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History of Medical Malpractice in the Philippines (Part I)
by Dr. Paul Bisnar

Discuss the evolution of medical malpractice legislations and events in the Philippines

          Last November 9, 2005, GMA 7 evening news reported about the benefits of health tourism in our country. The report cites that through health tourism, Filipino physicians will be enticed to stay in the country and eventually stem the current massive exodus. Likewise, the country will earn $300 million per annum. I thought the news item will proceed in a smooth fashion, but when Department of Health Undersecretary Jade del Mundo commented that the absence of medical malpractice law in the country is a major deterrent to the development of health tourism, I almost fell from my chair. 

It will be understandable for Usec. del Mundo to comment about the significant role of malpractice law in the development of health tourism if he is not a medical doctor, but that kind of comment coming from a high official of the Department of Health is a great concern. Why? The Philippine Medical Association (PMA) is against the legislation of malpractice bill; majority of physicians abhor it just by hearing these infamous words (I suffer tinnitus whenever I hear this term); and even allied health professionals firmly opposes it.

Usec. del Mundo has the right to air his opinion, but as an undersecretary of health, he is acting in public capacity. He should be sensitive to the current medical crisis and the opinion of the majority of health workers. His comment might be interpreted by the medical community that our government favors the legislation of medical malpractice law and worse, it might be interpreted as a national health policy.

Mike Adams, a healthcare pundit in the U.S., has a different opinion from Usec. del Mundo. He cites that medical tourist prefer Asia such as the Philippines because they can save more on their medical bill. One of the reasons of this saving is because of the absence of stringent liability issue. He wrote: “In the United States, doctors and hospitals must carry extremely expensive medical malpractice insurance policies…In contrast, when you undergo a surgical procedure as a medical tourist in an offshore hospital, you sign paperwork that says you agree not to sue under certain conditions. Thus, you save a fortune by essentially not funding the legal fees, settlements and malpractice insurance costs normally found in a U.S.-based healthcare practice.”

To state that medical malpractice law is needed for the promotion of health tourism in the country is illogical. To implement it, Filipinos will suffer most and drive the cost of medical and surgical fees. The main reason why medical tourist wants to go here is because it is cheaper. Making it costly will only drive potential medical tourist away.

Now, let me discuss the main topic of this article.

First Malpractice Bill

House Bill No. 4955 otherwise known as Medical Malpractice Act of 2002 is the first legislative bill that brought shivers to the whole medical community. Rep. Oscar S. Rodriguez (Pampanga) and Rep. Ted Failon (Tacloban) introduced the bill with objectives to strengthen the right of a patient to quality medical care and providing penalties for health practitioners for gross negligence. At first look of its explanatory note, the bill will bring in the end a greater prestige to the medical profession. 

The facade of the bill is enticing, but its substance is full of loop holes. Dr. Philip Chua, a columnist in Cebu Daily Inquirer, called the bill “using a shotgun to kill a fly on the patient’s head.”

Philippine Medical Association, Philippine College of Physicians, health organizations, and stakeholders provided position paper to oppose the bill’s passage. In January 2003, the University of the Philippines Manila, Health Sciences Center of the U.P. System, headed by Chancellor Marita V.T. Reyes made a consolidated position paper objecting the bill intention to punish medical malpractice as a tool to enhance the quality of health care.

The university objects to the following reasons: The bill will increase the already high cost of health care in which medical practitioners will practice “defensive medicine”, bring mistrust to patient-health professional relationship, encourage mass exodus of health practitioners, violates the Constitution’s Equal Protection Clause and promotes class legislation, and unduly punish legitimate medical practitioners who act in good faith and whose mistakes are unintentional. The university also argues that existing laws such as Revised Penal Code and Medical Act of 1959, and not to mention the penalties embedded in Professional Regulatory Commission, Philippine Medical Association, specialty societies, and hospital rules and regulations, are suffice to regulate and monitor the practice of medicine.

Dr. Chua criticizes the harsh penalties. He wrote: “If physician makes any (honest) mistake, in making a diagnosis or treatment, the error will be considered a criminal act, and the physician “shall be punished by prision mayor (6 months plus 1 day to 12 years imprisonment) and the cancellation of the license to practice the medical profession and a fine ranging from 500,000 to 1 million pesos in the discretion of the court…” He argues that physicians are not God and medicine is not an exact science. However, he agrees that gross negligence, malicious intent, greed, immorality should be severely penalized but this bill penalties are not proportional to the error committed. 

The prision mayor penalty is greater than those stated in our penal code for grave crimes such as frustrated homicide with intent to kill, treason, espionage, arbitrary detention, conspiracy and proposal to commit rebellion and insurrection, inciting to sedition, direct assault, serious physical injury and even mutilation. In Article 250 of the Revised Penal Code, frustrated homicide may in some cases be punishable only by prision correctional (6 months and one day to 6 years). Dr. Romeo Encanto, one of the speakers in 98^th PMA Convention in Bacolod City stated: “If you are accused of malpractice and you have the possibility of prision mayor, then just admit that you really intended to kill the patient. There, you will have a lesser penalty… That’s how preposterous the bill is.”

Due to vigilant leadership of Philippine Medical Association, lobbying and public demonstrations ensued. Last September 29, 2002, Alliance of Health Professional Organization (AHPO), composed of various health organizations including PMA, assembled and staged massive protest in Cuneta Astrodome denouncing the medical malpractice bill and called it “a direct attack against the medical community.”

Medical students from different major medical schools such as University of the Philippines College of Medicine (UPCM) and Far Eastern University –  Nicanor Reyes Medical Foundation (FEU-NRMF) joined the protest and information drive. Other health professionals such as nurses and dentists also joined the demonstration.

Muntinlupa Dialogue

Despite the public renunciation by the medical community against the bill, Rep. Rozzano Rufino Biazon (Muntinlupa City) persisted to file his own version House Bill No. 5293 otherwise known as HealthCare Liability Law on October 7, 2002. His bill hopes to strengthen and support the aforementioned HB 5944. It aims to “ensure the safety and well-being of patients by creating an environment wherein incompetent and negligent medical practitioners shall not go unpunished.”

Again, through the vigilance of our health care leaders, former Muntinlupa Medical Society President Dr. Rowena Pineda initiated a dialogue with Rep. Biazon. He was eventually bombarded with questions regarding his anti-doctors bill. The participants of the dialogue cited that only 1-2 percents of their patients suffer alleged medical malpractice while physicians of Muntinlupa treat 2,000 patients a day. After realizing that his bill will have a bad effect to nation’s health care system as well as to his constituents in Muntinlupa City, and most importantly his bill will fail to swing votes, he eventually abandoned his bill.

Villar Patient's Rights Bill

If our congressmen are disillusioned to join Korina Sanchez personal crusade against the medical community, the senators are not far behind in filing anti-doctors bill in the senate. Sen. Sergio R. Osmena, Manny B. Villar, Jr., and former Sen. Noli de Castro filed anti-doctors bills; while, both Sen. Juan Flavier and Luisa P. Ejercito Estrada filed somehow a less controversial bill.

During the first regular session of the 13^th Congress, Sen. Villar filed his Senate Bill No. 588 or Magna Carta of Patient’s Rights. The title seems benign but in close scrutiny, the author’s explanatory note is predicated on the alleged malpractice of the healthcare providers. 

Subsequently, the PMA issued a position paper. PMA argues that the World Medical Association Resolution on Human Rights in Lisbon, Portugal in 1981 and Amended in Bali, Indonesia in 1995 sought its members to advance the cause of human rights of all people and endeavor to alleviate violations of human rights. Likewise, physician are often the first to be aware of violations of human rights and members associations has a vital role in calling the attention of violations in their countries.

The World Medical Association (WMA) directs physicians as guardians of human rights and ensures the delivery of quality health care services in the member states such as Philippines. PMA find the bill ironic because it seeks to reverse the basic concept of WMA resolution – instead of physicians as guardians of human rights, the bill now seeks to watch as designated guardians.

Moreover, the passage of SB 588 will only erode and commercialize the sacred patient-physician relationship, force physicians to practice defensive medicine, secure malpractice insurance and pass the cost to patients and eventually lead to malpractice crisis which is already happening in the U.S., encourage physicians to practice in the urban areas rather than in the countryside, encourage brain drain, discourage physicians to perform charity, medical missions or humanitarian tasks, and harshly penalize medical practitioners even for light offenses.

The bill is supposed to be a Magna Carta of Patient’s Rights but it fails to address the patient’s societal rights from the government such as access to quality health care and patient’s obligations and responsibility to self, health care providers, and etc. Due to these inadequacies, PMA submitted proposed additional provisions or amendments to the bill.

Subsequently, Sen. Villar filed another SB 743 entitled Medical Malpractice Act of 2004. The concept is closely similar with previous HB 4955. The penalty is also similar. 

PMA wrote a position letter against this bill: “The penalty imposed by the proposed bill, i.e. prision mayor and fine of P500,000 to P1,000,000 is very harsh and very severe…it does not distinguish between a doctor and an ordinary criminal. Under the bill there seems to be no difference between someone intentionally putting a bullet between the eyes of his victim and a doctor or a nurse accidentally puncturing a patient’s skin in the course of giving a shot of medicine in a patient’s arm.”

Former Supreme Court Justice Isagani A. Cruz expressed dismay about the proposed excessive monetary penalty. He wrote in his Philippine Daily Inquirer column: “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 an 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.” 

Malpractice Insurance

Senator Sergio R. Osmena III pushed his controversial Senate Bill 1720 or Anti-Medical Malpractice Act of 2004 during the first regular session of the 13^th Congress. In his explanatory note, he wrote: “Incidents of malpractice and negligence involving medical and dental practitioners are on the rise…Sadly, such negligent acts of unscrupulous medical and/or dental practitioners have sometimes resulted in temporary or permanent disability of death.” 

I don’t know where Sen. Osmena III got his data regarding rising incidence of medical malpractice. From PMA Medical Malpractice Workshop Output last September 24, 2005, they gave a figure how big is the medical malpractice in the Philippines. The report states: “Out of an estimated 60,000 practicing physicians registered with the Professional Regulations Commissions, 467 cases have been filed from 1990 to 2004. Out of 467 cases filed, 220 (47%) are with gross negligence/ malpractice. Out of the estimated 35,000 PMA members of good standing, there is an average of approximately only 21 members who availed of legal aid benefits provided by the PMA from year 2000. As per the number of attended patients, only a mere 0.00003% is presumed to be malpractice incidence.” 

According to PMA Medical Summit Convenor Dr. Albert Rebosa (the younger Rebosa brothers who are both doctor and a lawyer), the 0.00003% medical malpractice incidence is very negligible. 

Moreover, According to former PMA President Dr. Bu Castro lecture during the Philippine Hospital Association 55^th Annual National Convention last November 25, 2004, the criminal malpractice cases declined from 2000 to 2003. It is interesting to note that among the specialties, OB-Gynecology got the highest malpractice cases (40%), followed by surgery (30%), anesthesiology (20%), pediatrics (15%), and others (5%).

Basing from PMA and Dr. Castro figures, medical malpractice cases is negligible and declining. The sweeping statement of Sen. Osmena III that malpractice is on the rise is baseless and questionable. 

What makes SB 1720 controversial is not because of its claim that there is increasing medical malpractice incidence, but its shallow pursuit to institutionalize a system of claims and benefits, which will compensate the general public for injuries or death resulting from medical and dental malpractices. The bill requires all medical and dental practitioners to obtain malpractice insurance in an amount not less than P50,000 from any duly licensed insurance company. Failure to comply in obtaining malpractice insurance is tantamount to suspension of his professional license.

In my previous article in doktorko.com entitled “The Measly Salary of Filipino Physicians”, Dr. Atenodoro R. Ruiz concluded that around half of physicians population has average income of P19,195.65 per month. Most government doctors specially resident physicians only earn less than P20,000 a month (Lately, the congress proposes 8% increase salary in 2006), but they are fortunate compared to the salary of resident physicians working in private hospitals. Here are some of the net salaries of resident physicians working in private hospitals (Table 1):

Table 1. Net Salary/ Income of Resident Physicians in Private Hospitals (Metro Manila) as of  November 2005. 

Dr. Encanto commented on this controversial bill in the 98^th PMA Annual Convention. He said: “The administrative fine is one million pesos (or P500,000) and you are getting a P50,000 malpractice insurance. So, how could you pay the administrative fine? This is not damages to the patients, this is just fine. So the government will earn a lot of money from doctors just from administrative fine.”

With meager salary of most physicians and considering the current poor economic status of our country, the physicians can’t bear additional expensive insurance. Likewise, malpractice insurance will cause domino effect – increasing health care cost and patients will ultimately suffer financially. 

Thus, who will benefit from Sen. Osmena’s bill? Obviously, the insurance companies and lawyers will earn a lot of profit. Malpractice insurance will create a multi-billion pesos industry and lawyers will now be enticed to chase ambulances.

Fortunately, due to religious vigilance of the medical community, the aforementioned house and senate bills died a natural death. However, the so called pseudo pro-patients groups didn’t gave up easily even though the ill effects it will do to health care system and to vast majority of patients. Some legislatures didn’t give up easily as well. Their succeeding proposed bill only morphed into another term called “Patient’s Bill of Rights”, but the concept of being anti-doctors and anti-patients remain.

12/18/05 1:20:29 P
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