22 August 2002

An Open Letter to
Congressman Oscar Rodriguez
House of Representatives

Your Honor:

We, all physicians and surgeons, rise to convey our anxieties concerning the Medical Malpractice Bill of 2002 that you introduced. If enacted into law, we are sanguine that it will be adverse to public interest and good medical practice. Allow us to present the logic of our argument and state our position, lest our silence be misconstrued as acquiescence.

First, the bill violates the constitutional provision of equal protection clause. While it purports to protect the rights of the patients, it completely disregards the rights of the physicians. In Sec. 5 N. 4, any act of a physician that results in bad outcome, regardless of cause or circumstances and prior to any due process is already considered as a "crime", and any hospital personnel who may learn of such an incident can file a complaint against the physician. This provision clearly opens the door for any unscrupulous individual to malign a physician at any instance of a bad outcome on any patient. Your honor, in the practice of medicine, bad outcome is not always equated with negligient care. Many factors related to the patient and beyond the physicians' control can always contribute to a bad outcome.

We are really curious why such a bill must be addressed only to the practice of medicine. Why is there not a bill that would apply to lawyers, engineers, architects and other professionals? Consider that all of us deal with lives, property and the future of this country. Buildings built by engineers collapse, clients defended by lawyers are sent to the gallows and architects design ugly structures. In the latter, such an act is not different from “physical disfigurement” cited in the bill. To extend our argument closer to your home should there not be also a law punishing lawmakers for enacting laws that are inimical to the interest of society? Consider the passage of the now lamented power bill, the Batasan Nuclear Plant (we pay $400,000.00 a day in interest), the flip flop and confused attitude concerning the death penalty? These are but few of the historical mischief committed by legislators. We could, sad to say add more.

Second, in “Sec. 2 Declaration of Policy. It is the policy of the State to ensure the safety of an well-being of patients by providing them with professional medical care.” is a statement of motherhood. However, the body of the bill creates an environment that is adversarial and unprofessional. In place of mutual trust, a climate of fear and antagonism between physicians and the public is fashioned. In fact, from a gestalt the bill treats medical practitioners as criminals similar to kidnappers and drug pushers. The most fundamental constitutional right is to a Code of Law that provides consistent protection for good behavior, and consistent penalties for behavior that is not. The malpractice bill denies both patients and physicians these fundamental rights.

Third, “Medical practitioner” [Sec 3 (1)] includes “paramedical or other supporting personnel”. Yet under punitive sections (Sec. 7 and Sec. 9) only the physician is subject to punishment. The vague provisions place the onus of responsibility on the physician even if the mistake is made outside of his control. Consider the circumstance when a mere typographical error by the clerk can give a false laboratory result upon which a physician is to make a decision. Mind you, Sir, despite the many errors made beyond our control, experience shows that we have exercised extreme prudence ever conscious in our vow to protect the best interest of our patients.

Fourth, Sec 3 (3) “malpractice” refers to “…wrongful act or omission…” This practically imprisons the physicians to a state of paralysis. Here is an instance where the physician (or anybody) would be deterred from doing a Good Samaritan deed even if the situation was an emergency. Suppose a Congressman develops a stroke or a heart attack while aboard a plane? No right thinking physician (or even a flight attendant) will attend to the congressman as unavoidably he would do an “act of omission”. No airline will provide ideal medical equipment in their planes.

Fifth, Sec. 3 (2) defines “Illegal surgery” removal of healthy organ/s without the consent of the patient…” The provision would practically nullify harvesting organs for transplantation especially from patients who died of accident or subarachnoid hemorrhage (the two most common sources of organs). For how can one get consent from a cadaver? Only relatives, if available can give such consent.

Sixth, Sec. 9 (3) states that “…physical disfigurement…” is ground for additional damages. Pray, Sir, who is to determine “physical disfigurement”. After all, beauty is in the eyes of the beholder. What if the surgery requires radical dissection of the face or breasts, or even removal of sex organs? Would all these fall under the ambit of “physical disfigurement”?

Seventh, Sec. 6 states that “express or implied pardon by the patient, his/her parents, grandparents or guardians, shall not be legal impediment to the prosecution of the crime nor will it extinguish the criminal action…” Sir, even God pardons the worst crime and accepts the criminal if there is genuine regret and penance. What kind of State are we creating by this unpardonable provision?

We do not want to debate the pecuniary and the detailed punitive portions of the bill. Candidly, we believe the doctor-patient relationship is not a business transaction. Our Hippocratic Oath does not even mention monetary remuneration. With very few exceptions, we love our patients – rich or poor- with a missionary zeal and their interest and welfare are in our minds.

Your Honor, the practice of medicine is a profession and a vocation. We feel that we entered into this noble calling to help our fellowmen, not to be suspected as criminals. By the provisions of the bill, we could be guilty of malpractice even if the circumstances are such that we cannot control events. After all, we deal with life; yet we do not control life. Also, much of our action is dependent on data that we obtain on the basis of best effort. Consider the scenario wherein a patient develops a bad outcome after intentionally withholding information, which he feels, will jeopardize his chances of being operated. We do not claim perfection but we strive for excellence. Neither can we be faulted if our facts are incomplete because our patient cannot afford the necessary ancillary tests, which at the present time are already astronomical.

The science of medicine is creative. It is a window of opportunity for ingenuity and social responsibility. It also brings the best in humanity. By this bill, if enacted into law, all these human refinements and intellectual fine-tuning will disappear. In fact, medicine will become exorbitant and inhuman.

Our country is already burdened by big deficits in funds. As our lawmakers, it is your duty to promote social justice through effective resource allocation. With this bill, however, the money that will be spent on the malpractice system annually may not be an effective allocation of social resources to provide affordable medical care, minimize patient injury, maximize patient safety, and compensate injured patients.

The bill unduly focuses on physician negligence as a precondition for bad outcome. Hindsight bias however, plays a tremendous role in ex post review of clinical circumstances; thus, negligence may be overestimated. Indeed, it is overestimation to say that all adverse events are somehow a result of “error” including accidental occurrences that result from performing a technique properly, equipment failure despite proper use, miscommunication while following established protocol, inability to diagnose a disease process because of limitations of presently available screening and monitoring standards, inability to treat a disease process because of limitations in present standards of care, and inability to meet the demands for resources of equipment or personnel. These “system errors” account for 88% of the total errors reported, none of which are preventable. We do not believe these are errors at all and instead represent untoward events that are not preventable.

These have significant implications for patient safety efforts. Instead of providing physicians with a clear incentive to provide non-negligent care, the uncertainty of legal adjudication in practice will result in a heightened level of defensive medicine. Many physicians acknowledge that they may order extra tests because they fear lawsuits...albeit reluctantly.

Although there is significant debate as to whether the legal system actually induces defensive medicine, other mechanisms that instead induce physicians to proactively adopt behaviors that minimize patient injury and maximize patient safety would be a far better way to spend our resources.

We, in the medical profession have systems in place, which instead focuses on a peer-review process that is intended to minimize provider negligence before it occurs. Physicians who practice substandard care need help in improving their clinical skills. We think the proposed bill is unfair to physicians…unfair to good physicians.

We do not want to look into the hidden motives – an agenda – on why this bill was passed. Certainly there were vested interests with selfish motives that may well be players here. We only wish they have the greater interests of the suffering public, many of whom are weak and meek, voiceless and helpless.