October 17, 2002

     A funny thing happened on the way to the House of Representatives.

     A medical malpractice bill which was originally filed in 1992 has been revived by some congressmen who claim to have suffered adverse experiences in the process of medical treatment. That, they said, should satisfy the bill's passage.

     If these congressmen thought if it happened to them, it could happen to most Filipinos, then I rest my case. Failing to see beyond that, that's where I have a problem.

     Sometimes, you can't blame most Filipinos who think that their congressmen are no brighter than a 10-watt bulb. Legislation out of personal experiences is not uncommon. This is a lame example but I'll tell it anyway. There's this one incident I have read in the papers where a congressman was sending off his two American guests who I presume were diplomats at the Ninoy Aquino International Airport. Incidentally, 'Eat Bulaga' was showing on the airport TV showing a contest where contestants were made to do outrageous stunts or made to eat stuff that you would not normally eat. The congressman saw his guests squirming and making some funny faces. Hours later, the congressman held a press conference condemning the show and promising that he'll make sure that a legislation is passed banning such contests. Back home, his American guests are watching 'Survivor', 'Dog Eat Dog' and 'Fear Factor'. To those who have no idea what these shows are about, I'm telling you, there's nothing worse than 'Fear Factor'.

     Passing a law based on personal experiences without considering the effect on the general populace may not matter at all. Banning TV shows won't solve nor propagate crime, poverty, traffic or corruption, unless they think it will. This is not the case though with House Bill 4955, or the medical malpractice bill, which has suddenly gained urgency in the House after a congressman whose surgery went awry at a premier hospital sued his doctor for malpractice. The good congressman has every reason to get pissed. But will this bill discipline doctors or adversely affect patients, especially the poor ones?

"Not only is the bill unconstitutional, it would also make the practice of medicine and other allied medical professions a living nightmare. And if passed into law, the bill would profit no one other than insurance companies, "quacks", and those individuals with criminal minds out to harass medical practitioners at the drop of a hat."

     The congressman declared on television that he had surgery for removal of gallstones, which turned out to be one solitary gallstone about the size of a munggo bean. The decision to operate was immediately questioned. Worse, he said, the operation caused 'serious damage to his health', that required his prolonged confinement at the hospital. He said the hospital and the doctors impliedly admitted their fault and negligence in his treatment by not charging him a single centavo for their services. It is either an admission of guilt or the hospital just didn't want the congressman to tell his colleagues about how bad the hospital food was, lest they pass a law punishing hospitals for serving bad food.

     I will not even try to comment about the necessity of the surgery or the post-operative complications. Based on experience working with surgeons, operations can sometimes go wrong or nosocomial infections could set in, and even a semi-comatose neanderthal knows that they are unintentional. If the congressman thinks his surgeon is stupid, and had every intention to hurt instead of heal him, why still get his services? So who's stupid now?

     There are a number of congressmen who claim to have been victims of medical malpractice and openly supporting the bill. Who knows what happened to them. Did they go to a "dermatologist" (note the quotation marks), got a facial, and had allergic reactions to Solution No. 79?

     I am not saying there are no stupid doctors because there are, as there are stupid lawyers, politicians, engineers, nurses, accountants, etc. No profession is perfect. There is a certain percentage of stupidity in any group. But if I ask, say, a hundred 6th-graders which group has the highest percentage, all of them will have the same answer.

     House Bill No. 4955 seeks to punish "the malpractice of any medical practitioner in the Philippines, including physicians, dentists, nurses, pharmacists, paramedical or other supporting personnel like medical and dental technicians, nursing assistants and therapists." Should we punish erring and negligent doctors? Sure. That is why there are existing laws such as the Medical Act of 1959 and the revised Penal Code that penalize acts of negligence. I don't have a copy of the proposed law with all its fine prints but one has to wonder why it has been languishing all this time. "Not only is the bill unconstitutional, it would also make the practice of medicine and other allied medical professions a living nightmare," wrote Dr. Ma. Dominga B. Padilla, DPBO. "And if passed into law, the bill would profit no one other than insurance companies, "quacks", and those individuals with criminal minds out to harass medical practitioners at the drop of a hat." We will have more of Dr. Padilla's article next week.

     I have no problem with punishing the guilty but the punishment is staggering, you would think doctors are serial killers. The bill's penalty clause provides that "medical malpractice and the practice of illegal surgery shall be punished by prision mayor and a fine ranging from 500,000 to 1,000,000 pesos in the discretion of the court." "Prision Mayor" ranges from six years to 12 years. That's enough to strike fear in every doctor's heart. It's like walking into a pre-op/post-op conference with Dr. Max in the audience.

     And the fine is ridiculous. Former Justice and Inquirer columnist (and a non-physician, if I may add) Isagani A. Cruz agrees, "The language of the bill is conjunctive, not disjunctive, which means it must be imposed in every case. Section 20 of the Bill of Rights clearly and expressly provides that 'excessive fines shall not be imposed.' Even at the current peso exchange rate, the amount of from P500,000 to P1,000,000 cannot be considered peanuts; it is unquestionably excessive by any standard. Moreover, the due process clause requires equivalence between the offense and the penalty, unlike under the bill in question, where the fine can be as high as a million pesos. It is like punishing jaywalking with life imprisonment. "

     If doctors only do their job, then what is the problem? The problem here, boys and girls, is when people assume that doctors are God that couldn't make mistakes. The problem here is when people assume that the medical profession is perfect. That every sick person will be healed. That every affliction can be eradicated.

     "We are not God," declared Dr. Abdias Aquino of the Philippine College of Physicians (PCP), as quoted by ABS-CBN News. "The most gratifying thing for us is when a patient is totally treated or when we save lives. It's a nightmare for us if something serious happens to a patient. We can't sleep when a patient has serious illness."

     The expression of fear that the profession will be stripped of its noble intent was massive. "We understand that our legislators have a sense of patriotism, but we also have an opinion," said former PCP President Dr. Ramon Abarquez, who warned of the repercussions of having a medical malpractice law as he expressed his opinion to ABS-CBN News. "Doctors are human and are also subject to ups and downs at particular times. The medical profession is service-oriented, dealing with human lives and quality-of-life challenges. What is right and proper and practical, within human and professional capabilities, are given readily to patients and their families without expectations of rewards or compensation of the time especially during emergencies."

     "Mistakes do happen, unintentionally. Patient behavior, genetic profile and anatomic aberrations are so complicated as to be readily identifiable under various stages of illnesses," explained Abarquez, also a professor at the College of Medicine of the University of the Philippines.

     We are smart enough than to interpret PCP's statements as trying to save doctor's necks from malpractice responsibilities. While the bill's intention may be noble, the real victims here are the patients. According to the latest figures, 40% of Filipinos can barely afford medical expenses as their income is good only for 3 meals a day. If the bill is passed, it will create an environment where doctors will be working with a hangman's noose in front of them. Naturally, they have to protect themselves. This is where Defensive Medicine comes in. The tendency would be to require so many tests 'just to be on the safe side - and in the final analysis, these tests may have been superfluous.' It's good for congressmen living in mansions but bad for indigent patients who have barely enough for a roll of bandage.

     Dr. Sixto Somiasis (not his real name) knows this. He spent most of his training years at the Western Visayas Medical Center (WVMC) in Mandurriao. "Most patients can barely afford basic laboratory workup," he said. "We rely on our physical examination and history-taking skills instead of ordering expensive diagnostic tests which a medical book might recommend. And most of the time, we were able to send our patients alive and well." If a diagnosis is missed or something goes terribly wrong, what are the chances of the patients going back and 'biting the hand that fed them' (this time with a lawyer in tow)? With the fear of landing 6 years in jail and paying a million pesos in fine, doctors, like Dr. Somiasis are now 'justified' to order every test necessary. Clinical skills will be thrown out the window. It doesn't really matter if the patient complies or not. At least 'it was written in the patient's chart'. God forbid, if something goes wrong, we have 'exhibit A' to show the court in our defense.

     It might interest Dr. Somiasis to know that one of the senior surgical residents at the Medical Center confided to a friend recently that CBC tests are now being sent out for non-emergency cases because the hospital's funding is only enough for emergencies. It's always a surprise if a patient complies. "So what do you do when a patient who needs surgery doesn't comply?", the friend asked. "We just look at them and estimate how many units of blood we need," the resident replied. Out of necessity, these doctors are transformed into extraordinary clinicians. But somewhere out there, a group of lawyers are rejoicing and could not wait for the bill to pass.

     Which makes me ask - why couldn't we legislate more funding for government hospitals like the Western Visayas Medical Center so it can afford a basic test such as a CBC, instead of wasting our time on a medical malpractice law that's more likely to adversely affect indigent patients?

     Health Secretary Manuel Dayrit told ABS-CBN News that while the bill aims to strengthen the rights of the patient to better medical service, it does not guarantee that malpractice would be eradicated. On the other hand, it could create unintended adverse consequences for the public. "While the proposed bill implies that only competent medical practitioners should practice the art and science of healing in our country, and while it attempts to weed out inept or negligent doctors by imposing stiff penalties if they are found guilty, the health department is of the opinion that the bill may not necessarily deter malpractice acts, as erring medical and paramedical personnel are only penalized after the acts committed," Dayrit said in a position paper released by the Department of health.

     The health secretary also warned that a malpractice law will destroy the patient-doctor relationship that is based on trust because a "litigious environment may result in the development of a relationship based on mistrust."

     "No country in the world has made medical malpractice a criminal act and there must be a reason for this. For a crime to be a crime, it must have a criminal intent," said Dayrit as quoted by ABS-CBN. For such reasons, according to him, it is hard to prove that a doctor has a criminal intent when a patient is hurt or dies, because he or she has a sworn oath and lives by the principle "first do no harm." Article 12 Section 4 of the Revised Penal Code says: "Any person while performing a lawful act with due care, causes an injury by mere accident without fault or intention of causing it" shall be exempted from any criminal liability.

     Some may argue that if a medical malpractice law can work in the United States, why couldn't Filipino patients be protected the same way? I beg to disagree, boys and girls, because that exactly is what's wrong with the American medical system.

     Dr. Richard E. Anderson, a medical oncologist, in an article from the San Diego Union-Tribune, wrote, "Defensive medicine is an increasingly common practice that should concern every American woman -- the growing tendency of doctors to order needless tests to establish a medical record for their defense in case they are sued. Defensive medicine exacts huge costs, in both fiscal and human terms. Take a recent story on a University of Washington and Harvard Medical School study. Many women were alarmed to learn that nearly one-third of those who undergo annual breast cancer checkups for a decade can expect to get at least one “false positive” -- that is, they will be told they may have breast cancer, when they do not."

     "People always imagine the worst," one professor of health law told The Washington Post. "These women go through hell."

     Easier to quantify are defensive medicine’s costs to society. The health economics firm of Lewin-VHI in 1991 estimated that doctors and hospitals spent $25 billion on defensive medical practices.

     "I am an oncologist, not a psychologist," continued Dr. Anderson. "While I know a false positive can create fear and depression, I am in the business of avoiding something far worse -- a false negative that can kill. The reality of being a physician today is a high-wire act in which we must balance deadly health threats to our patients against real costs to them in the form of discomfort, money and peace of mind. These judgments calls are tough. They become far tougher when a lawyer looks over your shoulder as you perform a medical examination. The distorting effect of our liability laws on medical practice does far more harm than generate false positives and fear among women. The specter of lawsuits often denies women access to health care itself. I see two areas in which we need a drastic rethinking of the way law and medicine interact. In a medical practice, as in life, trade-offs between risks and costs are unavoidable."

     A recent New York Times article, quoted by ABS-CBN, said that a number of hospitals and units in the United States have closed down due to the effect of medical malpractice. Doctors have become so wary or fearful of lawsuits that they either retire before the retirement age or refuse to handle sensitive operations. Hospitals have been forced to close down wards that are prone to malpractice lawsuits, just to avoid the scandalously high insurance premiums that they said could bring down the entire hospital. Thus, a major hospital may just opt to close down its ob-gyne ward, for instance, rather than imperil the entire hospital.

     "In all, more than 1,300 health-care institutions have already been affected, according to a survey by the American Hospital Association. The survey, released in June, found that 20 percent of the association’s 5,000 member hospitals and other health-care organizations had cut back on services and 6 percent had eliminated some units. Many of those units are obstetrics wards, where medical mistakes have historically led to expensive jury awards and settlements," said the news article.

     Because of the medical malpractice law, the cost of insurance premiums for doctors have also gone up and have tripled to as high as US$200,000 in some states. This is aggravated by the rising cost of litigation awards which most hospital and health-care centers could not shoulder.

     Supporters of the pending bill cite the present relative helplessness of the public against the malpractices of the medical and allied professions, particularly their clannish tendency to protect one another from the charges made against them by outsiders, i.e., their patients. This goes back to my earlier point that medicine is not a perfect profession. Open any medical book and you'll find that complications to a treatment or surgery are part of every discussion. When a doctor testifies what went wrong is a complication, he is not necessarily lying to protect a colleague.

     I am not saying that there are no 'evil' doctors who will intentionally harm a patient although I have yet to meet one. The tough part for the 'victim' is this is very hard to prove in any court. This may be the reason why of the more than 500 complaints against doctors lodged at the Philippine Medical Association (PMA) for the last five years, none has been penalized yet. The PMA, which has the authority to revoke the license of any of the country’s 30,000 doctors, admitted that it is hard to prove that a medical practitioner has any "intention" to harm a patient. (I don't know how would one classify doctors such as the doctors of the father-and-son Estradas, who blatantly... this part was censored for ethical reasons.)

     I have a piece of advice when choosing a personal doctor. Know his or her background - where he or she went to school, where he or she trained. Develop trust between yourself and your doctor. Ask questions. A good doctor will always explain everything to you - your affliction, the treatment, and the possible complications, if any. Trust - once you have this, you'll never fantasize that your doctor is trying to harm you. Also, don't ever go to a doctor named Hannibal Lecter.

     Is it really hard to find a competent doctor you can trust? I don't think so. I have a simple question below to test if you have the capability of choosing a competent doctor or not. Can you tell which doctor is either incompetent or with intent to harm or kill?

1. While performing an appendectomy, he sticks a scalpel to the patient's jugular.
2. With both hands, he could not locate a patient's ass.
3. He takes your rectal temperature by using his index finger.
4. After examination, he tells you to go home and dance the hokey-pokey.
5. all of the above.

     Is it really that hard?

     This week's FINAL WORD comes from Anonymous:
     "...I was at your wedding. Don't be too hard on yourself. You actually closely resemble Onemig."

     Who is he? A robot from Star Wars?

Comments regarding this week's column are welcome. Please fill up the fields below and click Send to Author. Suggestions for future column topics are also encouraged.

     The author's e-mail address is at drgarcia@wvsumedaa.com

     All views expressed on this column and any other by-lined articles on this site are the authors' own and do not necessarily reflect the views of the organization or its members. For comments, please e-mail the author.