Manual proficiency as a factor of due medical diligence: On central venous catheter, thoracotomy and obstetrician who did not use forceps

Abstract

The subject of the article are difficulties arising when a legal concept of należyta staranność (i.e. due diligence / due care), is referred to health care actions, that are based on manual skills. Należyta staranność usually means accordance with binding technical (praxeological) rules, which is an objectified standard. But in some cases, like e.g. thoracotomy, vacuum extraction during delivery or using of central venous catheter (such cases are discussed in detail) this general requirement involves not only appropriate knowledge, but also adequate technical abilities. In a case of a technical failure, the physician is accountable for both compliance with the appropriate rules (norms of proper care) and for having proper manual skill, without the latter he/she should not even undertake the treatment. If a doctor declares lack of such skills, it raises astonishment and disapproval.

                  However, small motor skills can neither be learned from a handbook, nor perfected by the mere spotting the others' activities, but they must be trained through „hands-on experience” in its literal meaning. When a doctor is charged with not being skillful enough, there must be taken into consideration his/her physical accessibility to training.

                  The Polish law on medical practice and the law on the patient's rights, like the Civil Code, use the term należyta staranność, while in some other laws there can be found an expression szczególna staranność (particular diligence / care). The sole existence of such a differentiation suggests, it has been intended; hence the general standards of należyta staranność cannot be made equal to particular (heightened, increased etc.) standards by means of legal interpretation. There is not, de lege lata, a legal basis for such a conclusion.

            What is more, if „increased” level of diligence was required in medicine, it ought to be followed by explanation, what is „basic” level and some specific criteria of such increase. These have never been proposed and, from the logical point of view, it appears impossible to formulate them. Hence appealing to „increased” („special”, „heightened” etc.) diligence is based on subjective assessments and causes discretionary judgements.

                  The clause of zasady współżycia społecznego („principles of community life”; article 5 of Polish Civil Code) shall not help in the discussed context. Invoking this general clause would lead to the confusion of social norms and professional standards, which are two different notions. The first ones have an ethical dimension, while the latter are themselves ethically neutral. The ethics does not determine laws of nature, technical side of a surgery or other intervention, in which preceptiveness and proficiency are involved.

                  A personal model of required behaviour, based on a „reasonable physician” figure, is here useless too. The normative component of the model is nothing more, than a set of praxeological rules, but the human actions governed by perception and physical dexterity are (mostly) not based on rules.

                  Lack of technical abilities itself should raise no objections, as long as a medical doctor can take health care in the a way not exposing his/her patients to danger. He/she ought to exempt himself in advance from tasks making him the only person responsible for a patient, including sole hospital duties. If after all he/she gets in an emergency case, he/she ought to consider thoughtfully, whether an unskilled and awkward intervention would potentially serve patient's best interests. On the other side, complete inaction cannot be justified. If a physician is unable to perform the duty of care personally, the obligation is replaced by another duty: to redirect the patient or to call immediately for more qualified help. In some rare situations the lack of specific skills can be compensated by having some others (e.g. using obstetrical forceps instead of vacuum extraction). Allowing an insufficiently experienced person to perform the intervention constitutes an organizational fault of a hospital or other institution, unless the novice is provided with actual and effective assistance from more experienced employees.