Dentists say no to malpractice bill

As a rejoinder to my column on the strong opposition by medical practitioners to the House Bill No. 4955 (The Medical Malpractice Act of 2002) filed in Congress, Dr. Phoebe Lim Catipon of the Philippine Medical Association sent me printed articles on a number of hospitals in the United States having closed down because they could not afford the exorbitant insurance premiums they have to pay. In some cases, there are fewer doctors who will take on obstetrical cases for fear that a minor non-deliberate infraction could cost them millions of dollars in insurance payments.

Also, Dr. Catipon is wondering why other professionals like journalists are not required to buy insurance policies. Just as victims of indiscreet reportage and commentary by print and broadcast journalists have protection through libel suits, so can victims of medical malpractice find protection through the Revised Penal Code. In the end, says Dr. Catipon, it's the insurance companies and their lobbyists among broadcast journalists who will benefit from the malpractice bill. This bill requires all doctors to pay insurance policies of P500,000 to P1-million every year. Only a miniscule number of doctors may be found guilty of malpractice – so the insurance companies are actually going to be the ones raking in money from requiring doctors to buy insurance policies.

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Rolando Quimbo, legal counsel of the Philippine Dental Association, wrote me touching on the provisions of the bill. He says, "Unless the bill is re-drafted, it will cause injustice to both the medical practitioner and the patient."

– The term "medical practitioner" is vague, or very broad. It includes not only the physician, dentist, nurse, pharmacist, or paramedical personnel but also "other supporting personnel." The "other personnel," according to Quimbo, would include the generator operator maintaining the electric power during a surgical operation, the operating room attendant whose only duty is to set the instruments in order, or the therapists who would still perform their functions after an operation. "If the principle of conspiracy is invoked, then all the persons inside an operating room will be liable to the same extent as the person who actually commits the medical malpractice or illegal surgery." (This columnist's question is, will these generator operator, attendant, etc. be required to buy insurance policies too?)

– On illegal surgery, Quimbo says the bill qualifies that the surgery is "with intent to gain on the part of the person responsible for such surgery." This places, he says, private practitioners and private hospitals as "a gross disadvantage because since they practice or render services generally for a fee, then "intent to gain‚ can always be imputed to them."

– The definition of "malpractice" is "the unkindest cut" of all, writes Quimbo, as it refers to "any personal injury, including death, caused by the negligent or wrongful act or omission of any medical practitioners."

"Any injury," says Quimbo, "is so broad and general that it can include "gasgas," "pasa," or even just a pin prick. These are admittedly very minor injuries but they are meted the same penalty as in case of death.

Unless existing laws and jurisprudence, awards of damages and penalties for unintended acts or omissions resulting in damages or injuries to others are based on the fault, negligence or imprudence on the part of a person (Civil Code, Article 2176, Revised Penal Code). The bill, says Quimbo, introduces a new basis of liability, i.e., the "wrongful" act or omission of a medical practitioner.

According to Quimbo: "Unlike in civil and existing criminal laws in which the fault, negligence or imprudence must be committed by the medical practitioner, the "wrongful act of any medical practitioner" may not necessarily be attributed to him. For under the particular circumstances and exigencies of a case in which a practitioner has to conduct an operation or procedure, what he does may not be wrongful, at least insofar as his honest diagnosis is concerned. But to other practitioners, certain other act or procedure could have been done. Would this make the former‚s act "wrongful"?

Different surgeons or physicians have different diagnosis, in the same manner as men may differ as to whether a glass in half-full or half-empty or the egg coming first before the chicken."

It is obvious that there is stiff objection to the passage of this bill. The bill needs re-drafting in order to give justice to the claims of its being unfair.

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