MEDICAL MALPRACTICE
Types of Medical Malpractice
Medical Malpractice or medical negligence occurs when health personnel violate the lex artis (law of the art) by providing substandard care that harms the patient. It can result in civil, criminal and administrative liability depending on the severity of the case.
Some frequent forms of malpractice are:
- Error in diagnosis due to insufficient examinations.
- Lack of informed consent on treatment risks.
- Unjustified delay in surgical intervention.
- Prescription of inadequate or contraindicated medications.
- Incorrect dosage of prescribed medications.
- Surgical instruments left inside the patient.
- Blood transfusion without compatibility tests.
- Nosocomial infections due to lack of hygiene.
- Premature discharge of the patient without being properly stable.
- Incorrect execution of surgery or medical procedure.
Civil liability for malpractice
When the damages derive from medical malpractice, you can sue civilly for compensation. It must be proven:
- Existence of doctor-patient relationship by contract or regulation.
- Breach of the physician’s duty of care according to lex artis.
- Damages suffered by the patient as a result of such breach.
- Direct causal relationship between the breach and the damage.
Physicians may take out professional liability insurance. Otherwise, the indemnity is at their own expense.
Malpractice criminal procedure
The steps of the criminal proceeding are:
- Complaint by the patient or family members to the Public Prosecutor’s Office.
- Investigation with expert opinions to determine responsibility.
- Consignation and exercise of criminal action against the doctor if elements are gathered.
- Order of committal to trial.
- Investigation stage with evidence and pleadings.
- Oral and public trial before a Trial Court.
- Conviction or acquittal.
The physician’s defense requires criminal lawyers highly specialized in medical cases to avoid an unjust conviction.
Criminal liability for malpractice
If the malpractice is serious and results in crimes such as injury, homicide or abortion, criminal prosecution is also appropriate.
It must be proven:
- The physician’s action was malicious or negligent.
- There is a causal link between the negligent action and the crime.
- There was a damage typified as a crime.
The penalties can be a fine, professional disqualification and even imprisonment.
Administrative Liability
Malpractice may also carry administrative sanctions for violation of health regulations, such as:
- Reprimand
- Fine
- Temporary suspension from practice
- Cancellation of license
The procedure is brought before a Medical Ethics and Disciplinary Tribunal on the basis of a complaint.
Malpractice Prevention
To prevent incidents, physicians and hospitals should:
- Maintain facilities and equipment in optimal condition.
- Follow up-to-date clinical protocols and guidelines.
- Constantly train personnel.
- Conduct safety rounds to detect and correct malfunctions.
- Implement checklists and double checks.
- Extensively document treatments and consents on file.
Clear communication with patients and their families is also essential to avoid misunderstandings and potential lawsuits.
In summary, medical malpractice can have devastating consequences ranging from civil and administrative to criminal. Therefore, prevention and proper documentation is crucial, as well as specialized legal advice in case of claims.
«The lex artis should always
govern the noble medical work.»
- Legal advice to patients and their families who have suffered damages due to medical negligence or medical malpractice. We analyze whether the case has grounds to claim compensation.
- Legal representation in civil medical liability proceedings to obtain financial compensation for damages caused to the patient.
- Defense of doctors and hospitals sued in cases of alleged malpractice, seeking to refute the accusations when there is no real responsibility.
- Consulting to medical institutions to review protocols and take measures to reduce the risk of incidents and lawsuits.
- Legal representation in criminal proceedings against medical personnel accused of injuries, homicide or wrongful abortion derived from professional negligence.
- Defense before health regulatory authorities when they intend to suspend or withdraw the license of a physician for alleged malpractice.
- Advice on adequate informed consent for treatment, clinical records management, applicable regulations, etc.
- Workshops on malpractice prevention, patient communication and legal crisis management for physicians and hospitals.
Lawyers in los Cabos
Medical negligence or malpractice may not only entail civil or criminal liability, but may also involve consequences in the administrative regulatory field of medical practice.
When there are serious cases of negligence, recklessness or lack of expertise that result in harm to the patient, the health authorities may initiate investigations and administrative proceedings against the medical personnel involved.
The medical ethics colleges and tribunals are empowered to open disciplinary proceedings and impose sanctions such as reprimands, fines, temporary suspension of the license and even definitive cancellation of the license.
Administrative law empowers regulatory agencies to establish sanctions for violations of the regulatory framework for medical practice, such as service delivery regulations, care protocols and codes of ethics.
In these sanctioning procedures, due process must be respected, granting the right to a hearing and defense to the professional in question. Here it is essential to have administrative lawyers who are experts in the health sector.
The legal defense must demonstrate that there was no real negligence but fortuitous cases, reasonable complications or causes not attributable to the doctor to achieve that the accusations are dismissed and the harsh administrative sanctions do not proceed. At Law In Cabo our lawyers know in detail the procedures, regulations and other applicable rules to adequately defend the doctor or patient in the administrative or criminal field.
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