Adopted by the WMA General Assembly, Santiago
2005
- A culture of litigation is growing around the world that
is adversely affecting the practice of medicine and eroding
the availability and quality of health care services. Some National
Medical Associations report a medical liability crisis whereby
the lawsuit culture is increasing health care costs, restraining
access to health care services, and hindering efforts to improve
patient safety and quality. In other countries, medical liability
claims are less rampant, but National Medical Associations in
those countries should be alert to the issues and circumstances
that could result in an increase in the frequency and severity
of medical liability claims brought against physicians.
- Medical liability claims have greatly increased health care
costs, diverting scarce health care resources to the legal system
and away from direct patient care, research, and physician training.
The lawsuit culture has also blurred the distinction between
negligence and unavoidable adverse outcomes, often resulting
in a random determination of the standard of care. This has
led to the broad perception that anyone can sue for almost anything,
betting on a chance to win a big award. Such a culture breeds
cynicism and distrust in both the medical and legal systems
with damaging consequences to the patient-physician relationship.
- In adopting this Statement, the World Medical Association
makes an urgent call to all National Medical Associations to
demand the establishment of a reliable system of medical justice
in their respective countries. Legal systems should ensure that
patients are protected against harmful practices, physicians
are protected against unmeritorious lawsuits, and standard of
care determinations are consistent and reliable so that all
parties know where they stand.
- In this Statement the World Medical Association wishes to
inform National Medical Associations of some of the facts and
issues related to medical liability claims. The laws and legal
systems in each country, as well as the social traditions and
the economic conditions of the country, will affect the relevance
of some portions of this Statement to each National Medical
Association but do not detract from the fundamental importance
of such a Statement.
- An increase in the frequency and severity of medical liability
claims may result, in part, from one or more of the following
circumstances:
- Increases in medical knowledge and medical technology
that have enabled physicians to accomplish medical feats
that were not possible in the past, but that involve considerable
risks in many instances.
- Pressures on physicians by private managed care organizations
or government-managed health care systems to limit the costs
of medical care.
- Confusing the right to access to health care, which is
attainable, with the right to achieve and maintain health,
which cannot be guaranteed.
- The role of the media in fostering mistrust of physicians
by questioning their ability, knowledge, behaviour, and
management of patients, and by prompting patients to submit
complaints against physicians.
- A distinction must be made between harm caused by medical
negligence and an untoward result occurring in the course of
medical care and treatment that is not the fault of the physician.
- Injury caused by negligence is the direct result of the
physician's failure to conform to the standard of care for
treatment of the patient's condition, or the physician's
lack of skill in providing care to the patient.
- An untoward result is an injury occurring in the course
of medical treatment that was not the result of any lack
of skill or knowledge on the part of the treating physician,
and for which the physician should not bear any liability.
- Compensation for patients suffering a medical injury should
be determined differently for medical liability claims than
for the untoward results that occur during medical care and
treatment, unless there is an alternative system in place such
as a no-fault system or alternate resolution system.
- Where an untoward result occurs without fault on the part
of the physician, each country must determine if the patient
should be compensated for the injuries suffered, and if
so, the source from which the funds will be paid. The economic
conditions of the country will determine if such solidarity
funds are available to compensate the patient without being
at the expense of the physician.
- The laws of each jurisdiction should provide the procedures
for deciding liability for medical liability claims and
for determining the amount of compensation owed to the patient
in those cases where negligence is proven.
- National Medical Associations should consider some or all
of the following activities in an effort to provide fair and
equitable treatment for both physicians and patients:
- Establish public education programs on the risks inherent
in some of the new advances in treatment modalities and
surgery, and professional education programs on the need
for obtaining the patient's informed consent to such treatment
and surgery.
- Implement public advocacy programs to demonstrate the
problems in medicine and health care delivery resulting
from strict cost containment limitations.
- Enhance the level and quality of medical education for
all physicians, including improved clinical training experiences.
- Develop and participate in programs for physicians to
improve the quality of medical care and treatment.
- Develop appropriate policy positions on remedial training
for physicians found to be deficient in knowledge or skills,
including policy positions on limiting the physician's medical
practice until the deficiencies are corrected.
- Inform the public and government of the dangers that various
manifestations of defensive medicine may pose (the multiplication
of medical acts or, on the contrary, the abstention of the
physicians, the disaffection of young physicians for certain
higher risk specialties or the reluctance by physicians
or hospitals to treat higher-risk patients).
- Educate the public on the possible occurrence of injuries
during medical treatment that are not the result of physician
negligence, and establish simple procedures to allow patients
to receive explanations in the case of adverse events and
to be informed of the steps that must be taken to obtain
compensation, if available.
- Advocate for legal protection for physicians when patients
are injured by untoward results not caused by any negligence,
and participate in decisions relating to the advisability
of providing compensation for patients injured during medical
treatment without any negligence.
- Participate in the development of the laws and procedures
applicable to medical liability claims.
- Develop active opposition to meritless or frivolous claims
and to contingency billing by lawyers.
- Explore innovative alternative dispute resolution procedures
for handling medical liability claims, such as arbitration,
rather than court proceedings.
- Encourage self-insurance by physicians against medical
liability claims, paid by the practitioners themselves or
by the employer if the physician is employed.
- Encourage the development of voluntary, confidential,
and legally protected systems for reporting untoward outcomes
or medical errors for the purpose of analysis and for making
recommendations on reducing untoward outcomes and improving
patient safety and health care quality.
- Advocate against the increasing criminalization or penal
liability of medical acts by the courts.
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