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π ICMHE MBBS 2nd Year Exam Study Guide
Medical Malpractice
Dr. Pradeep Mahat | GP&EM | Karnali Academy of Health Sciences
WHAT IS MEDICAL MALPRACTICE?
Think of it as an umbrella term that covers ALL failures by doctors in:
- Their professional skills
- Their ability to do their job
- Their relationships with patients
Medical Malpractice has 2 big types:
- Medical Negligence
- Professional Misconduct
PART 1: MEDICAL NEGLIGENCE
Simple Definition:
A doctor fails to do their job properly and because of that, the patient gets harmed or dies.
Full Definition (write this in exam):
Failure to exercise or execute reasonable care and skill of an ordinary prudent medical practitioner in the circumstances; a breach of duty to act with care; resulting in bodily injury or death of patient.
ACTS OF NEGLIGENCE β 2 Types
| Type | Simple meaning | Example |
|---|
| Act of Omission | NOT doing something you SHOULD have done | Not prescribing needed medication |
| Act of Commission | DOING something you SHOULD NOT have done | Giving wrong medicine |
THE 4 D's β CRITERIA FOR MEDICAL NEGLIGENCE
(From Black's Law Dictionary β most important for exam!)
Remember: "4 D's"
| D | Full word | Meaning |
|---|
| 1st D | Duty of care | The doctor had a responsibility to treat the patient (doctor-patient relationship existed) |
| 2nd D | Dereliction of duty | The doctor failed / broke that responsibility |
| 3rd D | Damage | The patient actually got harmed (injury, death) |
| 4th D | Direct causation | The doctor's failure DIRECTLY CAUSED the harm |
All 4 Ds must be present to prove medical negligence.
EXAMPLES OF NEGLIGENCE BY SPECIALTY
General:
- Inadequate medical records
- Failure to get informed consent
- Wrong diagnosis
Medicine:
- Not referring patient to specialist when needed
- Toxic drug reactions (wrong dose)
Surgery:
- Leaving instruments, swabs, or towels inside the operation site
- Operating on the wrong patient or wrong side of the body
Obstetrics/Gynecology:
- Unwanted pregnancy after failed tubal ligation
- Performing abortion without proper indication
Orthopedics/Emergency:
- Over-tight plaster cast causing nerve damage
- Missing a diagnosis of intracranial hemorrhage
Anesthesiology:
- Neurological damage from spinal/epidural injection
- Incorrect or excessive anesthetic agents
TYPES OF MEDICAL NEGLIGENCE
| Type | Meaning |
|---|
| Civil Negligence | Doctor pays money compensation (damages) to the patient |
| Criminal Negligence | Doctor is punished by law (jail/fine) β must be gross/extreme negligence |
PART 2: DEFENSES AGAINST MEDICAL NEGLIGENCE
(How a doctor can protect themselves in court)
There are 10 defenses β learn them by number:
| # | Defense | Simple meaning |
|---|
| 1 | No duty of care | No doctor-patient relationship existed |
| 2 | No breach of standard | Doctor followed proper medical standards |
| 3 | Informed consent | Patient was told about risks and agreed |
| 4 | Contributory negligence | Patient's own actions caused or worsened harm |
| 5 | Error in judgment | Doctor made an honest mistake but acted with care |
| 6 | Mistake of fact | Doctor did wrong act but had no intention β based on wrong understanding |
| 7 | Res judicata | Case already decided before β can't be tried again between same parties |
| 8 | Unavoidable complications | Harm was an inherent/unavoidable risk despite best efforts |
| 9 | Lack of causation | Patient's injury would have happened anyway even without negligence |
| 10 | Statute of limitations | Patient filed the case too late (in Nepal = must be within 6 months, Section 684 of Civil Code 2074) |
PART 3: IMPORTANT LEGAL DOCTRINES
(Very likely 5-mark questions!)
1. DOCTRINE OF RES IPSA LOQUITUR
Meaning: "The thing speaks for itself"
- The error is SO OBVIOUS that the patient does NOT need to prove negligence.
- The doctor must prove their innocence (burden shifts to doctor).
- Applies to both civil AND criminal negligence.
3 conditions needed:
- Injury would NOT occur without negligence
- The doctor had CONTROL over the cause
- The patient did NOT contribute to the injury
Examples:
- Wrong site surgery
- Leaving instruments inside the operation site
- Loss of hand due to prolonged splinting
- Prescribing overdose causing harm
2. CALCULATED RISK DOCTRINE
- Injury may occur EVEN THOUGH the doctor took reasonable care.
- Doctor must show statistics that the risk was unavoidable.
- Important defense for doctors.
Example: Death during coronary bypass due to inherent surgical risk (2-5%)
3. DOCTRINE OF COMMON KNOWLEDGE
- The negligence is NOT about specialized medical knowledge.
- It is about something any common person would know is wrong.
- Similar to res ipsa loquitur.
- Patient must prove the act of omission or commission β not standard of care.
4. DOCTRINE OF AVOIDABLE CONSEQUENCE RULE
- The doctor is NOT responsible for additional harm the patient COULD HAVE AVOIDED.
- This applies to patient's unreasonable conduct AFTER the injury.
- Different from contributory negligence (which happens BEFORE or DURING the wrongful act).
Example: Patient refuses treatment for foot injury β later needs amputation β cannot claim damages for losing the foot.
5. NOVUS ACTUS INTERVENIENS
Meaning: "New independent act that breaks the chain of causation"
- A NEW act by someone else breaks the link between the original cause and the outcome.
- Can TRANSFER responsibility from the original incident to the new negligent act.
- Courts rarely accept this plea.
- Negligence must be proven.
Example: Leaving a surgical instrument inside a patient after surgery.
PART 4: PREVENTION OF MEDICAL NEGLIGENCE
(12 points β easy to write in exam)
| # | Prevention measure |
|---|
| 1 | Legal & ethical awareness β follow ethics, get informed consent |
| 2 | Effective communication β clear doctor-patient communication, proper documentation |
| 3 | Continuous medical education β regular training, stay updated |
| 4 | Maintain standard service β limited workload, follow protocols |
| 5 | Proper counseling & informed consent β mandatory before procedures |
| 6 | Proper investigation β thorough exams, avoid misdiagnosis, seek second opinion |
| 7 | Adequate supervision & timely referral β early detection of complications |
| 8 | Surgical precautions β adequate equipment and qualified staff |
| 9 | Meticulous record keeping β records can prove innocence |
| 10 | Morbidity & mortality audits β analyze and learn from errors |
| 11 | Medical insurance & risk management β have malpractice insurance |
| 12 | Patient safety measures β use checklists, double-check patient identity |
PART 5: PROFESSIONAL MISCONDUCT
Simple Definition:
Also called "infamous conduct."
Any conduct which is disgraceful or dishonorable as judged by a professional man of good reputation and competence. Involves abuse of professional position.
WHEN DOES PROFESSIONAL MISCONDUCT OCCUR?
- Unethical practices like advertising or endorsement
- Not maintaining indoor patient records for 3 years OR refusing to give records within 72 hours of request
- Not displaying NMC registration number on clinic, prescriptions, and certificates
- Physician in rural area found absent on 2 or more occasions during inspection
- Teaching faculty found absent on 2 or more occasions (certified by Principal/Medical Superintendent)
- Providing falsified or misleading information
SIGNBOARD RULES (Nepal-specific β can be asked!)
- Size: 18 Γ 14 inches
- Must write: Name, NMC number, qualification, specialty
- Colors: Blue letters on white background
- CANNOT use the International Red Cross symbol
- CANNOT put signboard on a chemist's/pharmacy's shop
THINGS A PHYSICIAN MUST NOT DO:
(The "A physician should NOT" list)
- Use agents/touts to get patients
- Insult or misbehave with fellow doctors
- Commit adultery or misbehave with patients
- Be drunk and disorderly
- Be convicted by court of law
- Do sex determination tests
- Issue false, misleading, or inappropriate certificates
- Supply or sell addiction-forming drugs
- Perform illegal abortion or operation
- Disclose professional secrets
- Publish case reports/photographs of patients without consent
- Advertise (directly or indirectly, with or without photo)
THE 6 A's β IMPORTANT OFFENCES
(Very easy to remember for exam!)
Association with unqualified persons
Advertising
Abortion (criminal)
Adultery
Addiction
Alcohol
WHAT HAPPENS AFTER PROFESSIONAL MISCONDUCT?
The Professional Conduct and Health Committee investigates all complaints. Depending on severity, they can take 4 actions:
| Action | What happens |
|---|
| 1. Warn and conclude | Doctor is innocent β case closed |
| 2. Probation | Doctor put on probation for a specified period; professional referees monitor conduct; case concluded if satisfactory report given |
| 3. Strike off the register | Serious misconduct or criminal conviction β NMC registration erased for 2 years β doctor CANNOT practice |
| 4. Restoration of registration | Can apply after 2 years from erasure date; committee decides; if application fails, must wait 12 more months before next application |
QUICK MEMORY TRICKS π§
- Medical Malpractice = 2 types: Negligence + Misconduct
- 4 D's of negligence: Duty, Dereliction, Damage, Direct causation
- 2 acts: Omission (not doing) + Commission (doing wrongly)
- Res Ipsa Loquitur = "Thing speaks for itself" β Doctor proves innocence
- Avoidable Consequence = Patient worsened their own injury after the fact
- Novus Actus = New act breaks the chain β rarely accepted
- 6 A's of misconduct: Association, Advertising, Abortion, Adultery, Addiction, Alcohol
- Nepal statute of limitations: 6 months to file negligence case
- Registration erasure: 2 years; apply for restoration after 2 years; if rejected, wait 12 months
- Medical records: Keep for 3 years; give within 72 hours of request
- Signboard: 18Γ14 inches, blue on white
5-MARK ANSWER TEMPLATES
Q: Define medical negligence and explain its criteria.
β Define (ordinary prudent practitioner + harm/death) + 4 D's table + 2 acts (omission/commission) + 2-3 examples
Q: Write about defenses against medical negligence.
β List all 10 defenses with brief explanation of each + mention Nepal's 6-month statute of limitations
Q: What is Res Ipsa Loquitur? Give examples.
β Meaning ("thing speaks for itself") + burden shifts to doctor + 3 conditions + 4 examples
Q: What is professional misconduct? Write about its management.
β Define + 6 A's + 4 actions of the committee (warn/probation/erasure/restoration) + Nepal-specific rules (2 years erasure, 12 months wait)
Q: How can medical negligence be prevented?
β List 6-8 prevention points with brief explanation each
Good luck in your exam today! You now know everything from this slide. πͺ