Commentary: Are complaints against doctors destroying the doctor-patient relationship?
Instead of loading doctors with more onerous duties to inform patients, teaching medical students medical law and changing the healthcare culture can help our future doctors adopt a patient-centric mindset, says NUS Law School’s Kumaralingam Amirthalingam.
SINGAPORE: Doctors in Singapore are living through a tumultuous period in the wake of a series of high-profile complaints and law suits over the last three years.
While there is no reliable data on whether the number of claims and complaints against doctors is rising, there is a palpable atmosphere of fear and defensiveness within the medical profession.
The Court of Appeal has handed down landmark decisions on medical negligence emphasising patient autonomy, and the Singapore Medical Council’s Disciplinary Tribunal has imposed heavy fines and suspensions on doctors, following malpractice complaints.
In the most egregious case, a doctor who caused the death of his patient following a liposuction procedure, was referred by the court to the Public Prosecutor to investigate potential criminal prosecution for causing death by a rash or negligent act.
A DUTY TO INFORM
Of greatest concern to doctors are the changes to the way the duty to inform is viewed. This has consequences for liability under the tort of negligence as well as for professional misconduct under the Medical Registration Act (MRA).
The recent decision of the Singapore Medical Council (SMC) fining Dr Lim Lian Arn the maximum S$100,000 for professional misconduct based on a failure to inform the patient of potential adverse effects of a routine steroid injection sparked such outrage that a petition to the Ministry of Health (MOH) was launched and Senior Minister of State for Health Lam Pin Min had to answer questions in Parliament this month, assuring doctors that the decision did not mean that doctors must disclose any and all information to patients.
MOH has also taken the unusual step of requesting that the SMC apply to the High Court for a review of the decision.
DISCLOSURE DOES NOT MEAN DUMPING INFORMATION
For the purposes of the tort of negligence, a doctor is required to provide information and advice to which a reasonable patient would attach significance, or to which the doctors knows or ought to know that the particular patient would attach significance.
To be guilty of professional misconduct, the negligence must be “sufficiently serious” – a higher standard than for civil liability.
Whether Dr Lim was negligent, let alone seriously negligent, was simply not tested in court because he pleaded guilty. The outrage was provoked by the high sentence imposed, but the ire has been misdirected at the law governing the duty to inform.
The two should be disentangled, and doctors should be reassured that the law does not impose unreasonable standards for disclosure.
The reaction in some quarters advocating defensive medicine is misplaced, and indeed likely to exacerbate the situation.
One may speak of defensive medicine in the context of medical diagnosis and treatment. Doctors, fearing they may miss something, may choose to order extensive, medically unnecessary tests or carry out medically unnecessary procedures.
This is a costly and ineffective way of avoiding potential legal liability. However, defensive medicine in the context of the duty to inform is a non-starter.
The Court of Appeal has recently reaffirmed that while disclosing anything and everything is not required by law, equally an “information dump”, to use the court’s words, will not satisfy the law.
A doctor is obliged to engage in dialogue with the patient and help the patient understand the material risks and their options. Being defensive and “dumping information” on a patient is therefore more likely to result in a breach of the law, inviting a complaint or a lawsuit.
NOT GETTING ANSWERS THEY NEED
Perhaps, a leaf can be taken out of good medical practice and acknowledge that prevention is better than cure. Rather than focus on the duty to inform and defensive medicine, it may be more productive to reflect on three questions.
First, why do patients complain or sue doctors? Second, how do corporate healthcare practices adversely affect the doctor-patient relationship? Third, what can medical schools do to prepare doctors for the medico-legal realities of today?
Studies show one of the main reasons patients sue doctors or make complaints is because they are not getting answers that they need, especially when things go wrong.
There is empirical evidence that good communication reduces litigation. Good communication involves engaging the patient in dialogue, and that is really what the law requires.
Doctors themselves acknowledge that a well-informed patient is better able to manage their health, and there is general acceptance today of a model of the doctor-patient relationship based on collaborative autonomy. Communication is key. Yet, the duty to inform remains a sore point.
Part of this is due to systemic problems with the overburdened healthcare system, and part of it is due to the hidden cultural values in medical education that shape young doctors.
TECHNOLOGY AND CORPORATE CULTURE GET BETWEEN DOCTORS AND PATIENTS
In a recent commentary in the New Yorker, Atul Gawande, a celebrated doctor and healthcare thought leader, wrote about how computer screens and bureaucratic processes are coming between doctors and patients.
Through interviews with other doctors, he paints a picture of doctors being burdened by administrative record keeping and an overload of information. This burgeoning corporate healthcare bureaucracy, fuelled by the allure of information technology and the addiction to big data, places enormous strain on doctors.
Functions previously performed by support staff are shifted to doctors, now kept busy with these tasks instead of engaging with their patients. The corporatisation of medicine is a far greater threat to the doctor-patient relationship than the legalisation of medicine.
The laptop doctor is slowly killing the bedside doctor.
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TEACH MEDICAL LAW IN MEDICAL SCHOOLS
Going further upstream, what can medical schools do to produce doctors who embrace collaborative autonomy as the defining feature of the doctor-patient relationship and not simply as a tick in the box in their medical ethics course?
One strategy would be to emphasise teaching medical law over medical ethics, or at least to use law rather than ethics as the guiding framework.
Ethics is aspirational – it seeks the morally right answer, which is often contentious and uncertain. Law is certain and provides clear standards. Patients are guided by their legal rights; doctors by their ethical obligations.
Teaching medical law shifts the focus from the doctor to the patient. The young doctor starts not from the perspective of what a doctor should do but what a patient desires and is entitled to – it embodies the shift from medical paternalism to patient autonomy.
Medical law in medical schools should also be taught by lawyers, preferably plaintiff lawyers. As they say, keep your friends close, but your “enemies” closer. At least, it will be an authentic learning experience.
When doctors teach, they bring their hidden values into the lesson. In a recent article entitled, The Contemporary Hidden Curriculum in Medical Education, a group of US medical professors identified eight areas of hidden values that adversely affect medical education, including defensive medicine due to “legal phobia” and “patient depersonalisation” due to over-reliance on technology.
Another study showed how teaching empathy does not create genuine empathy, as students simply fake it to pass their examinations.
Medical schools should emphasise ethical values and empathy in the admissions process rather than in the curriculum.
A lawyer teaching a medical ethics course once said, “Few ethical dilemmas faced by physicians require specific ethics training to resolve, but every physician will face some legal dispute where an awareness of the issues and how to approach them would be invaluable.”
Let’s put the lawyers and doctors together in the classroom, rather than in the courtroom.
Kumaralingam Amirthalingam is a professor of law at NUS Law School.