by Leandra Esfakis
Does the Bahamian patient have a bill of rights? The answer is 'yes', and, it comes in two forms:
1. Rights established by the common law, that give recourse to the courts.
2. Rights established by statute, and administered by a government or a professional board.
The more pertinent question is: how accessible, and how effective are these rights? Does pursing a remedy in the current legal environment result in an improved delivery of health care services? And if not, what can be done to improve performance and results?
Most of us, would rather spend our lives without having to deal with doctors (or lawyers), on a professional basis. But chances are most of us will be attended by a doctor at least twice in our lives: when we come into this world, and when we are concerned about leaving it.
Most of us know doctors who are caring, diligent, attentive, observant, responsible, responsive and competent. But there are those whose performance lacks those characteristics, and the results speak for themselves.
The delivery of timely, efficient, effective, competent, health care services can make the difference between life or death, between healing or disability. Health care performance deserves scrutiny and a public evaluation.
And that is what is done in open, competitive, societies: consumers have access to information which allows them to assess their health care providers. No such information is available in the Bahamas. Consider the following results from a US consumer survey of hospitals:
1. The average American has an approximately 50% chance of receiving appropriate medical care.
2. An average of about 17 years is required for new knowledge to be incorporated into medical practice.
3. More than $1 trillion is spent on medical care each year in the U.S.A.
4. Approximately 30% of direct health care expenditures are wasted due to poor quality of care.
5.
As many as 98,000 people die in US hospitals each year as the result of
medical errors. This means that each year, at every community hospital
in the US, between 9 and 22 patients die unnecessarily.
6. An estimated 2 million people suffer from preventable hospital acquired infections - leading to 90,000 deaths.
The question for us in the Bahamas is how do our local hospitals compare? Is the rate of death from medical error or preventable infection higher or lower? Unfortunately these statistics are not publicly available. Whatever the rate is, what is the solution to preventable hospital deaths?
One reaction may be to sue the hospital or doctor, or both, in the civil courts. What are the merits, or disadvantages, of suing?
First, there is no remedy for death or permanent disability, and no adequate recompense for a life unnecessarily and prematurely lost, or damaged. And a lawsuit is unlikely to lead to a solution to prevent future deaths. In fact, when a hospital is sued, internal inquiries are likely to be directed more towards damage limitation than defining the action necessary to prevent future incidents, experts say.
Accounts of local hospital misadventures indicate a recurrence of similar scenarios, with similarly fatal results. It appears that there are no internal inquiries which address the root causes of healthcare deficiencies.
Any successful action, whether settled before or after a trial, will result in an award of damages. However, these damages will be paid by an insurance company, not the defendants themselves. The insurance company will, as a result, increase their premiums, and the hospital or doctor will increase fees and charges meaning that the consumer still pays the price.
And there are many disadvantages to bringing a civil suit in a small community like the Bahamas.
Simply getting a medical negligence action came to trial can take year - up to nine years in one recent example here. Then there is the difficulty of finding a lawyer to take the case, in the face of wide-ranging personal relationships. And this does not even consider the amount of time, money and energy involved.
A successful action will depend on the evidence available. The evidence is made up of medical records together with expert opinion based on the records and autopsy reports. Without the records it is difficult for a case to be advanced.
Medical records belong to the patient or his legal representative. However, where a hospital is aware that there may be an issue of negligence the records may become unavailable, requiring a court order to obtain them .
That alone does not guarantee that the records will be produced. By then the records may have been lost. Further, there is no guarantee that the records will be accurate. The hospital notes may not be made contemporaneously, but subsequent to the events under dispute, and if liability is an issue, the records may be written with a view, not to accuracy, but to damage control.
Let us assume that the records are obtained. That is only half the equation. Expert opinion must be obtained on those records. Locally, these experts are colleagues of the doctor being sued and, to a very large extent, the medical community will close ranks and refuse to assist.
But for the purposes of discussion, let’s say that non-Bahamian expert advice is obtained (which will be costly) and assume that there is a good case in terms of the liability issue. Do you proceed? Well that depends. The bottom line is a claim for damages - the value of the lost life in dollars and cents, and damages are broken down into three general categories:
1. Pain and suffering.
2. Lost earnings.
3. Costs paid out.
A
claim for pain and suffering may not work if the
patient died very soon after the alleged negligence, or
was being administered a tranquilizing drug so
that there was no awareness of pain and suffering.
If the
patient was an adult, every aspect of his/her life will be subject to
scrutiny with a view to minimizing the amount of lost earnings a deceased’s family
can recover. Few people will happily trade privacy and peace of
mind for a lengthy process of litigation or negotiation with an uncertain
result.
That leaves the category of Special Damages, usually any expenses directly incurred as a result of the negligence, loss of contract benefits, and funeral expenses. Getting to this point may take years, and thousands of dollars in legal fees and expert opinion fees, not all of which may be recovered.
Conversely, it may be discovered, after years of expenditure and effort, that there is no sustainable claim. It is a fact that some injuries and illnesses are fatal, doctors are not gods and all patients do not respond to appropriate treatment as one might expect.
If litigation is not the solution, what is? In my view the solution lies in accountability and transparency.
Both public and private hospitals and clinics need to account for their performance, beyond the value of their share price. In short, we need a public reporting of performance on issues of safety, timeliness, competence and efficiency.
The hospitals and clinics operated by the Ministry of Health, are paid for by the public, and the public is entitled to know how well these institutions perform their function, especially when that function is a matter of life and death.
In 1998, Parliament passed the Pubic Hospitals Authority Act. The Act, however, does not provide for any information on the quality of health care services to be compiled or reported. And I am not aware that specific and reliable information on health care performance in The Bahamas is compiled or available.
However, the Authority has the power, (subject to the approval of the Minister), to make regulations. We, as taxpaying citizens, should urge the Authority, or Parliament if needed, to provide that such information be compiled and published.
As regards privately owned and operated hospitals and clinics, there has been an attempt at establishing standards. Also in 1998, Parliament passed the Hospital and Health Care Act. For users of private hospitals and clinics, this is of some importance.
This Act sets standards and requirements that private hospitals and clinics are to meet in order to obtain and maintain a licence to operate. The Act also establishes the Hospital and Health Care Facilities Board, which has three functions:
1. To issue licenses.
2. To regulate and inspect hospitals.
3.
To investigate any matter affecting the management,
diagnosis or treatment of a person in a hospital.
What are some of the standards established by the Act?
In
general terms, the licencee is required to conduct its business in the
interest of public health, in a manner that is not injurious to the
public health. [s.10 (1) ]
1. Each patient admitted to a hospital is
to “remain under the care of a “health practitioner” qualified to
administer care and treatment for the patient’s sickness or injury.”
2. The patient is entitled to care that is appropriate in the circumstances.
3. The health practitioner must provide information with respect to the patient’s diagnosis and prognosis.
4.
No treatment or procedure shall be performed without the voluntary,
competent and informed consent of the patient, or his parent or
guardian, unless the delay would endanger the patient.
5. The
licencee must keep records, of the patient’s diagnosis, findings, all
diagnostic tests and procedures, clinical observations, and, before
surgery: the pre-operative diagnosis, the results of any physical
examination if any, the anesthetist record, and a post-surgery report.
6. The licencee must provide to a patient or his personal representative, copies of the patient’s medical records.
7.
The licencee must have sufficient numbers of qualified staff present
during the hours of operation to meet the type of services being
offered.
8. The hospital must be designed and equipped to carry out its operations in a safe, efficient and effective manner.
And so on. Much of this seems obvious, and you would expect your hospital or clinic, to meet these standards, but in practice, it may not.
In fact, at least one doctor has been publicly quoted as saying: “ It [paying the fee] is not a priority for me, for the simple reason that it is a revenue collection item that has nothing to do with the practice of medicine.”
In saying that, the doctor said a mouthful.
The fact is, we in the Bahamas have the benefit of some very good medical practitioners. But many patients have grave reservations (no pun intended), about trusting their life and health to local hospitals, which have problems that are not brought to light, and not addressed.
In fact, many patients refuse to be treated locally. But getting on a plane is not necessarily the answer. And there are times, when it may not be an option.
Hospitals and clinics need to be accountable, practice transparency, and provide real information on performance. The PHA and Private Hospital Board need to act, in the interest of protecting members of the public, and maintaining confidence in the hospitals and clinics it licences.
There is an opportunity here, and a great need, for private enterprise to take up the challenge of providing a vital service: a survey of local hospital performance ratings.
This means there must be publically disclosed information rating performance on issues of safety, timeliness, competence and efficiency, to drive quality and efficiency, making health care in the Bahamas better.
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