which serious harm will result, then the doctor is obliged to proceed. A doctor who respects the wish of a terminally ill patient, who refuses medical treatment to allow the disease take its natural course, cannot be regarded as assisting in the patient's suicide. Death will be the result of the disease and not of self-inflicted injury.