Liability in practice : how can a medical practitioner avoid liability for medical malpractice in Malta?

Abstract

The aim of this dissertation is to examine the methods through which medical professionals are avoiding liability in Malta. The author examines several obligations pertaining to the medical profession and how these obligations have been enforced through litigation. A number of tests and the methodology of the courts in such cases has also been examined in order to properly address how the legal system is being utilised in such manner. Furthermore, the author also examines the interplay of the legal and medicinal fields, and the methods through which medical practitioners have been evading liability in their everyday practice and the effects that this has had on society. As a result of the obligations and responsibilities of the profession, medical practitioners are susceptible to liability for instances of medical negligence. Thus, this study examines how liability can be attributed through the courts and how it can be avoided. The author has analysed the standard of care expected of professionals, and has defined the line between negligence and professional mistake. Furthermore, the importance of respecting patient rights has been highlighted and the patient right to consent has been examined. The notion of informed consent has been scrutinised and an explanation has been provided as to the extent to which the professional needs to explain the risks of treatment. Furthermore, the limitations to this right and the instances where it becomes redundant have also been observed. The author has also noted the use of defensive practices in the Medical field, and how the legal regime in place has affected the medical professional, so much so that his day to-day actions have been altered to accommodate practices which shall assist him in avoiding liability. This study further makes recommendations for alterations to the legal regime in place, which shall attempt to find a balance between respecting the patient’s right to redress in cases of medical negligence, as well as alleviate the pressure of litigation from the medical professional.