On a radio talk show in June of this year, host Jeff Lloyd raised the question: Is there a bill of rights for patients? The answer is yes, and, it comes in two forms:

1. Rights established by the common law, which give a patient recourse to the courts.

2. Rights established by statute, and administered by a statutory board.

The more pertinent questions are:

How accessible, and how effective, are these rights?

Does pursuing a remedy in the current legal environment result in an improved delivery of healthcare 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 some whose performance lacks these vital qualities, and the results are reduced to names on granite slabs. Much is said, but what is done to improve the situation?

The delivery of timely and competent healthcare services can make the difference between life or death, between healing or disability. Healthcare performance deserves scrutiny and public evaluation.

And that is what happens in open, competitive societies ? consumers have access to information that allows them to assess their healthcare providers. No such information is available in the Bahamas.

Consider the following survey results from a US consumer report that compiles its statistics from voluntary submissions by hospitals:

-the average American has a 50 per cent chance of receiving appropriate evidence-based health care

-an average of about 17 years is required for new knowledge to be incorporated into practices, and even then, application is highly uneven

-more than $1 trillion is spent on medical care each year in the United States

-overuse, under use and misuse of healthcare services result in substantial costs

-about 30 per cent of healthcare spending in the US is wasted due to poor quality of care

-as many as 98,000 people die in US hospitals each year as a result of medical errors

-this makes medical errors the 8th leading cause of death in the US, higher than road accidents, breast cancer or AIDS

-each year, at every US community hospital, between 9 and 22 patients die unnecessarily

-an estimated 2 million people suffer from hospital acquired infections, leading to 90,000 deaths

-between 25-75 per cent of these infections could be prevented

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? These statistics are not publicly available. But whatever the rate of preventable hospital deaths is, what is the remedy?

The Problem

One reaction may be to sue the hospital or doctor(s) or both, in the civil courts. What are the merits, or disadvantages, of this?

In terms of the life lost, there is no merit. There is no remedy or adequate recompense for death or permanent disability. And it is also unlikely that legal action will prevent future deaths. When a hospital is sued, any internal inquiry may be directed more towards legal damage control than to identifying any shortfalls or the steps necessary to prevent recurrence.

Anecdotal accounts of local hospital misadventures indicate a recurrence of preventable deaths. But it appears that there are no internal inquiries that address the root causes or deficiencies.

A successful action will result in an award of damages. But these will be paid by insurance companies ? not the defendants themselves. The insurers will, as a result, increase their premiums, and the hospital or doctor will, as a result, increase their fees, so ultimately the consumer pays the price ? at this point, in cash.

There are many disadvantages involved in bringing a civil suit in a small community like the Bahamas. Statistically ? at least in the UK ? a personal injury/medical negligence case takes an average of five or six years to come to trial. The plaintiff must have the financial and emotional fortitude to last the course. One recent medical negligence action brought to trial here, was nine years after the event. [It failed, for lack of expert evidence.]

There is also the difficulty of finding an attorney to represent you. Lawyers are often reluctant to take these cases for several reasons, including courtesy to other professionals, family or business relationships, and the length of time, money and energy involved. Then there is the question of whether the client can finance a successful action.

A successful action will depend mostly on the evidence available. The evidence is made up of medical records and expert opinion based on those records and autopsy reports. What is the position in our law regarding patient records?

They belong to the patient or his legal representative. However, where a hospital is aware that there may be an issue of negligence, the records can become unavailable. The plaintiff must then take legal action and await a court order for discovery against the hospital.

That does not guarantee the records will be produced, however, as by then they may have been lost, or mislaid with the passage of time. There is also no guarantee that the records themselves are accurate. The hospital notes may not be made contemporaneously, but subsequent to the events ? and if liability is an issue ? the records may be written with a view, not to accuracy, but to damage control.

Without the records, it is difficult for a case to be advanced.

Even if the records are obtained, that is only half the battle. Opinion on those records from medical experts must then be obtained. Locally, these are colleagues of the doctor(s) being sued, who ? experience shows ? will usually close ranks.

But for the purposes of discussion, let�s say the plaintiff does obtain medical expert advice ? likely to be non-Bahamian, and also likely to be costly. And let�s assume there is a good case in terms of the liability issue. Proceeding with the action depends on having a claim for damages, including the value of the lost life in dollars and cents. Damages can be sought for pain and suffering, for lost earnings, and for specific costs paid out.

A plaintiff may not be able to proceed with a claim for pain and suffering, or any significant claim under this heading, if the patient died very soon after the alleged negligence. If the patient initially survives the misadventure, but was being administered a tranquilizing drug with an amnesiac effect, he would have had no awareness of pain and suffering prior to death or, if he recovers, no memory of it.

If the patient was an adult, his/her life will be scrutinized by the defendant�s attorneys with a view to minimizing the deceased's earning capacity and thus the amount of future lost earnings the deceased�s family can recover. Few people will readily trade privacy, and add to their distress, by undertaking a lengthy process of litigation or negotiation of 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 the point of recovery of damages or expenses, may take several years, and thousands of dollars in legal fees and expert opinion fees, not all of which may be recovered. So even a negligence claim where liability is not an issue may not proceed. Families choose to quietly bury their child, their spouse or their sibling with a view to letting the pain and anguish pass.

It may also 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, that doctors are not gods and that all patients do not respond to appropriate treatment as one might expect.

In summary, the litigation “solution” to health problems, has these shortfalls:

Valid claims may not be pursued and the root causes of the failure are not addressed.

If a claim is pursued, and then dropped because it is unsustainable, it will have caused disruption and expense to both the plaintiffs and the defendants.

Even where a valid claim is pursued, it does not necessarily result in an examination or rectification of the root causes of the complaint, and the problem continues.

What, then, is the remedy?

The Solution

Government intervention is not the panacea to all social ills. In fact it may be a social ill in and of itself. But it may have a role to play in our health care. 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. There needs to be a public reporting of performance, to drive quality and efficiency, making the healthcare market transparent. This publicly disclosed information should rate 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. The public is entitled to know how well those institutions perform their function, especially when that function is a matter of life and death.

In 1998, Parliament passed the Pubic Hospitals Authority Act. This law does not provide for any information on the quality of healthcare services to be compiled or reported, and no such information appears in the publications of the Department of Statistics except for this interesting fact:

The 2001 Vital Statistics Report notes one death from “surgical operation or other surgical procedure as the cause of abnormal reaction of the patient, or of later complication, without mention of misadventure at the time of the procedure.”

Without the benefit of an official interpreter, this may be understood to say that in all of the Bahamas, in 2001, only one person died as a result of complications after surgical treatment, and this death was not attributed to negligence at the time.

If this is a true indication of the quality of our healthcare services, it is a remarkable record, and one the rest of the world can only hope to emulate. But there may be other reasons for this record.

However, the Hospital Authority has the power to make regulations. We, as taxpaying citizens, should urge the Authority, or Parliament if needed, to provide that information on the quality of healthcare 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 Facilities Act. For users of private hospitals and clinics, this is of some importance.

This law sets standards and requirements that private hospitals and clinics are to meet in order to obtain and maintain a licence to operate. It also establishes the Hospital and Health Care Facilities Board, which has three functions:

1. To license hospitals or healthcare facilities.

2. To regulate and inspect hospitals and healthcare facilities.

3. To investigate the management, diagnosis or treatment of patients in a licensed facility.

What are some of the standards established by the Act?

In general, the licensee is required to conduct its business in the interest of public health, in a manner that is not injurious to the public health. Each patient admitted to a hospital is to “remain under the care of a qualified health practitioner and to receive care that is appropriate in the circumstances”.

The health practitioner must provide information with respect to the patient�s diagnosis and prognosis. And no treatment or procedure shall be performed without the voluntary, competent and informed consent of the patient, or his guardian.

The licensee must keep records of the patient�s diagnosis, findings, tests and procedures, clinical observations, and ? before surgery ? the pre-operative diagnosis, the results of any physical exam, the anaesthetist record, and a post-surgery report. Copies of these records must be provided to a patient or his personal representative.

The licensee must have sufficient numbers of qualified staff present during the hours of operation to meet the type of services being offered. And the hospital must be equipped to carry out its operations in a safe, efficient and effective manner.

Much of this seems obvious, and you would expect your hospital or clinic to meet these standards, but in practice it may not.

Recently, a number of doctors were cited by the Board, for not being “in compliance” with the Act; that is, not paying the fee. In an interview with The Bahama Journal last September one doctor was quoted as saying that “(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.

Recent experience with the Board, indicates it may not presently be capable of performing the function Parliament gave it € to ensure that certain standards are met, and that the public is thereby protected.

The Board has a power to initiate an investigation into the treatment of patients, and earlier this year, a request was submitted to initiate an investigation. The Board�s reply was that it does not know how to undertake such an investigation, and it has referred to the Attorney General�s office for advice. In turn, the AG�s office, has advised that it does not know how to advise the Board.

The Minister of Health has now directed the Board to investigate the record in question, but the Board says it needs time to formulate a procedure to enable it to initiate the investigation. However, the Board cannot or, for whatever reasons, will not say how much time it needs to formulate procedures to initiate an investigation.

If the Board is waiting for a reply from the Attorney General�s office, experience indicates that a legal opinion, or any response, may be very long in coming, if at all.

The Minister of Health may be a man of his word, but he is hamstrung by the apparent inability of the Attorney General and the Board to carry out their respective functions. However, the Board itself, may not be appropriately constituted to undertake the particular investigations (two) that have been submitted to it. Issues of conflict of interest arise, and there is also a question of whether the current Board is legally constituted.

It seems, though, that the Board has recently been stirred into action. In October this year the Board published newspaper ads advising that it was reviewing the Act and Regulations with a view to proposing amendments.

The Act may need amendments to make it effective, and users of private hospitals and clinics should keep an eye on the amendments proposed, to see that they are in keeping with the Board�s overall mandate of acting in the interest of protecting members of the public.

Any amendments should also provide that the information licensees are currently required to submit, such as notifications of death, are actually collected and reviewed by the Board.

These notifications, and investigations made as a result of a complaint, could help the Board focus on the root causes of failures to provide adequate medical assistance, resulting in death or incapacity.

Amendments should also provide that licensees provide information which allow their performance on issues of safety, timeliness, competence and efficiency, to be assessed, and that information should be published. It may be that our local hospitals provide a better rate of performance in some areas than others, or a better rate than even those abroad.

The fact is that we in the Bahamas have the benefit of some very good medical practitioners. But the fact also is that many users of healthcare facilities have grave reservations (no pun intended), about trusting their life and health to local providers, who have problems that are not brought to light or are not addressed.

Some 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 and transparent, and they need to provide real information on performance.

The Public Hospitals Authority and the Private Hospital Board need to act in the interest of the public in order to maintain confidence in the hospitals and clinics they licence.

However, the performance of government bodies generally is not encouraging. While in every sector, there are some good public servants, they are too few to carry the whole load. Regulations governing standards in private hospitals, have not been observed, nor enforced, with tragic results. Government's role in improving health care, at least in the private sector, is, so far, a failure.

No doubt recognizing this, the Minister of Health, Dr. Marcus Bethel, met recently with doctors from the private and public sectors, to discuss, among other things, the implementation of " the medical by-laws" for hospital practice. This is a positive step that needs to be followed through.

At present patients or their survivors, faced with ineffectual response from the hospital or clinic itself, the Hospital and Health Facilities Board, the AG's office, and the Medical Council, suffer not only anguish, but outrage, knowing that persons entrusted to act in the public interest, have not.

But knowledge empowers, and the public can take steps to inform and protect itself.

There is an opportunity here, and a great need, for private enterprise, or a patients protection association, to take up the challenge of providing a vital service: a survey of local hospital performance ratings.

The public must have information, rating hospital performance on issues of safety, timeliness, competence and efficiency, to drive quality and efficiency, to make healthcare in the Bahamas better.

It is really a matter of life and death.