h2g2 The Hitchhiker's Guide to the Galaxy: Earth Edition

http://news.bbc.co.uk/2/hi/health/3876311.stm

I just read this story - this woman did not *want* an abortion, and has therefore attempted to have the doctor who made the error, prosecuted. So - what do people think? Should she just say "oh dear, how sad, never mind" if other people have are to have the right to abortion, I can't object to what happened to me. Or, do they feel this woman, Mrs Vo has a point?

"But Nuala Scarisbrick of the pro-life charity Life, told BBC News Online: "This is not a surprising decision. But it is a disgusting one. It is morally bankrupt."

"It's a disgraceful situation that a child of that stage, who is perfectly viable, is not given the right to life."
Ms Scarisbrook's comments reflect my view, but others may feel differently.
Let the discussion begin!

A discussion would be where people bring ideas *and* facts to the table and people think about what others have to say if a discussion on this subject includes you I would be very much surprised.

Ms Scaribrroks and your stance if accepted by law would make people criminally rsposible for any and almost all mistakes during medical procedures that resulted in death. A patient who went into arrest during angioplasty would have had their right to life violated

Get real.

<>

Doesn't it depend on why they went into arrest? Don't you think it's reasonable for such deaths to be investigated? Often such surgery related deaths are caused by negligence - such as a case of a woman who went in for a hysterectomy, reported in the Sunday paper here yesterday - the anaesthetist used the wrong syringe, and she nearly died - but luckily, he noticed her condition. The Health and Safety Commmissioner investigated.

But you think maybe he shouldn't have. Why?

>> if accepted by law would make people criminally rsposible for any and almost all mistakes <<

Under UK law that is nearly always the case. Any incidents of negligence that results in death is nearly always results on a charge of manslaughter. However, there is a defence against such a charge and that is the principal of "mens rae". Which literally translated means the "the guilty mind". Therefore, for a prosecution for manslaughter to succeed, the prosecution have to prove that the accused had some evil intent. If the death was caused by an mistake made in good faith, then there is no case to answer.

What defines mens rae is open to interpretation. For instance, an anaesthetist attending a patient while under the influence of alcohol would have no defence, regardless of how well he tried to perform his duties. The evil intent was trying to perform life threatening activities while drunk.

Donald

Della, in NZ the Health and Disability Commisioner has no legal power and can only make recommendations.

HDC investigations of a death from medical misadventure or medical negligence are different from criminal prosecutions that involve police investigation and State prosecution.

Doctors have their own system (the Medical Council) which does have binding powers around things like registration etc, but again this is different from a criminal prosecution.


I tend to agree with blicky - that great care needs to be taken in holding health practitioners accountable for deaths occuring during medical/health proceedures. Mistakes happen all the time and fortunately they are usually not so tragic.

I know of a midwifery student who killed a new born baby by giving it an injection from the wrong syringe. Who is responsible? The student who made a genuine mistake? The midwife who was supervising? Should they be put in prison?

There is always inherent risk in any medical proceedure. If you hold practitioners directly responsible for 'accidents' then you end up with a situation like in the US where legal issues override medical, ethical and social ones (eg medical proceedures are undertaken so the doctor can avoid a lawsuit on the off chance that something might have gone wrong if the proceedure hadn't taken place ).

Having said all that I do think that doctors especially have needed to be held more accountable for their actions, which is why the HDC system is a good one. It gives the opportunity for clients to voice concerns about what happened and for staff to account for the situation. Doctors have a pretty bad record when it comes to this unfortunately (hence the strenght of patient rights in NZ), but taking to the other extreme and holding them responsible for everything that happens will be detrimental to patients in the long run.


It's important of course, as Donald is pointing out, to differentiate between criminal negligence and genuine mistakes (although the line between isn't that black and white).

I can't tell from the linked article to what extent the individual doctor was directly responsible for the baby's death. In hospitals many things contribute to accidental or negligent deaths - why wasn't an interpreter provided? what were the staffing levels like on the day? how much work stress was everyone under? etc

Thanks for that clarification Donald.. I always wondered about a guilty mind, and how it is determined... IMO, straightforward negligence, even with innocent intent should perhaps be punishable...

I tend to get very exercised about medical negligence, Kea... Do you know of the private hospital in Auckland, where a doctor "replaced" the wrong hip for an elderly patient, not just once, but *twice* (different patients, same doctor, same hospital, a year apart!) And Prebs wanted hip ops farmed out to private enterprise (paid for the Health Dept of course). He even recommended that hospital, after the first incident! I have taken note of the name of that hospital and will *never* go there for anything, (even if I had private health insurance, which I don't) not even an ingrown toenail...

What on earth was that doctor doing? Someone being 6 months pregnant is pretty obvious to anyone let alone a gynaecologist ..so why was he trying to remove a coil? If she had one she wouldn't be pregnant in the first place...let alone that far gone!...that should have made it blatently obvious he was dealing with the wrong patient..or at least enough for it to be questioned before jumping in like that.It's quite shocking really..

"If you hold practitioners directly responsible for 'accidents' then you end up with a situation like in the US where legal issues override medical, ethical and social ones (eg medical proceedures are undertaken so the doctor can avoid a lawsuit on the off chance that something might have gone wrong if the proceedure hadn't taken place )."

As sad a thing as it is for me to say, but watch several episodes of "Quincy" for examples of this.

Accidents happen where people carry out activities in EVERY walk of life, it does not mean they are criminally responsible when it happens though.

Lets apply what happened to a slightly different situation, a 6 month pregnant woman was trapped in an overturned car, the fireman not knowing that she was pregnant and not being able to understand her roughly pulled her out of the car that was about to explode and carried her over his shoulder to safety. Said feotus dies as a result of the carrying, is the firman criminally responsible for its death?

The European Court made the right decision in this case. If the court accepted the argument that a foetus has a 'right to life', it would have made a judgement that is incompatible with the laws of nearly all of the member states of the European Union, with the exception of the Republic of Ireland (I think). Although the European Court does find against nation states on individual bits of legislation, it would have been an absolute disgrace if the (unelected) European Court to overturn legislation enacted by democratically elected governments in nearly all of the EU member states.

It was argued that the European Convention on Human Rights (article 2) guaranteed the right to life. But when the Convention was drawn up, it was never intended that article 2 should apply to foetuses, and it would have been against both the letter and the spirit of the Convention for the Court to rule other than it did. This case never had any chance of success, and should never have been brought in the first place.

On the subject of medical negligence, I make mistakes most weeks when I'm at work. But no-one dies because of the nature of what I do. Perhaps I let people down, or annoy them, but no-one dies. If you're a doctor or nurse, mistakes can and will harm people. Next time anyone feels like been outraged about mistakes, think how many mistakes you've made at work. The response is not to carry out a witchunt, but to look at the systems that made it possible for the error to take place.

For example, there was a case in the UK where a young man had something injected in his spine which should have been injecteded into the bloodstream. It killed him. You could blame the nurse who carried out the injection, or you could ask why 'spine' syringes and 'vein' syringes look exactly the same - making an accident of this kind always likely.

I don't know the details of the case, about the actual mistakes of the doctor. But I do find it wrong that they claim killing a 6 month year old baby does not constitute murder. In Denmark you can have an abortion up to 3 months, and I thought that was the case in most other countries as well. So if it had been less than 3 months, it would have been a difficult legal decision. But at 6 months I would have thought the foetus would be legally considered a human, and an accidental or intentional abortion would both be considered illegal. So I think it should be seen as the doctor causing the death of a human. He should be investigated, in the same way as if a normal human died during a standard operation. Wether he should then be considered to be guilty of negligence or wether it could be said to be a fair mistake I don't know. But I think claiming the foetus at 6 months is not a human would be legally wrong.

If the initial procedure that the doctor carried out killed the baby instantaneously - would the removal of the corpse legally consitute an abortion? If the child survived the initial procedure, why did the medics decide to abort it rather than perform an emergency caesarian and then place the child in neo-natal intensive care to see if it would survive outside the womb?

While prosecuting the doctor for manslaughter may not stand due to the laws concerning any unborn child, surely morally in this incidence the doctor should have at the very least been found culpable for an assault on the mother or similar?

Any gynaecologist that would attempt to remove a coil from a six month pregnant woman without some kind of safeguards in place to protect the unborn child is just plain dangerous. I'd want him struck off - would you want this kind of idiot near your unborn child?

Certainly I would expect an inquiry into the competence of this doctor & the procedures that allowed the patients to be confused. If he were deemed to be incompetent rather than making an error of judgement, then I think the a criminal charge would be valid, but perhaps assault on the mother, not manslaughter.

Medical professionals are only human, but it is reasonable to expect a certain level of competence. On the other hand I think we are far to ready to blame people for errors when we should be looking at the procedures that allow mistakes to happen.

>>Any gynaecologist that would attempt to remove a coil from a six month pregnant woman without some kind of safeguards in place to protect the unborn child is just plain dangerous. I'd want him struck off - would you want this kind of idiot near your unborn child?<<

I'm assuming that he didn't realise that she was pregnant. Some women, especially large or overweight women do not look pregnant and carry the baby more within their body. I know a woman who first realised she was pregnant when she went into labour at term. That is not unique. Also other women who did not realise they were pregnant until they were 7 months.

You normally wouldn't have a coil in while pregnant, so if he had known she was pregnant I think they would have been extremely careful in what they were doing.


I agree it is strange that they didn't do an emergency caesarian, but as is usually the case with reports like this we have very little information about what happened. I'm assuming that the decision to do an abortion was a medical decision made at the time.

<>

Do you honestly think that *anyone* would suggest this, Della?


To answer Xanatic's posting, in most countries elective terminations are legal up to between 20-24 weeks, though the majority of them take place within the first 12 weeks. Terminations in severe medical circumstances are usually allowed after 20-24 weeks.


az

>> IMO, straightforward negligence, even with innocent intent should perhaps be punishable... <<

It is, but not in a criminal court which would leave the accused with a criminal record for an innocent mistake.

The alternative is to sue the individual in a civil court where the victim can get compensation for there injuries or loss. That is why most organisations and individuals who are in position where people may be harmed by innocent mistakes have Public Liability Insurance.

It is a principal of UK law and I imagine most other jurisdictions that you are prosecuted for what you did, not for the consequences of what you did. Consequences are largely a matter of chance and it would be unfair to penalise somebody on a chance.

Therefore you can have a situation where somebody is criminally negligent which does not result in death being prosecuted in a criminal court. While somebody who makes an innocent mistake which does result in death is not, but is still likely to find themselves in a civil court.

Yes, it is not always possible to tell if a woman is pregnant just by looking at her. I have personal knowledge of one woman, a friend of my sisters, who had no idea she was pregnant till she went into labour. Its not that uncommon.

Donald

What I find surprising is that the case was being argued on the foetal rights.

If you went into hospital and they removed a kidney because someone with the same name was due to have a kidney removed, you would sue for negligence, not for the rights of the kidney.

I am *not* equating a 6 month foetus with a kidney, but the nub of this case, surely, is administrative and medical negligence, and not foetal rights.

I am also very curious that she went to hospital without anyone who could translate for her. I confess to having gone to a Swedish hospital accompanied only by another anglophone, but at least I was accompanied. If I had had to go about anything serious then I would certainly have asked a friend to go and translate for me.

Also, while I am at it, Vietnam was a French colony, so I am surprised by the implication that there is not a systemic provision of multilingual health services. I don't know the details, but I do get the impression that the UK does at least make the attempt to provide multilingual access to health services. Z could advise.

B

In the clinic where I work, most commonly a friend or family member acts as interpreter, with varying degrees of success. Once a fellow patient volunteered! Occasionally the social workers arrange for an interpreter, but it's not unknown to have to struggle through with uncertain understanding.

I must admit, I'd be surprised at a doctor prepared to undertake a procedure such as removal of an IUD without being able to communicate satisfactorily with the patient.

This case also makes me think of drunk drivers killing a pregnant woman or causing death of the foetus. Although the loss of the baby makes the case more emotive, I don't think it is usually counted in the number of casualties.

They are attempting to have this law changed in the US, Teasswill, so that a pregnant women who is murdered will be considered a double homicide. Also she would be found criminally negligent if, as happened there recently, she refuses medical care and her foetus dies as a result.

I wonder how those religious groups get away with letting their grown children die through refusal of certain medical treatments.


az

Is it the same religious groups?

B