Medical malpractice : need for local legislation

Abstract

This work aims to encourage local legislative changes to make clear the definition of what constitutes medical negligence, as well as to set up appropriate filters to discourage, and quickly weed out, frivolous claims. It is increasingly evident that there looms too wide a division between the medical and legal worlds. The local criminal and civil codes were formulated much before today's medical advances came into existence. Exposing the weaknesses in local law (such as the lack of a clear and specific definition of medical negligence), and the consequences of such weaknesses (such as the practice of defensive medicine), is the first essential that may trigger a sequence of events that may lead to legislative action. A local law· that safeguards both doctors as well as patients is long overdue and would shed light on what seems to be a grey area in Maltese law. To bring clarity to this area of the law would be to bring certainty to an uncertain piece of legislation. Chapters one and two are introductory chapters and aim at easing the reader into the realm of medical law, specifically medical malpractice, by introducing the basic notions of consent (with particular emphasis on the growing importance of the patient giving an informed consent) and duty of care respectively. The latter analyses the existence of a duty of care owed by a doctor to his patient as well as the possibility of the existence of a duty of care owed in respect to third parties. Chapters three and four are the linchpins of the thesis. The former deals with the complexities, and corresponding importance, of the requirement of establishing a breach of duty. Central to this topic is the causal nexus between the breach of duty and the damage suffered by those who allege it. This is dealt with in considerable detail under the sub-heading Causation. Also incorporated are a number of defences available to the defendant in a typical medical malpractice action. The chapter culminates in a scrutiny of the place, if any, of criminal law in the sphere of medical malpractice. Chapter four begins by identifying the pitfalls of a tort based system in this context and offers a number of alternative mechanisms, the effectiveness of which is critically analysed in a manner which compliments the general theme of the thesis. A critique of the situation in Malta and suggestions for improvement brings the chapter to an end. Finally, chapter five discusses the importance of the protection of medical pluralism as well as the delicate link between medicine and the law. The raison d'etre of this relatively brief chapter is to offer the reader food for thought and end the work with a burst of philosophical flavour. Issues pertaining to insurance and quantification of damages were purposely omitted from this thesis, not simply because their inclusion would have rendered it too vast, but also as such issues are somewhat extraneous to the general spirit of this work.