Is the fear of litigation holding back doctors?

NST: KUALA LUMPUR: Almost RM10 million has been paid out for cases of medical negligence in the country over the last two years.
These large amounts, and fears of losing credibility, have to some extent instilled a "fear of litigation" among doctors.
This has forced some doctors to resort to ordering unnecessary investigations, leading to delays in treatment, or even opting for a less risky procedure which may not be the best option.
All this because of the fear of medical negligence suits, which according to Malaysian Medical Protection Society adviser, Datuk Dr N.K.S. Tharmaseelan, are on the rise.
"Fear of litigation may lead a doctor to practise defensive medicine, and this can be harmful to patients," he said.
For example, in obstetrics practice, the rise in Caesarean section has been blamed on defensive medicine.
In 2004, the Malaysian MPS paid out RM4.5 million in legal fees and damages, while the amount increased to RM5 million last year. There were about 60 claims for 2004 and 2005 respectively.
The number of claims over the last two years has increased almost three-fold from that in the 1990s, where there were only six to 20 claims per year.
The highest amount paid for medical negligence from 1986 to 1998 was RM521,317 in 1995, while the lowest during the same period was RM16,000 in 1996.
Defensive medicine is also expensive since doctors will tend to carry out more investigations to cover themselves.
It can also be demoralising in that it can damage a doctor-patient relationship.
According to lawyer P.S. Ranjan, among the highest settlements for a medical malpractice case was RM2.4 million in Ipoh, while the lowest was RM3,000.
"There are several major cases still pending in courts, involving amounts totalling seven figures," he said.
These cases, he said, involved severe disabilities which require years of care (medical and nursing), those who were young and earning high incomes, and babies who suffered brain damage during delivery.
He said the law as it is now is in favour of the doctors.
"However, this seems to be changing in Malaysia, compared to Singapore, where there have been some favour- able judgments for doctors."
Ranjan said in Malaysia, most cases were still settled out of court, while others are withdrawn after the families are given satisfactory answers.
"In Britain, only about 17 per cent of medical negligence cases succeed, compared to Australia, which has about a 50 per cent success rate.
"It is impossible to say how many cases of medical negligence there have been. This is because many cases do not result in claims, and many are unreported," said Dr Tharmaseelan.

Dr Ravindran Jegasothy, chairman of the Malaysian Medical Association Ethics Society, said the situation here was not as bad as in other countries like the United States.
"We do know that such cases have been on the rise lately. However, those that actually reach court are merely the tip of the iceberg, as many are usually settled out of court."
However, Dr Ravindran feels the publicity on medical negligence cases augurs well for both doctors and patients.
"Doctors are now well aware of patients’ rights and take the trouble to fully explain the medical procedure before any decision is made.
"Previously, when a patient is in labour, consent is taken by a midwife. This is somewhat like a blank cheque for the doctor to perform any procedure should things go wrong during delivery.
"Nowadays, the patient is given a detailed explanation before she is asked to sign the consent form."
Dr Ravindran said cases of medical malpractice have also encouraged doctors to keep well-documented records.
"In my opinion, such cases have actually helped develop the doctor-patient relationship and have helped society move away from the notion that the doctor knows best.
"These days, the patient and doctor must know their rights and responsibilities towards each other, and this has worked well for both parties."
In cases of medical negligence, the patient who is alleging the negligence usually initiates a civil suit or litigation against the doctor.
The patient has to prove that the medical slip-up he has suffered is due to the doctor’s negligence.
"To prove negligence, he has to prove, first, that the doctor has a duty of care; second that the doctor has breached his duty of care; and third, the loss or injury resulted directly from the doctor’s breach of duty (causation).
"Whether the doctor’s standard of care has been reasonable is determined generally by what is regarded as ‘The Bolam Test’.
"This test is whether his standard of care is supported by a respectable body of medical opinion, even though there may be differing views about the treatment."