Of course, we are not talking about the etiology and pathogenesis of serious and/or incurable mental, genetic and other disorders (schizophrenia, diabetes, Down’s syndrome, Parkinson’s, Alzheimer’s, etc.). Primarily, we mean less significant diseases (if you can say so), such as hypertension, low back pain or ulcer. Certainly, you can understand the behaviour of certain physicians (especially those working in public health institutions) – recollect the recent well-planned strike of junior doctors in the UK or the almost chronic dissatisfaction among doctors in Canada with the healthcare policy, putting the personnel under extremely tough pressure. Sometimes they just do not have enough time to get to the real cause of the disease – by looking at the queues at the doctor’s offices, it is clear that reception of one patient takes an average of 5-10 minutes. Moreover, in some cases establishing the true cause of the disease is not required, for example, if the patient’s X-ray reveals deviated septum, surgery is required, it does not make sense to find out the circumstances under which it was obtained. Yes, and conducting psychotherapy sessions (in this case – the short-term psychotherapy) among conventional doctors (not psychiatrists and psychotherapists) is almost not practiced. The tiny details according to Burkley & Co, having a large staff of medical negligence solicitors, could have significantly changed the state of affairs around clinical negligence cases, where a sustainable growth tendency is currently observed.

At the same time, if the doctor has more time for the patient to listen to their patients more carefully and thus understand the true cause of the disease (that neurotic individuals often lies on the surface), a significantly higher effectiveness could have been achieved, and at least the psychological tension in the patient could have been eliminated. Though, probably, the approach to the patient to a greater extent the work of psychologists and psychotherapists – to conduct outreach and/or rational psychotherapy; when it is necessary – to reassure the patient (e.g. before some surgery), and ‘scare’ when it is required, for example, in case of alcoholic anosognosia when a drunk uncritically refers to a disease, considering himself healthy.

According to one of the largest UK databases on medical negligence solicitors, unfortunately, medical errors are more likely to be committed by young doctors, and this is due, primarily, to their lack of a systematic approach to the healing process, the logical transition from one stage of organisation and implementation of treatment to another. The following steps can be listed in chronological order:

• clinical prediction;
• analysis and evaluation of the effectiveness and cost-effectiveness of alternative therapies;
• assessment of the risk of possible side effects and complications of treatment;
• tactical choice of treatment options;
• carrying out treatment activities;
• analysis of intermediate and final results of treatment.

Clinical prediction is a very important stage of the organisation of treatment, where the main objective is an accurate assessment of the possible factors that affect a person’s health status without the intervention of a doctor. This approach allows to establish a causal connection of occurrence of a disease, determine the probability of its occurrence, and predict the future development of the pathology and the likely outcome. Compiling an individual prognosis, the physician should compare it with the known observations in groups of similar patients. When carrying out risk assessment and prognosis is formulated, it is crucial to solve the question: ‘which method of treatment should be selected to provide the desired effect in the shortest possible time with minimum cost to help the patient?’.

The answer to this question can be obtained by reviewing the likely effectiveness and cost-effectiveness of the chosen method of treatment or comparison of alternatives. How to evaluate the effectiveness of a particular treatment? The question is very difficult. Normally, doctors rely on the recommendation of colleagues, data from clinical trials of the method in their own and other hospitals, stats and articles, as well as personal experience. Thus, not so long ago there were dozens of treatment options that produced a breakthrough in the old notions of healing of certain diseases, such as the use of antibiotics in 40-50 years in the treatment of pneumonia.

As for the probability of occurrence of side effects of treatment, the doctor can give estimations and predictions when he is well aware of the selected drug, its pharmacokinetics, pharmacodynamics and therapeutic effect. Co-administration of multiple drugs can change their action, the potential for drug interactions is inexhaustible. Therefore, the number of prescribed drugs should be kept to a minimum: this is a basic rule that to a certain extent guarantees the safety of treatment.

However, regardless of where the contract was signed, both doctors and patients are subjected to the provisions of civil and criminal legislation for certain penalties (mutilation or other damage to health and property, causing moral damage to another person, etc). In most cases, these sanctions are reduced to monetary compensation corresponding to the extent of the damage.

The responsibility for failure to perform or improperly performed obligations the responsibility falls on medical facility. In the implementation of medical treatment a health care worker is a subject of medical assistance, and institution, to which it is bound by labor relations is the subject of medical services provision. Adverse health effects on the patient as a result of professional activities may involve personal responsibility (including criminal) and civil liability for the institution where he works.

Adverse health effects can occur as a result of the patient’s actions not only performed by doctors, but other medical staff as well (for example, medical assistants, nurses, etc.).

From a legal point of view among medical errors should be distinguished between wrongful acts of the perpetrators of health workers (institutions) and cases of harm to the patient in the absence of fault. In the first case the offense (a crime, a misdemeanor) entails criminal, disciplinary, civil liability, in the one second – the lack of guilt and responsibility.

The jurisprudence recognises the lack of guilt hospital (staff), and the legal responsibility is not carried into effect if the medical staff did not foresee and could not foresee that the actions cause harm to the health of the patient. It is important to stress, however, that the existence of the practice of unpunished medical errors does not mean ‘powers’ on health damage. Medicine is obliged to assist the patient in all cases, being guided by the sole desire for a favourable outcome, not hiding behind the notion of a medical error, and trying to eliminate it.

American legislation sets four conditions of responsibility: the factor of harm, misconduct, a direct causal link between the two and guilt.

In order to establish negligence the US Supreme Court requires the expert to justify its symptoms, such as a significant lack of knowledge, special indifference to the safety of the patient, ignorance in choosing the means of diagnosis and treatment, lack of proficiency in the equipment or failure to pay proper attention to the patient. American commentary on the Criminal Code and the Manual on criminal law defines criminal negligence as a situation of ignoring the substantial and undue risk to which the subject did not know, but should have known. Criminal negligence is defined as a situation of ignoring the substantial and undue risk, a subject about which was known, consciously ignored and continued dangerous behaviour maintained.

From the point of view of the external factors analysis there are the causes of medical error, it is, first of all, the work performed by the specialist under the influence of an error. This activity is expressed in the deviations from special acts and regulations (organisational and technical standards) that can cause or causes adverse effects to the patient. The risk of making a mistake is ghost following a doctor at all stages of care.

Quite often in medical practice there are cases when a patient goes to a doctor, having several issues, but the doctor is capable of recognising only one of them, and unfortunately, unrecognised disease becomes the cause of erroneous treatment. The consequences of such errors are sometimes the cause of death. An example of a typical error is the following case.

The lethal outcome caused not by the diagnosed and treated condition

A 45 years old patient in unconscious state was brought to the emergency room of one of the Leeds hospitals. In connection with the specific symptoms the patient was transferred to a specialist unit, accompanied by two specialists. Given the heavy unconsciousness, he was immediately examined by a neurologist on duty, therapist, and by resuscitator later on. As a result of collaboration and urgent diagnostics, it was found that the severity of the patient is not caused by chronic alcoholism with fatty liver, which he suffered from for the past 10 years, but diabetes, flowing on the background of the disease. The intensive care initiated emergency insulin treatment; however, it was too late – a diabetic coma happened, against which the patient died within 8 hours from the start of hospitalisation.

Naturally, such situations provide objective grounds for complaints and allegations of improper health care. Even this case, according to one of the specialists represented at one of the largest medical negligence solicitors catalogs, who asked not to disclose the name, convinced us there’s a strong position for filing a legal claim and the positive outcome chances are pretty good. From the point of view of the consumer health care – the patient, the doctor has no right to make mistakes, which also does not correspond to reality. But that’s just the paradox of the situation where both parties, providers and consumers, have strong arguments and the legal borders are quite blurred.

The state of affairs in Canada

In Canada, according to figures presented in Canadian Dimension Magazine, as a result of negligence in medical staff 40,000+ Canadians are killed annually, although reportedly the trend is slowly, but gradually declining.

Clinical negligence numbers in the UK

In the UK in the period from 2010 to 2011 the number of lawsuits filed in connection with the commission of negligence in medical organisations against the UK National Health Service has increased by 55% against the background of 2005 – 2006 period. In 2010 – 2011, payments for such actions or complaints by the UK National Health Service amounted to £729 million. Most claims for this reason have been filed in three areas of medicine: surgery (total claims amounted to 25,867, or 39% of the total), obstetrics and gynecology (the total number of claims was 12,045, or 20% of the total) and general therapy (total of claims 13 was 095 or 18% of the total).

How is it going in EU?

The European Union is a huge region to consider, but we’ve found some comprehensive studies though. In conducting the survey among patients who are nationals of Member States of the European Union on the sort of adverse events might happen to them while in the medical organisation, 49% of respondents said medical errors associated with taking drugs, 46% reported surgical medical errors and 39% inclined to the fact that during the time spent in a medical institution medical errors associated with the use of medical equipment were committed in respect of them.

The stats in Russia

The situation in Russia as a whole can be characterised as the apparent lack of appropriate and effective legal mechanisms for the protection of patients’ rights to quality health care, including the right for protection against defect care. General Prosecutor’s Office of the Russian Federation systematically records the fact of improper performance of medical personnel of their duties that resulted in serious bodily injury and death of adults and children. From 2010 to 2011, only 35 regions initiated 133 criminal cases on the facts of causing death by negligence due to improper execution of his or her professional duties (Article 109 of the Criminal Code), and negligence (Article 293 of the Criminal Code). However, this is, figuratively speaking, only the ‘tip of the iceberg’. There’s no objective data on medical errors in Russia existing in some form. The published figures are so different from report to report that operating them is a statistically wrong decision. Clearly, the number of cases of medical errors, and defects in general medical care in Russia is too large to ignore the problem.