.

THE FOLLOWING ARTICLE HAS APPEARED IN THE RECORD ON January 30, 2002

The solution is fewer medical mistakes, not lawsuits!




Last week Health Minister Remy Trudel promised to address the issue of avoidable medical accidents in a three-part government strategy, which included the setting up of a task force to evaluate the feasibility of a no-fault compensation system for medical-accident victims. Unfortunately, both the timing and substance of his announcement left the impression that the government is more interested in reducing the number of lawsuits than the rate of medical errors.

Two weeks earlier, the thorny subject of medical negligence made the news when the Quebec College of Physicians revealed its intention to amend the medical code of ethics in order to oblige doctors to inform their patients of any serious mistakes or face disciplinary action. Seeing that the proposed rule already applies in most hospital ethics codes, the announcement was hardly world shattering.

Working conditions are factor

A few days later, the Quebec Order of Nurses unveiled the results of a province-wide survey of nursing. Not surprisingly, the study concluded that their working conditions contributed to a gradual deterioration in patient care, including a 52 per cent increase in the rate of medication errors. While there is no way of knowing how many medical errors occur in Quebec, one thing is clear - our floundering health system is partially responsible. The chronic shortage of nurses, overworked doctors, unreasonable delays for elective surgery and over- crowded emergency wards are all aggravating factors.

In order to grasp the seriousness of the problem one has only to consider some of the startling statistics originating from the United States, a country which continues to scoop up our doctors and nurses because of its more favorable working conditions. One study released in late 1997 by Harvard University School of Public Health, concluded that there were approximately three million medical accidents each year costing $200 billion. Three years ago, a controversial report by the Institute of Medicine claimed that medical mistakes in hospitals kill up to 98,000 hospitalized Americans a year. Included among the mistakes were prescription drug errors and misused or malfunctioning equipment.

Whether or not the real figure is less than 15,000 deaths per year as some researchers claim, there is no credible reason to believe that the rate of medical errors is lower in Canada than in the U.S. Where are all these medical errors being committed? Some American studies claim that as high as 32.3 per cent of all claims involving malpractice occur in the hospital operating room. The Physicians Insurers Association of America concluded that diagnostic interviews, evaluations and consultations are among the leading sources of malpractice claims.

Fessing up

While there are many who believe that the proposed rule obliging Quebec doctors to inform their patients of any serious mistake may lead to a reduction in malpractice suits there is no reason to believe that it will have any effect on the rate of medical errors. This is particularly true if, as some experts contend, patients are more forgiving of mistakes and less inclined to seek compensation when doctors face up to their mistakes. Even assuming that the government follows through with a tough law obliging doctors to inform their patients of any error, how will it be enforced? Let's not delude ourselves. In many instances only the doctors are aware of their mistakes and, like lawyers, they are not the ideal candidates when it comes to admitting their professional errors except, of course, when they are too obvious to deny. Career aspirations, ego, reputation and disciplinary measures are not the only reasons. The threat of hefty lawsuits serves as much as an incentive to keep their lips sealed as it does to deter them from being negligent.

If malpractice suits against nurses, general practitioners, specialists and hospitals have the nasty habit of seeking huge awards it is because medical errors can lead to a wide range of lasting consequences. Translating pain and suffering into dollars while tabulating all of the costs, past present and future, of medical expenses, loss of income and other financial losses is no simple mathematical exercise. Depending on the patient's income, degree of incapacity and the life expectancy, the projected losses can easily climb into the millions. Cases involving professional liability in Quebec are predicated on a fundamental civil law principle, namely that every person capable of discerning right from wrong is responsible for the damage caused by his fault to another, whether by a positive act, imprudence, neglect or want of skill.

Convincing proof

Proving medical negligence can be an uphill battle even for a skilled attorney who has acquired a lifetime of valuable medical information. Without convincing proof backed up by medical experts it is practically impossible to win a medical lawsuit. When it comes to evaluating professional negligence, doctors or surgeons are not normally judged by the result of their medical services, nor are they condemned for mere errors in judgment. Their conduct is assessed against the conduct of a prudent and diligent doctor placed in the same circumstances. As confirmed by our Supreme Court, when a physician is being sued, the question is not whether he did his best but what another doctor of ordinary and reasonable knowledge; competence and skill would have done in similar circumstances.

Proving causation requires having to establish a direct relationship between professional fault and injury, or put differently, that the doctor's negligence caused or contributed to the injury. One reason why causation is often difficult to prove in medical malpractice cases is because the patient must refute each and every cause thrown up by the defense that could explain the injuries, other than the doctor's negligence.

Increase in claims

On the other hand, shifting the burden of proof to the doctors in order to make it easier for patients would create other serious problems, not the least being a huge increase in the number of claims. Frivolous or not, each one would have to be investigated and answered. Not only would this encourage defensive medicine, professional liability insurance premiums would sky rocket.

So where does this all lead us?

In grappling with the problem of medical negligence, the emphasis must be first and foremost directed to reducing the opportunities for medical error and finding ways to have the medical profession become more accountable. Making it easier for patients to seek compensation at the expense of restricting their rights and imposing financial ceilings, as is the case with our no-fault automobile insurance, is simply not an acceptable tradeoff.