What Factors Are Used While Determining Whether Or Not Poor Medical Practice Exists?
In cases where allegations are analyzed by medical malpractice, it must be established legally what happened and if the type of injury or death had an adequate causal relationship with some negligence, imperative or imprudence of professionals or collaborators who Or, on the contrary, if any predisposition or organic condition of the patient, in combination with anesthesia or some other circumstance, produced sequelae or even death. At the end of the investigations,
one of two things is defined:
1) that some pre-aiming deficit of the sanatorium or a reprehensive behavior of its dependents was the appropriate cause (Article 1726, Civil and Commercial Code) of the death of the patient, or;
2) That the practice fired a predisposition or organic deficit of the patient, which led to that result, being the study or intervention the occasion for that disability to be revealed and the injury or death began, but not the cause of it. In this way, specialists indicate that two fundamental concepts must be distinguished:
Cause and occasion. If the study was the cause of this premature death, the sanitarium and / or any of the intervening facultatives will be held responsible for the event and should respond, the specialist Marcelo López Mesa highlighted in a column published in the day the day of Chubut.
Meanwhile, if the practice was only the occasion of damage, the clinic and intervening doctors will not have the responsibility in the event, which should be charged to fatality. Medical liability is discussed for years. Numerous doctors have been demanded, being thousands of claims that they process against them in the country.
The jurisprudence condemned by gravareous negligence and also rejected demands that only tended to obtain profits carrying against the professionals of medicine, without reason. Therefore, two different assumptions should be slipped: bad praxis, on the one hand, and use of a situation, on the other. The responsibility of the doctors and the clinic to determine what happened in each case, the most faithful and most possible past must be reconstructed, with the fragments that are collected (medical data, a clinical history, informed consent form, studies that For jurisprudence, "bad praxis implies an imperite or ungodial exercise of an activity, in this medical case. That lack of suitability or imperative is normally translated, in the legal sphere, in the lack of diligence, which is reflected in the decision-making inappropriate to the nature of the due or untimely benefit, which makes the content of From this definition, various edges are detached. According to Leandro Merlo, an employee of Erreius, "the so-called Mal Praxis Medical is the term used to refer to the civil liability of doctors." "It usually includes acts of negligence or impeachment, diagnostic errors, treatments, procedures, prescriptions of drugs, and also omissions to perform valuable acts for the health of the patient," adds the specialist. In that sense, he points out that "such acts cause different damages that must be repaired: physical, psychological, spiritual, economic damage and even the death of the patient". They are mostly acts "culposses", that is, facts without intention to harm the patient. Hence, in cases of death of this, a criminal investigation will be initiated, which is cared for "culposal homicide", until it is proved in this if there was or not a negligent act of the accused professional.
Culposal homicide contemplates prison sentences from one to five years and special disqualification, where appropriate, for five to ten years. That figure is given if a person by imprudence, negligence, imperative in his art or profession, or non-observance of the regulations, or of the duties under his charge causes him to another death. "It must be remembered, furthermore, that the doctor of the doctor should be adapted, among other standards, to Law 26,529 of the patient's rights and Article 59 of the Civil and Commercial Code," said Erreius's aforementioned. These rules establish that, for all professional performance in the medical-health field, be the public or private, the prior informed consent of the patient is required.
That is, the declaration of sufficient will carried out by that, or by its legal representatives, issued after receiving, by the doctor, the clear, precise and adequate information with respect to its health status; the proposed procedure, the benefits, risks, discomfort and foreseeable adverse effects; the specification of alternative procedures and their risks, benefits and losses; The foreseeable consequences of the non-realization of the proposed procedure or the specified alternatives. Sometimes practice is questioned itself, their need, their relevance, if it was essential or convenient; Others, the way to undertake a practice that it would have been correct or, at least, not discarded flat. Finally, other times, what is questioned is the time when praxis was performed, reputing it premature or, in most cases, late. In such a way, in these cases it should be analyzed if the practice was correct or, on the contrary, negligent and, in addition, if the patient was supplied with sufficient information prior to consent. If any of both assumptions shows a deficit, the civil liability of the sanitarium and the doctor will be the legal consequence.
Do not exist at this moment jurisprudential precedents for this case, since this will be one of the first to be judged under the rules of the new Civil and Commercial Code, sanctioned by Law 26994 and that will be effective on August 1, 2015, which dispenses In addition to criminal actions, the patient or their relatives (in case of death or disability of that) can open a civil trial to obtain an economic compensation. In that case, according to what is explained by MERLO, the "budgets of civil liability" must be tested,
which in this case would be four:
1) the damage (injury, death).
2) Non-compliance or anti-suggestivity (any action or omission that causes damage to another).
3) The causal relationship (that the damage consequences have an adequate nexus of causality with the producing fact of the damage).
4) The attribution factor of liability (which is subjective by acting blame or dolosion.) Finally, the eventual responsibility of the medical establishment and / or prepaid medicine company would be analyzed. This is defined by the so-called "Association of Liability of Liability", which implies that proven the fault of the doctor who caused the damage, the company responds because it has a tacit security obligation towards the patient. Eventually, according to López Mesa in the aforementioned Chubutense Journal, the doctrine of disproportionate results could be applied.
You must be logged in to post a comment.