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Element of medical law &
legal issues facing health
care providers
MADAM JULIE JAMES ABDULLAH
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Learning Outcome
Explain the concept and element of negligence.
Explain Law of Tort.
Explain common legal issues that relates to healthcare providers.
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Definition
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Negligence
Negligence is the most important area in modern tort law. It covers
nearly half of any textbook. The tort of negligence protects various
interests such as interests in physical integrity, interest in property
and economic interests.
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Negligence
By Winfield as “the breach of a legal duty to take care which
results in damage, undesired by the defendant, to the plaintiff.”
Blyth v Birmingham Waterworks Co (1856) 11 Ex 781: Negligence is
the omission to do something which a reasonable man, guided
upon those consideration which ordinarily regulate the conduct of
human affairs would do or doing something which a prudent and
reasonable man would not do.
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Negligence
Medical negligence
▪ Failure to meet the standard of practice of an average
qualified doctor practicing in the specialty in question
▪ Occurs not merely when there is an error, but when the degree
of error exceeds the accepted norm
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1. DUTY OF CARE
Elements Of 2. BREACH OF DUTY OF
CARE
Negligence 3. CAUSATION
4. DAMAGE
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i. Duty of care
▪ Duty of care or an existing legal duty on the part of the defendant
to the plaintiff to exercise care in such conduct of the defendant
as falls within the scope of the duty
▪ Definition: an obligation or a burden imposed by law, which
requires a person to conform to a certain standard of conduct. The
existence of such a duty in a given set of circumstances has given
rise to what is known in the law of torts as a “duty situation”.
▪ A person will owe a duty of care to those who are also within his
contemplation who will suffer foreseeable loss.
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i. Duty of care
▪ Job scope
➢ exp: duty to diagnose, treat and warn / disclose risks.
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i. Duty of care
▪ Doctor
➢ Diagnose, educate, and treat patients to ensure that
they have the best possible care. A few of the main duties of
a doctor are performing diagnostic tests, recommending
specialists for patients, document patient's medical history, and
educating patients. They also have to administer vaccines and
other treatments
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i. Duty of care
▪ Doctor
➢ The primary duty of all doctors is for the care and safety of
patients. Whatever their role, doctors must do the following.
Engage with colleagues to maintain and improve the safety
and quality of patient care. Contribute to discussions and
decisions about improving the quality of services and
outcomes.
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i. Duty of care
▪ Nurse
➢ Nurse’s plan and provide medical and nursing care to patients
in hospital, at home or in other settings who are suffering from
chronic or acute physical or mental ill health.
➢ A caring and compassionate nature, and the ability to deal
with emotionally charged and pressured situations are
important traits of a nurse.
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i. Duty of care
▪ Registered Nurse duties and responsibilities
➢ Observe and record patient behaviour.
➢ Perform physical examinations and diagnostic tests.
➢ Collect patient health history.
➢ Counsel and educate patients and their families on treatment
plans.
➢ Administer medication, change wound dressings and care for
other treatment options.
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i. Duty of care
▪ Medical Assistant
➢ Responsible for providing health services to the community from
the aspects of curative, preventive prevention, promotion and
rehabilitation in the health service system in Malaysia.
➢ Provide curative treatment, preventive care and emergency
assistance services at health centres including Static and Mobile
Dispensaries, General Health Outpatient Department and
Accident and Emergency Department.
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i. Duty of care
▪ Medical Assistant
➢ Provide early and immediate treatment and support for all
emergency cases and refer the cases for further handling to
medical officers, provide assistance services in various
Departments of Expertise, institutions, wards and other
programs.
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ii. Breach of duty of care
▪ Duty of care
➢ Duty of care is the legal or moral responsibility to protect the
safety and wellbeing of others, which includes taking all
reasonable steps not to cause foreseeable harm to another
person or their property.
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ii. Breach of duty of care
▪ What is duty of care and why is it important?
➢ Breaching a duty of care is commonly known as the law of
negligence. A breach in the duty of care means one party that
has done something, or failed to do something, which may
result in injury to another and cause them to suffer a loss.
➢ If the harm was reasonably foreseeable (that is that a
reasonable person in the position of the person with the duty of
care ought to have known of the risk of injury or harm), then the
injured party may have a compensation claim.
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When has a duty of care law been
breached?
▪ A breach in duty of care has occurred when:
➢ You have been injured because of someone else’s behaviour (either their
actions or lack of action); and
➢ The risk of an injury occurring was clear; and
➢ It was reasonably foreseeable that you would be injured as a result of the
other person’s actions (or lack of action); and
➢ If the behaviour that caused the injury was unreasonable (i.e., if a reasonable
person in the same situation would have done things differently).
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What does breach of duty mean in
healthcare?
▪ Proving Breach of Duty
➢ Breaching duty means that healthcare worker failed to react or act
accordingly to a patient's illness or injury, or that an act he or she took
was indeed negligent, and the outcome resulted in additional harm to
the patient.
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iii. Causation
▪ Causation, in legal terms, refers to the relationship of cause and effect
between one event or action and the result. In a personal injury case, one
must establish causation meaning that it's not enough to show that the
defendant was negligent. The negligence must be what caused the
complainant's injuries.
▪ There are two types of causation in the law
1. causation in fact,
2. causation in law
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iii. Causation
in legal terms, refers to the relationship of cause and effect between one
event or action and the result. ...
In a personal injury case, one must establish causation—meaning that
it's not enough to show that the defendant was negligent.
The negligence must be what caused the complainant's injuries.
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Causation In Fact
▪ Also known as Actual cause or factual cause
➢ but for the defendant’s breach of duty, you would not have suffered
damages or injuries. In other words, the defendant’s breach caused a
chain of event that led directly to your damages.
▪ Proximate cause
➢ the defendant’s breach of duty was close in time and space such that
it was reasonably foreseeable that the breach of duty would cause
your damages.
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Causation In Law
▪ The relationship of cause and effect
▪ The basic rules of causation include:
The breach of contract must be an effective or dominant cause of the
damage which stemmed from the breach of the legal duty.
It isn't necessary to show that a breach was the sole cause of the
damage, so long as it was an effective cause of the damage alleged.
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iii. Causation
▪ What is Causation in Medical Negligence?
➢ 'Causation' in medical negligence cases means proving that
negligence as a result of a breached duty of care has caused injury.
Proving this is known as 'establishing causation'.
➢ For example, if a hospital fails to diagnose a cancer, and as a result
of which an individual misses out on treatment that might have helped
them deal with the cancer, or even avoid a terminal diagnosis, the
breach of the duty of care is the failure to diagnose, and the cancer
becoming more serious than it otherwise
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iv. Damage
▪ These are: the defendant owed them a duty of care. the defendant
breached that duty of care, and. they suffered loss or damage as a direct
consequence of the breach.
▪ The final element of a negligence case is "damages." This element requires
that the court be able to compensate the plaintiff for his or her injury --
usually through monetary compensation for expenses such as medical
care or property repair.
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Law of Tort
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Law of Tort
Tort law governs the remedies for civil wrongs. A person is liable for the
wrongful act, whether done accidentally or intentionally.
The intention of the tort law is to provide relief from wrongful acts of others
through monetary compensation.
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What is tort law healthcare?
▪ Tort law seeks to compensate victims of certain actions or inactions
based on the breach of a legal duty that caused damages.
▪ A jury that finds that the requirements for a tort suit are met will find
the defendant liable for the plaintiff's damages.
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Legal issues
facing
healthcare
providers
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i. Complains
▪ Complaint is defined as a verbal expression of dissatisfaction by the
patient/ family regarding care or services provided
▪ What are some of the most common complaints that patients
make about their doctors/healthcare providers?
➢ Long wait times
➢ Issues with staff members
➢ Amount of time spent with doctor
➢ Insurance and billing
➢ Lack of communication and dismissiveness
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ii. Ex Gratia
▪ Ex Gratia for healthcare workers’ kin:
➢ an amount of money that you would receive by your employer
as a termination payment when you have left your
employment.
➢ 15 Jun 2021 — The State government has announced ex
gratia to the families of healthcare workers who succumbed to
COVID while on COVID duty.
➢ Skim Ex-Gratia Bencana Kerja Bagi Anggota Perkhidmatan
Awam [Board of Medical Procedure MOH]
https://ppp.treasury.gov.my/sub-topik/fail/50/muat-turun
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iii. Litigation
▪ The Process of Taking Legal Action
➢ Medical litigation is a process of carrying out a lawsuit or civil
action as opposed to criminal proceedings.
➢ Defendant refers to the person sued in a civil action (or a
person accused of a crime).
➢ In medical litigation, the patient or his family are usually the
plaintiffs while the doctor or hospital is the defendant.
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iv. Medico Legal Hazards
▪ The four most common errors are
➢ giving the wrong dosage
➢ use of inappropriate medication
➢ failure to monitor treatment for side-effects and toxicity
➢ failure to provide the patient with important information