Full report MAM medico legal seminar - 15/10/2004

Seminar addresses medico-legal problems in Malta

Doctors, leading legal experts would prefer filtering procedures in addition to legal clauses to guard against unnecessary suing

Gerald Fenech

The plethora of problems affecting the relationship between the medical and legal professions were discussed at length in a seminar organised by the Medical Association of Malta at the Corinthia San Gorg Hotel recently. The main gist of the argument was the current situation regarding the anomaly that exists in the law concerning medical professionals, which allows doctors and other medical personnel to be sued for damages at both civil and criminal level without an adequate filtering process.

The seminar was addressed by a number of distinguished guests including President Emeritus Prof. Guido de Marco; MAM president, Dr Stephen Fava; leading legal experts Dr Hugh Peralta and Dr George Abela, MAM general secretary, Dr Martin Balzan, and Parliamentary Secretary in the Ministry for Justice and Home Affairs, Dr Carmelo Mifsud Bonnici.

In his opening address, Dr Mifsud Bonnici said it was his pleasure to open this important seminar on the changes needed in the medico-legal relationship. The giant leaps in medical technology in the past years have opened up new vistas in the interpretation of the law in this regard, he said.

Dr Mifsud Bonnici said that there are too many differences between the medical and the legal professions and that if change is required in the Maltese laws to reflect the changes in society, then this should be discussed and eventually implemented.

The Parliamentary Secretary also referred to the ethical-medical situation with regard to artificial insemination and said that the necessary legal changes in this sector were also overdue.

In his opening remarks, Dr Stephen Fava said the Maltese health service is extremely efficient and this is due to the sterling work done by all doctors, health officials and those involved to maintain the high standards. Moving on to the medico-legal situation in Malta, Dr Fava said that the current situation was untenable and that our present law system was archaic. He said that the number of criminal cases against doctors was extremely high when compared to other countries such as the USA and Great Britain.

As the majority of doctors are acquitted of the charges brought against them, the situation is therefore anomalous and there must be something wrong in the system, Dr Fava added.

As regards civil cases, Dr Fava said that the amount being claimed for minor cases is going up at an alarming rate, and this is only the tip of the iceberg. Dr Fava said that unless something is done immediately, defensive medicine would become the norm. Defensive medicine refers to decisions on management of patients that are taken in order to avoid litigation rather than because they are clinically indicated. This can result in unnecessary investigations leading to spiraling health care costs that are unsustainable, prolonged waiting lists and inconvenient to patients because of unnecessary investigations. Concluding, Dr Fava said change was required in the medico-legal procession that would be to the benefit of all.

Prof. Guido de Marco said the number of criminal cases related to medicine in Malta is much higher locally than in other countries.

He added that the situation regarding the medical profession is always a contentious issue because the consequences are grave as they involve human lives.

The President Emeritus said he had lived through the trials and tribulations suffered by doctors he had defended in court. Prof. de Marco then mentioned a particular case on professional competency where a certain architect was involved in a situation regarding the collapse of a reservoir wall that he had designed resulting in the death of three people. The first inquiry showed that the architect was responsible for their death as the walls of the reservoir were not thick enough. On appeal it resulted that the rock on which the reservoir was built was unstable and that the architect was not directly responsible for the tragedy.

Prof. De Marco read out Judge Flores’ judgment on this case, which dealt with the fine points of professional negligence and responsibility. He also cited recent articles on the same subject published by Italian experts. Prof. de Marco then dwelt at length on the issue of professional responsibility as espoused by Mr Justice Flores in his landmark judgment on the reservoir case. Prof. de Marco said this judgment showed the fine line one has to tread between innocence of a professional individual and the force of public opinion.

Another landmark case cited by Prof. de Marco was that of a doctor who had treated a paralytic boy. After an operation, the boy developed complications in his leg but the doctor said that there was nothing serious and did not see him for two days. The doctor examined the boy a few days later and found that the leg had turned gangrenous.

The boy’s parents then took him to a second doctor who examined the boy and the leg simply collapsed. The boy’s parents sued the first doctor for professional negligence. The court found him guilty.

Prof. de Marco then examined English law regarding medical cases of professional negligence and criminal misconduct. He said that in most of the judgements, the position taken by British law was different from the one propounded by Judge Flores. “Such disregard against the safety and health of others amounts to a crime against the State and is deserving of punishment,” is one of the British sentences. This creates social parameters of national proportions, Prof. de Marco added.

In his masterly conclusion, Prof. de Marco linked the issue of professional responsibility with the social fabric of the day and warned that passions and rumours should not interfere with proper justice, which is due. He also warned that one should proceed with caution, citing a case in which he was involved as Crown Prosecutor. A director in the Civil Service was going to be charged without a proper case being made against him. Prof. de Marco dropped the case rather then let the man go through the martyrdom of the courts and be acquitted. One must not detach oneself from the social fabric of the day when considering such professional cases, Prof. de Marco concluded.

Dr Hugh Peralta discussed the civil liability issue with regard to the medical profession. Mentioning various cases and going into detail on the doctor-patient relationship, Dr Peralta said it was important for doctors to keep notes of discussions with their patients asthese would be important evidence if a case were instigated. Dr Peralta also dealt with the damages issue and predicted an increase in the value and quantity of claims against doctors.

Dr Peralta also dealt with defensive medicine and concluded that this was an insult to the profession in general and that a remedy should be found to address the medico-legal problem as soon as possible.

Dr Martin Balzan addressed the problem of system failure and cited the possibility of having a whistleblower through the use of a board on patient safety. On civil damages and indemnity, Dr Balzan cited the example of Florida where an indemnity for obstetricians was prohibitively high at US$150,000 that professionals were moving to other states where this indemnity is cheaper. In Malta, there is a partial indemnity that does not allow for the choice of a lawyer, which is far from satisfactory, Dr Balzan said.

Dr Balzan said MAM wishes to adopt the British model where the National Health Service appears in civil cases and not individual doctors. He also called for the adoption of the Bolam Rule, which is a form of stopgap for excessive claims by patients and mentioned that in the United States such cases were filtered, which was an acceptable form of limiting the exposure of doctors in court. Dr Balzan emphasised the need for the introduction of a legal filter for both civil and criminal cases, so as to do away with frivolous and vexatious cases at an early stage.

Dr George Abela initiated the panel discussion by calling for moderation and great care when a professional is charged in court. Because of the country’s social fabric, this would mean complete ruin for the individual, even if found not guilty. Dr Abela called for a professional panel to examine each case before legal procedures are instituted.

Dr Abela also mentioned impeachment cases for judges and magistrates where the State has formulated a system in which certain procedures are exhausted before actual legal proceedings begin. On the civil aspect, Dr Abela said MAM and the government should formalise their agreements so that everything be as clear as possible. In his conclusion, Dr Abela called for common sense and moderation in tackling situations of a sensitive nature and to be vigilant but also compliant in the medico-legal field.

A consultant intervened from the floor and questioned the amount of responsibility that a consultant has over his subordinates and to what extent does this responsibility affect legal liability. Dr Peralta responded by saying that terms of reference were hugely important in this regard and a subordinate is responsible for errors taken on his/her own initiative. Prof. de Marco said the consultant is required to be vigilant and that this should be sufficient to exculpate the higher official from responsibility. Reflecting on another judgment by Judge William Harding, Prof. de Marco said the issue of recklessness was also important. Dr George Abela added that the system could fail due to a series of errors, and as such, the consultant could not be held responsible for system failure at the hospital. Dr Abela referred to a recent judgment by Judge Caruana Demajo that upheld the concept of system failure.

Dr Michael Farrugia, opposition spokesman on health intervened from the floor on the question of vigilance and asked what would happen if a consultant had delegated work to a subordinate with due knowledge of the process. Prof. de Marco responded by citing the law that no-one can do the impossible and so one cannot be responsible for such a situation. He also called for caution and good sense in delegating sensitive work to properly qualified individuals.

Prof. de Marco called for proper amendments to the law with the establishment of a proviso on the “error of judgement” excluding such cases from criminal procedure. As regards civil cases, Prof. de Marco said he would be in favour of a capping system for damages in line with the No Fault Clause. He also called for a re-think of the social pillorying that was invariably levelled at professionals and the possible establishment of a fund paid out of taxes to provide for No Fault Clause judgements.

Other interventions from the floor included the question of vigilance, length of time for procedures to be concluded, filtering, error of judgment and professional negligence. Prof. de Marco, Dr Abela and Dr Peralta gave their own interpretations on how a definition could be worded to make it effective as jurisprudence. The issue of unjust dismissal was also breached and Dr Peralta said that if this was proven, the clear remedy was the courts to be fully reinstated.

A senior manager from one of the private hospitals said the problems MAM was highlighting were not only real, but needed urgent remedies and he could not understand what was keeping the government from introducing such filters as soon as possible

In his concluding remarks, Dr Stephen Fava focused on a proper legal definition of clinical negligence, a proper filter for criminal cases and the question of capping for civil cases.

Dr Fava called for a system in which the employer should be sued in court and not the individual, as happens in the case of system failure.

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