医疗损害鉴定制度的改革与发展

医疗损害指因医疗机构及其医务人员的故意或过失（即医疗过错）,造成就医患者身体上或精神上的损害结果。医疗损害鉴定是指医疗机构及其医务人员在日常医疗行为中存在法定过错并造成患者人身损害而导致的医疗损害民事诉讼,人民法院针对医疗技术的高风险、高技术等问题对外委托的鉴定。其内容主要针对医疗行为整个过程的审查和分析,对照卫生行政法规、部门规章诊疗护理规范及常规,判定医师有无过错,医疗过错行为与损害结果之间是否存在因果关系,医疗过错行为在损害结果中的责任程度以及人体损伤残疾程度等方面。     

Clinical analysis of 100 medicolegal cases.

OBJECTIVE--To find the reasons for legal claims against hospital doctors. DESIGN--Prospective analysis of requests for medical opinion submitted by solicitors during 1984-93 on legal claims against hospital doctors. SUBJECTS--100 successive cases: 98 from the United Kingdom and two from the Republic of Ireland. MAIN OUTCOME MEASURES--Principal underlying causes of claims. RESULTS--In 44 cases there was no serious clinical error. Of the 56 cases of clinical fault, seven were a failure of communication by doctors, 15 were an isolated error in otherwise good clinical management, 21 were errors that might not have occurred with better control of clinical practice (doctors exceeding their competence, poor clinical judgment, and poor teamwork), and 13 were major errors due to carelessness or incompetence. In 34 cases there was evidence of clinical fault that might escape clinical audit and medicolegal processes. Most of these legal claims have been or are likely to be withdrawn: only five plaintiffs have settled out of court, and 11 are pursuing their actions. CONCLUSIONS--To reduce the incidence of errors, hospital doctors should consult colleagues about difficult cases and specialists should maintain a broad interest in disease. The NHS clinical complaints procedure should be extended to cover potential claims, and serious cases should be subject to independent external assessment by experienced consultants.     

Defensive Medicine among Obstetricians and Gynecologists in Tertiary Hospitals

Objective

To describe the daily work practice under the threat of defensive medicine among obstetricians and gynecologists.

Study Design

A prospective cross-sectional survey of obstetricians and gynecologists working at tertiary medical centers in Israel.

Results

Among the 117 obstetricians and gynecologists who participated in the survey, representing 10% of the obstetricians and gynecologists registered by the Israel Medical Association, 113 (97%) felt that their daily work practice is influenced by concern about being sued for medical negligence and not only by genuine medical considerations. As a result, 102 (87%) physicians are more likely to offer the cesarean section option, even in the absence of a clear medical indication, 70 (60%) follow court rulings concerning medical practices, and 85 (73%) physicians mentioned that discussions about medical negligence court rulings are included in their departments'' meetings.

Conclusions

Defensive medicine is a well-embedded phenomenon affecting the medical decision process of obstetricians and gynecologists.     

Preventing deaths from malaria.

To reduce the number of avoidable deaths from malaria in Britain the following five points are recommended. Parliament should pass a Malaria Prevention Act that compels travel agents and airlines to give written and verbal advice on prevention and diagnosis of malaria to people travelling to countries where the disease occurs. To improve diagnostic and therapeutic efficiency for all diseases the Department of Health and Social Security should prepare a procedure manual for the NHS that gives guidance for doctors and other medical staff. Avoidable deaths from all diseases should be the subject of open inquiries at district medical committees, with recorded evidence. Failure to perform diagnostic tests such as blood films for malaria in cases of sickness in people returning from the tropics should automatically be considered negligent. Compensation should be offered by the State to the next of kin of people who have died because of medical negligence from malaria or other diseases.     

Childhood malignancies and decision making.

Failure to obtain "adequate" medical care for a child constitutes child neglect, which may be used as the basis for prosecution of parents, removal of the child from the home, or court-ordered medical treatment. "Adequate" care is usually construed as that which is given by a licensed physician, but, in case of dispute, courts almost never engage in choosing one medical approach over another. The principle that parents may not refuse medical care, however, is made very difficult when children have malignancies--the long-term nature of the treatment means that, if the child is left at home, court order or not, the parents may flee with their child. Removing the child from the home, however, adds that trauma to the ill child's burdens. Questions should be asked before making a request to a court to order a therapy which will prolong but not save a child's life if the parents would prefer to spare their child the side effects. Parents, however, may always refuse to permit their child to participate in research studies, no matter how promising. Adolescents are increasingly believed to be capable of medical decision making; most courts, however, would not allow an adolescent to refuse life-saving treatment.     

Positive and negative factors in defensive medicine: a questionnaire study of general practitioners.

OBJECTIVES--(a) To investigate defensive medical practices among general practitioners; (b) to compare any such practices with general practitioners'' understanding of certain aspects of the terms of service and medical negligence and practitioners'' concerns about the risk of being sued or having a complaint lodged. DESIGN--Postal questionnaire survey. Each questionnaire was followed by a reminder. SUBJECTS--500 systematically selected general practitioners on the membership list of the Medical Defence Union. MAIN OUTCOME MEASURES--Answers to questions on defensive medical practices, understanding of certain aspects of the terms of service and medical negligence, and concerns about the risk of being sued or having a complaint lodged. RESULTS--300 general practitioners returned the questionnaire (response rate 60%). 294 (98%) claimed to have made some practice changes as a result of the possibility of a patient complaining. Of the defensive medical practices adopted, the most common (over half of doctors stating likely or very likely) seemed to be increased diagnostic testing, increased referrals, increased follow up, and more detailed patient explanations and note taking. Respondents practised defensive medicine as a possible consequence of concerns about the risks of being sued or having a complaint lodged. This association was particularly strong for negative defensive practices. Defensive medical practice did not correlate with any misunderstanding about the law of negligence or the general practitioners'' terms of service. CONCLUSIONS--General practitioners are practising defensive medicine. Some defensive practices such as increased patient explanations or more detailed note taking are clearly beneficial. However, implementing the findings of the Wilson report may increase negative defensive medical practices.     

Psychological and social evaluation in cases of deliberate self-poisoning admitted to a general hospital.

In a prospective clinical trial 312 cases of self-poisoning (276 patients) consecutively admitted to hospital were randomly allocated to medical teams or to psychiatrists for an initial psychiatric assessment and a decision as to "disposal." Junior doctors and nurses received some instruction in this work. Both groups of assessors asked for help from social workers when necessary. Once the medical teams had completed their assessments, psychiatrists provided most of the hospital treatment. Follow-up at one year showed no significant difference between the two groups of patients in the numbers who repeated their self-poisoning or self-injury (or both), or committed suicide. Provided junior doctors and nurses are taught to assess self-poisoned patients, we think medical teams can evaluate the suicidal risk and identify patients requiring psychiatric treatment or help from social workers, or both. Contrary to the Department of Health''s recommendation that all cases of deliberate self-poisoning should be seen by psychiatrists, we have reached the conclusion that physicians should decide for each of their patients if specialist psychiatric advice is necessary.     

Documenting wife abuse: a guide for physicians

An estimated 12% to 30% of women are assaulted by their male partners at least once during the relationship. Therefore, in their everyday practice, physicians are likely to encounter women who have suffered domestic abuse. The authors define wife abuse, outline epidemiologic aspects and discuss common signs and symptoms. In cases of suspected or confirmed abuse, it is very important for physicians to document the details of the injuries, the patient visit, any treatment and follow-up as well as to screen for associated conditions and ensure that any samples taken are not tampered with. When asked to disclose information by police or courts, physicians need to know when they are obliged to submit copies of their patients'' medical records, when patient consent is required, what information should be divulged and how to defend this information in court. The authors present information about the necessary, relevant and appropriate evidence to be collected and documented for both medical and legal purposes. They also discuss the criminal justice system and the role of physicians in legal proceedings concerning wife abuse.     

PSYCHOPHARMACOLOGY OF DRUGS

Seventeen states provide for admission of patients to mental hospitals by medical certification without judicial procedure. The aim is to avoid the police aspects of dealing with mentally ill persons without depriving them of constitutional rights. The California law, passed in 1947, has now had ten years'' trial. In Orange County, 888 patients were examined under this act between 1947 and 1957. Of these, 486 were admitted to state mental institutions while 402 did not currently require hospitalization. Local modifications have provided additional safeguards to the patient, have made it more acceptable professionally, and have resulted in wider use of the act in Orange County.A comparison of costs between the medical certification procedure and court commitments indicated that, in 1957, court commitments were seven times more expensive than admissions by medical certification.The greater humanity of the procedure and the economy of it lead to the conclusion that, with a few changes, medical certification of mentally ill patients should be more widely used.     

Neglect of medical evidence of torture in Guantánamo Bay: a case series

Background

In the wake of the September 11, 2001 attacks on the US, the government authorized the use of “enhanced interrogation” techniques that were previously recognized as torture. While the complicity of US health professionals in the design and implementation of US torture practices has been documented, little is known about the role of health providers, assigned to the US Department of Defense (DoD) at the US Naval Station Guantánamo Bay, Cuba (GTMO), who should have been in a position to observe and document physical and psychological evidence of torture and ill treatment.

Methods and Findings

We reviewed GTMO medical records and relevant case files (client affidavits, attorney–client notes and summaries, and legal affidavits of medical experts) of nine individuals for evidence of torture and ill treatment and documentation by medical personnel. In each of the nine cases, GTMO detainees alleged abusive interrogation methods that are consistent with torture as defined by the UN Convention Against Torture as well as the more restrictive US definition of torture that was operational at the time. The medical affidavits in each of the nine cases indicate that the specific allegations of torture and ill treatment are highly consistent with physical and psychological evidence documented in the medical records and evaluations by non-governmental medical experts. However, the medical personnel who treated the detainees at GTMO failed to inquire and/or document causes of the physical injuries and psychological symptoms they observed. Psychological symptoms were commonly attributed to “personality disorders” and “routine stressors of confinement.” Temporary psychotic symptoms and hallucinations did not prompt consideration of abusive treatment. Psychological assessments conducted by non-governmental medical experts revealed diagnostic criteria for current major depression and/or PTSD in all nine cases.

Conclusion

The findings in these nine cases from GTMO indicate that medical doctors and mental health personnel assigned to the DoD neglected and/or concealed medical evidence of intentional harm. Please see later in the article for the Editors'' Summary     

Which patients are likely to die in an accident and emergency department?

Four hundred and eighty-eight deaths occurring in an accident and emergency department over five years were analysed. Their causes were categorised as medical, surgical, or traumatic. Medical causes accounted for 87% of the deaths, of which 60% were from cardiac conditions. Blood loss was an important factor in over half the deaths from surgical and traumatic causes. Lives might have been saved by considering infectious disease in patients with medical conditions and by undertaking more rapid blood transfusion, earlier chest drainage, and lateral cervical spine x rays in appropriate surgical or traumatic cases. The admission to casualty departments of people with terminal neoplasms should be discouraged. The management of medical emergencies should be emphasised when training accident and emergency department staff.     

Compelled organ donation

Along with ethical considerations, compelling an individual to donate organs, tissues, or bodily fluids brings several legal doctrines into conflict. The privacy of one's body is generally considered sacrosanct by American courts, which have upheld a competent adult's right to refuse medical procedures, even in cases when they are necessary to save the life of another. Although medical and legal communities stress “respect for the individual” as being paramount under American jurisprudential principles, the doctrine of “substituted judgment” permits a court to act (for example, by consenting to organ donation) on behalf of an incompetent individual or child. Parents also have the right to cause a child to “donate” an organ, and although a means exists by which the child can refuse, this may not be realistically feasible for young children. The revised Uniform Anatomical Gift Act of 2006, while clarifying issues of who may make organ donation decisions, does not resolve all the practical issues of compelled organ donation for minors.     

Ethical and economic aspects of noncompliance and overtreatment.

Physicians have an ethical responsibility for cost-saving within the current medical care delivery system. Noncompliance and overtreatment are among the causes of excessive health care expenses. An effective means of improving compliance and avoiding unwanted or fruitless treatment is improved physician-patient communication. Improved communication is also the most ethical means of avoiding these expenses. The educated participation of patients in treatment decisions and of the public in health policy formation is ethically and economically preferable to bureaucratic responses and user fees. The public must be made aware of the costs and limited benefits of medical treatments and of the effects of lifestyle on health. The medical encounter must become more supportive and educational. Medical school curricula must emphasize patient involvement, which must be reinforced to medical students and residents by staff physicians'' genuine concern and effort. Quality assessments and assurance should include evaluation of communication, patient satisfaction, use of follow-up and duplication of services.     

Selection of Patients for Coronary Artery Bypass Operations

Bypass operations have proved to be an effective treatment for advanced coronary artery disease. Randomized clinical trials have now shown that compared with medical treatment, bypass operations enhance survival in patients who have three-vessel disease or left main coronary stenosis. The goals of both medical and surgical treatment should be to improve a patient''s quality of life, extend survival and reduce medical care costs. Preliminary data suggest that bypass operations may be less costly than medical treatment in patients with severe angina that requires repeated or prolonged stays in hospital.     

Neonatal `Brain Damage'—An Analysis of 250 Claims

Advances in perinatal care have resulted in decreased neonatal mortality. Increasingly, damage in survivors has been attributed to alleged negligence. We analyzed the 250 claims (1957 to 1982) from one major insurance company for factors to characterize high-risk pregnancies and then to distinguish preventable from nonpreventable causes within the group. Using predetermined criteria, 77 (31%) were classified preventable, 105 (42%) nonpreventable and 68 (27%) indeterminate. Preventable actions could be attributed to family members as well as health care providers.Twenty risk factors were significantly increased in the study group compared with those in a general population and included maternal, gestational, delivery and postdelivery risks. Furthermore, 13 of 25 factors differed significantly between preventable and nonpreventable cases. Those with significantly higher prevalence in preventable cases included prolonged gestation, the use of mid or high forceps, cesarean sections, meconium staining, low one- and five-minute Apgar scores, birth weight exceeding 4.5 kg (10 lb), poor tone, seizures and transfers to neonatal intensive care units. Increased in prevalence in the nonpreventable cases were congenital infections and malformations and the late onset of neurologic abnormalities.These findings suggest preventive measures to reduce unwarranted litigation and certain cases of neonatal brain damage.     

Transitional Paternalism: How Shared Normative Powers Give Rise to the Asymmetry of Adolescent Consent and Refusal

In many jurisdictions, adolescents acquire the right to consent to treatment; but in some cases their refusals – e.g. of life‐saving treatment – may not be respected. This asymmetry of adolescent consent and refusal seems puzzling, even incoherent. The aim here is to offer an original explanation, and a justification, of this asymmetry. Rather than trying to explain the asymmetry in terms of a variable standard of competence – where the adolescent is competent to consent to, but not refuse, certain interventions – the account offered here focuses more closely on the normative power to render actions permissible. Where normative powers are shared they can readily give rise to an asymmetry between consent and refusal. We then turn to why it is justifiable that normative powers be shared in adolescence. Transitional paternalism holds that the acquisition of normative powers by competent adolescents should not be an instant one, achieved in a single step, but that there should be a transitional period where paternalistic protection is rolled back, but not entirely withdrawn until a later date. Transitional paternalism could be implemented without generating the asymmetry between consent and refusal but, it is argued, the asymmetric version of transitional paternalism is to be preferred insofar as it offers a greater respect for the adolescent's decisions than the symmetrical alternative.     

Resource allocation and physician liability

Lawyer Karen Capen says funding cutbacks that have affected the services physicians can provide may cause legal problems for Canada''s doctors. If cutbacks affect the care that is being provided, they should be discussed with the patient and noted on the chart. She says physicians have "good reason to be concerned" about increasing pressures that create an imbalance between health care resources and the demand and need for services. For some doctors, these have resulted in court cases.     

Amebiasis in HIV-1-infected Japanese men: clinical features and response to therapy

Invasive amebic diseases caused by Entamoeba histolytica are increasing among men who have sex with men and co-infection of ameba and HIV-1 is an emerging problem in developed East Asian countries. To characterize the clinical and epidemiological features of invasive amebiasis in HIV-1 patients, the medical records of 170 co-infected cases were analyzed retrospectively, and E. histolytica genotype was assayed in 14 cases. In this series of HIV-1-infected patients, clinical presentation of invasive amebiasis was similar to that described in the normal host. High fever, leukocytosis and high CRP were associated with extraluminal amebic diseases. Two cases died from amebic colitis (resulting in intestinal perforation in one and gastrointestinal bleeding in one), and three cases died from causes unrelated to amebiasis. Treatment with metronidazole or tinidazole was successful in the other 165 cases. Luminal treatment was provided to 83 patients following metronidazole or tinidazole treatment. However, amebiasis recurred in 6 of these, a frequency similar to that seen in patients who did not receive luminal treatment. Recurrence was more frequent in HCV-antibody positive individuals and those who acquired syphilis during the follow-up period. Various genotypes of E. histolytica were identified in 14 patients but there was no correlation between genotype and clinical features. The outcome of metronidazole and tinidazole treatment of uncomplicated amebiasis was excellent even in HIV-1-infected individuals. Luminal treatment following metronidazole or tinidazole treatment does not reduce recurrence of amebiasis in high risk populations probably due to amebic re-infection.     

Integrated control of Chagas disease for its elimination as public health problem - A Review

Chagas disease or American trypanosomiasis is, together with geohelminths, the neglected disease that causes more loss of years of healthy life due to disability in Latin America. Chagas disease, as determined by the factors and determinants, shows that different contexts require different actions, preventing new cases or reducing the burden of disease. Control strategies must combine two general courses of action including prevention of transmission to prevent the occurrence of new cases (these measures are cost effective), as well as opportune diagnosis and treatment of infected individuals in order to prevent the clinical evolution of the disease and to allow them to recuperate their health. All actions should be implemented as fully as possible and with an integrated way, to maximise the impact. Chagas disease cannot be eradicated due because of the demonstrated existence of infected wild triatomines in permanent contact with domestic cycles and it contributes to the occurrence of at least few new cases. However, it is possible to interrupt the transmission of Trypanosoma cruzi in a large territory and to eliminate Chagas disease as a public health problem with a dramatic reduction of burden of the disease.     

Determining medical fitness to drive: physicians' responsibilities in Canada.

Current legislation indicates that physicians in Canada have a legal responsibility to know which medical conditions may impede driving ability, to detect these conditions in their patients and to discuss with their patients the implications of these conditions. The requirements to report unfit drivers vary among the provinces, and the interpretations of the law vary among the courts; therefore, physicians'' risks of liability are unclear. Physicians may be sued by their patients if they fail to counsel the patients on the dangers of driving associated with certain medications or medical conditions. Physicians may also face legal action by victims of motor vehicle accidents caused by their patients if the court decides that the physicians could have foreseen the danger of their patients'' continuing to drive. Physicians'' legal responsibilities to report patients with certain medical conditions override their ethical responsibilities to keep patients'' medical histories confidential.