Adopted by the 44th World Medical Assembly Marbella, Spain, September 1992
and rescinded at the WMA General Assembly, Santiago 2005
In some countries medical malpractice claims are increasing, and National Medical Associations are seeking ways of coping with the problem. In other countries medical malpractice claims are rarely brought, but National Medical Associations in those countries should be alert to the issues and circumstances that could result in an increase in the number of claims asserted against physicians.
In this statement, the World Medical Association, Inc. seeks to inform National Medical Associations of some of the facts and issues related to medical malpractice 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. Nevertheless, the World Medical Association, Inc. believes that this statement should be of interest to all National Medical Associations.
- An increase in medical malpractice claims may result, in part, from one or more of the following circumstances:
- The increase in medical knowledge and the increase in medical technology has allowed physicians to accomplish medical feats that were not possible in the past, but these accomplishments involve risks of greater severity in many instances.
- The obligation imposed on physicians to limit the costs of medical care.
- Confusing the right to health care, which is attainable, with the right to achieve and maintain health, which can not be guaranteed.
- The pernicious role often played by the media engendering mistrust in physician by questioning his ability, knowledge, behaviour and management of the patient, and by prompting patients to submit complaints against physicians.
- The indirect consequences of an upsurge of a defensive medicine engendered by the increase in the number of claims.
- A distinction must be made between medical malpractice and an untoward result occuring in the course of medical care and treatment that is not the fault of the physician.
- Medical malpractice involves the physician’s failure to conform to the standard of care for treatment of the patient’s condition, or a lack of skill, or negligence in providing care to the patient, which is the direct cause of an injury to the patient.
- An injury occuring in the course of medical treatment which could not be foreseen and was not the result of any lack of skill or knowledge on the part of the treating physician is an untoward result, for which the physician should not bear any liability.
- Compensation for patients suffering a medical injury could be determined to the extent that no national laws prohibit this, differently for medical malpractice claims than for the untoward results that occur during medical care and treatment.
- Where un untoward result occurs without fault on the part of the physician, society 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 will provide the procedures for deciding liability for medical malpractice claims and for determining the amount of compensation owed to the patient in those cases where malpractice is proved.
- 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:
- Public education programs on the risks inherent in some of the new advances treatment modalities and surgery, and professional education programs on the need for obtaining the patient’s informed consent to such treatment and surgery.
- Public advocacy programs to demonstrate the problems in medicine and the delivery of health care resulting from strict cost containment limitations.
- Advocating general health education programs both in school and in social settings.
- Enhancing the level and quality of medical education for all physicians, including improved clinical training experiences.
- Develop and participate in programs for physicians designed 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 danger that various manifestations of defensive medicine may appear (the multiplication of medical acts or, on the contrary, the abstention of the doctors, or even the disaffection of young physicians for certain higher risk specialties).
- Educate the public on the possible occurence of injuries during medical treatment which could not be foreseen and are not the result of physician malpractice.
- Advocate for legal protection for physicians when patients are injured by untoward results not caused by any malpractice.
- Participate in the development of the laws and procedures applicable to medical malpractice claims.
- Develop active opposition to frivolous claims and to contingency billing by lawyers.
- Explore innovative procedures for handling medical malpractice claims, such as arbitration rather than court proceedings.
- Encourage self insurance by physicians against malpractice claims, paid by the practitioner himself or by the employer if the doctor is employed.
- Participate in decisions relating to the advisability of providing compensation for patients injured during medical treatment without any malpractice.