Negligence and Malpractice

Session 7: Professional Misconduct, Negligence and Malpractice

Medical Ethics — CMT/CDT NTA Level 4

Kolandoto College of Health Sciences Mwanza

Health workers are entrusted with the lives and wellbeing of others, and are given privileges no other citizen has.

In return, they are held to a standard of conduct and competence higher than that expected of the ordinary person.

Falling below that standard exposes the patient to harm and the practitioner to disciplinary and legal action.

Most cases arise not from wickedness but from carelessness, fatigue, poor supervision, and working outside one’s competence.

Professional misconduct

Any act or omission by a health worker that falls short of the standards of behaviour expected of the profession, and which brings the profession into disrepute — whether or not the patient was harmed.

Negligence

Failure to exercise the degree of care and skill that a reasonably competent practitioner of the same grade would have exercised in the same circumstances, resulting in harm to the patient.

Malpractice

Negligence or misconduct by a professional in the course of practice. In common usage it covers both incompetent treatment and improper professional behaviour.

Breach of confidentiality

Disclosing patient information without authority.

Improper relationships

Any sexual or romantic relationship with a patient.

Substance abuse

Working under the influence of alcohol or drugs; diverting drugs for personal use.

Dishonesty

Falsifying records, forging signatures, issuing false sick sheets or certificates.

Corruption

Demanding or accepting bribes, selling government drugs, informal charges for free services.

Absconding duty

Abandoning patients, absence without leave, sleeping on duty.

Practising beyond scope

Performing procedures for which one is not trained or authorised.

Unregistered practice

Working without a valid licence or practising under another person’s registration.

Abuse of patients

Verbal abuse, physical assault, humiliation, refusing care on discriminatory grounds.

Duty of care — the practitioner owed a duty to the patient. This arises as soon as the patient is accepted for care.

Breach of duty — the practitioner failed to meet the standard of a reasonably competent practitioner of that grade.

Causation — the breach directly caused the harm; the harm would not have occurred but for the breach.

Damage — the patient suffered actual injury, loss or death.

The standard is that of a reasonably competent practitioner of the same grade and in the same circumstances.

A clinical officer is judged against a competent clinical officer, not against a specialist.

However, if you undertake a task, you are judged by the standard of the person normally competent to do it.

This is why practising beyond your scope is so dangerous.

Lack of resources may be a relevant circumstance, but it does not excuse careless practice.

Inexperience is not a defence — an inexperienced practitioner is expected to seek supervision.

Failure to take an adequate history or perform an adequate examination.

Failure to investigate, or failure to act on abnormal results.

Wrong diagnosis due to careless assessment.

Medication errors — wrong drug, wrong dose, wrong route, wrong patient, failure to check allergies.

Failure to monitor a patient, especially post-operatively, in labour, or after anaesthesia.

Failure to refer, or delay in referring, a patient beyond one’s competence.

Retained swabs or instruments after surgery.

Failure to obtain informed consent before a procedure.

Poor or absent record keeping — if it is not written, it is taken as not done.

Failure to follow standard treatment guidelines.

Negligence

The practitioner failed to do what a competent colleague would have done.

Basic steps were omitted — no examination, no monitoring, no referral.

Guidelines were disregarded.

The harm was foreseeable and avoidable.

Attracts disciplinary and legal liability.

Honest error of judgement

Reasonable care was taken and accepted practice was followed.

The diagnosis was reasonable on the information available at the time.

The complication was a recognised risk, properly consented for.

The outcome was poor but not avoidable by reasonable care.

Does not by itself amount to negligence.

An employer may be held liable for the negligent acts of its employees committed in the course of their duties.

This means a hospital or council may be sued for the negligence of its staff.

It does not remove the personal responsibility of the practitioner, who may still face disciplinary action.

A supervisor may also be liable for delegating a task to a person known to be incompetent, or for failing to supervise.

Professional

Investigation by the professional council; caution, suspension, or removal of name from the register.

Employment

Civil

Court action by the patient or family for damages and compensation.

Criminal

Prosecution where the conduct amounts to an offence — gross negligence causing death, assault, theft, corruption.

Personal

Loss of livelihood, damage to reputation, and severe psychological distress.

Institutional

Loss of public trust in the facility, and reduced use of health services by the community.

Work within your scope of practice, and refer early when a case is beyond you.

Follow national standard treatment guidelines and facility protocols.

Keep accurate, legible, timed, signed and contemporaneous records.

Obtain and document informed consent before every procedure.

Check drugs carefully — right patient, right drug, right dose, right route, right time.

Communicate clearly with patients and with colleagues, and hand over properly at the end of a shift.

Ask for help and supervision when uncertain; never guess.

Maintain competence through continuing professional development.

Report and learn from incidents and near-misses rather than concealing them.

Misconduct concerns behaviour; negligence concerns competence and care. Both may occur together.

Negligence requires proof of duty, breach, causation and damage.

You are judged against a reasonably competent practitioner of your own grade — but if you undertake a task, you are judged by the standard of one competent to do it.

Inexperience is not a defence; failure to seek supervision is itself a breach.

Good records, informed consent, adherence to guidelines and timely referral are the strongest protection for both patient and practitioner.

Differentiate between professional misconduct and negligence.

State and explain the four (4) elements that must be proved in a claim of negligence.

List six (6) forms of professional misconduct.

Explain the standard of care against which a clinical officer is judged.

Describe six (6) common causes of negligence in clinical practice.

Explain what is meant by vicarious liability.

Describe five (5) measures a health worker can take to avoid a claim of negligence.