The practice of medicine in the modern era is increasingly becoming more defensive as the fear of litigation increases, with more patients suing doctors over treatments ‘gone wrong’. COLIN KHOO attends a conference that addresses some of the medico-legal issues that may arise in healthcare practice.
It used to be that doctors were revered as pillars of society, their role in the public conscience one that was deemed noble and selfless. Today, there appears to be a shift in the attitudes of many towards doctors.
This change in attitude and perception is evident in the number of lawsuits made against doctors by disgruntled patients and their families.
This has led to a climate of “fear”, a widespread fear of litigation that hangs like the Sword of Damocles over the heads of medical practitioners. And it has been said that this fear of liability has led towards defensive medicine, i.e., play it safe and not push the frontiers.
On top of that, it has taken away the overall satisfaction in the practise of medicine.
These grievances and problems have led to the first Commonwealth Medico-Legal Conference in KL last week.
The conference saw both doctors and lawyers from across the nation and overseas discussing certain perspectives in tackling medico-legal controversies.
At the same time, it explored the imperfect and fallible world of medicine and offers an international perspective on what the general public has a right to expect from healthcare professionals.
The conference highlights how most legal complications stem from a lack of communication between doctors and their patients. The problem of misadventure vs negligence is also touched upon. At the end of the day, it boils down, to a large extent, to the existing civil justice system.
The corpus of medicine is daunting. That is why we leave it to the doctors to slog through those many years of study – to carry the burden of the corpus and the MDs, MBBSs and what not.
Now, after all the years in medical school, there’s another load on their shoulders: that of the expectations and demands of the public that can often be entirely unrealistic.
As one of the speakers, S. Radhakrishnan, an experienced advocate and solicitor for doctors, says: “The medical profession laments the fact that the legal profession does not fully appreciate that the practise of medicine is different from say, law, engineering, architecture or accountancy.
“It is said by way of defence that medicine is not an exact science. The doctor cannot be expected to be a miracle worker guaranteeing a cure every time he treats a patient. The medical practitioner is not an insurer and cannot be blamed every time something goes wrong.”
And he goes on to say that the fear of litigation, to add to the weight already on their shoulders, has deterred many doctors from continuing to practise.
“These are very strong sentiments from the medical profession. They are not confined to Malaysia alone, but could be regarded as the prevailing view of the profession throughout the Commonwealth,” he adds.
Of course the existing civil justice system has its role to play in channelling the blame onto the doctor. “If a patient has a grievance against a doctor in respect to the management of his case, under the prevailing system he has to institute legal proceedings against a doctor.”
Here, in the vast majority of cases, the patient’s cause of action will be the Tort of Negligence.
“Under the tort litigation system, the patient suing the doctor would have to establish that the doctor was at fault and that the fault caused the injury or damage that he had suffered.
“The court, on the basis of evidence presented, is called upon to decide whether the conduct of the defendant-doctor amounted to a breach of his duty of care which he owed to the injured plaintiff-patient.
“The problem sometimes could be attributed to the fact that solicitors, acting for the patient in order to comply with the rules of the court governing pleadings, set out a catalogue of allegations of negligence of the doctor in support of the patient’s claim. Some of these allegations might not be true,” says Radhakrishnan.
This system is in contrast to the “no fault” compensation scheme, as adopted by New Zealand on a limited scale, whereby the injured patient can obtain compensation without resorting to an action in court.
“In the absence of such a scheme, the present civil justice system will continue to operate in resolving complaints of negligence against members of the medical profession. The courts are aware of the weakness in the existing system. The dissatisfaction has resulted in a review of the civil justice system in the United Kingdom with a view to improving it.
“These recommendations are currently under consideration by the Malaysian judiciary with a view to implementing them as far as possible in our system,” says Radhakrishnan.
And then, there is the problem of the media. As with the general public, the media has often taken as granted that a patient’s plight is somewhat the result of the doctor’s negligence – ignoring, once and for all, the possibility of doctors as victims of the system.
“The allegations in the Statement of Claim are sometimes published in the newspapers even before the Writ is served on the doctor. And sometimes the press do not ask the doctor for his side of the story before publishing the allegations.
“An attempt ought to be made to prevail upon the media to review prevailing practice in view of the harmful effects of one-sided advance reporting of allegations against the doctors,” he says.
The need for communication
The number of claims for medical negligence in Malaysia has increased over the past two decades. But whilst the number of claims has increased, the proportion of successful claims against the medical profession has remained low. This is also the case throughout the Commonwealth.
The increase, however, does not mean that doctors and other healthcare professionals are less competent now than before. “The increase should be attributed to the fact that there is greater awareness that patients have rights and they could seek relief if necessary from the court in the event they are dissatisfied with the management of their case by the doctor or the hospital.
“One of the common complaints against doctors and hospitals is that patients and their families are kept in the dark as to what went wrong. It has been alleged that doctors are often reluctant to talk. Thus, some patients institute proceedings in court or complain to the Malaysian Medical Council in the hope that such actions will force doctors or hospitals to provide the necessary explanation,” observes Radhakrishnan.
Most of the time, it is the goodwill built up between the patient and doctor in the course of treatment that determines whether a patient will ultimately seek legal action.
However, no matter the relationship, a patient should always be made aware of the risk of treatment, no matter how slight. “The complaint of a patient might have arisen from a misunderstanding ? and a clear explanation, on the part of the doctor, would have resolved the situation there and then in a vast majority of cases,” says Radhakrishnan.
Medical misadventures and negligence
The Utopia of practising medicine has never existed. Doctors are subjected to the laws of after-hours duty, a hospital budget, the conditions of the hospital, and a host of other factors.
In this reality, the reality of hospitals, the shortfalls of medical-care can rarely be resolved by pointing fingers. “Some of these failings relate to training, experience or technical skill; others to ethical issues or the clinician’s attitude or perhaps the failure to keep up-to-date.
“Misadventures can also arise from a breakdown in communication, or administrative processes, or supervision. And it is also likely that a significant number arise simply because a clinician is under stress, is tired, or is unwell physically or mentally.
“With such a multiplicity of possible causes, it can be difficult for those of us who work in the medico-legal field to decide how we might make the maximum possible contribution to the management of the case, in the interest of patients, clinicians, the profession and the community at large,” says Dr Kevin Lewis, a Dental Director and a member of the Medical Protection Society.
And before delving into the loose realm of medico-legal complications, it is good to be aware of the distinctions between misadventures and negligence. In certain cases though, the line separating one from the other can be quite tenuous.
“A misadventure is by definition something that happens by accident, often embodying an element of ill-luck or bad fortune. It is not necessarily harmful. Nevertheless, it would be too simplistic and too convenient for us to dismiss all unwelcome outcomes of medical and dental care and treatment as misadventures.
“On the other hand, the law of negligence requires the existence of fault (through act or omission), but in doing so, it does not entirely exclude the possibility of an element of misadventure.
“Medical misadventures are certainly not all negligent in the strict legal sense ? as the performance of healthcare professionals is measured by a range of different criteria, of which negligence is but one,” says Dr Lewis.
And as few adverse incidents can be traced back to a single cause, but are due to a combination of factors working in symphony, the line separating “negligence” and “misadventure” can be tenuous at times.
“These factors can be summarised as arising from five areas: the treatment, the clinician, the patient, systems and processes and the environment, and these five sources of medico-legal problems can exist in isolation or work in various combinations,” adds Dr Lewis.
For patients with grievances against doctors, the course of action would be through the Tort of negligence. Inevitably, in order that there is a case, lawyers of the plaintiffs would try to keep the line firmly on the side of “negligence”. In everyday practice though, the frequency of “negligence” is much lower as compared to that of “misadventure”.
And as the focus of the law is solely on “negligence”, hospitals and doctors would only be too preoccupied with preventing these instances. At the same time, it leaves the area of “misadventure” in hospital practices largely unexplored ? a large blind spot.
This could be dangerous, as a clear case of “misadventure” in one situation (say, a clinician providing the same treatment on one occasion, while not giving rise to any problems for a particular patient, could yet result in complications for another patient) might be considered “negligence” in another.
The role of hospital management in reducing errors
Patient safety is a core component of healthcare quality. “However, medical error occurs even in common routine activities when something that was planned as part of medical care doesn’t work out or when the wrong plan was used or a different task was carried out in the first place.
“Although individuals inevitably become the focus of the error, it usually happens as a result of the system the individuals work in,” says Datuk Dr Ridzwan Bakar, President of the Association of Private Hospitals in Malaysia.
Which is an interesting point, considering the fact that a report from the United States shows that 98,000 deaths per year may be attributable to medical errors. “Health care reform must come from within to ensure sustainable change and involves modification of behaviour in all stakeholders. Reliable motivations must be instituted to achieve this.
“Medical errors must be acknowledged as ‘systems errors’ that need ‘systems solution’. Efforts must also be mainstreamed, implemented organisational-wide and integrated with other organisational systems like human resources, engineering, certification & credentialing and finance – covering a wide spectrum of competencies under the same roof,” says Datuk Ridzwan.
According to him, every medical and management personnel must be responsible and accountable to the service that they render individually and collectively. “Patients and the public too must be heard and educated on their obligations in reducing medical errors,” he adds.
The patient's view
The medical practitioner has always had to juggle several roles. First and foremost, he is a provider of curative services. On top of that, he is a researcher, trying to push the boundaries of medical knowledge. At the same time too, the doctor can also be considered as a dispenser of services ? as he decides how best to apportion the limited resources at his disposal.
“Traditionally, the patient-doctor relationship has been largely exclusive in nature and the doctor would quite comfortably slip in and out of these roles, his focus centred all the while on his patient’s interests.
“In this era of large corporate healthcare providers, multi-billion-biotechnology industry, mammoth pharmaceutical companies, medical insurance schemes and international trade instruments, it has become increasingly difficult for the doctor to juggle these four roles.
“Patients’ interests do not always come first anymore and patients are beginning to realise this. They no longer trust the medical profession unreservedly.
“This steady erosion of the patient-doctor relationship is most clearly seen by the rising tide of litigation against doctors,” says Datuk Dr S Sothi Rachagan, Regional Director of the Consumer International Office for Asia and Pacific.
According to him, there needs to be a reappraisal of these roles that the doctors play. The current legal system is also seen as a failure to both doctors and patients alike.
“Medical malpractice suits are on the rise. The Tort system as it exists is failing both doctors and patients. The question we must ask is what are patients looking for when they sue doctors?
“Most of the time they need compensation for the injuries suffered. Sometimes, they are looking for accountability ? and want the doctor to be punished in some way. At times, they merely want to air their grievances and know that they are heard.
“The current system, more often than not, takes too long to compensate, the process is a gamble and doctors who are clearly negligent quietly settle and are rarely censured,” says Dr Rachagan.