This letter was originally published in The Star,
A generation back, lawyers were unwilling to assist in suing members of a fellow profession.
Even when sued, the judiciary was often benevolent towards doctors. There was much reluctance to find doctors guilty of negligence.
Over the past few decades, the high pedestal on which doctors stood, has slowly been eroding. As patients’ rights movements gained momentum, the dust and clouds created have made the “halo” around the doctors less visible. They have realised that doctors are mere mortals too and reverence to them was misplaced, as was done by their earlier generation.
More patients are questioning their doctors and are prepared to sue their regular family doctor of many years. The doctor-patient bond has now been replaced by an unemotional, commercial business-like link.
There is no dearth of lawyers who are more than willing to act on behalf of a patient even on frivolous grounds. We cannot fault them as they are just doing their job. The judiciary too, has become less benevolent and has increasingly taken serious views of the cases before them. The awards are unbelievable and have been sky-rocketing over the years.
They now follow the standard of care, as reflected in Rogers vs Whitaker where the courts ultimately decide on the issues at hand, rather than following the principles in Bolam where the profession were left to decide whether a fellow professional had breached the standard of care for advice.
The Whitaker decision is now followed in Malaysia as pronounced in the Federal Court in Foo Fio Na. With the judiciary becoming more assertive and proactive, the awards are expected to multiply.
With the increasing settlements and awards handed out by the courts, litigation costs and premiums for indemnity coverage and insurance have risen exponentially.
Can we blame anybody for this scenario which has caused turbulence and turmoil within the medical fraternity?
Doctors are now less inclined to specialise in certain areas due to exorbitant indemnity premiums. We may not have doctors becoming obstetricians or spinal surgeons soon. Ultimately it affects patient care.
As the standard of living rises, expectations rise in tandem. The Internet revolution has delivered medical information to the doorstep of every home. This information comes from various sources, some of doubtful origin.
This has led to unrealistic expectations by patients. Patients expect perfect results when they seek treatment and are less likely to accept side effects and complications even if adequately informed before commencement of treatment.
Not only are expectations influenced by dubious Web-based information but also by “well-read” relatives and friends. Sometimes an “unintended” incendiary remark by a colleague causes unwarranted confusion to an already agitated patient.
Doctors sometimes justify errors with statistics which is of irrelevance to the patient. A 1:100,000 mortality or morbidity which appears insignificant to the doctor is usually a 1:1 for the patient and relatives.
Routine procedures are not viewed in the same manner. A simple lumbar puncture is viewed and construed as major surgery by some patients. The patients’ views and understanding of a medical problem are different from those held by doctors.
The doctor is often tried by the media and this inflicts a lifelong deep abrasion on the doctor’s reputation. Knowing the impact of negative publicity, patients and even lawyers make inappropriate demands on doctors.
The media attention towards medical errors has encouraged the layman to proceed with litigation as he knows that he will be able to “avenge” a wrong done to him or his relative.
It is not only the patient who suffers, the doctor too is subjected to tremendous mental stress and agony. Some senior doctors have given up the practice of medicine on account of a single misadventure. A litigation exercise has devastating effects on his career and personal life. Even if they win the battle in court, they are bruised during the proceedings and remained scarred for life.
Doctors suffer and as a result the patient too suffers in the long run. The strong bond is broken. Doctors begin practising defensive medicine and the patients will have to ultimately bear the cost.
A strong family-like bond is turned into a business-like proposition. The patient is no more a patient, he becomes a customer just as in any business transaction.
Medical paternalism has given way to patient autonomy. The patient is the focus of treatment without whom the doctor has no role to enact.
Doctors and patients need to work as partners in order to restore the trust and confidence of yesteryears.
Effective communication is essential and a vital tool in providing high quality care for patients. Doctors must spend more time communicating with their patients to create a more congenial atmosphere in the medical arena.
Patients should understand that doctors are not God and to err is human. This understanding will probably earn more respect, create a stronger bond and hopefully reduce litigation.
DATUK DR N.K.S. THARMASEELAN
Datuk Dr Tharmaseelan was a past president of the Malaysian Medical Association.