To err is human, and for doctors, the cost of a mistake is not only mental and emotional, but also financial.

HAVING someone’s life and health in your hands is certainly no laughing matter. So, imagine doing this day in and day out, regardless of whether you are having a bad or good day, undergoing relationship problems or on cloud nine because you’re in love, or any of the normal daily trials and triumphs we all go through.

Mistakes are bound to happen sometime in a decades-long medical career, as doctors are only human.

If the doctor is fortunate, the mistake doesn’t harm the patient or anyone else; if he isn’t, the consequences can range from death or disability for the patient to financial and social ruin for the doctor himself.

Without doubt, we expect doctors to always do their best to be alert, cautious, up-to-date on the latest research and treatments, and treat their patients to the best of their abilities.

But what happens when the worst occurs and irreversible mistakes are made?

This is where medical indemnity comes in.

Seven-figure sums

Medical Defence Malaysia (MDM) executive director Dr Eddie Soo shares that the expenditure for medical negligence cases in the United Kingdom in 1974-75 was £1mil (RM4.9mil). By 2001-2, it had risen to £446mil (RM2.2bil).

“The highest (court) award for a birth-related injury during the period of 1995-2002 was £670,000 (RM3.28mil). Then in February 2003, a £5.5mil (RM27mil) award was given out.”

Dr Soo… Doctors should act according to the Medical Act 1971, which governs disciplinary procedures, conduct and registration of doctors, among others. Most doctors don’t read the act; they should.

He adds: “Last year, there was a (local) court award for a brain-damaged child for RM5.4mil. With the interest calculated from the date of the injury to the award, it comes out to be about RM7.4mil!”

Seven-figure court awards are becoming the norm for obstetric negligence cases, and with the precedent set locally, it is unlikely to go down in the future.

Invariably, one or more doctors will be named in these types of lawsuits, and it is they who have to pay up the award money, if the court decides against them.

And this does not even include the legal fees and expert witness fees that they also have to bear. Even if the case doesn’t end up in court, Dr Soo says that the minimal legal fees would be at least RM5-6,000 for correspondence.

Medico Legal Society of Malaysia (MLSM) president Datuk Dr NKS Tharmaseelan shares that doctors have gone bankrupt from paying up these kind of awards, while some – even if found innocent of negligence – have given up their practice due to the stress, suffered reputation and social standing, and pressures of being in the spotlight during the course of the court case.

It doesn’t help that doctors are not allowed to speak about their cases in public to defend their actions, as it is a breach of doctor-patient confidentiality, even if the patient himself is publicising his own case.

Says Dr Tharmaseelan: “Patients who are injured should be compensated, but it must be caused by breach of care and under the doctor’s responsibility.

“No doctor goes out to injure a person – it may not necessarily be negligence, but an error.

“We’re not saying doctors are angels, but there is often a lack of communication between doctors and patients.”

Insurance or medical defence?

However, just like regular insurance, doctors can protect themselves from having to pay out such huge sums of money personally by either taking out medical indemnity insurance from an insurance company, or joining a medical defence organisation.

There are a few critical differences between the two, according to Dr Soo.

Dr Tharmaseelan… Sometimes, it is difficult for the court to understand the minute-to-minute changes in the operating theatre, the labour room. Even though they can be told, or inform themselves of the situation, it is not always possible for them to grasp the full picture.

Insurance companies only cover the doctor for as long as the period covered by his last premium payment. If a patient were to sue him for medical negligence or malpractice after this period of coverage, he would not be covered by the insurance, even if he treated the patient during the time when he was still covered.

Medical defence organisations provide coverage for any cases that were treated within the time of subscription, even if the doctor had already stopped his subscription at the time of being sued.

Dr Soo shares that the statute of limitations – the time period within which legal action may be taken – is three years for incidents in all hospitals in Sabah and Sarawak, and public hospitals in Peninsular Malaysia, and six years for incidents in private hospitals in Peninsular Malaysia.

Insurance coverage is also limited to a certain sum based on the amount of premium paid, and the doctor found liable for negligence would have to fork out any extra money required to pay whatever is in excess of that sum.

Dr Soo gives the example of three recent cases: an ENT (ear, nose and throat) surgeon had to contribute RM50,000 to a court award of RM190,000, while two obstetricians had to pay RM100,000 for a court award of RM600,000, and RM150,000 for a court award of RM2.3mil respectively.

“The other difference is that we not only cover court cases, but also doctors who are hauled up by MMC (Malaysian Medical Council) or their employers for disciplinary hearings.

“We also help study their employment contracts,” he says, giving the example of a member who decided to sue his previous hospital for unfair termination, and MDM covered his full legal fees as they felt his case had merit.

Medical defence organisations usually provide unlimited coverage for their members, which includes court awards, legal fees and other associated expenses.

However, insurance company premiums are generally much more affordable than medical defence organisations, especially for specialists. (See Indemnity insurance)

And with the lack of tax exemption being one of the most common excuses among doctors for not taking up medical indemnity, cost is certainly a factor for doctors deciding between indemnity providers.

Not covered

Considering the potential costs of medical negligence, it might come as a surprise that many doctors are not actually covered by any indemnity insurance at all.

Dr Tharmaseelan, who is also the current Malaysian Medical Association (MMA) president-elect, estimates that around 20-30% of their members are not covered by either of the association’s indemnity programmes.

MMA has two such programmes: one run by the Malaysian branch of the British-based Medical Protection Society – another medical defence organisation, and the other by a consortium of local insurance companies.

Meanwhile, MDM board member Dr Milton Lum estimates that around 40% of doctors in private hospitals are uninsured.

Dr Lum… About 40% of doctors in private hospitals are not covered. Some are ignorant of the need for indemnity insurance, some don’t want to pay the fees.

Some are ignorant, while some just don’t want to pay, he says.

This is soon set to change however, as the new Medical (Amendment) Act 2012 will make it legally compulsory for all doctors to “produce evidence of professional indemnity cover” when applying for their annual practising certificate. This Act is expected to come into force next year.

Says Dr Soo: “It is the private sector we are worried about, as public hospitals are covered by the Government.

“For example, if a doctor operates in UMMC (Universiti Malaya Medical Centre), he is covered by the university. If he operates in UMSC (Universiti Malaya Specialist Centre, which is private), they have to cover themselves.”

This is not only a problem for the uninsured doctor, but also for their patients, should anything go wrong, notes Dr Tharmaseelan.

“We find there are quite a few doctors without insurance, and this is not fair to the patient, because the doctor cannot afford to pay them (the court award),” he says.

Why not

The two main factors affecting the uptake of medical indemnity are probably awareness and a willingness by some doctors to play the odds.

Says Dr Soo: “Up to recently, medical students were not taught about medical negligence.

“When they start to practice and are faced with a medical negligence suit, they are completely taken aback.”

As such, both MDM and MLSM go out to medical faculties across the country to speak on the topic of medical negligence.

In fact. Dr Soo shares that some private universities have even asked the organisation to develop a medical indemnity programme for their medical students, as they are afraid their students might get sued in the course of their clinical studies.

“I think if we start early, medical students will be aware of this issue; they will be more cautious in their practice,” he says.

Many doctors, he adds, are ignorant of the professional and ethical guidelines stated in the MMC’s Code of Professional Conduct, which is given to all doctors upon registration to practise medicine after their housemanship.

MLSM, which is open to both doctors and lawyers, is also starting to focus on awareness for local law students.

“We are seeking to speak to law students as well, to give them a fuller picture. So that when patients hire them, instead of just filing, lawyers will consider the merits of the case.

“In some cases, patients don’t understand there’s only so much that can be done for that case,” says Dr Tharmaseelan.

There are also some doctors who are willing to take the risk that they will not need medical indemnity, and therefore, not buy any.

However, as mentioned above, all doctors will soon be required to have some form of indemnity before being allowed to legally practice in Malaysia, as soon as the Medical (Amendment) Act 2012 comes into force.

Certainly, Dr Lum believes that the incidence of medical litigation will only continue to rise.

“Doctors think, it won’t happen to me. But we are going to see more and more litigation cases, more and more complaints against doctors – it is the worldwide trend.”

He says that while there is no data available for the private sector, the Attorney-General’s office, which provides legal counsel for civil servants, set up a separate section to deal solely with medical negligence and personal injury cases about 10 years ago. “They don’t simply set up a different section,” he notes.

Meanwhile, Dr Tharmaseelan says: “I don’t know if I can say with any degree of certainty that there is any particular trend, either developed or developing in Malaysia.

“However, I think for sure, the modern-day patient in Malaysia is more willing to litigate, and less likely to accept adverse events without investigating the reasons for the adverse event, or attributing blame.

“In appropriate cases, indeed, patients ought certainly to ensure that their rights are protected, their grievances addressed, and their losses compensated.

“Responsible doctors, I feel, do not have a problem with that.

“The problem that we are more concerned about is whether some of the patients/litigants are getting the right legal advice, and whether the court dealing with a medicolegal dispute is sufficiently equipped to appreciate what one can reasonably expect of doctors.

“For the doctors, the message is clear. There is now the requirement of greater accountability.

“This cannot be wrong. Doctors only need to ensure that they are empathetic, their explanations are understood, and any problems should be dealt with according to law.

“Thus, communication between patient and doctors is essential. Both should understand one another.”

Drop in obstetricians as fear of legal suits rise, says group chief

By VANES DEVINDRAN 
vanes@thestar.com.my

KUCHING: Lawsuits against obstetricians are on the rise and if the trend continues, a bleak future awaits the discipline.

This is because fewer medical practitioners would be encouraged to specialise in the field of obstetrics for fear of being an easy target of a lawsuit.

Outgoing president of the Obstetrical and Gynaecological Society of Malaysia Dr Krishna Kumar Hari Krishnan said obstetrics was a litigious area and even if the doctors might not be at fault, the law would always be sympathetic towards babies.

“But in medicine, I cannot tell you that one plus one equals to two; I also cannot tell you that your baby will come out at exactly 11.40am. If all was that simple, then we all would know what to do. It’s not all science — lots of things are unpredictable.

“You try to anticipate problems but mishaps do happen. Doctors don’t wake up in the morning and say ‘I think I want to damage that baby or I want to make that mother bleed’.

“We don’t do this.

“We go around wanting to do our best but sometimes, things do happen,” he said at the 10th Royal College of Obstetricians and Gynaecologists International Scientific Congress here yesterday.

Instead, he said, doctors aimed to minimise the injury and loss as they tried to provide the best care to both mother and baby.

Dr Krishna said Malaysia could only hope that the fate of obstetrics did not turn out the way it did in Australia 10 years ago when people began suing obstetricians a lot.

He said it reached a point where the company which did the indemnity insurance decided not to insure the obstetricians because of the many lawsuits.

Following this, he said many chose to drop out of the field and soon the women did not have anyone to go to.

He said even mid-wives stopped their practice for fear of being sued.

Soon, he said, the Government had to step in to insure obstetricians to get the practice going again. Whereas in New Zealand, he said, it was a different thing altogether.

“Midwives are paid the same rate as the doctors so they stopped doing obstetrics. People then delivered through midwives but they soon realised that they needed the doctors for complicated cases. So there is an interesting debate going on in regards to this.

“We need to find a balance to everything. Yes, you may need to sue sometimes but if you keep on suing and suing, people are going to give up on the practice eventually,” he added.

Dr Krishna said the Medical Protection Society might charge an obstetrician RM64,000 per annum for medical indemnity, but fees for a normal delivery dictates that one could only be charged RM800 for a normal delivery.

As such, he said, obstetricians in the private sector would need to do 80 free deliveries before he or she could start making money.

He believed Malaysia had about 700 obstetricians with most of them in the private sector.

While the number was low, it was not on a decline since the country was producing about 20 obstetricians every six months, he said.

The question, he said, was how many opted to stay on in government service given that they got better pay working in the private sector with lesser workload.