Education And Debate

Malpractice in Mexico: arbitration not litigation

BMJ 2005; 331 doi: https://doi.org/10.1136/bmj.331.7514.448 (Published 18 August 2005) Cite this as: BMJ 2005;331:448
  1. Carlos Tena-Tamayo (ctena@conamed.gob.mx), national commissioner1,
  2. Julio Sotelo, director2
  1. 1 National Commission for Medical Arbitration, Mitla #250, Mexico City 03020, Mexico
  2. 2 National Institute of Neurology and Neurosurgery of Mexico, Insurgentes Sur #3877, Mexico City 14269
  1. Correspondence to: C Tena-Tamayo
  • Accepted 13 April 2005

Accusations of malpractice often end in the courts, damaging the doctor-patient relationship and encouraging defensive practice. In Mexico, an alternative system based on arbitration and conciliation has been effective

Introduction

The growing number of lawsuits against doctors seems to be related to poor personal communication, unrealistic expectations of performance, the high costs of medical attention, and better informed and more critical patients.1 2 A lucrative industry has developed around this phenomenon. In response, doctors buy expensive insurance, which seriously affects their medical practice, summarised in the concept of “defensive medicine.”3 The practice of defensive medicine includes ordering excessive diagnostic procedures and consultations to minimise the risks of being sued.4 Consequently, the cost of medical care increases, promoting resentment in patients, which in turn favours lawsuits, creating a vicious circle.5

Fear of being sued drives some doctors to additional detrimental actions, such as abandoning risky specialties; refusing to treat seriously ill patients; and using clinical records and informed consent forms as means of legal protection, rather than as medical tools.68 Differentiation between complications (an unintentional or adverse reaction that aggravates the original disease) and negligence (failure to exercise a reasonable degree of care) is not always simple and may be interpreted differently by the doctor and the patient or their legal adviser.9

In lawsuits, the legal counsel is confidential, and medical opinion is in some cases given by professionals whose academic background, fairness, and expertise are inadequate.1012 Accusations are submitted through a penal court, because the sole requirement is the presumption, on the side of the claimant, that a misdeed might have been committed. Cases presented in court may take years to resolve; lawyers are hired for a long time with cumbersome financial investment for the patient and the doctor. Deplorably, …

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