Healthcare: A Matter of Life and Death.

First Published: 2004-12-11

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

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