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CAN A BREACH OF ETHICS RESULT IN MEDICAL MALPRACTICE?

Absolutely.

Although we usually think of medical malpractice as involving claims against doctors and other health care providers, those cases are only a piece of the universe of situations that result in claims of malfeasance.†

Most claims arise from situations in which a patient received medical care and the result was unsatisfactory.† However, there are other situations that arise in which health care providers make an error in judgment or skill. Or the patient perceives the outcome as less than what should have been expected.

Medical doctors, like other professionals, have a certain code of ethics to which they must adhere.† Because of the position of trust that they hold in the community, they are bound to the underpinnings of that trust.† This is true despite the fact that medical care has become less personal over time.† Early in the nationís history, a patient might have had the same physician from birth to death.† This family doctor was the patientís only source of medical care.† The relationship was long-term and the trust engendered was a logical extension of the doctor-patient relationship.† Ethical concerns were usually not an issue.

However, medical advancements and specialization diminished the closeness of the doctor-patient relationship. While ethical requirements did not change, the reduction in personal involvement and the diminished frequency of doctor-patient contact led to diminished trust.† The result was that patients were less hesitant to sue their provider with whom they may have had little personal involvement.† For the same reason, providers perhaps found it too easy to lose sight of their ethical obligations. In addition, with technological advancements came new ethical questions that had never been anticipated.

EXAMPLE:† Fred and Freda were engaged to be married. Freda had a new job and was in a 6-month probationary period. In the premarital blood test, as is required, Fredaís blood was tested for HIV, and she tested positive.† A laboratory employee copied the test result and sent it to Fredaís new employer, without obtaining permission.† When the employer looked at the test result and calculated that this could drive up his health insurance premiums and involve lost time for the employee, he decided to terminate Freda within the probationary period.† This unauthorized disclosure of the most private information invaded Fredaís right to privacy and caused real damage.† This cost Freda her job and, depending on the extent of information dissemination, perhaps injured her working career.

The medical information in a patientís file is confidential.† The doctor, with the medical file in his possession, has in his keeping information that belongs to the patient.† Any release of that information to third parties must be approached very carefully.† There are situations when such release is appropriate, such as when needed to determine treatment or to obtain third party payment.† In the absence of such situations, the patient must generally give express permission as to what is to be disclosed and to whom it is to be disclosed.† One exception to the rule (isnít there always an exception to any rule?) involves litigation.† If the patient files a lawsuit, he/she is presumed to waive his/her confidentiality rights with respect to the parties involved in litigation.


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