The Role of Forensic Medicine in Medical Errors

The Role of Forensic Medicine in Medical Errors

Grigorios Leon (Hellenic Society of Forensic Medicine, Greece)
DOI: 10.4018/978-1-5225-2337-6.ch006
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Abstract

This chapter presents the importance of Legal and Forensic Medicine in medical malpractice and explains how autopsies have a crucial role for the evaluation and the prevention of medical errors. Health systems vary from country to country; however, experts are indispensable in each system. In fact, experts' opinions are asked for resolution of specific court cases. Standard of care is often assessed by expert medical witnesses who testify for one of the litigants. The physician who acts as an expert witness is one of the most important figures in malpractice litigation. Therefore, a doctor who is an expert witness has to have certain training and qualifications and to act under common recommendations. The ideal medical expert seems to be the forensic doctor. In the future, a harmonization of practices could be applied in medical liability cases and the guidelines provided by the medico-legal community could constitute a stable base for their evaluation.
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Background

According to Black’s Law Dictionary, medical negligence requires that the plaintiff establishes the following elements:

  • 1.

    The existence of the physician’s duty to the plaintiff, usually based on the pre-existence of the physician-patient relationship;

  • 2.

    The applicable standard of care and its violation;

  • 3.

    Damages (a compensable injury); and

  • 4.

    A causal connection between the violation of the standard of care and the harm complained of, generally defined as “that degree of care which a reasonably prudent person should exercise in same or similar circumstances.”

If the defendant’s conduct falls outside the standards, then he or she may be found liable for any damages that resulted from his or her conduct (Black’s Law Dictionary, 1991).

The plaintiff in a tort claim generally pursues monetary damages, compensatory or punitive (or both), from the defendant. The traditional goals of medical malpractice are to ensure that the injured patient is made whole again, usually through monetary award, or that the relatives of a dead patient receive a moral satisfaction through a compensation and, in all cases, to deter other physicians from similar breaches of duty.

However, the current system across the world of malpractice does a poor job of serving the interests of physicians or patients. The malpractice process is slow, frustrating patients and negating any impact on deterring poor physician behaviors or on improving patient outcomes. The administrative costs of the current system are significant, as large amounts of compensation are taken by attorney fees. Most importantly, an atmosphere of “deny and defend” remains in which patients’ questions and concerns often go unanswered, medical errors go unrecognized, and patient safety is not addressed (Stamm, Korzick, Beech & Wood, 2016).

Thus, most physicians will face a malpractice claim during their career, a reality that likely leads to the practice of defensive medicine (Stamm, Korzick, Beech & Wood, 2016). Defensive medicine may be defined as “the use of diagnostic procedures/testing or treatments undertaken explicitly for the purpose of averting malpractice suits” (Tancredi & Barondess, 1978). In addition, lawsuits against resident doctors are not rare. Resident doctors are frequently brought into a lawsuit as a co-defendant with the attending physician and hospital. Often at the beginning of a malpractice claim, the lawyer will include all potentially responsible parties and then eventually remove those who are not necessary when more information is obtained during the investigative process. If a resident doctor is sued for malpractice, the attending physician is often sued as well because he or she has the ultimate responsibility in supervising the resident (Ott & Houry, 2000; Wegman & Stannard, 2012).

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