Introduction
Nursing is a very sensitive profession and its regulation has to be strict as it concerns handling life-saving and life-threatening conditions. Health practitioners at times make terrible mistakes at their jobs and it results in permanent injuries and some even deaths. The malpractices are even worse when done against children since they are helpless most of the time and cannot argue out or demand proper handling when in the hand of practitioners. This is medical malpractice. Most people do not clearly understand medical malpractice and therefore suffer in silence since they cannot place complaints to the authorities. Medical malpractice is the negligence to health conditions by the medical practitioners and this is simply a form of tort and hence a moral wrong or unethical practice. Such negligent behavior in most of the healthcare facilities usually results in serious health conditions like total disabi9lity and even death from conditions that could otherwise be treated.
Government Regulation
The federal and states government laws have been put in place to try and protect the public from potential danger that may result from the doctor’s, nurses, or other practice carelessness (Guido et al, 2010, p. 45). Malpractice has been described in four basic elements and these are the basis of the formation of both federal and state laws in medical care. The following are the terms;
- Duty: each medical practitioner assumes responsibility (duty) of the patient when he/she begins the consultation, diagnosis, or starts to treat the patient. The law states that the – duty comes to play from expressed or implied agreement
- Breach: this is a violation of the contract, generally it is assumed that once the practitioner has taken the duty to diagnose the patient’s condition, any incorrect diagnosis is a breach of duty payable and yet to be paid to the patient.
- Casual Connection: if the doctor or nurse fails to obtain correct diagnosis (breach of duty), the duty payable and yet to be paid to the patient and as a direct and proximate source of the breach results in harm
- Damages: this is the consequence of the wrong diagnosis, the patient incurs damage in terms of disability, extra expenses, or even death.
Ethical Issues
Human life is sacred and has to be respected and preserved by all means. Furthermore, when it comes to issues of health, many rules guide the way care is and should be given. It’s usually a crime to give even misguiding information healthcare (Guido et al, 2010, p. 45). A crime is described as an offense against the state and violates the public law meant to implement it. The regulations that deal with such mistakes are classified under civil law. Civil law crimes are those that are committed against persons for instance and insulting acts against an individual. Other crimes here include violation of contract and so on (Guido et al, 2010, p. 49). A special category of civil law is tort law. Crimes against an individual or on property fall under this category. Many ethical cases in medical services are out of negligence or breach of contract. This is usually from the implied contracts which are also very common in healthcare.
The ethical issues in the case of a child who was injured by fracturing her femur while at the daycare. Considering that the daycare accepted to take care of the child while the mother was away than for her to pick her child in the evening, it’s enough to show commitment to take care. Whether the terms were written or implicit, there is still a contract. This is the implied contract.
A contract is a legitimate accord between two or more parties and is law enforceable. This means that in a contract, the parties involved exchange promises violation of which can lead to a lawsuit as the solution. Terms of the contract are the preset conditions that are mentioned or written in the accord to bring the parties in a contract together; these conditions have to be obeyed or have to be met for the contract to hold (Judson & Harrison, 2010, p.78). So, terms of the contract can be defined as the statements that administrate the requirements and rights of the parties to the agreement. These are elements that bind the accord and if infringed, legal action may result. Terms can be explicit or implied.
There is the tort of negligence. Having agreed to take care of the child on behalf of the mother, the daycare was responsible for the safety of the child (Judson & Harrison, 2010, p.78). However, considering that they failed to protect the child from injury of which they never explained to the mother when she picked her daughter shows a great deal of negligence of duty. The daycare ought to have given the explanation or accounted for the cause of the persistent cries that the child was making.
The tort of Negligence is described as the breach of responsibility or one party failing to exercise the standard of care that is necessary by statute, causing damage to the other party to whom the responsibility was owed. Negligence has become the most essential of Modern torts. This is because the reported cases of this kind are increasing very fast and because the principle underlying it is of wide and general application. In tort law, one can be responsible for the damages caused if he/she owed the claimant duty of care (Judson & Harrison, 2010, p.78). Duty of care is that legitimate responsibility that is obligatory to an individual or parties in question that demands them to adhere or comply with the standard of reasonable care whenever carrying duties or any activities that may predictably cause damage to others (Varcoe, 2004, p. 317). This is usually the first element that has to be established for a negligence claim can be filed.
The claimant cannot claim that the law is liable unless he/she can establish that he/she was owed the duty of care and that that duty owed was infringed (Judson & Harrison, 2009, p. 67). The defendant will have violated the duty towards the claimant if his/her conduct has fallen short of what the standard care is as this is what was expected to be met in that kind of circumstances. In this context, the daycare had a case to answer (Varcoe, 2004, p. 317). The physician on the other hand misguides the mother against taking action claiming that since the injuries were not a result of abuse then there was no need for filing a case. Essentially since the child had suffered, then the cause had to be established. The case cannot be closed on the terms that there was no abuse.
Addressing Ethical Issues
Assuming that another facility would have regarded the ethical issues seriously, it’s important to note that the facility would treat the relationship between the child and the daycare as contractual (Jane, 1998, p. 88). The connection between the doctor and the child was also contractual and therefore giving poor advice and the daycare failing to explain what happened to the child, both these parties were negligent. The doctor from another institution would have advised the mother to sue the daycare and seek answers. The essence of ethics in medical practice is the welfare of the patient. This is the numb ere one goal, failing to offer the best services to the patient amounts to negligence (Judson & Harrison, 2009, p. 67).
Duty- the liability here is not mainly due to the outcomes of intentional damage to the accord or some evidenced mistake like negligence, Tort law explains this as a breach of an obligation to act with caution, or the failure to act as a sensible and practical person would have done under same conditions (Jane, 1998, p. 88).
The guilt is determined when a professional causes damage by acting, recklessly, carelessly, purposely, or knowingly. When a person does something consciously to impact a certain outcome, then he/she is acting “purposely”. If the actor is aware that his activities have a high possibility of causing a certain result, then the action is described as done “knowingly”. If an individual act with no regard to unjustifiable danger, the act is said to have been done “recklessly” (Judson & Harrison, 2009, p. 67). When an individual grossly deviates from the standardized way of doing things like medical care of a reasonable person, the action is “negligently” just as in the case study.
Conclusion
The professional regulation is a very appropriate way of setting restrictions to overcrowding of incompetent experts in some professions and protecting the public as anyone going against the preset condition will have to bear the criminal liability. To ensure that the patient’s rights are not infringed or to help improve the health services, law regulation is not the only alternative. Furthermore, it is not the best either. Currently, many critics of law enforcement have proposed the enhancement of doctor-patient relations, which is a better way of managing medical malpractice. If this can be entrenched in the medical practice, chances are that the doctors and nurses would practice professional and appropriate healthcare service provision.
Reference List
Guido, G.W. (2010). Legal and Ethical Issues in Nursing (5th Ed.). Prentice-Hall, Upper Saddle River, NJ.
Jane, B. (1998). Virtue Ethics, Caring, and Nursing. Research and Theory for Nursing Practice. Vol. 2, No. 2, pp. 87-96.
Judson, K & Harrison, C. (2009). Law and Ethics for Medical Careers. Indianapolis: McGraw-Hill Incorporated.
Judson, K. & Harrison, C. (2010). Law & Ethics for Medical Careers (5th Ed.). New York: McGraw-Hill.
Varcoe, C. (2004). Philosophical and Ethical Issues, Ethical Practice in Nursing: Working the In-Betweens. Journal of Advanced Nursing. Vol. 45, Issue 3, pp 316-325.