The Debate on Decriminalizing Malpractice

Not long ago, a judge at the Tai­pei District Court filed charges of negligence against a surgeon at National Taiwan University Hospital (NTUH) as well as four laboratory technicians who had previously examined him, seeking NT$9 million in compensation in a dispute over the removal of his gall bladder. When the news broke, it caused an uproar in the medical community, where there was overwhelming support for the accused.

Seven years ago, a neurosurgeon at Tungs’ Tai­chung MetroHarbor Hospital in Tai­chung performed an operation on someone who had been severely injured in a motor vehicle accident, but after the surgery the patient was left completely paralyzed as well as blind in both eyes, and the family sued. The appeals court judge discovered that after the operation the doctor had failed to use an intracranial pressure monitor, and because of this negligence­ awarded the plaintiffs NT$33.41 million. This award drew another fevered response from the medical community.

No two people are alike, and different individuals will respond differently to the same kind of surgery, giving rise to unique complications. There are no certain outcomes.

It is estimated that an average of 36.7 doctors in Taiwan are indicted on criminal charges each year as a result of medical disputes. Last year, for example, prosecutors’ offices at the district court level took on 24 cases in which 81 doctors were accused of professional negligence leading to death.

Liu Hung-en, an associate professor at the College of Law at National Cheng­chi University, points out that even if doctors are ultimately charged with criminal offenses, most of the time they are found innocent, and even if found guilty are usually given only suspended sentences. Very few physicians ever actually go to prison. But defending oneself against criminal charges is nonetheless very stressful, expensive, and time-consuming.

While working at NTUH, surgeon Hung Hao-yun was involved a medical dispute, and had to go through mediation. “When I got the subpoena from the court, my first reaction was that I was a failure.”

“Being accused causes front-line doctors to lose the courage to treat patients,” says Dr. Chen ­Jiaru, who has given up on directly dealing with patients. Two of the four attending surgeons who were her supervisors when she was a resident had been subjected to legal action.

She personally observed the legal process for one of them. A middle-school student was brought to the emergency room suffering from low blood pressure and dilated pupils. According to the computed tomography (CT) scan, there was a large tumor pressing on the brain stem. There was an emergency meeting with a neurosurgeon, who then explained the situation in detail to the family, informing them that the surgery would be very risky. The patient did unfortunately die and the family, unable to accept the situation, brought a legal action against the doctor.

“This event made a deep impression on me,” says Chen ­Jiaru. “I thought to myself, ‘Holy Cow, I am not even one percent as skilled as that doctor, but even he couldn’t avoid being indicted on criminal charges.’ I really began to wonder if I would be able to handle such a high-risk profession!”

Birth, aging, illness, death. Modern people seem to spend a large part of every critical life passage in the hospital. Though these stays often produce touching stories and happy endings, they also can be occasions for mishap, frustration, and recrimination.

Trying to save lives goes with the territory if you are a doctor, but it is impossible for doctors to accept that failure in the ­attempt makes you a criminal.

In fact, few patients or their families really want to see doctors put behind bars. According to the Taiwan Healthcare Reform Foundation (THRF), which receives hundreds of appeals per year to take legal action over medical malpractice, the main reasons that people sue are that they want to know where the treatment went wrong or they want compensation to cover the costs of long-term care in cases where the original intervention left the patient incapacitated.

“This is a lose-lose-lose situation. The government loses, the public loses, and doctors lose,” says Yaung Chih-liang, chair professor in the Department of Healthcare Administration at Asia University and former minister of health.

In other countries, unless the doctor acts “deliberately” to cause harm, criminal law is rarely applied to medical malpractice, but in Taiwan, most people go through the criminal process: About 20% of medical disputes in Taiwan are resolved through the courts, and in about 80% of these cases criminal charges are filed. Why is that?

Liu Hung-en points out that in civil cases, the plaintiff, a civilian, has the burden of coming up with evidence to prove the doctor’s or hospital’s culpability. But an ordinary person has no powers to conduct an investigation or question witnesses, so proof is hard to come by. That is why most people turn to the prosecutors’ office and file criminal charges, because the prosecutor can conduct a full investigation. Thus criminal law is applied even when the plaintiff’s only real goal is simply to get compensation. (This is why the THRF advocates amending the Medical Care Act to stipulate that local government bureaus of health must provide basic administrative and investigative assistance, taking responsibility for collecting evidence; only then will people stop feeling that there is nowhere to turn but the criminal law.)

For many years now the medical profession has been calling for decriminalization of malpractice suits. They argue that there are special circumstances connected to medical care that make it different from other professions.

Compare, for example, the death of a patient under treatment to the case of someone struck and killed by a careless truck driver while on the job. As Jack Chee-fah Chong, a doctor in the Department of Emergency Medicine at Shin Kong Wu Ho-Su Memorial Hospital, analyzes the problem, a person just walking on the street is in a healthy state and only comes into danger as a result of the professional negligence of the truck driver. But a patient coming into a hospital is already in danger, and the intervention of the doctor is intended to save the patient. Even if unsuccessful, people should understand that the death is not by definition a result of negligence.

Pediatrician Lin Bing­hong suggests that medical treatment should be seen as a “blocking maneuver,” without which the patient’s condition would worsen. But no one can foresee the outcome of medical treatment. “The doctor is like a goalie in a soccer match; of course he wants to save every shot, but he can’t be successful every time.”

It is not always easy to determine cause and effect relationships when it comes to medical treatment.

Surgeon Hung Hao-yun points to his own field as a case in point. If things don’t go as anticipated after surgery, the patient and family are likely to assume there has been negligence, whereas most doctors just consider that there have been “complications.” The problem is that it is very difficult indeed to draw the line between the former and the latter.

Mistakes in diagnosis and treatment are even more likely where every second counts—in the emergency room.

Chiu Wen-ta, minister of the Department of Health, says ER doctors often contrast themselves with judges: “You’ve got about three minutes to make a decision, and if you are wrong you will be indicted. A judge can preside over a case for more than a year, and if he gets it wrong nothing happens to him at all.” Chu Shu-hsun, president of Far Eastern Memorial Hospital, adds: “Even if a judge makes an error that actually amounts to professional negligence, then the state pays compensation to the victim. Doctors work for hospitals and the Bureau of National Health Insurance, so shouldn’t hospitals and the BNHI take responsibility when there are medical disputes?”

Calls for decriminalization of malpractice, though longstanding, have consistently been met with opposition from the Ministry of Justice and from non-governmental groups like the THRF.

The position of the MOJ is that the medical profession cannot be privileged, which is to say that it cannot be treated differently from other professions. C.V. Chen, chairman and managing partner at Lee and Li Attorneys at Law, has written that decriminalization of medical disputes would have implications for the legal equality of all professions, and doctors cannot alone among all professions enjoy immunity from prosecution. Better and more feasible approaches would be to improve doctor-patient communication, to change the attitude of using criminal law as leverage to force a settlement, and to make it easier for patients to seek compensation under civil law.

Looking elsewhere in the world, most countries have not fully decriminalized medical disputes. In both Germany and Japan doctors may be held criminally liable for professional negligence, and in the US and UK, doctors can be punished under criminal statutes for deliberate malpractice or extreme negligence. What’s different is that all other countries have the option of resolving medical disputes through civil-law procedures in which hospitals—who after all have all the documents, test results, and witnesses in their hands—have the burden of proving that no error was made.

The role of insurance companies is also a critical variable. Lee Ming-been, president of the Taiwan Medical Association, points out that there are about 90,000 medical disputes a year in the US, but in only about 2000 is compensation awarded by a judge through a court trial—the rest are mainly handled by insurance companies. Doctors take out malpractice insurance, and disputes are generally handled directly out of court between the plaintiff’s attorney and the doctor’s insurance company.

Former legislator and well-known physician Shen Fu-hsiung agrees that resolution of medical disputes should start with insurance. Twelve years ago, when he was still a national legislator, he proposed a system of “no-fault medical malpractice insurance.” In any case of death or injury resulting from medical treatment, there would be compensation. Half the compensation fund would come from the NHI system, and half from doctors, who would pay different premiums depending on their field (i.e. higher premiums in more high-risk specializations). “At that time nobody was interested, because no one had yet begun to feel that the problem was serious enough.”

Meanwhile, “citizens also need to be educated,” advises law professor Liu Hung-en. Medical treatment cannot be judged based purely on the result—whether the outcome is positive or not is a separate issue from whether there has been negligence. Also, a lot of people are not clear on the fact that negligence is judged against the standard of a doctor of ordinary ability, not against the standard of the most skilled doctor imaginable.

Before turning to the courts of law, perhaps the best first step in minimizing the hazards of the doctor-patient interaction is just to rely on positive communication, and to assume that whatever happens, both parties are doing the best that they can to arrest the real villain: the patient’s ailment.