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Presented at the ANTIBIOTOC 5 program at the Faculty of Medicine Islamic University of Bandung on 25th December 2009 by Professor Omar Hasan Kasule Sr MB ChB (MUK)< MPH (Harvard), DrPH (Harvard)
1.0 PROFESSIONAL MISCONDUCT
1.1 ABUSE OF PROFESSIONAL PRIVILEGES
Un-ethical research on patients is abuse of professional privileges.
Abuse of treatment privileges consists of unnecessary treatment, iatrogenic infection, and allowing or abetting an unlicensed practitioner.
Abuse of prescription privileges is manufacturing, possessing, and supplying a controlled drug without a license, prescription of controlled drugs not following procedures, diverting or giving away controlled substances, dispensing harmful drugs, sale of poisons, and writing prescriptions using secret formulas.
Financial fraud may be pharmacy fraud (billing for medicine not supplied), billing fraud (billing for services not performed), equipment fraud (using equipment that is really not needed or using equipment of poorer quality), or supplies fraud. It is also illegal to get financial advantage from prescriptions to be filled by pharmacies owned by the physician. Kick-backs are unethical and illegal.
False or inaccurate documentation is a breach of the law and includes issuing a false medical certificate of illness, false death certification, and false injury reports.
Court action could be brought against a physician for the following crimes against the person: manslaughter (voluntary & involuntary); euthanasia (active and passive): battery for forced feeding or treatment; criminal liability for patient death; induced non-therapeutic abortion; iatrogenic death; abusive therapy involving torture; intimate therapy; rape and child molestation; and sexual advances to patients or sexual involvement.
The physician-patient relation requires that the physician keeps all information about he patient confidential. Breach of confidentiality can be done only in the following situations: court order, statutory duty to report notifiable diseases, statutory duty to report drug use, abortions, births, deaths, accidents at work, disclosure to relatives in the interest of the patient, disclosure in the public interest, sharing information with other health professionals, disclosure for purposes of teaching and research, disclosure for purposes of health management.
1.2 PRIVATE MIS-CONDUCT DEROGATORY TO REPUTATION, kharq al muru’at
Breach of trust is a cause for censure because a physician must be a respected and trusted member of the community. Sexual misbehavior such as zina and liwaat are condemned. Fraudulent procurement of a medical license, sale of medical licenses, and covering an unqualified practitioner indicate bad character. Physicians can abuse their position by abuse of trust (eg harmful or inappropriate personal and sexual relations with patients and their families), abuse of confidence (eg disclosure of secrets), abuse of power/influence (eg undue influence on patients for personal gain), and conflict of interest (when the physician puts personal selfish interests before the interests of the patient). Other forms of misconduct are in-humane behavior such as participation in torture or cruel punishment, abuse of alcohol and drugs, behavior unbecoming, indecent behavior, violence, and conviction for a felony.
1.3 PUBLIC PROFESSIONAL MIS-CONDUCT
Physicians in private practice must adopt good business practices. Halal transactions are praised (Zaid H539). An honest businessman is held in high regard (Tirmidhi K12 B4). Leniency in transactions is encouraged (Bukhari K34 B16). Full disclosure is needed in any transaction (Ibn Majah K12 B45). Measures and scales must be fulfilled (Muwatta K31 H99). Bad business practices are condemned. There is no blessing in immoral earnings (Darimi K20 B60). Selling over another’s sale is prohibited (Bukhari K34 B58). Cheating is condemned (Bukhari K34 B19). Also condemned are financial fraud including criminal breach of trust, riba on bills, fee splitting, bribery (Abudaud K23 B4). Sale of goodwill of a practice is allowed. Also allowed is agreement among partners that they will not set up a rival practice on leaving the partnership. Entering into a compact with pharmacists or laboratories involving fee splitting and unnecessary referrals is not moral. Treatment regimens can not be patented as an intellectual property. Physicians are entitled to a reasonable fee as ajr al tabiib (Bukhari K37 B16). Medical fees cannot be fixed by government because the Prophet refused to fix prices (Abudaud K22 B49).
2.0 MEDICAL MALPRACTICE / MEDICAL NEGLIGENCE
2.1 DEFINITION and DESCRIPTION
Malpractice is failure to fulfill the duties of the trust put on the physician. The term malpractice includes the legal concept of medical negligence. Negligence is breach of duty owed by the physician to the patient resulting in damage or injury. Negligence is defined according to the customary standards of care that are established by the profession.
Negligence may arise as battery which is injury due to intentional tort (a civil wrong in which liability is based on unreasonable conduct). The intentional torts are assault, battery, treatment without informed consent, false imprisonment or confinement, intentional infliction of emotional distress, and defamation (slander if verbal and libel if written).
Negligence also arises from abandonment of a patient or breach of confidentiality.
Negligence also arises in liability for drugs and devices.
A physician is also found negligent for negligent referrals, failure to warn about risks, and failure to report a notifiable disease.
Negligence also covers professional errors. The errors may be ordinary or extraordinary. They may be harmful or non-harmful.
2.2 BASIS OF LIABILITY
Three ingredients must be proved in a case of negligence: (a) the physician owed a duty of care (b) the physician failed in that duty (c) the failure resulted in damage.
2.3 MALPRACTICE SUITS: COURT PROCEDURE
The legal process follows several steps: filing a complaint by the plaintiff, serving a summons on the defendant, plea of guilty or not guilty by the defendant, discovery (lawyers for both sides collect more information by interviews, examinations, and collection of documents), opening statements at the trial by both sides, testimony and examination of witnesses, closing arguments, and judgment.
The burden of proof of breach of standard of care lies with the plaintiff. Proof of breach is based on a balance of probabilities, on the ‘but-for’ test, and on causation of damage or risk. Physician defense against malpractice suits rests on absence of duty, no breach of duty, lack of causation, and lack of damage. Instead of a trial, alternative dispute resolution procedures may be used: arbitration, mediation using an expert facilitator, fact finding and investigation of the case by an expert. Damages can be awarded for personal injury, death, wrongful birth or wrongful life, emotional distress, economic loss, and breach of confidence.
2.4 AVOIDING / PREVENTION OF MALPRACTICE SUITS
Malpractice suits can be avoided by obtaining and maintaining registration, sticking to defined professional standards of care, peer review, quality assurance, use of protocols, defensive medicine and politeness with patients. The best protection against medical negligence is the conscience of all health care workers to make sure that mistakes do not occur. Well written records can be a defense for the physician.
3.0 LEGAL TESTS FOR NEGLIGENCE: Bolam as modified by Bolitho
3.1 THE BOOLAM CASE
In a famous case tried in 1957, important legal principles were pronounced by the judge and they have subsequently become part of the law.
The background to the case was that Bolam, a mentally ill patient, suffered fractures during electroconvulsive treatment. This type of treatment was accepted as a normal treatment for mental disorders at that time. The patient had consented to the procedure.
When he suffered a fracture he sued in court. Two problems arose. He was not given full information when he was making his consent because he was not told about the risk of fracture associated with electroconvulsive therapy which was estimated at 1 in 10,000. He was also not given a muscle relaxant that decreases the risk of fracture during the procedure.
At that time there existed differences in professional opinions. Some physicians considered informing the patient about the risk of fracture and using a muscle relaxant as necessary whereas others did not think so. There was therefore no single standard of care against which the actions of the attending physician could be judge to find him negligent or not negligent.
The judge ruled that doctors could not be found negligent if they acted according to a professional opinion accepted by a reasonable body of medical opinion even if there could exist a contrary opinion by another responsible body of medical opinion.
3.2 THE BOLITHO CASE
In a subsequent case of Bolitho, a patient who suffered brain damage because the doctor failed to intubate, the court ruled that doctors are expected to follow responsible medical opinion but would not be found negligent in cases in which that opinion did not stand up to logical analysis. The court thus set a principle that the court could over-rule medical opinion that was not logical in a specific case. The implication of this was that medical opinion was not the final arbiter of the standard of care to be used in defining negligence.