Groups divided over bill on compensation for medical errors

What would you do if a member of your family was injured during medical treatment?

Make your doctor responsible for it. Yes, but how?

Though there are many channels to seek justice for a victim of medical errors, many end up filing legal suits, a process that consumes money and time. Moreover, the verdict is sometimes not really what the victim wanted.

"I didn't want the doctor to go to jail, I just wanted someone to be responsible for the death of my mother," Sirimas Kaewkongchant said last year when Thung Song Court in Nathon Si Thammarat sentenced the young doctor to three years' imprisonment.

The court said the doctor did not take proper care when he delivered a spinal anaesthetic to her mother, who was admitted for appendicitis. The malpractice eventually led to the death of her mother.

Last year's verdict became the first of its kind that sent a doctor to jail without probation.

It has since intensified the debate on the accountability of doctors for medical errors.

At present, medical accountability is under the tort system that both Civil and Criminal Code and Procedures apply in the prosecution of malpractice lawsuits.

"A legal system that aims to find the culprit might not be a good solution for medical liability, particularly when the medical error is unintentional," said Leuchai Sri-ngernyaung, a medical anthropologist at Mahidol University.

According to Leuchai, no one but lawyers benefits from the tort system. A criminal suit might deprive the country, already facing a shortage of doctors, of an active doctor. At the same time, the victim might not be compensated.

In a civil case, the victim might be compensated, but most of the money would go towards administrative expenses such as lawyers' fees and court costs, he said.

In recent years, the conflict between doctors and patients has intensified as more legal cases were filed against doctors.

So far, 75 doctors working for hospitals under the administration of the Public Health Ministry became defendants and 13 were convicted for malpractice.

"We are approaching a medical crisis as patients and doctors have lost trust in each other," said Dr Pongpisuth Jong-udomsak, director of the Health System Research Institute (HSRI).

With the realisation that the tort system would eventually lead to the collapse of the medical services system, victims of malpractice, as representatives of the general public, and the Public Health Ministry last year agreed in principle that the system to deal with medical-error cases should be shifted from the tort system to no-fault system.

The Medical-Malpractice Victims Fund Bill then was drawn up and is now already in the process of the Council of State, waiting to be proposed to Parliament.

Based on the idea that doctors could unwittingly make mistakes, the bill provides protection to doctors and compensation to the victims.

A compensation fund would be set up with the major source of money from the government and hospitals.

If enforced, victims of medical errors would be compensated without a process to look for a culprit.

Moreover, the bill has also set up a reporting system to go parallel with the compensation process that doctors have to report their malpractice case to another committee.

The reporting process aims to help the ministry to understand the risks of malpractice and seek a measure to minimise the risk while maximising patient safety, said Pongpisuth.

However, an attempt to implement a no-fault system might not be on the smooth path as the Public Health Ministry has added a clause in the bill saying that victims could not return to the tort system once they agree that their cases be processed under the compensation fund.

The additional clause was unacceptable to the Network of Medical Malpractice Victims, which decided to draw up its own version of the bill to insist that the rights of the victims to bring the case to court must be protected.

Then last week the National Health Commission came up with another version of its own with an additional cause saying the negotiation process must be held before the victims received compensation.

The Public Health Ministry, the victims' network and the National Health Commission all vowed to submit their drafts directly to Parliament. However, Pongpisuth said his office would try to reconcile the differences by holding a meeting between these groups very soon.