WHAT NOT TO SAY OR DO BEFORE A MEDICAL ERROR
"There are no frontiers for medical passport is universal, and no expiration has only one nationality, humanity "Juan Francisco Jimenez Borreguero
There are situations in medical malpractice lawsuits that may precipitate and within the array of behaviors that are considered very harmful, are the prematurely happened not admit fault or apologize not speculate or justified. They should not offer conjecture; while not know the whole truth.
We must remember that in these situations it is important to use calm and proper body language, doctor should find a quiet place away from noise and distractions, turn off the phone when you need to convey news of great importance also should also allow family seated, explain what happened into his eyes, speaking slowly and honestly, you should avoid using the word "okay". Sometimes it demonstrates empathy is more convenient to use the language, take the hand of someone crying, give a hug or just listen can help.
Nurses are the staff who are literally forced to interact with aggressive family in the day, therefore, the staff should also be trained to maintain empathy. In an unexpected situation adequate nursing staff response should be: "I know you are upset Mrs. Smith again how sorry that this happened, which tells us seek review of medical records and nursing.. Currently, is there anything I can do for you or your family. "? (191)
THE TRIAL AGAINST THE LEGAL MEDICAL ERROR
Currently due to multiple factors, the patient has acquired the knowledge that before an unsatisfactory result, can sue the doctor, probably to sue patients are demanding more humane care. The so-called "trial industry" within the health field far from diminishing advancing at a rapid pace, which ultimately only serves to stifle the economy and moral health system of a country. In recent years in Spain they have counted more than 50,000 complaints a year for medical malpractice according to data obtained from the records of the Patient Ombudsman, 60% more than 10 years ago. In developed countries, despite the great technology that doctors say is often forced to make unnecessary follow patients and initiate unjustified, required additional studies for fear of facing a lawsuit alleged. Sometimes doctors can fall into paranoia and even get to see patients as enemies given the existence of a potential conflict, which consequently could further deteriorate the patient-physician relationship. One of the most serious medical consequences to commit malpractice are the lawsuits. In Venezuela, personal injuries are contained in the Criminal Code "crimes against persons", within it, Chapters I and II relate to "Personal Injury" Articles 411 to 422 specify what they are about, and points penalties when they are violated.(192)
The legal order that establishes the criminal protection of the people, is the need to protect life. The right to life is a universal human right, recognized by everyone and no one can make arbitrary use of it, or injure; the right to life is also considered in the Constitution of the Bolivarian Republic of Venezuela 1999 as an inviolable right. We must remember that among the general rights and duties of doctors is the respect for life, dignity and integrity of the human person as a primary objective. So that when committing a mistake, there is no intention to kill or cause harm to the patient, therefore, the vast majority of these errors fall into intentional crimes.
Let us briefly discuss some of these articles of the Venezuelan Criminal Code to better understand their scope:
Article 411. "He who for having acted with recklessness or negligence, or with inexperience in his profession, art or industry, or for breaching regulations, orders or instructions, caused the death of any person, shall be punished imprisonment of six months to five years. In the application of this penalty the courts appreciate the degree of culpability of the agent. "Close quote.
We observed that in this type of murder, there is no intention to kill, or even hurt the taxpayer; however the perpetrator, in this case the doctor should have foreseen the harmful outcome as a result of his unlawful act or omission. So, recklessness, refers to a lack of prudence, caution or precaution, it is one of the characteristic elements of intentional crimes or negligent injury; it is incurred by action or omission; although the omission seems to fit more to negligence. Consequently, whoever commits a crime by negligence, shall incur criminal liability and the obligation to repair the damage. The same obligation to compensate the civil law establishes who cause damage by negligence, without incurring penal sanctions falls under the category of tort. (193)
Negligence: Negligence or fault in omitendo, is part of the conditions for the crimes of culpable nature occur, is an abstention, a "do"; an omission when he was legally obliged to do the opposite behavior. It is an omission, more or less voluntary, but aware of the diligence corresponding to the legal acts on personal ties and custody or asset management. (194)
The last paragraph of the standard, foresees the aggravation of sentence when the fact is the death of several people along with injuries to another or others, as long as these are of a serious nature (mental or physical illness, certainly or probably incurable, loss in some sense, a hand or a foot, speech, the ability to generate or use of an organ, or a wound that disfigures or committed against a pregnant woman with abortion accordingly.) (195)
Vicarious negligence: This term applies when certain exclusive professional tasks are transferred to another and the result is not satisfactory. For example: a doctor, trusted colleague, leaving the hospitalization area, in the certainty of punctuality on the other; what is not verified. Consequently, a patient is damaged by the absence of professional in one workplace. Ethically speaking both are considered violators of the rule. The same can not be said when a doctor is replaced by another colleague at his request and it acts negligently; it would be unfair that the first doctor responded by neglect of the other, when it should treat the patient carefully. Regarding the field of criminal liability is strictly personal. (196)
Malpractice. The inexperience is the lack of experience, quality or skill in the exercise of a profession, occupation or art. For some authors, inexperience is a professional fault. Along with the negligence and recklessness are the triad why, or independently in each of the figures the offense of culpable nature is formed.
Failure is the lack of observation, execution and detailed compliance with an order, a duty, lack of respect and submission to a higher, a failure to proceed in accordance with pre-established rules, those written instructions to govern an institution, to organize service or activity; It is the methodical and provision of some length on a subject in the absence of law or administrative power dictates contemplate. According to the authority that promulgates it is facing a norm with certain authority.
Intentional crimes. The intent, in the legal sense corresponds to the intention of causing harm. In terms of health it corresponds to the acting physician, knowing that violates a law, performs the act in the same way. A classic example is performing abortions in a country where it is penalized.
Unforeseeable circumstances. It is defined as the damage caused by an intervention, properly indicated, but that is completely unpredictable, often being secondary to own body's metabolic processes. One example would be malignant hyperthermia subsequent to the administration of a general anesthesia for surgery.
In the opinion of Venezuelan lawyer Dr. Alberto Arteaga S. the medical profession opinion has exaggerated the protection of its members, systematically denying any reference to alleged cases of medical error, negligence or recklessness in the exercise of the profession; meanwhile the media, echoing complaints and opinions from various sectors have often promoted campaigns generalized discredit against the medical profession or medical groups, it has even contributed to hindering the investigation of crimes committed by true professionals medicine. This occurs in the context of a Venezuelan criminal justice that is slow, archaic and limited to certain cases and people; and media whose
opinions in the criminal field often become supreme judges, prosecutors and defenders in "certain cases" forgetting the important role that could meet to collaborate with justice and serve the public controllers of legality the best interests of the community. (196,197)
In the same vein liability, binds the physician to respond with their heritage and that this obligation is economic in nature and may be of reparation, restitution or compensation. In some countries, the discussion of civil responsibility has become a serious problem that interferes with the free play of doctors. The proliferation of claims for compensation, has forced medical professionals to recruit insurance premiums to protect their own assets costly situation that paradoxically, increases the costs of medical services to the general population, and in the end, these premiums end up being transferred to users through the cost of medical fees. (198)
Hence the liability is the obligation of a person to repair the damage caused by his act or that of a person under their care. Article 1185 of the Venezuelan Civil Code quote: "Anyone who intentionally or negligently or recklessly caused damage to another is obliged to repair it." This means that there is no damage liability, and this applies to both contractual and the contractual field. The damage requires some requirements the judge must have evidence that the victim be better off if the agent had not realized the fact. The damage must not have been repaired, since there is no action without interest, it should affect an acquired right and must be personal. For its part, the blame has tried to define as an illicit act attributable to the author, including two key elements; wrongfulness referred to damage without law and accountability, so that if the act is attributable to its author, will fall into causation. The fault is defined as an error of conduct, so that you can be sure that on that error would not have incurred a prudent and diligent person, to the same external circumstances. (198)
COMPENSATION DUE TO ERRORS
The various undesirable situations that may arise in the development of the practice of medicine and can cause errors compensation, as required by the physician behavior to empathize and conduct a thorough review of errors for Demosthenes that was the case, the patient you will need an apology and probably also cover financial needs. Demosthenes is due to the patient and family, how will avoid in the future that mistake will not happen again, you may be drawn up a letter of apology or seek ways to honor the memory of the patient. Likewise, if there is a lawsuit, one of the things that patients or their relatives should require will be the economic recovery of damages suffered as well as disqualification from the exercise of medical and moral damage caused. (199)
How to deal with medical malpractice
Before filing a lawsuit, you must collect evidence in order to document the record, and the data that prove that there was indeed committed medical malpractice, we recommend the advice of a lawyer specializing in this area, and in turn collaboration a medical specialist the damage expert to confirm that the patient was the victim of neglect. The lawyer will guide compensation and will implement procedures to give effect to the claim, may be held responsible by any damage caused criminal, civil and administrative. In cases of death or serious injury, it is advisable to go to the criminal courts because they can expeditiously achieve what the subject intends. By bringing the case, it is important to be certain which is directly responsible medical fact, because it is an error reporting an entire medical team, however; you should always demand along with the doctor, as jointly and severally liable to the clinic or hospital to ensure that the judgment becomes effective if the doctor does not respond. (200)