Medical negligence. Legal theory and neurosurgical practice: informed consent

2014 ◽  
Vol 28 (4) ◽  
pp. 447-451 ◽  
Author(s):  
Nicholas V. Todd
Keyword(s):  
Informed Consent ◽  
Legal Theory ◽  
Medical Negligence

scholarly journals Obligations, consent and contracts in Scots law: re-analysing the basis of medical malpractice liability in light of Montgomery v Lanarkshire Health Board

Legal Studies ◽  
2021 ◽  
pp. 1-21
Author(s):  
Jonathan Brown
Keyword(s):  
Informed Consent ◽  
Legal System ◽  
Medical Malpractice ◽  
Health Board ◽  
Medical Negligence ◽  
University Hospitals ◽  
Malpractice Liability ◽  
Patient Relationships ◽  
Physician Patient ◽  
Medical Regime

Abstract Professors MacQueen and Thomson have defined ‘contract’, within Scots law, as denoting ‘an agreement between two or more parties having the capacity to make it, in the form demanded by law, to perform, on one side or both, acts which are not trifling, indeterminate, impossible or illegal’. This definition reflects the fact that Scottish contracts are underpinned by consent, rather than by ‘consideration’. This, naturally, has the potential to be of great significance within the context of physician/patient relationships, particularly since the 2006 case of Dow v Tayside University Hospitals NHS Trust acknowledged that these relationships could be contractual in nature. This observation is of renewed importance since the landmark decision in Montgomery v Lanarkshire Health Board, which found that physicians must ensure that they obtain full and freely given ‘informed consent’ from their patients, prior to providing medical services. In light of the present medical regime which requires ‘doctor and patient [to] reach agreement on what should happen’, the basis of liability for medical negligence, in Scotland, requires reanalysis: ‘To have a contract only when the patient pays is not consistent with a legal system which has no doctrine of consideration in contract’.

Legal Rules for Recovery

2001 ◽  
Author(s):  
Jessica W. Berg ◽  
Paul S. Appelbaum ◽  
Charles W. Lidz ◽  
Lisa S. Parker
Keyword(s):  
Informed Consent ◽  
Legal Theory ◽  
Medical Profession ◽  
Physician Behavior ◽  
Medical Decision ◽  
Legal Doctrine ◽  
Legal Rules ◽  
Judicial Remedy ◽  
The Law ◽  
Injured Patients

This chapter deals with the legal theory and procedural framework under which patients can obtain redress for their injuries resulting from treatment administered in the absence of informed consent. The evolution of the legal doctrine was driven by the demands of patients for redress for injuries, and more attention has been given by courts and legislatures to the questions of when and how compensation might be obtained than to providing guidance for clinicians. In some important respects, the distinction between the law as it applies to the physician engaged in medical decision making with a patient and the law as it applies to that same patient who later seeks compensation in the courts is an artificial one. Insofar as the spirit of informed consent is not embraced voluntarily by the medical profession, but is adhered to in large part to avoid the likely consequences of failure to observe the legal rules, physician behavior will be shaped not only by the rules themselves but also by the way they are enforced. If, for example, the rules governing the means of redress were complex, time-consuming, and unlikely to yield the desired compensation, few injured patients would pursue a judicial remedy. As a result, physicians would eventually realize that adverse consequences were unlikely to follow from a failure to observe the relevant rules and, except to the extent that they had accepted the ethical theory of informed consent, their adherence to the doctrine would crumble. Some critics of the present system contend that this has already happened (see Chapter 7). On the other hand, rules that make recovery easier and more certain would be likely to encourage compliance with the requirements for informed consent. Differential emphasis by the courts on particular kinds of lapses by clinicians might also shape their actions accordingly. For example, the courts’ focus on risk information has led many physicians to tailor disclosure to emphasize risks. Thus, the issues addressed in this chapter, although framed in legal terminology, are important (some would argue crucial) determinants of the ultimate impact of informed consent.

Nigerian laws on informed consent before a surgical procedure

2019 ◽  
Vol 87 (4) ◽  
pp. 185-187
Author(s):  
Mabel Ijeoma Ezeuko
Keyword(s):  
Informed Consent ◽  
Medical Ethics ◽  
National Health ◽  
Surgical Procedure ◽  
Medical Intervention ◽  
Medical Procedure ◽  
Medical Negligence ◽  
Medical Practitioners ◽  
National Health Act

Informed consent is a process of communication between a clinician and a patient, which results in the patient's agreement to undergo a medical procedure. Rule 19 Part A: Code of Medical Ethics of Nigeria and Section 23 of the National Health Act 2004 prescribe the process of obtaining consent before a medical intervention. The equitable law of torts and/or criminal liabilities that deal with medical negligence should be invoked more often by patients whose right to informed consent is denied by medical practitioners.

scholarly journals What Can Spine Surgeons Do to Improve Patient Care and Avoid Medical Negligence Suits?

2020 ◽  
Vol 11 ◽  
pp. 38
Author(s):  
Nancy E. Epstein
Keyword(s):  
Informed Consent ◽  
Patient Care ◽  
Postoperative Care ◽  
Surgical Complications ◽  
Improve Patient Care ◽  
Medical Personnel ◽  
Physiological Monitoring ◽  
Medical Negligence ◽  
Perioperative Morbidity ◽  
Improve Patient

Background: Why do patients sue following spine surgery? Here we reviewed some of the most frequent reasons for medical negligence suits against surgeons, adjunctive medical personnel, and or institutions/hospitals. Methods: Summarizing the multiple reasons for suits against spine surgeons, their colleagues/consultants, and hospitals should help surgeons identify the problems leading to suits, and improve patient care. Results: Several of the most common reasons for medical negligence suits include: lack of informed consent, ghost surgery, failure to diagnose and treat (e.g. including preoperative, perioperative, and post-surgical complications), performing unnecessarily risky, excessive and/or unnecessary surgery; failure to provide adequate postoperative care; absent or inadequate intraoperative neural physiological monitoring; and spoliation (e.g. fraudulent surgical, office, and/or hospital notes/records). Conclusions: There are many reasons why patients sue their spine surgeons. Being aware of the factors that lead to suits, spine surgeons should learn to provide better preoperative, intraoperative, and postoperative care, and, thus, limit perioperative morbidity and mortality.

Medical negligence and informed consent: an overview

2011 ◽  
Vol 29 (2) ◽  
pp. 97-100 ◽  
Author(s):  
Sebastian Dawson-Bowling
Keyword(s):  
Informed Consent ◽  
Medical Negligence
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