Equitable treatment needed for physicians, patients

Thursday, May 18, 2006

At a seminar on health services in Bandung, West Java, last month, a hospital association chairman said, "Patients are our killers".

Apparently, the increasing numbers of cases of alleged malpractice have met with resistance from health service providers, including physicians, with no existing mechanisms to settle the disputes.

Developed countries like the United States have laws specifically dealing withmedical malpractice. Under English law, the issue of liability is a subset of professional negligence where, under the Bolam Test, a doctor will be liable unless shown to have acted in accordance with a reasonable body of medical opinion.

In Australia, this test has been replaced but the principles are comparable.

Malaysia also has mechanisms to settle malpractice disputes, including insurance schemes, and several associations dealing with malpractice, such as Medical Defense Malaysia.

The World Medical Association (www.wma.net) suggests the national medical associations in each country do the following to provide fair and equitable treatment for both physicians and patients:

Provide public education programs on the potential risks of new advances in treatment and surgery and professional education programs on the need to obtain a patient's informed consent to such treatments or surgery.

Provide public advocacy programs to demonstrate problems in medicine and the delivery of health care resulting from strict cost containment limitations.

Advocate general health education programs in school and communities.

Enhance the level and quality of medical education for all physicians, including improving clinical training experiences.

Develop and participate in programs for physicians designed to improve the quality of medical care and treatment.

Develop appropriate policy positions on remedial training for physicians with deficiency in knowledge or skills, including policy positions on limiting the physician's medical practice until the deficiencies are corrected.

Inform the public and government on the dangers that may appear from "defensive medicine", such as the multiplication of medical acts, the abstention of doctors from conducting particular medical procedures or the disaffection of young physicians for certain higher risk specialties.

Educate the public on possible injuries during medical treatment which cannot be foreseen and are not the result of physician malpractice.

Advocate legal protection for physicians when patients are injured by untoward results not caused by malpractice.

Participate in the development of laws and procedures applicable to medical malpractice claims.

Develop active opposition to frivolous claims and to contingency billing by lawyers.
Explore innovative procedures for handling medical malpractice claims, such as arbitration rather than court proceedings.

Encourage self-insurance by physicians against malpractice claims, to be paid by the practitioner himself or by the employer if the doctor is employed.

Participate in decisions relating to the advisability of providing compensation for patients injured during medical treatment without any malpractice. -- JP/Hera Diani

Labels: health

Posted by hera at 8:36 PM | Permalinks | Comments

Legal uncertainty keeps malpractice cases hanging

Thursday, May 18, 2006

Sisi C.K. Chalik from the National Movement for Patients' Safety broke down in tears when sharing her experience of undergoing surgery to remove a myoma in her uterus and coming home with a colostomy.

Addressing the participants in a recent seminar on medical malpractice, the 40-something woman said that her case had been hanging in the balance for six years.
It all started in 2000 when an obstetrician/gynecologist in a hospital in Bogor, West Java, found a myoma (benign tumor composed of muscle tissue) in her uterus and suggested surgery.

Four days after the surgery, Sisi's stomach bloated like she was five-months pregnant, so she underwent surgery the following day.

A few days later, her stomach bloated again, loosening the stitches from the second surgery. She was in a critical condition. She then had a third operation, but remained in a critical condition and was then transferred to Cempaka Putih Islamic Hospital where she was treated for 13 days.

The doctors planned another two operations on Sisi, who went home with a colostomy (surgical formation of an artificial anus where a hole is made in the abdominal wall and the person defecates into a bag strapped to the stomach).

"I haven't been well after all those operations. My hemoglobin has dropped. I am easily exhausted and run out of breath, and after the operations I couldn't even walk and had to move around in a wheelchair," Sisi said, sobbing.

What was more baffling for her, the last four operations were done on her intestines and not her uterus.

Sisi then filed a suit with the police, but the process of the investigation was lengthy. In between, both the police and prosecutor's office lost all her documents. Her condition worsened, and an examination by another ob-gyn showed that the myoma was still inside, and that her uterus was damaged and needed to be removed.
But the surgery had to be delayed due to her weak condition.

The surgeon offered to settle the case out of court and offered Rp 70 million (around US$7,800) as a token of "sympathy and humanity", but refused to take responsibility for his actions.

Sisi said no, and proceeded with the trial.

The latest development showed that her documents are still missing at the Jakarta Prosecutor's Office, and the case is far from settled.

"My condition still fluctuates. I still have to have blood transfusions from time to time. I really want to get well. I hope there is a just solution to this case," she said. -- JP/Hera Diani

Labels: health

Posted by hera at 8:32 PM | Permalinks | Comments

Malpractice cases dead on arrival amid lack of legislation

Thursday, May 18, 2006
Hera Diani, The Jakarta Post, Jakarta

Doctors have traditionally occupied a respected and trusted position in society. Yet the numerous stories of irresponsible, money-grubbing physicians would rank some of them in the hall of professional shame with ambulance-chasing lawyers.

The list of victims of their incompetence is long. A two-year-old girl died following the routine procedure of an appendectomy at a hospital in Bengkulu last March. A woman underwent five surgeries for the removal of a tumor from her uterus, only to discover that four of the operations were on her intestines.

Cicilia Djarwati, 70, went into a nearly yearlong coma last year before cataract surgery. Her prescribed medication was too harsh for her heart and caused blood vessels, weakened by a previous stroke, to rupture.

"She has regained consciousness, but can barely move, talk or is aware of anything. Doctors said she could not get any better so we brought her home. Besides, the cost has reached Rp 150 million (US$16,700)," said her daughter Chatarina Mariani Dwiwidyawati.

Her children sued a Tangerang hospital for malpractice, but the case was dismissed on a technicality.

"The judges said we should have filed suit against the hospital's foundation instead of the hospital's management. We're now appealing to a higher court," Chatarina said.
The hospital's director, however, was fired and Cicilia's family has been allowed to pay off the bill in installments.

The country's already complicated, frustrating legal system becomes even more so when involving malpractice or medical cases.

The commonly stated, basic definition of medical malpractice is an act or omission by a health care provider which deviates from accepted standards of practice in the medical community and causes injury to the patient.

But there is no single regulation in this country, including the 2004 Medical Practice Law and 1992 Health Law, that defines medical malpractice.

When a case makes it to court, it usually is tried as negligence or accidental injury.

The Indonesian Health Consumer Foundation handled 48 alleged malpractice case from 1998 to 2004, but most were settled out of court. Only two cases have gone to trial, in a lengthy process with the proceedings still continuing.

Aside from the problem of the lack of a legal definition of malpractice, there also are dissenting opinions about other legal issues.

The foundation's Marius Widjajarta said there were no stated standards for the profession, as well as government regulations governing medical and hospital standards.

"We have a medical law with no legal instrument, which is a government regulation, required as operational procedures," said Marius, also a physician.

Cases unravel when they reach court, he said, telling of his own experience as an expert witness in one suit.

"The judges only asked whether there were standards for the medical profession, medical service and hospital service. There are none, so the court then used the Criminal Code. It didn't feel right because doctors are considered the same as criminals."

The Health Ministry argues standards on medical and hospital services are regulated in a decree from the health minister.

"Such standards are very technical, therefore the ministerial decree would be enough," said the Health Ministry's legal bureau head, Arsil Rusli.

The chairman of the Indonesian Doctors Association, Farid Anfasa Moeloek, said it was not easy to set standards for the profession because it was related to a handful of other matters, such as medical service and ethics.

"Professional standards do not stand alone. We also are working to revise the competence standard to be included in the curriculum of medical schools. It's not easy to set a standard because we have a lot of work to do," he said.

According to Farid, who also is the chairman of the Indonesian Medical Council, the real issue was a doctor's dereliction of duty, including carrying out a medical procedure not in line with his or her competence or without complete facilities, like conducting surgery at home.

Of 100 cases of malpractice reported in the past year, he said, only one case was proven after it was "honestly" examined by the Indonesian Medical Honorary Council.
"Many doctors are at a loss because there is no single perception on malpractice. In an alleged case of malpractice, the doctor's reputation is damaged," he said.

Marius countered that patients suffered the most because of the unclear regulations.
"The IDI includes 33 doctor associations, so formulate standards of the profession," he said.

Farouk Muhammad, a professor at the Police Academy, said that health and medical practice laws put too much weight on administrative aspects, particularly on authority, with very few articles on competence or ability.

"Regulations on medical practice or health should have regulated various aspects within the framework of legal protection for all related parties. We need medical penal reform."

Experts recommend the prompt issuance of hospital legislation, now being drafted by the Health Ministry.

Physician Kartono Mohamad said doctors and hospitals tended to blame each other in alleged cases of malpractice.

The government needs to push hospitals to issue regulations on patients' safety to make it clear which party is responsible when malpractice occurs, the columnist added.

"The lack of hospital legislation gives no obligation for a hospital to enact control. Doctors work by themselves with no one keeping an eye on them and controlling them. You can lie in the ICU and the neurologist comes to give you medicine, and afterward another specialist prescribes another medicine even if they contradict each other."

There also is the fuzzy area of where to take complaints, such as to the police or the Indonesian Council on Medical Discipline.

The council tends to hand out disciplinarian action and holds to the profession's esprit de corps, he said, as if a breach of ethics was not a breach of the law.

Labels: health

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