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Published on December 18, 2007

Recent convictions of doctors for medical malpractice in criminal and civil suits filed by patients and their families have put the spotlight on the relationship between health professionals and their patients. Earlier this month, a Nakhon Si Thammarat court found Dr Suthiporn Kraimak, of Thungsong Hospital, guilty of malpractice in connection with the death of a patient in 2002.

According to the Court, Suthiporn did not exercise proper care in delivering a spinal anaesthetic to an elderly patient suffering from appendicitis, which led to cardiac arrest and related complications that eventually resulted in the patient's death. The doctor had to administer the anaes-thetic herself as Thungsong Hospital had no anaesthetist on staff. Suthiporn was sentenced to three years in prison after being convicted of recklessness causing death by the Court. The doctor is expected to appeal the Court's decision and will be represented by defence lawyers appointed by the Public Health Ministry.

Medical experts point out that the chances of a patient going into cardiac arrest after being given a spinal anaesthetic are about two-to-six for every 10,000 cases in the country. The Medical Council, the governing body for medical doctors, said that it was normal procedure for anaesthetists to administer anaesthetics.

However, the great majority of the almost 700 district-level government hospitals, including Thungsong Hospital, do not have anaesthetists on staff. That's why general practitioners and surgeons at those hospitals have to double as anaesthetists, which tends to increase their exposure to malpractice claims.

This case exemplifies key points of the debate on how Thai society should seek a balance between promoting patients' rights, while shielding medical professionals from excessive litigation.

One of the most controversial moves related to the debate was the Medical Council's move to grant doctors the right to refuse to treat patients in non-emergency cases, while offering them protection against malpractice lawsuits. The council asserted that it was the right of doctors - in cases of a lack of expertise in a given area, excessive workload, or hospital shortcomings - to refuse to treat people whose lives are not in danger.

The council argued that doctors, particularly those working at public hospitals, are often overwhelmed by patients, which forces most of them to spend less time with each patient, thus increasing the risk of misdiagnoses and the wrong treatment being provided.

The council sought to protect overworked doctors at state hospitals by drawing up guidelines, which could serve as the basis for a future law. One point in these guidelines states: "Sometimes in medical treatments, unwanted, unforeseen circumstances may occur despite sufficient caution and care taken by the physician, and that shall be regarded as a force majeure."

The controversy surrounding the rights of patients versus those of doctors is part of a long running, usually emotionally charged debate. Human rights and consumer protection advocates insist that victims of medical malpractice need to be able to seek redress in the courts and doctors should not be granted immunity from prosecution in cases where malpractice is suspected to have taken place.

Both sides have legitimate concerns that must be addressed. It is important to understand that what Thailand, as a society, must try to do is find a middle path that represents the greatest good for the greatest number of people.

In the future, a specialised piece of legislation must be drawn up with input from both the Medical Council and human rights and consumer-rights advocates. It is generally agreed that the Criminal Code and Criminal Procedures, which have been applied in the prosecution of medical malpractice lawsuits in the absence of a specialised law, is a blunt instrument that is liable to abuse.

Both doctors and patients must also be assured that safeguards will be put in place to prevent frivolous claims for compensation.

Good doctor-patient relationships must be protected against excessive litigation. Most of the time, good communication between medical professionals and their patients to ensure that expectations of available treatment options and associated risk factors are understood by all sides is all it takes to avoid a visit to the lawyer's office.

The Nation