A news item on CNN this morning made me recall two columns I wrote a few months ago.

     That stupid malpractice bill (filed in Philippine congress as House Bill 4955) came to mind again.

     The CNN news item actually concerns American doctors, specifically at least 39 surgeons from 4 West Virginia hospitals who walked out of their jobs to protest rising medical malpractice insurance costs. The surgeons want the state to make it harder to file malpractice lawsuits, which they saw would eventually lower insurance premiums. West Virginia is one of the costliest states for medical malpractice insurance, that has drove 1 of every 20 doctors out of the state or into early retirement in the past 2 years, according to the National Center for Policy Analysis, a non-profit policy-research organization.

     That probably has nothing to do with doctors in the Philippines but if you look back at the debate whether we should enact similar medical malpractice laws as the Americans currently have, it is not that far from happening. Actually, what will happen in our case could be worse because the proposed medical malpractice bill is far harsher that its American counterpart.

"No one voted for the Medical Malpractice Bill. Well, so much for the notion. Our congressmen's I.Q.s are not below sea level, after all."

     The pathogenesis is simple: If a malpractice law like this exists, medical practitioners will be forced to take medical insurance, and pass the added cost to patients. This will surely jack up the cost of clinic visits and hospital stay. Nobody gains from this except insurance companies, who have been suspiciously batting for the Philippine version of the bill. As more and more lawsuits are filed and more and more settlements are paid, the insurance premium goes way up and reaches a point where physicians can no longer pass the cost to their patients and insurance payments are way too high (wait until you hear how much American doctors pay for insurance premiums) that doctors may be forced to quit and take up Nursing at West Negros College (actually, a few are doing that now, but for another reason, and that's for a future column).

     "HB 4955 is a cure worse than the disease," writes columnist Conrado de Quiros of the Philippine Daily Inquirer. "It doesn't make things better, it makes things worse. It turns doctors into The Enemy."

     "Will this improve medical service? Obviously not." continues de Quiros. "You put doctors under the gun, expecting nothing less than perfection--you strike once, and you're out, quite literally: out of the profession and inside a jail cell--and you will have more doctors with hands that shake. If indeed you will find many of them left. The 19 percent of the population that wants to leave the country is largely A and B. I'd wager a great many of them are doctors and nurses. You have a law like this, which is far harsher than the American one, and you will have more doctors and nurses forgetting patriotism and abandoning ship. "

     What de Quiros meant obviously was the proposed punishment for medical malpractice which is close to what you give for manslaughter. A fine of one million pesos and a prison sentence of six to 20 years. As if residency training is not punishment enough.

     I checked the status of the bill and I found out in reading de Quiros' column that it was not passed by Congress when they voted for it in late August, 2002. Actually, no one voted for it, according to de Quiros. Well, so much for the notion. Our congressmen's I.Q.s are not below sea level, after all.

     So the Medical Malpractice Act is dead, although the congress's website (congress.gov.ph) says it is up for review by the Justice Committee. Goodbye. Sayonara. So long. I imagine how the principal author, Pangasinan Congressman Oscar Rodriguez, felt when his pet bill was unceremoniously trashed by his colleagues. Nobody voted for his bill, for heaven's sake. Zero. Nada. Zilch. In a popularity poll between Osama Bin Laden and George W. Bush, at least Bin Laden got a few votes. What do you think Rodriguez's colleagues said to him when they read his bill? "What were you smoking lately?" "Did your I.Q. drop on the Congress floor? Can we help you find it?"

     Here's another dagger to the good congressman from Pangasinan - Cagayan De Oro Congressman Constantino Jarauala withdrew his co-authorship of the proposed Medical Malpractice Act of 2002, and said he would file the alternative measure when Congress resumes session. Talk about somebody finding the light of day. Talk about somebody finally finding his I.Q. on the Congress floor.

     Congressman Jarauala's version of the bill should be interesting. He told the Philippine Daily Inquirer that the industry people with whom he conferred were inclined to support the second bill because it "allows medical practitioners to police themselves." He said his bill would empower associations of health practitioners to determine responsibility for instances of malpractice, and recommend the penalty for erring members. He added it would protect patients' rights while shielding practitioners "from unnecessary fear of prosecution or malicious harassment." Oh yeah? Show us your bill, sir.

     Here's another interesting thing - Ted Failon, the radio personality-turned congressman of whatever district he belongs to did not even vote for the proposed bill. In a previous column, I mentioned radio commentators earnestly pushing for the proposed bill and condemning the medical profession at the same time. Ted Failon is one of them. Together with his colleague at ABS-CBN, Korina Sanchez, whose makeup is as thick as the concrete on Interstate-90, they took turns in jabbing at doctors to make their case in supporting the bill. To no avail, of course. It's a good thing that Failon found his brain cells functioning at the right moment by voting against the bill.

     As for Ms. Sanchez, she even testified in Congress why the bill should pass, mentioning relatives who were being worse off than they were before medical treatment. Not to mention her daily rantings on radio targetting the medical profession. During an interview with Dr. Leo Olarte, an orthopedic surgeon and a highly-respected officer of the Philippine Medical Association, Sanchez threw enough insults and innuendos at Dr. Olarte prompting the doctor to file a case of slander. Of course, it is easy when you sound good and credible on the radio, prompting a lot of people to believe you. A lot of ill patients were reported to have shun doctors and hospitals just listening to Ms. Sanchez. That's a lot of power. Unfortunately, most people don't realize the responsibility that goes with it.

     I disagree with Inquirer's de Quiros views most of the time but he was definitely right on the money when he wrote that a public servant should never be a media practitioner at the same time. "Sanchez and Failon have been plugging for the bill on radio exceptionally earnestly," writes de Quiros. "Sanchez is not a public official, but Failon is. As is Noli de Castro, who has filed a bill in the Senate calling for compulsory medical malpractice insurance. Failon is a congressman and De Castro a senator. They have no business being in media (De Castro remains ensconced in "Magandang Gabi, Bayan") and I cannot understand why ABS-CBN continues to give them a spot. It is unethical in the extreme. You cannot be contestant and juror at the same time. You cannot be defendant and judge at the same time. You cannot propose a bill in the House or Senate and decree it with all the presumed objectivity, neutrality and dispassion of a journalist to be the best thing that's happened to us. Conflict of interest cannot be more clearly etched on tablet. Sanchez is not a government official, but she herself may wish to exercise more restraint, particularly on matters of life and death, which is literally the case here. The issue of medical malpractice is far too important to be reduced to a battle of wills, or worse, a conflict of egos. It deserves serious and sober attention. ABS-CBN in particular offering an awesome means for reaching the public, its personnel would do well to discover the wonders of humility."

     I am not denying that medical malpractice is a disease to society, because it is. Even with my limited hospital work as an intern and a practicing doctor, I can say that the threat of medical malpractice or medical negligence is real. But the people who are supposed to protect the populace against this are doing it the wrong way. As de Quiros has mentioned in one of his columns, "cures must never be worse than the disease".

     A father testified in Congress that his daughter went blind because of too much oxygen pumped into her incubator, and worse, he said, the hospital and the people responsible for it were not punished enough. It is hard to argue with grief. In fact, you can never argue with grief. Our sympathy goes to the family. This is what I meant with the threat being real, and negligence being a disease. It is not unique to us Filipinos. It happened too to Stevie Wonder.

     But even a comatose Neanderthal knows that a bill that's being likened to a ticking time bomb as far as a doctor's practice is concerned is not the solution. It will not eradicate nor prevent medical malpractices. It may, in fact, make things worse. Let's look at the root of the problem. Do we really have too many incompetent doctors? Are our doctors poorly trained? Or are doctors having too many patients to handle (especially service cases in government hospitals)? Should we add more hospitals then or at least add more doctors to the government payroll to catch up with the number of patients?

     House Bill 4955, otherwise known as the Medical Malpractice Act Of 2002, is a cure that's worse than the disease.

     Let's not drop a nuclear bomb just to kill a fly.

     Meanwhile, let's go back to the CNN story. Had HB 4955 passed, the Philippine situation may ultimately come to this. Also, it is not entirely remote that a similar bill may be filed in the future, or this bill may be revived again considering the tendency of our lawmakers' brains to shrink once in a while.

     Robert Zaleski, one of the doctors who staged the walkout in West Virginia, told CNN he could no longer afford premiums for malpractice insurance. "I have been pushed to the limits of affordability and availability. My malpractice premium is $150,000 a year, and it looks like it's getting worse. I frankly can't afford that," said Zaleski, an orthopedic surgeon who works at Wheeling Hospital, as quoted by CNN. Zaleski said he wished the situation had been fixed long before the walkout. "I would certainly jump in front of a bus if I could to continue to serve my patients as I have for 23 years," he said.

     Actually, the problem is not unique to West Virginia although this case has grabbed the headlines. I had a talk with Dr. Dan Garganera (Class 1994) recently and he said they have been dealing with the same problem in Illinois (each state has slightly different malpractice laws). Dan is practicing Infectious Diseases in Joliet, a suburb southwest of Chicago. In fact, Dan is a member of a group of doctors scheduled to stage a rally in front of the Illinois legislation in Springfield to protest amendments to the existing law. The state has proposed that in addition to the payments made after a malpractice case is lost, it has also the right to take away your property, house, car, etc.

     I linked an article before from the Chicago Sun-Times regarding Chicago-area doctors abandoning their practices and obtaining pharmacy licenses for the same reason. The liability insurance premium is way too high that you may never be able to pay it by just your practice. Dan also mentioned about OB-Gyne clinics abandoning OB and concentrating on Gyne alone. An OB-Gyne specialist from New Jersey - without a legal blemish on his practice record - was quoted in the papers recently that he was finally able to secure insurance at the cost of $300,000 a year. Obstetricians pay one of the highest insurance premiums in the U.S.

     The New York Times reported that at least half a dozen hospitals have closed obstetric wards, others have curtailed trauma services, and a string of rural clinics have been temporarily shuttered as a result of soaring costs for medical malpractice insurance. In the last few weeks, reports the paper, the only trauma center in Las Vegas closed for 10 days; the Central Florida Regional Hospital in Sanford, Fla., reduced surgical procedures for five days; and a handful of rural clinics across Mississippi sat empty in the summer heat for part of a week. All the closings were because of problems with malpractice insurance.

     The main causes cited for the sharp rise in premiums depends on who is asked, according to New Jersey's The Daily Record. Trial lawyers blame the doctors for sloppy medicine and the insurance companies for bad fiscal management. Doctors blame the insurance companies for bad investments and price gouging, and the lawyers for an endless stream of lawsuits that often result in large jury awards. The insurance companies blame the lawyers for excessive lawsuits and the crash of the stock market for wiping out their investments.

     There are studies that support all of these positions, still according to the Daily Record. "The issue is polarizing and the debate acrimonious," said a July study by the National Academy for State Health Policy, funded by the Robert Wood Johnson Foundation. "Insurers and doctors blame 'predatory' trial attorneys, 'frivolous' lawsuits and 'out of control' juries for the spike in insurance premiums. In turn consumer groups accuse insurance companies of 'price gouging,' while plaintiffs' attorneys point to an exorbitant rate of medical errors and the need to deter malpractice and provide compensation to injured patients."

     Existing medical malpractice laws may have taken its toll on American doctors. A 10-year survey of medical school applicants by the American Association of Medical Colleges showed a 6 percent drop in applicants to U.S. medical schools, from 37,402 in 1992 to 34,859 in 2001. Medical schools in the northeast showed a decade-long drop of 7.7 percent, from 9,089 applicants in 1992 to 7,301 in 2001.

     Thank God, this is not happening in the Philippines.

     Yet.

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