SHINE A LIGHT
Medical negligence – Who should pay?
However, the same cannot be said for public health and medical doctors. Government pays for damages awarded by the courts.
But in recent times, some have suggested those in the health public system themselves should be held responsible. The burden, they say, should not be entirely placed on the Government.
Cases of medical negligence often emerge when patients go under the knife. But there are other cases like the December 7, 2020 High Court ruling in Lautoka.
The Ministry of Health and Medical Services was ordered to pay $168,260 for the death of a child in 2015. The infant’s tongue was pierced with a stick. Upon taking the infant to the Ba Health Centre, the infant’s father, Viliame Tiko, was advised by a staff nurse to take the child home and wash the injury with warm salt water.
According to Mr Tiko, the nurse did not follow proper outpatient procedure. She failed to refer the infant to a doctor at the first instance, which led to the infection of the injury and the deterioration of the infant’s injury.
After two days, the infant was transferred to the Lautoka Hospital for surgery but later died.
Medical practitioners owe a duty of care to their patients. For those in the public system, it can be challenging.
While it should never be used as an excuse, public health practitioners are often under a lot of pressure. They attend to more people whenever they are on call. Along with this, they can face longer working hours.
Bureaucracy can also hinder efficiency within the system.
In 2011, at the High Court in Lautoka, Justice Sosefo Inoke had called for a change in laws, which gave doctors exemption from punishment. His comments followed a case between Abhi Manu and Dr Eddie McCaig, a now retired orthopaedic doctor, who was a renowned surgeon during this time of service.
Orthopaedics specialises in the musculoskeletal system – bones, joints, ligaments, tendons and muscles.
Justice Inoke said in his ruling: “This case highlights the need to change the law in two areas. The first is the immunity from personal liability of doctors, and for that matter lawyers and other professionals, who are employed by the government to practise their professions. Their negligent practices should not be at the expense of the public purse.
“I do not think it is right that a doctor should be allowed to practise with such impunity over many years and then move into private practice and take advantage of the seniority and experience that he gained under indemnity by the public purse. The second is the amount and extent of the compensation
which the Court should award to a patient who has suffered at the hands of the negligent doctor.” Justice Inoke ordered the Government, as employers of Dr McCaig, to pay $413,400 as compensation for loss and damages done to Mr Manu. Mr Manu had undergone spinal surgery at the Colonial War Memorial Hospital under the recommendation of Dr McCaig on September 7, 2001. Dr McCaig led the surgery. Court documents said Mr Manu suffered damage to sacral nerves, which resulted in him losing bowel and bladder control and sexual function.
Government has since compensated Mr Manu accordingly.
Shine A Light spoke to three prominent health professionals who spoke in detail on how medical negligence happens, who should be responsible and possible solutions.
While it may not be widespread and rampant in the country, it is important that necessary measures are implemented to ensure that everyone is protected, they believe.
WHO SHOULD BE RESPONSIBLE?
Dr John Fatiaki said there should be some responsibility for one’s actions borne by the individual.
Dr Fatiaki operates the Epworth Clinic in Waimanu Road, Suva.
He has been practising for the past 36 years with three years in full-time government service and 33 years as a private medical practitioner.
He is the immediate past president of the Fiji College of General Practitioners, and a life member of the
Fiji Medical Association.
Dr Fatiaki said professional indemnities existed to protect health practitioners from lawsuits.
Indemnity is a form of security against or exemption from legal liability for one’s actions.
Professional indemnity was included in the 2010 Medical and Dental Practitioners Act.
Under the Act, health professionals were:
Required to renew their license annually;
Undertake studies in their areas of expertise; and
Pay an annual fee of $1600 for indemnity insurance.
Under the law, private doctors are required to have private indemnities as part of the requirements for their annual practice licence.
Government, on the other hand, indemnifies its government-employed doctors, such as in the case of Dr McCaig.
“There may be some merit in having public health and medical practitioners in government service pay some part towards indemnifying themselves, however that is a matter between government and doctors in the public health service to decide,” Dr Fatiaki said.
Fiji Medical Association president Dr Basharat Munshi said an insurance company for health professionals was desirable.
Dr Munshi is the clinical director and general surgeon at the Pacific Specialist Healthcare in Walu Bay.
He was a consultant general surgeon for the Ministry of Health from July 2015 to June 2019.
“From our perspective, it’ll be good to have something like ACCF (Accident Compensation Commission Fiji), having one indemnity insurance company for all doctors in Fiji that would be the way to go,” Dr Munshi said.
“If Government is sorely responsible for indemnifying Government doctors, then of course you can end up in losing a lot of money potentially.”
An insurance company would mean offloading the risk of potentially losing a lot of money to a company that does medical indemnity. Dr Munshi said doctors could then have an annual subscription for their indemnity.
A prominent Suva-based private medical practitioner, who has been practising for more than three decades, said because of the paid structure in the past, the Government had decided to indemnify its workers.
“Government at the time had looked at the possibility of people paying, and then the Government said that people might not be able to afford that,” said the medical practitioner, who spoke on the condition of not being named.
“Now at this point in time, all general practitioners must have an indemnity cover.”
The prominent medical practitioner said today if something went wrong, society would want litigation.
“I think it should apply to everybody, people in the private sector are already paying their dues. Usually, Government doctors are affected, not the private practitioners.”
General practitioners and the health system will both need to protect themselves. The prominent medical practitioner said mistakes were bound to happen.
“What happens is the numbers are going up, the level is coming down, errors can take place and when it does, someone must be held responsible.”
WHY DOES MEDICAL NEGLIGENCE OCCUR?
There are several reasons that medical negligence occurred.
These included doctors being overworked and not having the right supply of medication.
“When you are trying to make do with what you have, you make mistakes, you are there trying your level best, long hours of work, high levels of concentration,” said the prominent health professional. “You look at the young doctors. Some of them have to work 32 hours in a stretch, and human concentration is six-eight hours.”
Health practitioners must be protected, so the onus is on the Government, said the prominent health professional.
“If [Government] wants the public system working with all the supplies needed and the right number of human resources, the right amount of credentials.”
Dr Munshi said medical negligence also occurred because of health professionals’ own knowledge and experience. Not having enough resources was another contributing factor, he said.
“All the standard operating procedures and every medical institution, where medical professionals practise, has to be spelt out quite well, medical professionals must adhere to these procedures, and there has to be a system of checks and balances as well that regulate the practice.
“So how can we do this, it all starts with training, you have medical schools in which we train doctors, once they’ve graduated they do a two-year internship programme.”
HEALTH SECTOR
All the three doctors agree that Fiji’s health sector needs improvement.
Dr Munshi said: “Fiji’s health system is definitely improving. A lot more checks and balances in place currently, it is a continual challenge as in other country, I think there is much more room for improvement as well, and it won’t happen overnight, it requires a lot of input from sectors of the society.”
Dr Fatiaki said the standards of hospital had deteriorated over the years.
“Unfortunately, in my opinion, the standards of hospital and public medical care appear to have actually deteriorated in my 30+ years of working in this sector.”
Permanent Secretary for Health Dr James Fong said Fiji was struggling with the supply chain.
He said many of the companies that supplied Fiji with medical tools had stopped making them.
“And when we buy it, they take a long time to get it across,” he said.
“We tried to look for other easier options, but the problem is if you look at easier options, you end up with low standards.”
Dr Fong agrees that while the number of doctors is increasing, the expectations are huge on them.
“What we do need to do is to make sure the doctors know more how to handle their patients so that they do not putt themselves in risky situations.”
IS THERE A NEED FOR GENERAL PRACTITIONERS (G.P)?
The three health professionals agree that people having their own GP is necessary.
Dr Munshi said a GP would reduce the burden on our public health system.
“The primary up to secondary level complaints, they are dealt with by private GPs, it’ll give the GPs much needed revenues, it saves a whole lot of hassle and waiting line in the public system, and then the public system can deal with more complex cases, that would be ideal.” Dr Fatiaki aired similar sentiments.
“Ideally, people should try to have a GP who they see first for most medical problems.
“This will help offload some of the work that the public health services (which are presently overburdened) have to provide and provide individuals with much more personalised care by a family GP who practices and resides in the community and who they get to know on a first name basis.”