The clinical negligence research in the US and the social resonance

A group of scientists from Johns Hopkins University, Baltimore, conducted a study to ascertain the real extent of medical negligence problem and see how often mistakes are made by medical workers. Experts say that more than 80,000 of such incidents occurred between 1990 and 2010. The researchers’ findings are based on data provided by the National Bank of the medical information that registers all the errors committed by doctors.

As it turned out, the error of doctors committed for various reasons, including because of negligence, are not really rare. Just imagine, an average of 39 cases  when in the course of operations doctor misses various facts are registered per week. But the severity of these violations is different, and significant damage is there: a doctor may leave an item inside the body, another patient may harm  the wrong part of the body. The cases in which the patients undergo operations on the wrong organs take place up to 20 times a week. The most common items that are removed from the bodies of patients are sponges and towels.

The fact that only in the United States alone there were more than 80,000 of such  accidents in the last twenty years shows that the scope of the issue, in fact, even more. If a person comes into the hospital complaining of feeling unwell, fixing a medical error is possible by removing foreign objects. But just think how many people live with some tools in the body and don’t even know about it. Of course, there is more likelihood that the surgeon may find out that an item was left inside earlier, then the issue is likely to be fixed sooner. Nevertheless, while in the US according to NPB publication 5% of patients suffer from clinical negligence, in the UK this number balances between 4-5% according to, a prominent legal startup running a database of medical negligence solicitors, in such countries as Russia or Peru these numbers are not even officially tracked.

‘There are errors in health care that can not be avoided, no matter how hard you try. For example, even if you make every effort to prevent the spread of infection, it could be impossible. However, certain situations, such as the ones when the surgeon forgets a tool inside the body, should be reduced if not to zero, then at least to a minimum. Frankly speaking, this study and the figures that we have presented, is a direct proof of the fact that a lot of work has to be made to make medicine safer’, says the study’s lead author, Marty Makary MD.

Researchers believe that the magnitude of the problem under investigation should encourage physicians and regulatory authorities to develop a more effective system of control. For more than 20 years there has been 9744 cases of medical negligence, which resulted in $1.3 billion cost – the total amount of compensation to claimants.

According to experts, 6.6% of patients due didn’t survive after the errors, for 32.9% the case ended with a chronic disease; the amount of those who escaped with slight shock is 59.2%.

In addition, there are other surgical errors. For example, often the patients ‘treated’ wrong drugs, or given the wrong dose, women who enlisted the help of artificial insemination are inseminated with sperm of the wrong donor, people operate in the wrong place, where it is necessary, and it happens sometimes that a wrong person is lying on the operation table.

Clinical negligence: the numbers, facts and stats

The number of unplanned neither by the doctor nor by the patient consequences of treatment, alas, is high and rising. A child with a large scar on his cheek commemorating the birth by caesarean section, a person losing erectile function after surgery to remove a hernia or the baby, asleep forever because of generous doses of phenobarbital assigned by duty medical personnel for children from newborn pathology department to sleep at night better… not to mention high-profile cases of HIV infection through blood transfusion – according to NPR article, almost 440,000 of patients only in the US suffer from clinical negligence.

‘Bad luck’, ‘fateful combination of circumstances’, ‘doctors are humans first of all’ – will some of these explanations satisfy relatives of the victim? Still, while some resign themselves with the cases, taking the event as a stroke of fate, others require legal punishments or deal with the consequences on their own.

In some cases, the arguments of the guilty doctors in their justification do not satisfy the jury: for example, a patient in the United States, which had his leg amputated due to the mistake, as the result of long litigation was paid a compensation in the amount of $1.2ml.

British doctors admit their work is accompanied by too many mistakes that endanger the life and health of patients. According to recent studies, such errors in the work of the staff of the British hospital can become a cause of death of 70 thousand patients a year. In one way or another, wrong treatment of patients results into a medical negligence action in every twentieth case., one of the largest collections of legal services in the UK, mentioned medical negligence solicitors area to be among the most top 5 demanded ones.

This disappointing statistics appeared in the report, which was published in the latest issue of British Medical Journal. Data were obtained in the analysis of thousands of case records stored in the archives of the two London hospitals: given the relatively small amount of research, it is difficult to transfer the results to the whole country, but the trend is clear. Not always the side effects of the treatment are the ground to blame the hospital staff. However, about half the trouble cases revised could have been avoided if the doctors and nurses had the necessary skill and time. Now time simply does not allow sufficient attention to be paid to many severe patients. According to experts, in such a situation it is to only 400 thousand patients from among the residents of England and Wales.

Among recent examples of medical errors that cost the life of patients, it can be called two cases of improper prescribing and the case of three year old Najiyah Hussain, which instead was given nitrous oxide instead of oxygen. In addition, shortcomings in the work of the medical cause serious economic damage due to increased length of stay in hospital, which is estimated at one billion pounds annually.

Clinical negligence practice across the globe: the stats and numbers

With the rising number of clinical negligence claims around the world the question of  when and who is expected to provide compensation in cases where the episodes of clinical negligence were found and confirmed. Whether it is going to be a provider of healthcare services or insurance company, the system of social insurance funds or some organisations funded by contributions of physicians and (or) patients, or the state.

To facilitate the growing burden of medical fees for insurance policies of professional responsibility the British government in 1990 introduced a national system of liability insurance that covers doctors (except family) and dentists working in hospitals and other medical institutions of public health sector. Under this system, compensation for damage is caused by medical intervention, paying those medical institutions employing doctors found guilty of causing damage. This increased control of the management of health care organisations over the work of staff. According to, the legal platform gathering hundreds of medical negligence solicitors under one roof, the introduction of the process has significantly unloaded courts and positively affected the average hearing period.

As a rule, disputes over compensation for damages, suffered as a result of medical intervention, are resolved in court. It is always associated with a fairly complex and lengthy procedure of trial and emotional stress on the part of the patient (the plaintiff), and health worker (the defendant) and the administration of treatment of the organisation. The practice of law and forensic evaluation of adverse outcomes of medical care shows that in 33-58% of cases the patient’s dissatisfaction with medical care during the subsequent examination of medical assistance is assessed as adequate. The proportion of European medical practice in such cases ranges from 53 to 59%. At the same time, many of these incidents could have been avoided, keeping staff away from from unproductive conflict resolution in court and saving time for forensic on challenging commission assessment of the quality of care. High developed economies have long admitted the fact that the price of the complaint that goes beyond the clinic, starts to rise steadily, acquiring judicial, expert and other costs. For example, in the US the cost of a three-year trial on the complaint exceeds $13,000. In addition to the economic losses arising from the conflict in the area of health care, you cannot ignore the moral damage inflicted to both sides, which ultimately leads to higher prices and lower quality of care.

To assist the patients with proving that the cause of the damage is nothing but medical intervention a system of compensation for the damage suffered by the patient,  requiring no specific perpetrators and the evidence of their guilt, which is especially difficult for the victim, is widely utilised. It is based on the concept of liability without fault. For the first time such a system has been introduced in New Zealand in the early 70s, where it acts as a kind of social security. The concept comes from the fact that in some cases the damage to a patient during a medical intervention was not an episode of gross negligence or negligent actions of the medical staff, but may be explained by the unfavorable circumstances, unforeseen reaction of the patient and other unpredictable factors due to which the damage was caused.

Understanding the nature of clinical negligence and medical errors

The article focuses on the crime of health professionals committed through professional negligence. Basically, the law envisages two forms of negligence: imprudence of medical worker who foresees the possibility of socially resonant consequences of the act, groundlessly hoping to avoid them, and negligence when the healthcare worker doesn’t foresee the risk of adverse effects, even though she could have and should have taken it into consideration.

In arrogance the doctor counts on prevention of adverse effects not through some reasonable circumstances, but rather with the hope for good luck or positive coincidence. If guilty of negligence the specialist doesn’t foresee the possibility of occurrence of dangerous consequences of his act, so he does not think about the fact that the act or omission may cause harm to the collective interests or the interests of individuals.

In deciding on criminal negligence it is primarily ascertained whether the defendant had the opportunity to anticipate the occurrence of dangerous consequences of his action or inaction. This in turn depends on the objective circumstances in which the accused acted (official position, rank, specialisation, etc.). For example, there may be cases when the doctor who was to anticipate the results of their action or inaction, could not make it due to objective circumstances the electricity suddenly turned off or the equipment was broken during operation) or the subjective condition of the accused (the inexperience of the doctor, disease, etc.).

The question of the careless actions of medical workers are often associated with inappropriate and unjustified risk in the process of helping the patient. From a legal standpoint, the risk is justified and legitimate, when the dangerous action is taken to achieve a socially useful purpose, as scientifically proven that there was an objective opportunity to achieve this goal, and when risk-free means are useless in the achievement of this goal. In this attack the adverse effects are possible, but not inevitable. Such situations are encountered in medical practice on a regular basis. However, the patient or his relatives should be aware of certain risks associated with forthcoming operation or other medical procedure and give its consent.

The nature and extent of the responsibility of health workers for the consequences of their reckless actions or inaction depends on the degree of arrogance or carelessness. In the criminal practice there is a number of references for criminal responsibility of health workers for careless actions. This kind of professional crime is, like in other professions, is related to the negligent performance of an official of his duties. There’s even an area of law with its own niche if you drop in at, one of the largest legal services hubs in the UK, you’ll see the currently active 1750+ medical negligence solicitors firms and individuals operating in the country.

Medical negligence risk factors and classifications explained

The classification of medical errors reflects their true causes. On the one hand, they are objective and do not depend on medical capabilities, but on the other hand, there are subjective mistakes negligence, carelessness, including the reckless actions of the doctor.

Such errors as random errors are possible in tough conditions of operation, abnormalities in blood vessels and organs, in insufficient experience of the surgeon in charge of operations due to objectively prevailing circumstances. These errors are considered to be the ones in good faith and don’t imply criminal prosecution. Imperfection of medical knowledge and surgical approaches leads to an accident in medical practice, for example, in cases where a minor intervention ends with fatal bleeding. However, in these situations it is necessary to find out whether the doctor provides the possible complications of such an operation, or they arise as a result of the above circumstances (unusual anatomical structure, congenital organ malformation, etc.). Only a commission of experts, taking into account all the circumstances may give an opinion on the occurrence of death due to an accident or due to careless actions of a physician.

The legal responsibilities of a health care worker in case of professional offense is a broad concept. The crime can be committed either intentionally or through negligence. A crime is considered to be negligent if a medical worker that committed it foresaw the risk of socially dangerous consequences that the actions (or inactions) could cause, but for some reason didn’t facilitate their prevention either; in some cases a person just didn’t foresee the consequences, although they should have and could have been foreseen. In this situation, two different forms of negligence are considered: the one designated as a criminal arrogance, the other one as a criminal negligence. The cases of criminal negligence are not really rare, since only around 38% of claimants get compensation in the courts, meaning that the amount of criminal cases has a potential of climbing up to 15-17%, according to, an expert online platform in medical negligence, gathering hundreds of medical negligence solicitors under one roof.

Overconfidence is defined as the prediction of the probability of occurrence of dangerous consequences produced by action or inaction, coupled with their frivolous expectation of prevention the damaging effects.

In medical practice there are such concepts as ‘medical risk’ and ‘risk in medicine’. The concept of ‘risk’ is clearly defined by the existing laws. The criminal law distinguishes between justified, legitimate risk and unlawful, unnecessary risk. The risk is legitimate and necessary when a potentially unsafe action is taken to achieve a reasonable purpose. One of the conditions to achieve a useful purpose can be a situation where the onset of harmful consequences must be a possibility, not the inevitable result of risky actions. Thus, the risks of undesired complications during surgery are possible, but not inevitable.