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by Kumaraguru, Shah Alam

You may be aware of the many serious complaints against the medical profession as highlighted in the mass media recently. Subsequently, there were calls from health authorities to bar camera hand phones and even journalists in hospitals, and dissatisfied patients were advised not to complain to the press. It was also concluded that "most of the complaints were due to miscommunication" (check the Press archieves and you will find that they have been singing the same song for many years now) and that all complaints should be channeled to the Malaysian Medical Council (MMC) for 'action.'

Section 1.1 of the MMC Code of Professional Conduct (adopted by the MMC since 1986) does lay out a few commendable standards of professional responsibility but it also states that "The Council is not ordinarily concerned with errors in diagnosis or treatment, or with the kind of matters which give rise to action in the civil courts for negligence...". If the MMC's "primary duty is to protect the public", how can it then disregard complaints on medical errors in diagnosis or treatment? Would not making correct diagnosis and administering proper medical treatment and care be part of a doctor's professional duty? Is this an effective disciplinary mechanism to safeguard the public? In addition, is the MMC Code of Professional Conduct, among others, clear and concise, comprehensive, current and relevant?

Complaints of medical errors or negligence may be routinely 'brushed off' by the medical profession as being mere 'allegations' or 'perceptions' until and unless the complainants can successfully prove otherwise. The medical and legal profession may know only too well, in most instances, how impossible a task this may be. Victims of medical errors or negligence and their loved ones, not only suffer the pain and trauma caused by an adverse medical event but they further face the arduous task of having to prove their legitimate cases. Is it any wonder then that there was only 410 medical negligence cases settled in the twenty year period from 1980-2000 and the average compensation awarded by the courts for these 410 cases was RM6, 434.57 (NST, 1-September-2004). Even as recent as 2004, Madam Chay Tai Tai was awarded RM10,000 after twenty years for the loss of her husband's life caused by medical negligence (NST, 7-December-2004).On the other hand the courts have awarded tens of millions of ringgit in cases concerning defamation. Only recently, a businessman was awarded nearly RM5 million by the High Court as damages for defamation (NST, 21-March-2006).

Proving medical errors or negligence may be impossible due to, among others:

• The difficulty in obtaining written expert opinions based on medical evidence;
• The difficulty in having these experts to testify against their colleagues in the profession;
• The possibility of cover-ups;
• The possibility of fabricating medical reports and records;
• The application of the 'Bolam Principle' by the civil court in cases concerning medical negligence;
• The lack of specialist lawyers to defend victims of medical errors or negligence;
• The high cost of litigation;
• The lengthy court process; and,
• The lack of pertinent details in the consent forms (for surgery).

In addition, can the layman be expected to take on 'powerful' medical establishments, insurers or medical-defence unions/organizations? Private hospitals may even easily disclaim any responsibility or liability in the event of a complaint against their specialist consultants with "the said consultant is at all material times an independent contractor and is not an employee of... although patients may not be promptly informed of this during registrations, consultations or even admissions.

Just as the medical profession has the ability to save lives so does it have the ability to inadvertently cause serious harm to patients. A relevant health care study (DEATH BY MEDICINE, 10/2003) suggests that the average adverse patient outcome rate may be 20% with a mortality rate of 14%. The study also suggests that this figure may be significantly underestimated because the majority of such cases go unreported. According to press reports, Malaysia had a total of 65.7 million patients in 2003.

The following 'holistic' measures need to be urgently implemented:

• Compelling the Malaysian Medical Council to be fully accountable to parliament.

• Establishing an Independent Medical/Healthcare Complaints and Misconduct Commission to look into all complaints concerning health care speedily, effectively, fairly and transparently.

• Reviewing and reforming all existing laws pertaining to health care including the MMC Code of Professional Conduct, Medical Act 1971, Medical Regulations 1974 and the Private Healthcare Facilities And Services Act/Regulation. In addition, any unfair provisions in the Civil Law Act 1956 must also be reviewed to ensure that victims of medical and or personal injury are adequately compensated.

• Establishing a Royal Commission of Enquiry to enquire on all aspects of the health care system including the quality and standard of medical education and treatment and to make the appropriate findings and recommendations for comprehensive improvements to the health care delivery system as a whole for the safety and well-being of more than sixty-five million medical consumers in Malaysia.

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