The Doctor is Out >> The Doctor is Out
History of Medical Malpractice in the Philippines (Part II)
by Dr. Paul Bisnar
Dr. Bu Castro is one of the best President that Philippine Medical Association has ever had. Fortunately, his other vocation as a lawyer aside from being a doctor became useful during the peak of medical malpractice issues that brought shivers to the whole medical community. During his term, the Philippine Medical Association issued position papers for different bills filed in congress. The position papers educated the medical community, the legislators, pro-medical malpractice groups, and the uninformed Filipino people regarding the detrimental effects of the passed malpractice bills. He initiated intense lobbying in congress and information drive to countermand the mainstream media inclination to medical malpractice bills.
Medical malpractice issue is a battle of idea and perception. Fortunately, the whole medical community is vigilant to educate our countrymen regarding the ill effects of medical malpractice legislations.
During the 98th PMA Annual Convention in
Medicine is exclusive for doctors and patients. Outsiders such as media personalities with personal motives to destroy the medical community through unfair bad publicity only corrupt the pious doctor and patient relationship. When insurer and greedy businessmen meddle with the sacred doctor and patient contract, they hurt not only the doctors but the patients as well. When lawyers started to chase ambulances just to gain additional clients and lucrative legal fees, they demean their profession and mess the medical profession as well.
When politicians intrude and legislates bills that are detrimental to the medical community, health care system, and particularly patients, they make our nation sick figuratively and literally.
Patients’ Rights Bills
Last February 26, 2005, Korina Sanchez, spokesperson of Philippine Healthwatch, told the members of House Committee on Health that families of several victims of alleged malpractice and medical incompetence are strongly supporting the passage of House Bill 261 otherwise known as Magna Carta of Patient’s Rights. Rep. Rodriguez Davidaz (1st District, Capiz) authored the said bill.
Ms. Sanchez emphasized the importance of a law to discipline the ranks of the medical profession, saying that outright carelessness and incompetence among medical personnel have caused many deaths and maiming of patients. She cited some horror stories of medical practice such as the case of Bucoy couple of
Likewise, she admitted that her organization lost hope for the approval of a tougher and comprehensive medical malpractice law such as HB 4955 and shifted her support to HB 261 which protects patients against abuses in the medical profession. She said: “We are leaning backwards because we believe Congress will probably not pass the (medical malpractice act), maybe not in our lifetime.”
Dr. Romeo Encanto, the Chairman of PMA Commission on Legislation, opposed the opinion of Ms. Sanchez. He presented PMA position paper against HB 261. He said that the medical profession observes strict guidance in the practice in medicine and there are adequate laws that are already in placed such as the Revised Penal Code, the Code of Ethics of the Medical Profession, and others to penalize erring doctors. He cited: “The bill will force physicians to practice defensive medicine and magnify the cost of medical health delivery system in the country.” He also noted that “no country in the world has declared a Magna Carta of Patients Rights.”
PMA position paper against HB 261 contains 31 substantive stands and arguments. Likewise, PMA proposed additional provisions or amendments to the bill such as the inclusion of “Section 6” defining the “Obligations of Patients”.
PMA states that HB 261 disguised as Magna Carta of Patients’ Rights is masqueraded as malpractice bill. PMA favorably endorses Patient’s Rights but strongly opposes the Patients’ Rights Bill or HB 261.
In the senate, Senate Bills No. 2235 and 2359 are legislated and identifies the rights of patients. In the position paper of Philippine College of Physicians (PCP) dated January 27, 2005, they recognize the fundamental rights of patients embodies in the senate bills. These are the patient’s right to privacy and confidentiality, right to information on matters affecting his care, right to choose his own physician, and right to self determination and autonomy. However, they object that these bills “should not only contain an exposition of the rights of the patient, but also of the health care provider and must not contain penal or other provisions that mask or disguise intent to substitute a patient’s rights bill for a malpractice bill.”
Moreover, the PCP praised Sen. Juan Flavier’s bill or SB 2359 for including provision that would require mediation and conciliation as a necessary antecedent to litigation. PCP stated: “A relationship (doctor and patient) that requires full confidence, trust and good faith on both sides can be repaired by effective mediation and conciliation rather than adversity and litigation.”
Declaration of Patient’s Rights and Obligations
Before the PMA Medical Summit last September 24, 2005, PMA released a paper entitled “PMA Declaration on The Rights and Obligations of the Patient.”
The Rights of Patient are the right to good quality health care and human treatment, right to dignity, right to be informed of his rights and obligations as a patient, right to choose his physician, right to informed consent, right to refuse diagnostic and medical treatment, right to refuse participation in medical research, right to religious belief and assistance, right to privacy and confidentiality, right to disclosure of, and access to information, right to correspondence and to receive visitors, right to medical records, right to health education, and right to express grievances.
The Societal Rights of Patients are right to health, right to access to quality public health care, right to healthy and safe workplace, right to medical and education information and programs, right to participate in policy decisions, right to access to health facilities, right to equitable and economic use of resources, right to continuing health care, and right to be provided quality health care in times of insolvency.
Aside from patient’s rights, he or she has corresponding obligations. These are obligation to know rights, provide adequate, accurate and complete information, report unexpected health changes, understand purpose and cost of treatment, accept consequences of own informed consent, settle financial obligations, respect the rights of health care providers, respect the rights of health institutions, respect the rights of other patients, and obligation to self (meaning to maintain a state of wellness), have adequate health information and actively participate in his treatment, respect the right to privacy of health workers and institutions, exercise fidelity on privileged communication, not to force physicians to treat him/ her, respect the physician’s decision on medical reasons on his rights to religious beliefs, obligation to medical records, participate in the training of competent future physicians, obligation to inform, and use due process and exhaust grievance mechanisms.
In RJTV channel “Doc Willie and Liza Show” last November 18, 2005, Dr. Rey Melchor F. Santos, Secretary-General of Philippine Medical Association, said a compromised bill between physicians and patients is concocted in congress. The proposed bill is a win-win solution in which patients are informed of his or her rights. The bill includes a grievance system in which patients complaints will go first to this process before leaking to the media.
The Philippine Medical Association Ethics Committee will handle the mediation of all patients complaints in which all parties concerned has a chance to settle their disputes amicably. If mediation process fails, arbitration process will proceed. The patient has the option to file his grievance to court after grievance mechanisms fail.
WMA Statement on Medical Liability Reform
In October 12 – 15, 2005, PMA Vice-President Dr. Jose ASA Sabili represented the country in the World Medical Association Assembly in
According to Dr. Sabili, WMA recognizes the rising culture of litigation around the world which adversely affects the practice of medicine and eroding the availability and quality of health care services. WMA encourages its member associations such as PMA “to be alert to the issues and circumstances that could result in an increase in the frequency and severity of medical liability claims brought against physicians.”
WMA warns a culture of litigation will breeds cynicism and distrust in both the medical and legal systems with damaging consequences to the patient-physician relationship. WMA also heeds an urgent call for PMA to demand establishment of a reliable system of medical justice that protects patients against harmful practices and physicians against unmeritorious lawsuits.
WMA provided following activities for its member associations to consider for fair treatment of physicians and patients:
a. Establish public education programs on the risks inherent in some of the new advances in treatment modalities and surgery, and professional education programs on the need for obtaining the patient's informed consent to such treatment and surgery.
b. Implement public advocacy programs to demonstrate the problems in medicine and health care delivery resulting from strict cost containment limitations.
c. Enhance the level and quality of medical education for all physicians, including improved clinical training experiences.
d. Develop and participate in programs for physicians to improve the quality of medical care and treatment.
e. Develop appropriate policy positions on remedial training for physicians found to be deficient in knowledge or skills, including policy positions on limiting the physician's medical practice until the deficiencies are corrected.
f. Inform the public and government of the dangers that various manifestations of defensive medicine may pose (the multiplication of medical acts or, on the contrary, the abstention of the physicians, the disaffection of young physicians for certain higher risk specialties or the reluctance by physicians or hospitals to treat higher-risk patients).
g. Educate the public on the possible occurrence of injuries during medical treatment that are not the result of physician negligence, and establish simple procedures to allow patients to receive explanations in the case of adverse events and to be informed of the steps that must be taken to obtain compensation, if available.
h. Advocate for legal protection for physicians when patients are injured by untoward results not caused by any negligence, and participate in decisions relating to the advisability of providing compensation for patients injured during medical treatment without any negligence.
i. Participate in the development of the laws and procedures applicable to medical liability claims.
j. Develop active opposition to meritless or frivolous claims and to contingency billing by lawyers.
k. Explore innovative alternative dispute resolution procedures for handling medical liability claims, such as arbitration, rather than court proceedings.
l. Encourage self-insurance by physicians against medical liability claims, paid by the practitioners themselves or by the employer if the physician is employed. (not mandatory malpractice insurance pushed by Sen. Osmena but voluntary insurance).
m. Encourage the development of voluntary, confidential, and legally protected systems for reporting untoward outcomes or medical errors for the purpose of analysis and for making recommendations on reducing untoward outcomes and improving patient safety and health care quality.
n. Advocate against the increasing criminalization or penal liability of medical acts by the courts.
PMA had already followed most of the recommended activities and continue to educate our countrymen.
What’s Next?
According to Dr. Santos, the malpractice bills are already dead. The health watch groups already acknowledged that malpractice law is not yet acceptable in this current situation especially when our economy is struggling.
The compromised proposal that is currently pushed by PMA in congress which equally protects patient and medical personnel’s rights remains to be seen. The grievance mechanisms embodied in the proposal will lessen media intrusion and unfair bad publicity. It will also give patients and doctors a chance to settle their dispute amicably before settling it to the court.
The medical community won the first round, but the fight against pro-malpractice law supporters is not yet over.
Indeed, we won. But, the damage of pushing physicians away from our country has already been done.
1/2/06 1:31:19 P
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