VOL 20 NO 157 REGD NO DA 1589 | Dhaka, Saturday, March 02 2013

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Medical malpractices and their remedies

Published : Saturday, 02 March 2013 M S Siddiqui

Health care is a serious issue all over the globe, irrespective of whether a country is developed, developing or least developed. The US administration and the Senate have a long history of confrontation over the issue. Sometimes it becomes a matter of rise and fall of governments. But the citizens of the poor countries are victims of the system because they are not aware of their constitutional rights to health care. The people of Bangladesh have countless complaints against physicians and hospitals regarding wrong treatment, excessive cost and lack of proper services. Unlike the health care system in many other countries, it at times seems to be non-existent in the country. The entire family of a hospitalised patient is seen to be involved in nursing, arranging special food, medicine and equipment, and talking to doctors and the hospital people concerned. On occasions, the service is not available unless the patient is socially or politically influential or the family of the patient keeps constant follow-up with the doctors. The so-called good private hospitals offer highly expensive services compared to those in any other neighbouring countries. Citizens of upper segments turn to medical treatment in foreign countries. Even the middle-income people have also these days started thinking of going abroad for proper treatment. The alarming condition of the private medical service becomes clear when it is seen that the hospitals only provide 'logistic services' like any hotel to stay there for treatment and they do not take any responsibility of a complete medical service. On the other hand, patients are required to sign 'immunity forms' at the time of treatment, particularly before operation, relieving the medical service provider of any legal liability in case of an undesirable outcome. Doctors and hospitals use this immunity as a defence, which they take recourse to after an 'incident' as they claim the victim has contractually waived his or her right to sue a doctor as a 'condition of treatment'. This is a matter of debate whether such a paper really contains a 'well-informed consent' since a patient who is ill, frightened and intimidated by the health care system can take rational decisions at a critical stage of treatment. There is no uniform system for fact-finding and reporting the incidents, in which a patient is harmed, as well as an absence of estimates of the number of damages due to medical errors. Experts cannot reach a consensus as to which medical errors should be classified as negligence. The Harvard Medical Practice Study in the USA concludes that more than one-fourth of adverse events are caused due to

negligence. There is no such study in Bangladesh and researchers have hardly had any programme to undertake such a research. The general perception is that medical malpractice is very high in the country and there is no yardstick to measure the assumption. Medical errors can be divided into two categories: 1) active errors by doctors, nurses or other workers, such as giving the wrong amount of medication during an emergency procedure; 2) dormant errors, such as poor equipment maintenance or design, or poorly organised health care delivery, such as failing to adequately follow up on a patient's diabetes or high blood pressure. While active errors are usually detected quickly, systemic and latent errors are difficult to detect because they are beyond the control of individual care-givers. Medical malpractices occur through a negligent act or omission, and cause injuries to patients. The negligence might be the result of errors in diagnosis, treatment, overall healthcare management and so on. Every medical doctor and other staff should, through extensive education and training, have a level of knowledge required to competently practice in his or her area of specialty. In addition to the knowledge of their medical fields, a doctor must possess the requisite skills to be able to apply medical knowledge to treating his patients. This skill can best be illustrated by the level of expertise a surgeon would require to operate on a patient without inflicting unnecessary harm. The doctors very often face tort offences of medical malpractice for negligence in the modern world. But there is hardly any legal battle over tort offence against doctors in Bangladesh, with a few exceptions. There are regular media reports of wrong treatment, injuries and deaths at government and private hospitals. The conventional medical malpractice, based on negligence, contains four elements. First is the duty on the part of the defendant not to expose the plaintiff to a reasonably foreseeable risk of injury. Second is the breach of that duty by the defendant's violation of the applicable standard of care. Third is the defendant's breach of duty, which could be the cause of the plaintiff's injury. Finally, the plaintiff must have suffered actual damages to a legally protected interest. A person is negligent in our professional and social activities including medical treatment, when that person does not exercise the 'reasonable' care under all circumstances. Reasonable care is a legal term with much wider contexts. It is also the quintessential example of a mixed question of law and fact. Unfortunately, Bangladesh does not have the Tort Act yet. The most important question of law is what is the applicable standard of care? Duty itself becomes an issue when the relationship between the tortfeasor and the victim is more unusual and attenuated, raising the question of whether the tortfeasor could have foreseen the injury as a matter of law, an issue that the judge would decide in a negligence case. Specific issues include: 1) whether an individual has a duty to an injured party if the risk of injury was not really foreseeable but occurred, and 2) what is the standard for foreseeability, particularly when the risk of injury was small

and/or the actual injury is unusual. Another related question is whether, as a matter of fact, an injury can be considered 'caused' by another's conduct if the injury was unusual or occurred in an attenuated and remote manner even though there was a physical chain of connecting events following the defendant's conduct that gave rise to the injury. Generally, there may be some more subtle errors on the part of the doctors that may be the cause of damages to a patient. This is why it is necessary for a medical professional to act as professional witness in every medical malpractice case. There was a landmark case against a doctor after the death of a mother in delivery complications. The court invited the senior-most gynecologist for expert opinion and the expert witness was reportedly under pressure from other colleagues to save a fellow doctor. Finally, the plaintiff could not establish the offence against the doctor due to indifferent attitude of the expert witness. There are immunities for the doctors as well as some mistakes. If the patient is not harmed by the physician's error, the patient cannot recover damages as the result of the error. For example, if a doctor misdiagnoses stomach pain as caused by appendicitis, and surgery discloses that it resulted from a perforated ulcer, and the patient would have required surgery to repair the ulcer, the patient will probably be unable to bring a lawsuit - the surgery was necessary even with the correct diagnosis. However, if the patient was only suffering from indigestion, the unnecessary surgical procedure most likely would support a malpractice action. The medical profession has clearly embraced medical practical guidelines, based on empirically derived medical evidence and that developed in transparent and inclusive processes to be a conclusive consensus of experts on what is the standard of care --- from a medical perspective in treating a particular medical condition. Medical science can also be brought to bear on assessing the severity and duration of injury and can be harnessed to determine the appropriate level of compensation for particular injuries of various severities and durations in a democratic manner. The courts have struggled with this distinction in the determination of the extent of damage and compensation thereof. There are some other experiences of medical malpractice-related tort cases in some countries. The developed countries have medical malpractice insurance for medical professionals with high premiums. These insurances cover the cost of litigation and compensation packages for tort liability. A 2002 survey in USA reports that 79 per cent of physicians ordered more tests than they felt were necessary in order to protect themselves from malpractice suits. The cost of defensive medicine is difficult to determine, but the most commonly accepted estimate is substantial. The practice of defensive medicine carries risks. Bangladesh courts are over-burdened with many civil and criminal cases. The process is also very lengthy and expensive for common citizens under tort act. Moreover, there no such law in Bangladesh. We may enact a law or rule to determine the compensation of medical malpractice through Alternative Dispute Resolution (ADR) involving the stakeholders like doctors, hospitals and service recipients.

The Open

writer

is University,

pursuing

PhD

at Malaysia.

shah@banglachemical.com