10 January, 2017

A diagnostic error may not always be constituted as medical negligence.

Among the many nightmares in medical practice is anegligence lawsuit. I empathise with colleagues of mine who have been so involved, often, to my mind, unnecessarily. It is good to know that, in hindsight, everyone understands what should have been done.

Medicine is far from the precision of mathematics. It is a science of cerebration and you need a cool head without stress to make important decisions concerning life and death. These decisions are taken based on what the physician feels after evaluating the patient at the time. Such decisions, appropriate for the time given the information at hand, may not turn out to be the best thing to have been done, in hindsight.

I have known many caring and compassionate doctors who have faced such problems. It was an unnecessary drain on their mental energies, the Damocles’ sword upon their head, making them lose their confidence in further decision-making. From many of my colleagues I have learnt that the professional fees they earned turned out to be a pittance compared to what they had to pay their lawyer, often right down to a decimal point, to fight such suits.

According to an American Medical Association report of 2010, on an average, 42.2 per cent physicians are sued: 22.43 per cent being sued twice or more; and later in the career, this figure goes up to 61per cent. Research spanning a few countries tells us that 85 per cent of obstetricians, 83 per cent of general surgeons, and 79 per cent of orthopaedists are sued. Male doctors are two and ahalf times more likely to be sued.

The New England Journal of Medicine in 2011ran an analysis which stated that 36 per cent of doctors in low-risk specialties were sued and 88 per cent of those in high-risk specialties were sued by the age of 45, and this increased to 75 per cent and 99 per cent by the age of 65.

These statistics point out the enormity of the problem in the Western world. No wonder the fees for high-risk specialties are mind-boggling. Perhaps these statistics also mean high malpractice insurance in the West. In India most claims arise from an inpatient setting. I see many physicians as they get through life cutting out their inpatient practice.

From a Journal of the American Medical Association (JAMA) report published in 2011, it was evident that 48 per cent of the claims related to an inpatient setting but a whopping 43 per cent were for outpatient practice, and 93 per cent for both.

The JAMA study also tells us that legal consequences arising from outpatient practice — 31per cent — were from a failure to diagnose; in the inpatient setting, they were mostly from a surgical error. Both of these I find surprising because at times, in spite of using appropriate diagnostic and therapeutic manoeuvres, there’s a scope to make surgical errors.

The emotional effects of a negligence lawsuit are interesting to note. Most physicians — about 20 per cent — showed initial surprise, about a quarter suspected this action, and only 3 per cent were certain that they were being sued. Many experience the feeling of helplessness, self-doubt, humiliation, isolation, the stigma of incompetence, and negative effects on family life.

The 2011JAMA study also informs us that the payment amounts were higher in an inpatient setting ($362,965) as compared to outpatient setting ($290,111).

What then is the end result of this medico-legal phenomenon? Does every patient need to be treated as a potential litigant? Such mistrust leads to needless investigation, and to the practice of defensive medicine to keep the doctor legally safe, which in turn costs the patient excessively.

Iknow many doctors do not take up acomplicated case unless they know the patient or have treated them in the past, which is perhaps a wise practice for the aging physician who can do without legal problems in the eve of their practice.

Perhaps, handing over such complaints to the medical councils, which understand the nuances and uncertainties of medicine, may be a better idea. For the doctor it is best to explain to the patient as to what they can expect and what can go wrong in hospitalisation.

Heart attack patients do well in the ICU but could turn critically ill within minutes of release, and the doctor knows this and explains this to the relatives. Suing will certainly pick up in this country and with it the professional fees to cover legal costs will soar.