Fri, Jun 01, 2012 - Page 8 News List

Medical malpractice is ruining healthcare

By Max Kuo 郭明實

Surgeons have been leaving National Taiwan University (NTU) Hospital for a change of career, moving on to cosmetic surgery, saying that being a surgeon there is too much trouble.

Forty years ago, all outstanding medical students aspired to work at NTU Hospital. What happened? Taiwan’s medical legislation is in need of a thorough review — otherwise, medical care in Taiwan will decline and surgeons will be thin on the ground.

In the US they use the term “medical malpractice” — according to US law this refers to situations in which patients come to be harmed, or the results of their treatment are less than satisfactory, because of carelessness by medical professionals in the course of providing medical care.

In cases like these, the patient has the right to seek compensation in court, but is restricted to seeking civil compensation. Unless it can be shown that the harm caused was intentional or deliberate, medical malpractice does not entail criminal liability.

All providers of medical treatment in the US are required to have medical malpractice insurance. The actual premium not only depends on the type of care you provide, it increases year by year. For some time now the US Medical Association has been asking for amendments to be made to the law to cap payouts for these cases, but lobbyists for the legal profession pull a lot of weight in the US Congress, so no changes have been made. The medical profession has no choice but to pass on the high costs of medical malpractice insurance to the patient. In the US, healthcare expenditure runs at over 16 percent of GDP, partly because of these high premiums.

The premium for a pediatrician is more than US$10,000, and that for an obstetrician or gynecologist about US$80,000 to US$100,000. Neurosurgeons have to fork out something like US$150,000. This is the stuff of nightmares for doctors. If they are successfully sued more than twice, insurance companies will not touch them with a barge pole, and they can kiss their career goodbye.

There are, of course, two sides to this. The medical malpractice system does mean that medical training has to be very stringent, and doctors who should not be practicing are rooted out. As a result, standards of healthcare provision in the US continue to improve.

In the past 40 years I can recall only one case of a doctor in the US being sued in a criminal case — for the assisted suicide of a patient. However, in Taiwan in the past few years, an obstetrician/gynecologist and a neurosurgeon have been found guilty in a criminal court and there was another case of a nurse being found guilty for administering the wrong injection. By US standards, this is unheard of.

It is a matter of urgency that a consensus is reached within the legal and medical professions in Taiwan on the distinction between criminal and civil medical malpractice.

Criminal culpability entails “intentional and serious misconduct,” but there are different interpretations of what exactly this constitutes. The medical and legal professions should concentrate on how “intentional” is to be defined, not on how to distinguish “misconduct” and “serious misconduct.” If needed, they should seek an interpretation by the Council of Grand Justices.

Medical treatment often means the difference between life and death. No doctor is perfect. They need to be given some leeway if we are to have an environment conducive to the provision of good medical treatment. This is something the medical and legal professions need to reflect upon — how to create an environment that is not at the mercy of a culture of litigation.

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