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EDUCATION AND DEBATE: Carlos Tena-Tamayo and Julio Sotelo Malpractice in Mexico: arbitration not litigation BMJ 2005; 331: 448-451 [Full text]

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Is there a solution?

Giusto Giusti   (19 August 2005)

Is there a solution? 19 August 2005
Giusto Giusti, professor of legal medicine Rome 00133 Send response to journal: Re: Is there a solution?	The text of Carlos Tena-Tamayo and Julio Sotelo describes precisely the Mexican situation regarding cases of alleged medical malpractice. The law seems to work efficiently and I hope it will continue. Many attempts were made to modify the actual situation by a law. In France, the law no 2002-303 / 2002 looks, in some respects, similar to the Mexican law. In 2002 and 2003 I had the opportunity of examining this problem from the same point of view of the Authors, and I arrived to some conclusions. The actual characteristics of the medical malpractice cases are now the following: • Their increasing number • The practical impossibility of identifying many of them and of counting them • The increasing cost for insurance • The increasing cost for compensations • The increasing litigation rate between doctors and between doctors and patients • The excess of witnesses required to medical legal doctors • The excess and the length of trials. The actual system has now reached its acme, and cannot be modified, but only radically changed. In USA it was proposed again the system of the so- called “no-fault compensation” (Studdert and Brennan, 2001). In this system it is not necessary to demonstrate the medical malpractice, but it is sufficient to demonstrate the damage to the patient. Payments for damages are a duty of the institution where the doctor works, not of the doctor or of his insurance company. The system of the “no-fault compensation” is operating in Sweden, Denmark, Finland, New Zealand, and, on an experimental basis, in Florida and Virginia for cerebral injuries of newborns, that is for the most expensive damages, for their severity and length. In the United Kingdom the main problem seems to be the demonstration of the causal relationship (Dyer, 2002). According to a diffuse juridical opinion, the system of prosecuting the doctors and the National Health Service in the Courts should be abandoned, and substituted by an administrative procedure. The idea, therefore, that I bring to your attention, is based first on the severe difficulty of proving the medical error and the causal relationship of the medical conduct with injuries to patients; on the impossibility of compensating damages without the demonstration of the medical malpractice; on the extreme difficulty of the medical defence. Secondly, a iatrogenic lesion is essentially represented by an injury to a patient produced by a medical act or omission, mostly fortuitous. In this respect, the iatrogenic lesion does not differ from an accidental event, that can be compensated if there is an insurance policy. A contract for an accidental event does not previews a penal or civil liability, but the mere fact and the causal relationship of the damages with the fact. The compensation of damages can be performed through an administrative procedure in a short time. There are many points of contact with the workmen’s compensations acts of various Countries, so I do not see conceptual difficulties on applying these ideas to the solution of alleged medical malpractice cases. Competing interests: None declared