What is Malpractice?

Malpractice is when a healthcare professional acts against the requirements and rules of medicine due to ignorance, carelessness or inexperience. Although it is a term largely used for the health sector, when we look at the meaning of the word, it is possible to say that each profession may have its own specific malpractice situations.

Word Meaning of Malpractice

Malpractice is derived from the Latin words “Male” and “Praxis” and the literal translation of these words is “malpractice”. In fact, this concept, which we can define as a defective practice that occurs during the performance of any profession, is nowadays identified with the concept of medical error, in other words, medical malpractice, due to its widespread use in the field of medicine.

What is Malpractice in Medicine?

Rather than asking what malpractice means, it would be more accurate to ask what medical malpractice means. Medical malpractice means that healthcare professionals, especially physicians, act against the requirements and rules of medicine while practicing their profession. Violation of medical standards may be caused by ignorance, inexperience or indifference of healthcare personnel. In this case, which is also called medical error, the patient or his/her relatives may request compensation for the damage, as well as criminal investigation and prosecution of the healthcare professional. The question of what is Medical Malpractice is included in the Code of Professional Ethics of Physicians as follows:

Harm to a patient due to ignorance, inexperience or indifference constitutes “medical malpractice”.

Article 13 of the Code of Professional Ethics for Physicians

Causes of Malpractice,

When we look at the definition of malpractice, three concepts come to the fore: ignorance, carelessness and inexperience. It is useful to elaborate a little on these three situations.

Malpractice Due to Ignorance

The health sector is a vibrant sector that is constantly changing and developing, where new methods and new medicines are discovered. This dynamic structure of the healthcare sector requires healthcare professionals to be in a continuous learning process. Healthcare professionals should follow current developments and innovations in their field of specialization, be aware of new publications and articles, and follow new technologies.

The fact that a healthcare professional does not know the current information related to his/her field of practice or specialty and acts against the requirements and rules of medicine due to this ignorance will clearly constitute malpractice. As the specialization of the person practicing the health profession increases, the level of knowledge expected from him/her is expected to increase. At this point, the level of knowledge expected from a specialist physician and a general practitioner will not be equal. Again, the area of specialization is also important in the level of knowledge. While a neurosurgeon is expected to have up-to-date and advanced knowledge about the brain, an ophthalmologist cannot be expected to have such advanced knowledge about the brain. On the other hand, an ophthalmologist will be expected to have advanced knowledge about the eye, and these criteria will be taken into account when evaluating whether he/she acts in accordance with the requirements and rules of medicine.

Malpractice Due to Carelessness

The healthcare professional, whose field of activity is human beings, is obliged to take the necessary measures to prevent harm to the patient while practicing his/her profession. Preventing harm to the patient will be possible only if the healthcare professional shows the care and diligence expected of him/her. The duty of care and attention is one of the basic obligations of healthcare professionals.

The organization of the healthcare facility should be designed to minimize the possibility of carelessness of healthcare professionals. A healthcare professional who has to deal with too many patients in periods far below acceptable medical standards will inevitably be distracted and this will lead to malpractice cases. At this point, hospital administrators are of great importance and they should ensure that healthcare professionals can work in a comfortable environment and under minimum adequate conditions.

Malpractice due to inexperience

Healthcare professionals acquire both theoretical and practical knowledge during their academic education and gain experience through a number of medical practices that they carry out under the control of academicians while their education and training processes continue. In particular, physicians do hospital internships in certain periods during their university education and have the opportunity to observe how the profession is practiced in the presence of real patients. Likewise, during the specialty training period, candidate physicians gain experience in their specialty areas.

The physician’s lack of experience in a medical intervention may also constitute malpractice. It is also useful to mention the defect of undertaking here. While undertaking a medical process, the physician must evaluate whether this is a correct case in terms of his/her level of knowledge and expertise, and if he/she is faced with a case that he/she thinks his/her knowledge and experience is insufficient or outside his/her area of expertise, he/she must enlighten the patient and direct him/her to a specialist physician. Otherwise, the damages to the patient are characterized as malpractice.

For example, aesthetic plastic and reconstructive surgery specialists are surgeons who are experts in rhinoplasty (rhinoplasty) operations. However, from time to time, it can be seen that otolaryngologists also perform operations in the nature of aesthetic surgery. Performing revision operations, especially for patients who have undergone more than one revision operation, requires advanced experience. An otolaryngologist who encounters such a situation and thinks that his/her experience in revision operations is insufficient should definitely refer his/her patient to a surgeon specialized in rhinoplasty operations since the operation requires aesthetic, plastic and reconstructive surgery expertise.

What are the Types of Malpractice?

In practice, malpractice may occur at various stages of the medical process. Malpractice may occur in the process of enlightening the patient, diagnosing the disease, performing the treatment and post-treatment care. After the question of what medical malpractice is, let’s look at the answer to the question in which ways malpractice can occur:

Malpractice in the Lighting Process

Enlightenment is one of the conditions of legality of medical intervention. If the patient is informed in accordance with the legislation and then consents to the medical intervention to be performed, the medical procedures performed may be deemed legally appropriate. Enlightenment must also be as described in the legislation.

In Article 15 of the Patient Rights Regulation, enlightenment is defined as follows: a) Possible causes of the disease and how it will progress, b) Where, how and by whom the medical intervention will be performed and its estimated duration, c) Other diagnosis and treatment options and the benefits and risks of these options and their possible effects on the patient’s health, ç) Possible complications, d) Possible benefits and risks that may arise in case of refusal e) Important characteristics of the medicines to be used, f) Lifestyle recommendations that are critical for health, g) When necessary, information is given on how to access medical assistance on the same subject.”

Since a disclosure that does not include the elements in this definition will be an incomplete disclosure, the damages to be incurred by the patient in connection with the defect of disclosure may give rise to the malpractice liability of the healthcare professional.

Malpractice in the Diagnosis Process

A disease can only be diagnosed and treated by a physician. Therefore, malpractice in the diagnosis and treatment process can only be committed by a physician. When we look at malpractice cases, diagnostic errors are very common. The physician has the obligation to correctly diagnose the patient who applies to him/her. The physician may ask the patient to undergo the necessary tests and examinations before making a diagnosis, and may also ask for consultation from the relevant branch specialists for issues outside his/her expertise.

Misdiagnosis by the physician will result in the wrong treatment being applied to the patient and this will be considered malpractice. Delay in treatment due to the physician’s failure to diagnose the disease is also considered malpractice. Taking the patient’s anamnesis, physical examination, evaluation of tests and examinations, consultation from other branch physicians are the elements that support the physician’s diagnosis. If one or more of the elements assisting the diagnosis are faulty, malpractice is in question for the healthcare professional who caused the error.

For example, in the event that the physician makes a wrong diagnosis as a result of the incorrect entry of the data in the laboratory in an analysis, malpractice is now in question for the healthcare professional who prepared the report of the analysis.

Malpractice in the Treatment Process

After diagnosis, the treatment process begins. The treatment may be a medication or a surgical operation. A physician’s use of the wrong medication or a surgeon’s intervention contrary to the requirements of medicine is considered malpractice.

Malpractice related to medication can also be committed by a pharmacist. If a pharmacist administers the wrong medication to the patient other than the medication prescribed by the physician, the pharmacist’s malpractice is in question.

Surgical operations may have some complications. When an undesirable result that occurs after the surgeon’s intervention is characterized as a complication, malpractice is no longer mentioned. However, at this point, complication management must be done correctly. Taking the minimum precautions to prevent the complication from occurring, recognizing the complication in time and making the necessary interventions to eliminate or reduce its harmful effects prevents malpractice. However, an error in complication management may lead to malpractice liability of the physician.

Malpractice in the Care Process

The care process is a process in which both physicians and other healthcare professionals play a role. Physicians are especially obliged to enlighten the patients correctly about the care process and to give the necessary and correct instructions to the healthcare professionals who will take part in the care process.

Health professionals such as nurses and physiotherapists can take part in the care process. After the questions of what is medical malpractice and whether the problem is malpractice, an important question is who is responsible for malpractice. Each healthcare professional is responsible for medical activities related to their job description. In an erroneous practice, both the instructions received by the allied health professional from the physician and the practice itself should be questioned. For example, if malpractice in a nursing practice occurs due to an erroneous physician’s instruction that exceeds the nurse’s knowledge, this can now be considered as the physician’s malpractice. However, if a medically correct and appropriate instruction given by the physician is performed incorrectly by the nurse, it will now be the nurse’s malpractice.

You can contact us if you want to get health lawyer support on malpractice.

Sources

Patient Rights Regulation: https://www.mevzuat.gov.tr/mevzuat?MevzuatNo=4847&MevzuatTur=7&MevzuatTertip=5
Code of Professional Ethics for Physicians: https://www.ttb.org.tr/kutuphane/h_etikkural.pdf
Medical Ethics and Malpractice: https://deontoloji.hacettepe.edu.tr/ekler/doc/malpraktis.doc
Evaluation of Malpractice Cases in the Scope of Obstetrics and Gynecology Services. (2022). (n.p.): Efe Akademi Publications: https://www.google.com.tr/books/edition/Kad%C4%B1n_Hastal%C4%B1klar%C4%B1_ve_Do%C4%9Fum_Servisle/1MGAEAAAQBAJ
Legal and Criminal Aspects of Malpractice, TBB TV, Youtube: https://www.youtube.com/watch?v=42YdmxJcrSE
Malpractice Lawyer: https://www.tabaklegal.com/malpraktis-avukati/