Medical negligence suits have become an issue of concern for doctors as well as for the health service departments. The main objectives of medical malpractice law are to compensate patients who are injured by negligence and to improve the quality of medical care. The amount of money and time spent on these cases may not be an effective allocation of social resources to minimize patient safety. Though physicians generally win more malpractice suits, much time and money are spent and results in much stress to those concerned. There are certain controllable events in practice that render a physician more or less vulnerable to malpractice claims. Attempts by physicians to understand and prevent unwanted situations that can lead to litigation is important. The risk factors for medical negligence suits are discussed. The practice of good medicine will be the best form of risk management.
The ease and affordability of international travel has contributed to the rapid growth of the healthcare industry where people from all around the world are traveling to other countries to obtain medical, dental, and surgical care while at the same time touring, vacationing and fully experiencing the attractions of the countries that they are visiting. A combination of many factors has led to the recent increase in popularity of medical tourism such as exorbitant costs of healthcare in industrialized nations, favorable currency exchange rates in the global economy, rapidly improving technology in many countries of the world and most importantly proven safety of healthcare in selected foreign nations. Nevertheless, the development of medical tourism has certainly awakened many ethical and legal issues, which must be addressed. Issues pertaining to malpractice, consumer protection, organ trafficking, alternative medicine and telemedicine need comprehensive legal regulatory framework to govern them. Ethical issues are also been raised by the promotion of medical tourism in particular those pertaining to doctor and patient relationship. A future, where medical law is subsumed into various legal and ethical dimensions, poses serious challenges for the practice and ethics of medicine.
The decision of the Federal Court of Malaysia in abandoning the Bolam principle in relation to doctor's duty to disclose risks has clearly marked the decline of judicial deference to medical opinion in medical negligence litigation in Malaysia. It is undeniable that the Bolam principle has acted as a gatekeeper to the number of claims against medical practitioners. This has always been seen as necessary to protect the society from unwanted effects of defensive medicine. However, will these changes contribute significantly to the growth of medical negligence cases in Malaysia? This article will trace the development of the Bolam principle in medical negligence litigation in Malaysia since 1965 and analyse the influence of selected Commonwealth cases on the development. The implications of the Federal Court ruling will also be discussed.
Medical malpractice cases are a matter of much concern in many countries including Malaysia where several cases caught the attention of the public and authorities. Although comprehensive annual statistics on medical negligence claims are not available in Malaysia since such data are not collected systematically in this country there are indications of an upward trend. Medical malpractice cases have been publicized by the media, academic researchers and in government annual reports prompting government policy makers, oversight agencies and the medical profession itself to take appropriate action. The increasing dissatisfaction with the current tort litigation system requires exploring alternatives and new approaches for handling medical malpractice cases. This study aims to examine the difficulties inherent in the tort system in Malaysia for solving medical malpractice claims and evaluates the structure of this system from the perspective of effectiveness, fairness, compensation, accessibility, and accountability.
Strategically located at the crossroads of Asia, Malaysia has become one of the key players in the fast-growing and lucrative market for health care services in Asia. Medical travel across international boundaries has been made possible through affordable airfares and the favourable exchange rates of the Malaysian ringgit has contributed to the rise of the "medical tourism phenomenon" where medical travel is combined with visiting popular tourist destinations in Malaysia. Further, competitive medical fees and modern medical facilities have also made Malaysia a popular destination for medical tourists. Nevertheless, the increased number of foreign patients has opened up possibilities of Malaysian health care providers being subjected to malpractice claims and triggering a myriad of cross-border legal issues. Presently, there is no internationally accepted legal framework to regulate medical tourism and issues of legal redress in relation to unsatisfactory provision of treatment across international boundaries. The economic benefits of medical tourism must be based upon a solid legal regulatory framework and strong ethical standards as well as upon high-quality medical and health care services. It is therefore important to assess the existing legal framework affecting the development of medical tourism in Malaysia in order to explore the gaps, deficiencies and possibilities for legal and regulatory reform.
Medico-legal problems experienced by histopathologists differ from those of other clinicians as they are rarely in direct contact with patients. Nevertheless, the pathologist owes a duty of care to the patient and is liable for medical negligence. In the absence of local guidelines, it is prudent to follow guidelines published by learned Colleges elsewhere. This is also true when delegating duties to non-pathologists, technical and other support staff. Errors in diagnosis and documentation pose the most common problems in histopathology. In this, liability also depends on many factors including the provision of adequate clinical information by clinicians and competence of laboratory staff. Clinicopathological discussions, participation in quality assurance programmes and adherence to standard operating procedures are important audit activities to minimize and detect errors as well as prevent grievous outcome to patients. Issues also arise over the retention of specimens and reports. In general, wet, formalin-fixed tissues should be kept until histopathological assessment is finalized and preferably after clinicopathological sessions, and even longer if there is potential litigation. Reports should be archival. Paraffin blocks should be kept for at least the lifetime of the patient, and histology slides for at least 10 years, to facilitate review and reassessment. Despite adverse publicity in the foreign press over the use of human organs and tissues for research and education, it is accepted that processed tissues can be used for research and educational purposes provided the patient's identity is kept confidential. Nevertheless, it would be prudent to revise consent forms for surgery and autopsies to include the possibility that tissues removed can be stored or used for research and education. Good medical practice in pathology encourages a willingness to consult colleagues when in doubt, but advises that the treating clinician be informed if histopathological material is referred away for a second opinion. The Telemedicine Act of Malaysia (1997) requires practitioners outside Malaysia providing diagnosis through telepathology to hold a certificate to practice telemedicine issued by the Malaysian Medical Council. It is likely that the medico-legal scene in histopathology will change in the coming years with the advent of other new ancillary investigative techniques.
The medical practitioner has always had to juggle several roles. First and foremost, the doctor is a healer, a provider of curative services. Second, he is an examiner, an assessor of the patient's health status. Third, he is a researcher, always trying to push the boundaries of medical knowledge. Fourth, he is a rationer of services, he decides how best to apportion the limited resources at his disposal. Traditionally, the patient-doctor relationship has been largely exclusive in nature and the doctor would quite comfortably slip in and out of these roles, his focus centred on his patient's interests. In this era of large corporate health care providers, multi-billion-biotechnology industry, mammoth pharmaceutical companies, medical insurance schemes and international trade instruments, it has become increasingly difficult for the doctor to juggle these four roles. He is constantly subjected to conflicting demands. Patients' interests do not always come first anymore and patients are beginning to realise this. They no longer trust the medical profession unreservedly. There has been steady erosion of the patient-doctor relationship most clearly evidenced by the rising tide of litigation against doctors. There needs to be a reappraisal of these roles that the doctor plays. The conflicts must be recognised and addressed. Patients need to be informed and their interests must be protected if the doctor-patient relationship is to be restored. Medical malpractice suits are on the increase. The tort system as it exists is failing both doctors and patients. The question we must ask is what are patients looking for when they sue doctors? Most of the time they need compensation for the injuries suffered. Sometimes they are looking for accountability, they want the doctor to be punished in some way. Sometimes they merely want to air their grievances and know that they are heard. The current system more often than not takes too long to compensate, the process is a gamble and doctors who are clearly negligent quietly settle and are rarely censured. We need to revamp the existing system to allow for speedy and equitable compensation; true accountability; and articulation and auditing of standards of practice.