Malpractice by Ma. Dominga B. Padilla M.D., D.P.B.O.

     Each time I scrub before performing surgery at one particular hospital, I am always somehow comforted by something that stares me in the face as I prepare for the task at hand. For written in bold letters at eye level just above the scrubbing sink is something called "A Physician's Prayer". Simple and straightforward, this prayer says so much about what the healing art and science of medicine is all about. It goes this way:

     Give Skill to my hand
     Clear Vision to my mind
     Kindness and Sympathy to my heart
     Give me singleness of purpose
     Strength to lift at least a part of the burden of
     My suffering fellowmen
     And a true realization of the rare privilege that is mine
     Take from my heart all guile and worldliness
     So that with the simple faith of a child I may rely on Thee. Amen.

     This last sentence particularly rings true and is something that can never be ignored where medicine is concerned. No matter how skilled and how learned the physician, in the end he or she is but an instrument of God. As such there are times that events happen, both good and bad, that are totally beyond the direct control of the physician or medical practitioner. The medical profession always carries with it something of the Divine, and anyone or any society that chooses to ignore this fact treads on the road to folly.

     It this therefore with much sadness and pain that many of us physicians are witnessing a well orchestrated demolition job on the medical profession currently being carried out by certain media personalities and politicians. If reports are to be believed, insurance companies are also behind this campaign. But whether or not insurance companies are indeed involved is immaterial to the fact that the entire thing is turning into a witch hunt, and that those at the forefront of this campaign have shown wanton disregard for the negative effects and tragic repercussions their dark crusade may have on our country and its people.

     At the center of the controversy is medical malpractice, more specifically a proposed bill that has been languishing in the House of Representatives since 1992 but which has suddenly been resurrected and espoused by a certain influential broadcast journalist as though the future of the universe depended on it's passage. Unfortunately, other broadcast journalists and congressmen seeking some media mileage have joined the bandwagon without, I believe, fully comprehending the contents of this particular bill. At least one would like to think that this is the case because it takes but one careful reading of the proposed bill to know 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. 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.

     House Bill No. 4955, entitled an " Act Punishing the Malpractice of Any Medical Practitioner in the Philippines and for Other Purposes", clearly seeks to deprive thousands of medical practitioners, including physicians, dentists, nurses, pharmacists, paramedical and other supporting personnel (including medical and dental technicians, nursing assistants, and therapists) of their basic constitutional right of Equal Protection and violates the Constitutional Provision on Double Jeopardy. Furthermore, this bill threatens to destroy the most basic element in a physician-patient relationship; that of mutual trust. If allowed to pass, It would usher in an era of "defensive medicine" that would eventually be catastrophic to a country where 40% of its citizens live in poverty as it would make affordable health care virtually impossible to attain.

     Violation of the rights of medical practitioners

     Our constitution provides that "every person should be treated alike under like circumstances or conditions, both in the privileges conferred and the liabilities imposed". The proposed house bill violates this provision blatantly. If passed into law, it would punish any medical practitioner who commits even the smallest mistake, even if unintentional, with fines and prison terms that exceed those provided for in the Revised Penal Code for more serious crimes such as Treason, Frustrated Homicide with Intent to Kill, Direct Assault, and even Serious Physical Injuries. In other words, a doctor or a nurse who, for example, accidentally punctures the arm of a patient during a routine procedure or a nursing aid who accidentally injures a violent patient in the course of restraining him or her may be subject to a malpractice suit and if found guilty will not only lose his or her license to practice and be deprived of a means of livelihood; he or she may also be fined more and imprisoned longer than a common criminal who deliberately inflicts serious physical injuries on another person that results in the loss of the use of speech, the power to hear and smell, the loss of an eye, a foot, an arm, or a leg. Unbelievable? Believe it.

     Section 6 of this proposed House Bill states that Medical malpractice ( which, by the way is also vaguely defined in the bill as it does not make any distinction between small unintentional wounds and deliberate acts that result in the loss of life ) shall be punished by prision mayor and the cancellation of the license to practice the medical profession and a fine ranging from Five Hundred Thousand Pesos (P500,000.00) to One Million Pesos (P1,000,000.00). As a point of comparison, Serious Physical Injuries, as defined in the previous paragraph, will only result in a prison term of Prision Correccional in its medium and maximum period. The fine for the crime of Treason, for that matter, is not to exceed P100,000.00. Frustrated Homicide, where there is intent to kill, may in some cases be punishable only by prision correccional ( 6 months and one day to 6 years).

     Almost all acts of malpractice are results of negligence and not due to the deliberate intention of medical practitioners to harm their patients. And yet the bill's proposed penalty for malpractice far exceeds that imposed on criminals whose intent is to kill. Clearly therefore, it assumes the character of cruel and inhuman punishment, and is a clear violation of the constitution.

     Indeed, the proposed bill is so flawed that most of its provisions violate the rights of medical practitioners. It would be beyond the scope of this article to go through all of them, however. Suffice it to say that aside from all that has already been stated, the bill also seeks to remove the right of medical practitioners to protection from double jeopardy, and it would open all medical practitioners to harassment as even persons not directly involved with the malpractice incident nor related to the victim, may initiate the law suit even if the patient and his/her relatives do want to do so. (sections 5 and 7). Furthermore, the proposed bill seeks to serve out severe punishments to legitimate medical practitioners but provides no punishment for illegitimate medical practitioners or quacks.

     Violation of patient's rights

     Equally disturbing is the fact that the law also seeks to infringe on the right of patients to truly move on after they have forgiven those medical practitioners who they initially felt had wronged them.

     Section 6 of the proposed bill states that " the express or implied pardon of the patient, his/her parents, grandparents or guardian shall not be a legal impediment to the prosecution of the crime nor will it extinguish the criminal action still pending, nor will it constitute a ground for remitting the penalty already imposed" Therefore, even if the plaintiff or plaintiffs wish to withdraw the case because of a change of heart, they will not be able to do so.

     The grace to forgive is one of the most precious gifts that God grants to His people. So important is this gift that it is often the most vital element for people to be able to move on with their lives particularly after immense pain and loss. It is a grace so necessary particularly after the death of a loved one, where often those who are left behind are beset, not only with an immense sense of loss but also with a sense of guilt. And sadly, these emotions are sometimes transformed into an irrational anger directed at the medical practitioners who the family may feel did not do enough.

     It sometimes happens therefore that some families may sue their medical practitioners for the death of a loved one; then find at a later date that their intense desire to punish has turned into a great need to forgive and to move on.

     This proposed law would even deprive such persons of the joy of true forgiveness and the peace that it brings because it would make them unable to extinguish the criminal action pending against their medical practitioner despite their desire to do so. This will also force these families to live with the burden of having destroyed the career of someone should the criminal case result in the conviction, imprisonment, and loss of license of the medical practitioner.

     What kind of law would deprive its people of experiencing the joy of something as profound and important as true forgiveness? What kind of soul would our country have if laws such as this were allowed to prevail?

     More people deprived of affordable health care

     Laws are supposed to be formulated in order to protect our people and to promote their welfare. While passing itself off as something that will protect the citizens however, the proposed malpractice bill will in fact result in the skyrocketing of the price of medical care. In the context of the Philippines therefore, where the most pressing health problem is the unavailability of adequate and affordable health care, passage of this bill into law would be like rubbing salt in the nations wounds.

     All over the country, doctors, nurses, and other medical practitioners have to make do with substandard conditions of health care delivery. Because of the lack of funds and the abject poverty of many of our patients, we are also often forced to forego with certain laboratory tests and rely on the 'clinical eye" that we developed through years of practice if only to save our patients money that they so very badly need just to survive. And by the grace of God we get by and are able to serve them just as well.

     This malpractice act would usher in the unpleasant practice of "defensive medicine" wherein medical practitioners may be forced to request so many tests even if they may not be necessary, if only to protect themselves from any unscrupulous patients and persons who may be looking for an excuse to harass and sue the practitioner. In short, passage of this bill would be like hanging a Sword of Damocles over the heads of all Medical practitioners so much so that instead of just thinking of how they can best help their patients, part of their minds would be thinking about how they can protect themselves from any potential law suit. Many doctors, nurses, and other medical personnel may also be forced to take on malpractice insurance if only to make sure they are not bankrupted by law suits since passage of this bill will be like an outright invitation to sue medical practitioners. It is a well known fact that the result of such an event would again be an astronomical rise in medical care as doctors and hospitals will be compelled to charge more in order to help cover all their insurance premiums. A vicious cycle will then have started and no one will benefit from this except insurance companies. Who bears the brunt of all this? The patient.

     This is sad but all so true. And this would make the practice of medicine a living nightmare. So horrible is this prospect that already many doctors and nurses are talking about quitting the profession should this bill be passed that would treat them like second-class citizens and worse than common criminals.

     Humans forced to play God

     The realities of death and suffering are things that medical practitioners have to face almost daily. And just as we know that it is our duty to do our best to alleviate suffering and save lives, we also humbly acknowledge that there is only so much our best can achieve. And when these failures come we agonize. We agonize over wounds we cannot mend, functions and senses we cannot restore, and lives that we cannot save. During these difficult times our one main comfort often lies in our faith in a higher power Whose law and plan we may not understand but must accept. We are but human, although forced to play God. It is a great privilege, but an even greater burden.

     Doctors, nurses, and other medical practitioners have one main goal, to serve our fellowman through our special healing vocations. Many of us have chosen to stay in the Philippines despite the numerous opportunities to work abroad and earn more, for the simple reason that we wish to serve our countrymen. It pains us immensely therefore to now find ourselves demonized by means of a cruel trimedia campaign. It is also beyond fathoming why, despite the fact that we already have a penal code that provides for punishment for malpractice; we have been singled out by our politicians for cruel and unusual punishment that would seek to remove some of the very basic human rights available to even the most hardened criminals.

     Malpractice is not unique to medical practitioners. It can be committed and is being committed by engineers, lawyers, media practitioners, and other professionals whose actions directly affect lives. How many people have perished because of the collapse of defective buildings and bridges? How many innocent people have been sent to jail or been meted out the death penalty because of the mistakes of their lawyers or judges for that matter? How many lives and reputations have been irreversibly destroyed because of irresponsible and malicious reporting by media practitioners?

     Just last week a patient in need of important surgery in our hospital backed out. When asked why, she told her surgeon that it was because she no longer trusted her doctors as a result of the daily barrage of comments by a radio broadcaster about medical malpractice and the alleged incompetence of Filipino doctors. Should this patient take a turn for the worse because she refused the surgery, who should be held responsible?

     On August 21 the committee on Justice in the House of Representatives will hold a hearing on this proposed bill. It is this physician's prayer that nobility of heart will prevail over personal interest, and that wisdom will prevail over anger and personal agendas. It is also the prayer or all medical practitioners that media realize the immense influence they have on the lives of our people, and that they conduct themselves responsibly concerning this very important matter. ##

     A reader "Jun" asked, "Don't you think the bill is beneficial? Don't you think the bill will lessen the incidence of medical malpractice?" I think I have made my point clear on where I stand on this but I'll make my answers quick and to the point.

     The bill will no doubt be beneficial to:

     a) insurance companies - which stand to gain the most once the bill is passed. One doctor was already approached for a 200,000 peso coverage. In a country where people get insurance for ransom payments in case of kidnapping, this is expected as rain in July.

     b) "quack" doctors - due to negative publicity, patients will lose interest in legitimate doctors. I have nothing against "quacks". I used to go to a neighbor who would give me a massage and a rub of ginger to every corner of my anatomy whenever I have a fever. It was better than Tylenol. I have a problem, however, if they start doing radical mastectomy.

     c) hospital and private laboratories - imagine a CT scan for a bump in the head.

     d) lawyers - they are called "ambulance chasers" in the U.S.. In the Philippines, they could be "trisikad", "tricycle", or "taxi" chasers. Take your pick.

     Will the bill lessen the incidence of medical malpractice? No. This is the thought process of people who believe that doctors "practice to malpractice". They may be extra-careful when the bill is hanging on their heads like a guillotine but lessen the incidence? It won't make a difference. Mistakes and complications are inevitable but unintentional.

     In the U.S., where doctors wake up to lawsuits on a daily basis, you may be interested in these articles (click to open another window) - Doctors Are The Third Leading Cause of Death in the US, Causing 250,000 Deaths Every Year or Medical Mistakes Kill 100,000 Americans A Year. I am not trivializing U.S. doctors mistakes (please read the article and make your own conclusions). My only point is mistakes are facts of life and no amount of malpractice laws could prevent it.

     So how should we lessen the incidence of medical malpractice? How about better training for doctors? How about stricter screening by specialty boards in accepting fellows? How about stricter screening by hospitals in accepting residents and visiting consultants? How about a stricter regulation by the Professional Regulation Commission (PRC) in renewing licenses? Above all, how about a very good and comprehensive patient education?

     I personally know two doctors who are also lawyers so I will not go further by saying, "How about getting rid of the lawyers?"

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

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