Bad treatment - Tedious task for claimants in medical malpractice suits
Published:Sunday | July 26, 2020 | 12:29 AMCorey Robinson - Senior Staff Reporter
Scores of Jamaicans are suffering in silence as they face an uphill battle for justice in medical negligence lawsuits locally.
The matter comes under scrutiny amid cries of exhaustion from some doctors, many of whom claim their mental and physical health are being affected by long working hours with limited resources in the public healthcare system.
Some doctors, like Dr Morais Guy, opposition spokesman on health, believe such conditions only sets up medics for accidents. Ultimately, it is the public who will suffer the physical and life-changing implications, even as they seek compensation through the courts.
But justice in these matters is a complicated affair, explained attorney-at-law Kevin Page, who has worked on dozens of medical negligence cases in the last decade, mostly as victim representation, but also as defence counsel in the Attorney General’s Chambers.
Critical to the process, he said, is securing a detailed medical report from other experts about clients’ injuries, which – for one reason or another – is often unsatisfactory for the matter being pursued.
“For a medical negligence case, you need the necessary support in medical documentation. You have to get a medical report that not only outlines your injuries, but also set out how the medical treatment you received may have led to the injuries you now suffer,” explained Page, adding that he has seen at least 50 medical negligence cases in the last year.
Of that number, only 10 cases have been pursued in court, he said, citing pregnancy-related matters among the most prevalent.
“When we examine what they are able to get, ... in some cases, clients are not able to get anything, and, of course, you know, we can’t bring the matter to the table. The numbers might look low, but these are only a fraction of what comes in,” Page said, adding that for about 40 per cent of the cases, there was either not enough evidence to pursue or the matter failed to stand up in court.
He explained that even with a medical report, such matters are tricky in court as every surgery carries some amount of risk.
“Sometimes, they (client) may be able to get a medical report that only sets out the results of the complication from the surgery, but a lot of the reports don’t go so far as to say, ‘This treatment caused this situation’. In some cases, the medical report doesn’t give us a lot to work with ... . Some doctors may not go into further details, for whatever reason, but I can’t comment on why.”
Other attorneys who spoke to The Sunday Gleaner chided a pledge of allegiance among doctors that prevented local doctors from testifying against colleagues, leaving only the more expensive option of seeking the input of medical experts from overseas.
FEAR OF REPERCUSSIONS
“I suppose they don’t feel comfortable criticising their colleagues ... . A lot of factors account for that kind of behaviour: fear of repercussions in terms of promotions, friendships, etcetera. So perhaps, [one way to go about it], as was done in one matter, was to have a committee of doctors, say three, one selected by the claimant, one by the defendant and the third by those two,” said one female Queen’s Counsel, who asked not to be identified.
Some bizarre medical negligence cases have been brought against the State in the last two decades, according to reports obtained by this newspaper through an access to information (ATI) request. In one instance, a 26-year-old lost her ovaries after doctors at the Annotto Bay Hospital in St Mary failed to remove a sponge from her body following a Caesarean section in 2006.
At the Spanish Town Hospital in St Catherine, a woman who suffered a miscarriage in 2011 had her uterus accidentally removed purportedly in the process of treating a miscarriage.
At the May Pen Hospital in Clarendon, a man’s intestines were accidentally cut during surgery to have his right inguinal hernia surgically repaired. The botched surgery has resulted in the man, a mason, being jobless, and having to wear adult diapers.
Other cases were brought for medical apparatuses such as scissors and injection needles being left inside patients’ bodies after surgery.
On Friday, Guy said the matter of overworking doctors within the healthcare system must be addressed.
“There is always the potential for exhaustion to cause potential misdiagnosis or mismanagement. The attending physician is always expected to be alert, and if there is sleep deprivation, then certainly, it can cause the mind to become a little puzzled. It could be a situation where [doctors err] even in writing a prescription, in terms of the medication, the dosage or the duration of time. In your mind, you have written the correct thing when it is not,” he said, adding that such situations could be corrected by a trained pharmacist. Others, however, cannot be remedied so easily.
“The challenge is at the surgical table when the doctor is overwhelmed and as a result of exhaustion, as we have heard in interviews that doctors actually fell asleep standing up, now that is a cause for concern,” he stressed.
At the same time, president of the Jamaica Medical Doctors Association, Elon Thompson, chided the Government and administrators of healthcare facilities for many of the mishaps that come from doctors on the job.
QUALITY ASSURANCE
“You have to strengthen quality assurance in the hospitals and that will limit your medical malpractice. That is one of the major things. Mistakes will happen in hospitals, we all know this, but where a mistake is made, what is the response to the mistake?” Thompson asked. “Are there reports that are made? Remedial actions? Is this repetitive mistake? Or is it that the person just doesn’t understand what they are doing?
“What type of action is taken? And the action that is taken should not be one which puts down the staff. It should be one of trying to remedy the staff and uplift the staff member. If it is repetitive now, then clearly some larger action must be taken,” he said, “but it all comes down to improving quality assurance.”
As it relates to the lawyers’ claim of doctors declining to give evidence that will incriminate their colleagues, Thompson responded: “I don’t think most well-thinking, good-practised doctor is going to not speak facts. If they are asked a direct question, then they are going to or should answer facts, and not necessarily curve the story to benefit one person or the other.”