Medical liabilities
by Luís Almeida Carneiro and Anabela Aguilar Salvado
Introduction
Medical responsibility is a subject of growing interest, both for the medical establishment and for the public. In fact, in the information era, the members of the public have become fully aware of their rights, namely, the results of their relationship with the activity of clinical practice and as a result, they have become more critical and demanding.
However, until only a few decades ago, few patients would have resorted to the matter of medical responsibility litigation.
According to the words of Professor Lesseps Lourenço dos Reys:
“Medicine used to exist in a status of grace arising fundamentally out of the fact that in the public’s collective imagination, a doctor is still seen as a semi-mythical figure, a benefactor who always intervenes for the good of the patient. If something wrong occurs as a result of the doctor’s work, the patient (or their families) used to adopt an attitude of resignation when faced with the limitations of medical science, they never dreamt of accusing the doctor of negligence and attributing to the doctor the blame for the injuries caused. A system of paternalistic medicine still exists, in which the doctor has been considered as a good family father figure, who has treated the patient with all of the devotion that a good caring father would do for his own child.”*
From patient to consumer/client – The responsibility for the supply of medical services
In the last few decades of the twentieth century, a change has taken place in this pattern.
This change has essentially been due to the following factors:
The creation of a system of public health which puts health care services at the disposal of all sectors of the population, who until then, never before had access to health care services;
The putting into service of a range of ever more and better equipment into the medical sector;
The increase in the investment in the health sector: And, the rapid development of knowledge in all areas of medicine.
All of this has contributed to a breakage in the traditional relationship between the doctor and patient. The patients have changed to become “consumers” of the health services and the doctors have become the “suppliers” of health care, giving place to a relationship of a “contract” arrangement between them.
The “consumers”, contribute through their taxes for the creation and maintenance of an organised and collective Health Service, establishing with the health professionals, or with the health service supply organisations (hospitals, health centres), a relationship of a contract or a semi-contract, in which on the one side - one has to pay and on the other side one will be benefit from a service.
It is in this new context that the matter of medical responsibility continues to increase and does so with ever more intensity. The matter of medical responsibility is checked and compared in the presence of the duties and obligations which doctors assume in the exercise of their profession.
In this case, there are three courses of action: the disciplinary responsibility, the civil responsibility, and the criminal responsibility.
Disciplinary Responsibility
The regulation of medical ethics has primarily been an internal procedure carried out by their own medical profession. The medical responsibility puts into evidence duties and obligations which the doctor assumes as a matter of course in their professional practice.
The prescribed and obligatory inscription in the Order of Physicians binds doctors to the discipline of the Order and thus acts as a beacon to their activity, both in the observance of ethical values and of good practice in the framework of the long established principles, long since disseminated and accepted as an essential condition of their work at the start of their medical practice.
Furthermore, the Hippocratic Oath establishes a set of values which, without being a written document with legal effect, nevertheless, does constitute a matter of moral and ethical interest.
When a doctor violates the duties laid out, he brings upon himself the professional and disciplinary responsibilities assessed by the bodies and colleges of the Speciality, by the Order of Physicians, by any delegated competency and by the executive powers.
Violation of the duties arising out of the Statute of the Order of Physicians would constitute disciplinary breaches of the Code of Ethics and breaches of the further regulations of the Law, Article 73, No. 1 of the Statute of the Order of Physicians.
Civil Responsibility
The question of civil legal responsibility of doctors is not a new matter, thus, it has reached a particular level of attention of the public and of the social communications media during the last decade.
In our legal system, the civil responsibility of the doctor complies with the principle of establishing blame which must derive from the deeds of doctor, who can only be held civilly responsible for the losses caused to their patients, when proof is established, such that these losses result from the culpable behaviour carried out by the doctor.
This is because when a doctor agrees to treat a patient, he assumes upon himself the obligation to utilise the most appropriate means within his own reach and to treat the patient in conformity with the known teachings of medical science.
This represents an obligation of the means used and not an obligation of the results achieved. This obligation of the means exists when a doctor is tied to the supply of a service in which in its provision, the doctor has to exercise some attention or care and a due diligence required by the circumstances in accordance with their own competence, with the resources available, with the leges artis (rules of the profession) and with the scientific developments which he had at his disposal, or which were required of him, or which he had access to up until the moment of carrying out the procedure, without it compromising the attainment of the desired results.
For civil responsibility to exist, some presumptions need to be verified simultaneously:
1. A verification and characterisation of the damage alleged on the part of the complainant;
2. The definition and characterisation of the medical conduct as a result of which the damage is presumed to have resulted and whether this conduct does or does not conform to the leges artis (rules of the profession);
3. The establishment of the link of causality between that conduct and the respective injurious consequences;
4. That the doctor acted with negligence or with deception in the matter of their conduct which has not been in accordance with the leges artis (rules of the profession);
5. In some cases, whether the responsibility of the doctor is individual or is jointly with others.
The process of civil responsibility is derived from the patient’s complaint, from which the injury caused was a consequence of the faulty conduct of the doctor, for which a reparation or an indemnification to the complainant was required.
The civil responsibility confirmed and arising out of it then results in the obligation for reparation for an injury caused and resulting from the intervention of the medical practitioner.
Criminal Liability
Criminal Liability is considered to be an extreme measure, an “ultimate sanction” of the legal system for the protection of the rights of patients.
The protection of the rights of the patient needs to find a recourse, preferably and by means of the rule of law, as in the case of civil responsibility.
In the matter of criminal responsibility for doctors, it is to be found enshrined in the Articles 150, 156 and 157 of the Portuguese Criminal Law Code and it is aimed at apportioning responsibility to doctors for activities related to the exercise of their profession, in which the clinical intervention has not been conducted in accordance with the leges artis (rules of the profession), or has been conducted by way of deception or by negligence.
Conclusion
The Portuguese Legal System, as well as the laws of the other countries of the OECD, accept the primacy of the defence of the rights of the citizens and of the apportioning of responsibility for any acts resulting in injury, but always when it was practised with the faulty acts of the agent.
However, the systematic recourse to the apportioning of medical responsibility can bring with it a perverse effect in the changed manner in the exercise of medicine.
As a method of safeguarding himself from an eventual legal action, the doctor will have a tendency to ponder on the legal terms. As a result, he will practise a form of defensive medicine which will convert to an excessive and at times, unnecessary number of requests for complementary diagnostic examinations and / or requests for prescriptions.
Thus, it transforms this manner of practising medicine into an aggravation of the process and a resulting increase in costs for medical and pharmacological assistance, without any corresponding qualitative improvements for the patients.
This medically defensive exercise can only be rationalised through a clinical practice assisted by the following of two principles: The principle of a strict fulfilment of the legis artis (rules of the profession); And, the principle of keeping complete and permanent information about the patient, which will transform itself formally into the respective consent by the patient.
Finally, it is fitting to emphasise that the medical responsibility is not exhausted by the judicial or legal responsibility of the doctor.
Above all, it is an ethical and moral responsibility, by which it constitutes the most important aspect of the professional responsibility of the doctor.
Luís Almeida Carneiro and Anabela Aguilar Salvado Lawyers for the Espanha & Associados - Sociedade de Advogados. (Espanha and Associates – Company of Lawyers)
* In Responsabilidade civil dos médicos, Journal of the Lisbon Faculty of Medicine, Series III, Vol. 5, Nº 5, September/October, pages 305 to 312.