At the Crossroads of Medicine, Law and Ethics: The Price of Saving Lives
- Eda Deniz Koselleck
- hace 6 horas
- 4 Min. de lectura
Article of Law Written by Eda Deniz Koselleck
We have all experienced, in one way or another, the feeling of being helpless, dependant and needing to trust someone with our lives. The more so, especially when we visit a Trauma Centre – either for ourselves or for our beloved ones. If the outcome of the visit is not a positive one, it is not unusual that the trauma doctors would be accused of malpractice
and/or negligence. However, let us think for a moment. How much of this accusation results
from a systematic practice failure, due to limited resources, and how much from the medical
malpractice, i.e. intentional harm inflicted by the doctors to their patients and/or negligence of the doctors?
It is not a secret that many trauma centres operate at financial deficits, highly depending on public subsidisation or funding, and thus the failure or the deficit of the overall health system might easily turn to be an accusation on behalf of the doctors. This is where the ethical and legal tension arise, particularly for our interest on the legal side. Should the doctors, who would be performing with full capacity and devotedness, be blamed or punished for trying to save lives? However, should those, who are not so meticulous, be profiting from any form of immunity and accountability, on the prize of the devoted ones?
As it shall be discussed, this delicate topic is just at the crossroads of ethics, medicine and law and the legal practices should be carefully considering this very thin line accordingly.
At the outset, it is essential to recognize the difference between medical malpractice and negligence, which lies in the intent of the doctor. Medical malpractice is a general term often used to describe any case where a doctor causes harm to a patient. There are two types of cases an injured patient could bring against their doctor, depending on their individual facts. Medical malpractice cases are brought when there is the presence of ‘intent,’ whether obvious or discreet. Medical negligence cases are brought when there is no intent, but the act that caused harm is a mistake.
Trauma Centres and Emergency units of the hospitals represent the frontline of acute medical care, where time-critical decisions result in life-or-death situations. As trauma systems worldwide confront increasing demand and fiscal austerity, the line between negligence and necessity grows ever thinner. True justice requires legal frameworks that acknowledge that many failures in trauma centres are not merely a result of poor judgment or medical failure, but the unfortunate outcome of underfunded systems, where the doctors fail to benefit from satisfactory means, be it on the personnel or utility or equipment side in performing their duties. However, the impartiality of the legal judgements requires no uncovered grounds for any kind of malpractice, providing a kind of immunity to the doctors.
In order to ensure this, trauma centres must establish ethic committees, to which experienced legal personnel should be integrated to assess systemic failures, ensuring that medico-legal decisions reflect both fairness and public health realities.
To exemplify this phenomenon, in Texas, p.e., the Texan Civil Practice and Remedies Code §74.153, require plaintiffs to prove quot willful and wanton negligence quot, a threshold equivalent to gross negligence, rather than mere ordinary negligence.
This standard, clarified by the Texas Supreme Court in the case “Columbia Medical Centre of Las Colinas v. Hogue” (2008), requires proof that “the provider had actual awareness of risk and proceeded with conscious indifference to the patient's welfare”. The legislative rationale behind such statutes is to protect emergency and trauma centre practitioners, who must make split-second decisions under extreme pressure and with limited information about the patient, to be spared. Yet, critics argue that these heightened standards might eventually immunize trauma centre doctors from accountability and responsibility, and hence, disproportionately burden plaintiffs, even in cases of preventable errors and malpractices.
In contrast, the overall tendency in European jurisdictions, generally adhere to a fault-based negligence model, without distinct statutory shields for trauma centre doctors. That is to say, the standard of care is often evaluated contextually, with courts recognizing the exigencies of emergency practice. For example, under common law principles reaffirmed in the case “Bolam v. Friern Hospital Management Committee” (1957) 1 WLR 582, “a clinician is not negligent if acting in accordance with a responsible body of medical opinion”.
The subsequent case of “Bolitho v. City and Hackney Health Authority” (1997) refined this rule, “permitting judicial scrutiny of professional opinion for logical defensibility”. In emergency contexts, English courts typically afford deference to the practitioner's judgment under pressure, but without codified immunity.
In Continental Europe, the civil law jurisdictions such as those in France, Germany and Spain apply a standard of due professional diligence, often grounded in statutory codes. For example, under French public health law, state-employed physicians in public hospitals may benefit from limited personal liability, with the institution bearing the principal burden (responsabilité de l'administration. Similarly, German law distinguishes between organizational fault (Organisationsverschulden) and individual fault, acknowledging systemic
causes of harm.
If we would sum up this legal phenomenon, we might state that in the U.S., the model tends to emphasize individual culpability, with selective statutory shields, whereas the European model leans toward institutional responsibility and systemic causation.
However, as stated at the very beginning, this topic stands at the crossroads of medicine, law and ethics and every effort should be made to save lives and those, the committed trauma doctors, who are instrumental to this end.
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