MEDICAL LIABILITY IN GREECE
Many things have been said regarding medical liability in the last two decades. Do medical errors occur in our country?
They happen quite a bit. Every year there is, indeed, a growing tendency toward legal actions and lawsuits against physicians nationwide.
Does this mean that the practice of medicine in our country has become dangerous?
This danger has two sides. Yes, we believe that practicing medicine has become dangerous for doctors. It is as dangerous for the patients, as well.
This is evident not only from the legal actions or lawsuits, which have immensely increased for the last 20 years but also from the fact that almost all surgeons have insurance and the associated costs are over € 300,000 and constantly increasing, especially after the economic crisis.
For the patient, however, things are not like that. Medical errors occur all over the world, even in the US, Germany, Switzerland, and Israel, which all have a high level of medicine. This is, of course, also apparent from the court rulings.
The problem now is that more and more people turn against doctors.
What is the cause of this phenomenon?
Firstly, there are social factors.
In the past, there were very few doctors who came from good families, and people showed great respect. Let us not forget that, until the 1960s, the doctor, along with the mayor, the teacher, the priest, and the lawyer, if there were any, were the "nomenclature" of the village. Therefore, medical errors were not described like that. A complication, a wrong action, or a wrong diagnosis was obviously God's will. The medical profession, like all professions, has lost its glamour over the years because of hyperinflation. On the other hand, the media have also played a very negative role. The news is all about the medical error, but not the patient's treatment.
The unfortunate development may have occurred not because of the doctor's fault, but due to the risk of the surgery itself or even the patient's exhausted organism, caused by underlying diseases such as heart disease, diabetes mellitus, et cetera.
We will mention two other factors.
On the one hand, there is the patients' mistrust of government hospitals, and, more particularly, the ones they are "convinced" in advance don’t offer the best services. So, they come with several relatives and friends, to use them as a means of pressure against doctors and, later, as potential witnesses in case an operation has a poor outcome.
On the other hand, before the crisis, there was a belief for several years, which was partly justified, that doctors had a lot of money. Thus, the economic factor has been a strong motivation for bringing legal actions and lawsuits against doctors.
In the last few years, because of the economic crisis, there are two more phenomena. On the one hand, patients or their relatives, in the event of death, seek justification through legal actions or lawsuits. On the other hand, doctors seem to be prone to error.
Competent doctors have left abroad (over 15,000), so there is a lack of experienced staff and fewer interns, as well. Also, in-hospital infections appear to be increasing because of the lack of financial resources.
We can certainly mention other causes.
Doctors in overcrowded public hospitals are faced with exhausting extra shifts, with a large number of patients waiting in the corridors, and are underpaid, with pay equal to other civil servants. As far as doctors are concerned, their salary should be better because the state cannot demand that a neurosurgeon to work on five brains per day, or a cardiac surgeon performs more interventions, or for a general surgeon to perform dozens of operations on a daily basis, and be paid the same as an unskilled civil servant who has not invested in any studies. The principle of equality in the Constitution requires that they be paid in a way commensurate with the investment of their long studies, as well as the work they offer and the risk, while the inequalities should be paid in proportion to what they offer.
The physicians are affected by the hospitals being overcrowded, the waiting times in the Emergency Departments, and the lack of adequate resources, so they are often in a state of burn out. This is where there is a risk of error.
One of the reasons is that physicians often promise a procedure will be successful, especially the freelancers, is in order not to disturb the patients and their loved ones, or even because they want to entice the patient.
Moreover, if, after a complicated or unfavorable development, the physician does not properly manage the situation, disappears, shows insufficient respect to relatives, or angered them, it is considered to be an indirect fault.
Experience and international studies have shown us that the physician should first try to reduce the magnitude of the injury, even with the help of colleagues, but on the other hand, he/she must sympathize with the patient or their relatives in their pain or grief or mourning.
What is the definition of medical liability?
Medical liability is often synonymous with medical negligence, medical mistakes, or medical errors.
First of all, the physician must always act in accordance with the rules of medical science, art, and ethics, and show the appropriate interest to the patient. This is the diligence that society and the state expect from specialized physicians.
This criterion is objective. That is, the judge expects the average diligence from normal doctors. He/she does not expect the same level from a medical professor, a beginner, or a specialist, without proper supervision. This is mainly the concept of medical liability.
Does the concept of medical liability change according to medical developments?
Of course. The physician's diligence should be judged each time in accordance with the rules of medical science in force. Consider, for example, a doctor in the 19th century, who would have used chloroform. It is not used today because of its side effects, but also because there are much more effective and safe methods for sedation and anesthesia.
But let's use a much closer example, Gastroenterology. Previously, stomach ulcers were treated with antacids and milk. They are now treated with medicines that inhibit the flow of acidic gastric juices to the stomach and antibiotics that fight Helicobacter pylori. Nowadays, an ulcer is most often completely cured unless it is medically neglected. Therefore, a doctor who applies very old treatments will be responsible for any damage the patient may suffer.
Endoscopies have also revolutionized the diagnosis and treatment of diseases of the stomach, duodenum, and colon, such as upper and lower gastrointestinal bleeding, polyp removal, et cetera. Patients increase their chances of being diagnosed correctly and directly due to much faster procedures. In the case of a bleeding stomach, a surgery would sometimes be needed, if the bleeding doesn’t stop by the use of conservative means. Nowadays, it can be done with a simple gastroscopy. Only if this fails and the bleeding persists, would the patient be admitted to the operating room.
The same happens, for instance, in the evolution of invasive radiology or with stents in cardiology, whereas in the past, heart surgery would be needed.
The evolution of medicine has brought a principle of proportionality as to which method will be used in each patient. In the examples mentioned above, it would be wrong for the patient to be operated on before an assessment takes place, and probably by many specialties; for the gastroenterologist to intervene, except in exceptional cases, e.g., hemorrhage caused by an accident, where it is nevertheless advisable to laparoscopically operate on the abdomen in order to see if any of the patient’s other organs are bleeding, e.g., liver rupture, spleen et cetera.
On the other hand, of course, technology is a double-edged knife when the doctor does not use it. Thus, e.g., in cases of bleeding, the physician's behavior may be considered improper if they don’t order a CT scan. In fact, many examinations will often have to be ordered simultaneously, e.g., for cardiology (e.g., troponins, liver enzymes, heart triplex), for infections, e.g., culture and antibiotics.
Doctors examine algorithms. They make a hypothesis about how a symptom is created, and after first assessing the patient's clinical condition, pulse, hearing, palpation, et cetera., they will make a hypothesis which must be confirmed by appropriate laboratory tests.
Medicine is on a knife-edge.
If they find, for instance, that it is an acute abdominal contraction with a positive McBurney point, then any delay can be fatal. A high leukocyte count may suffice, but it may also be an indication that the patient is ‘giving up’ when these are too low, and his condition has been neglected, with a high risk of sepsis, ARDS, and multi-organ deficiency.
The physicians then have the responsibility to take action but not act conservatively. They will act conservatively only when the patient is suffering from such severe illnesses that any operation would be risky. In such cases, patients should also be involved in decisions.
When is the doctor liable?
According to what was mentioned above, the physicians are liable when they fail to adhere to the rules of medical science either out of ignorance or inexperience or because of recklessness or malice.
It should be noted, however, that many times when there is a complication, it is very difficult to understand whether the physician has acted in accordance with the rules of medical science and art, or made a mistake if we only consider the end result.
Sometimes the physician's responsibility is obvious, e.g., because he left a bit of gauze or a surgical tool in the patient's abdomen. This might seem absurd, but it has happened several times either because of the pressure in the operating room or regarding gauze because the nurse responsible for the measurement got distracted and did not properly count them during their removal. Gauzes become the color of the blood immediately, so it is very difficult for the doctors to distinguish them.
There are, of course, cases of severe heart attacks, strokes, and serious traffic accidents, as well as galloping malignancies or extremely aggressive infections, where doctors are unlikely to intervene.
Are doctors, therefore, liable when they act negligently?
They are liable when they act negligently, as mentioned previously. When they act in the right way, but the outcome is bad, we cannot judge the physician based on the adverse effect, but only on the way he acted and whether he was right or not. This is very difficult to judge in many cases.
What is the organization that judges the physicians?
This will be decided by the statutory bodies established by law. Mostly the court, either civil, criminal, or administrative, but possibly also state organs, e.g., the National Transparency Authority (absorbed by the Health and Welfare Inspectorate Body and the Body of Auditors of Public Administration), if it is a matter of disciplinary responsibility or the Disciplinary Boards of Medical Associations.
All these organizations can, and do, act independently from each other. The Association of Judges (and Prosecutors), or disciplinary inquiry, or disciplinary proceedings may be initiated, but the patient or relatives may go for legal actions and lawsuits.
Is the patient not always compensated when the outcome is unfortunate?
The answer, however logical and simple it may be, has many parts and must be answered in all respects.
Firstly, as mentioned several times, it is the condition of the patient that causes the adverse effect. No one will, of course, ask for the physician to be liable when he/she did not save a patient with end-stage cancer. If it were otherwise, all doctors would have to be in jail or have their homes mortgaged.
Secondly, the adverse effect may be caused by a complication, rather than the physician’s negligence.
Thirdly, many other factors can add to the failure of an operation, e.g., that the patient did not follow the doctor's instructions (for example, during the healing of a fracture, the patient "overused" the damaged leg despite the doctor's instructions, or did not follow the recommended diet, et cetera.), or there are serious diseases, e.g., diabetes, which have destroyed the patient's vessels, and similar issues.
Fourthly, the overburdening of physicians with legal actions and lawsuits against them creates "defensive medicine," which is the medicine that, while the physician can act immediately, performs an extremely large number of examinations out of fear of being charged by a civil or criminal court. This, of course, also burdens the patients with a longer hospital stay, with higher risks of in-hospital infections, with higher costs for insurance funds, with ranches in hospitals, et cetera. In society, there must be a balance and the principle of proportionality. Doctors should be sanctioned, just like all other people, only when they are judged to be truly responsible.
Complication and predictability.
All operations have the risk of complications. It may be 0.1%, but it can be much larger. Doctors know that a specific surgery may have complications, but he does not know if they will happen to the patient, even if he performs a lege artis surgery.
To give an example, we know that, statistically, every weekend in the country, there will be many traffic accidents and many deaths. What we do not know is which cars will be involved in the accidents and who the victims will be. Or we know that 4-5 planes worldwide will crash per year, what we do not know is which flights will have the accident, in order to avoid it. Therefore, in the same way, the doctors are aware that there may be complications, and they try to avoid them, e.g., avoiding an infection with the use of strong antiseptics and preventive chemotherapy, but they do not know when and in which patient those complications will occur.
The patient is not assured that there will be no complication.
Nowhere in the world is the patient is assured that there will be no complications. Physicians are able to face the known complications of a surgery, e.g., they estimate the bleeding and order units of blood in advance in order to be prepared, they estimate that there is a risk of pulmonary embolism after a surgery, so they quickly get the patient to walk, and regarding infections, they take serious antisepsis measures, et cetera. These are the usual complications that are, however, a routine or an integral part of an operation. If they don't happen, of course, it’s so much better.
There are also some severe complications that occur in a low percentage, which are crucial and are mentioned in literature and practice, but, as we have already mentioned, no one knows when they will take place and which patient will have them.
The correlation between misdiagnosis and negligence
The same rule, mentioned above, applies. The court will examine whether the doctor made the appropriate diagnostic, clinical, laboratory, and imaging tests that would help make a safe diagnosis.
If, however, he/she failed to make a diagnosis, not because of any of personal fault, but because the disease had no apparent symptoms but was "well concealed," or there was insufficient time for a safe diagnosis, then the misdiagnosis is not caused by the physician. Let us provide an example. Appendicitis presents specific symptoms, pain in the right iliac cavity, which is diagnosed over time (McBurney, Lanz, Rovsing's point, iliopsoas muscle, et cetera) and leukocytosis. If none of the points are found, and the leukocytes are normal, then it is natural for the doctor to be mistaken. Abdominal pain, vomiting, diarrhea, or headaches can have as a diagnosis the lightest disease or the most severe.
Physicians start with a basic algorithm. From the most common to the most complicated and complex and especially rare. When, e.g., a newborn has a high fever, a virus would be the first thought, but it would also be good to have a culture to identify the pathogenic microorganism. There will also be a thorough examination of neurological signs, especially cervical stiffness, photophobia, et cetera.
We must, however, be aware that if a case is rare and exceptional, and at the same time acute, there is often no time to diagnose. The issue of diagnostic errors is particularly important, and books could be written about this subject. This is where court rulings and the case law, which creates a typology of medical errors, help.
Do courts always provide the most appropriate solutions?
Over the years, published court rulings have seen an increase regarding courts against physicians. If you ask a judge if the problem of medical liability is big, he will answer no. This is because criminal and civil judges face a multitude of other offenses, and the percentage of medical liability cases that reach judges in relation to other offenses is low. If you ask the doctors, however, you will realize that the problem is serious, especially in surgical specialties.
Judges apply the principle of "moral proof" that underlies our criminal law and evaluation, that is, the evidence of consciousness.
We have to say that judges are certainly unfamiliar with the peculiarities of medical science. They know no medical terms, and there is no certainty about how to judge. Their experience with common crime does not help all the time, especially when it comes to complications that are uncertain as to whether the doctor "could" and "should" have prevented them.
They are assisted by witnesses with specialized knowledge, documents, technical advisors, and, of course, experts.
When medical expertise is contradictory, however, things get even more difficult.
In medical trials in civil courts, case law, particularly Supreme Court decisions, has reversed the burden of proof against physicians for the last few years.
That is if the judge in a medical malpractice case is not convinced about who is right, the patient's or his family's side, or the physician's side, then he/she reverses the burden of proof, where it is required that the physician has to justify what happened during surgery, and why the surgery did not go well.
This has led to case law, which is 75% favorable to patients' legal actions and lawsuits, and 25% favorable to doctors.
Why is there so much difficulty in court decisions?
In our country, unfortunately, there are no laws that can quickly compensate the patient. There is no insurance agency to handle these situations quickly, either, such as the models of rapid compensation in New Zealand, Sweden, and the Netherlands.
In addition, there is no statutory body of experts to judge based on the prosecution, e.g., order (and not by court order), and will issue a decision which is binding to the court.
Even the forensic report, when present, gives a cause of death, e.g., heart attack, however, a heart attack does not have anyone who is responsible for it, and the person responsible, or the causal link is not clearly identified.
In traffic accidents, though, there is the Department of Road Traffic Accidents’ report. Regarding ship accidents, there are special expert committees. There is also the "black box" in airline crash reports, and even NASA's findings in spaceship crashes.
Greek judges have no safety net.
Therefore, the judges try to form a judicial judgment with the assistance of only one or two experts.
Law firms also play a role there. How they organize defenses is important, as is how they appoint technical advisers and how they handle literature to convince the judge.
Thus, the judge is called to make a decision based on the best available evidence in favor of one side or the other.
The institution of mediation:
The institution of mediation has not yet been widely implemented in our country, even though it is considered to be a measure to relieve the courts of being overloaded.
In medical liability lawsuits, where damages of 1,000,000, or even 500,000, are claimed, it is highly doubtful that the measure can succeed, given the insurance companies’ reluctance to pay such amounts without exhausting the legal means.
How do doctors react as defendants?
Let's not forget a very important parameter.
Doctors are used to belonging to a profession at the top of the social pyramid, with people who need them, who call them "my doctor," and who give them the prestige of their profession, even nowadays.
At the hospital, no matter how pressing the circumstances are, the physician is the leader of a clinic or group of people, including nurses and paramedics. They have little or nothing to do with criminal courts, which they literally dislike, just as any ordinary citizen feels about going to the hospital or to court.
The hospital, and not the court, is the physician's natural place.
So, it is quite possible that the doctor will be tried in the same court as other defendants, along with criminals of common criminal law, who are charged with theft, fraud, embezzlement, forgery, physical harm by a knife, et cetera.
While all doctors know is the scalpel, they are treated as a common "ripper" in the courtroom.
This is a traumatic experience that the physicians cannot bypass or forget. Even worse, because of any postponements, appeals, et cetera, this situation can last as long as five to eight years in criminal trials, perhaps even in civil trials, (with the new procedure after 2016, we do not yet know the average time that will be needed for irrevocable civil court decisions), or trials in administrative courts.
Why is there both a criminal and civil trial against doctors?
There may be civil, criminal, and disciplinary liability regarding medical negligence.
The procedure in criminal court gives us the opportunity for very good documented evidence, but even more, for practice, witness testimonies, expert witnesses, technical advisors, witnesses, et cetera. The criminal judge has as complete a picture as possible regarding the facts and assessments related to the trial.
In civil court, mainly the Multimember Court of First Instance for the private practitioners, the procedure has been written with a witness from each side. If the public sector is the civil servant, the procedure is only written. Legal rules vary widely in each court.
In criminal trials, though, the patient or his relatives try to "punish" the doctor to "give back" some of the pain they themselves have suffered from the unfortunate outcome of the operation or hospitalization.
In a disciplinary trial, the state and medical associations in public hospitals seek to render law fair to the field they belong to, assess the worthlessness of any possible offense, and punish or acquit the physician.
Patient's rights in case of a medical error
The patient has the right to sue in order for the physician to be prosecuted, to bring a lawsuit in order for the patient or his/her family to get compensation for the damage they have suffered or the moral injury or mental distress for death, as well as to appeal to the competent disciplinary bodies of the Ministry of Health, if the physician belongs to the National Health System medical profession, and in any case the Disciplinary Board of the relevant Medical Association.
Can the patient renounce his/her rights? What is the Consent Document?
The physician usually requires the patient to sign the consent document after being informed about the risks of a disease, its complications, the necessity of surgery, possible complications, possible alternatives in case the surgery is not performed, and so on.
A distinction should be made regarding this document.
The patient first exercises their right to autonomy of will, of self-determination.
Secondly, the patient accepts the risks, the complications that are correlated with the operation, and are not the doctor's fault.
If the physician is negligent, though, he/she will be the one to take the blame. In that case, this consensus document plays no role. The patient gives his consent for a lege artis operation, and not for any misconduct by the physician.
Why do some doctors ask the patient to sign this document, and others do not?
In our country, there is freedom regarding the consensus document. No law obliges the physician or any clinic to oblige the patient to sign a consent document. This works more as evidence in a possible future trial if things go wrong, for both the doctor and the clinic, that the patient has been informed of the dangers of operating, even if it is carried out in accordance with the rules of medical science and art.
Many doctors, however, fear that if they give a consent document to the patient to sign, he/she will be scared and resort to the services of another doctor. So, in practice, few physicians give a consent paper as a prerequisite for performing an operation.
More and more often, nowadays, private clinics and public hospitals are obliging their physicians to ask their patients to sign consent forms that list potential complications, depending on the procedure.
The physician’s rights.
Of course, doctors have rights. Doctors have initially been accused of exercising their rights in an "imperialist way" at the hospital, particularly by the French law school of the 1930s to 1950s. Doctors exercise direct or indirect power over the patient because of their position, as the patient is in a weaker position. This is in the broad sense, and not in the bad sense of power, which is like parental responsibility. You must not do this, you must follow this diet, and you must take this medicine. This is the physician's natural authority over the patient. They have to advise, guide and take care of the patient. This power must be exercised in a polite and highly discrete manner. Because of the stress of work, especially in public hospitals, doctors are often distant or abrupt, or even rude. It is often a vicious cycle because the patient is surrounded by relatives ready to blame the doctor for any delay or system failure.
Over time, and with the rules of ethics, the physician seems to have more ethical obligations than rights. There are hundreds of Patient Rights Declarations, and there are few Doctor Rights Declarations, perhaps none.
If we want to talk now about the rights that a physician has as a defendant or accused, depending on which court or body judges him/her, then we have to say that he/she has all the protection of defendants or accused defined by the constitution and the common legislator in a rule of law, for example, the right to silence and non-self-indulgence, the evidence of innocence in criminal courts, and the pre-trial in criminal courts.
Are doctors responsible for fraud, or is medical malpractice just a matter of negligence?
Medical liability is only about negligence.
Thus, severe, dangerous, or fatal physical damage or even manslaughter will be considered negligence. It should be noted that apart from movies - and those old-fashioned ones - no doctor wants to endanger his career or his mental health or fortune by deliberately causing a medical "accident."
Other offenses may be committed with the pretense of fraud, e.g., passive bribery or tampering with documents (e.g., medical records for the doctor not to be blamed), but not medical errors.
Physicians are also rarely accused of rape, or attempted rape, or inappropriate acts on a patient.
Indeed, the physicians, especially obstetrician-gynecologists, will examine the patient's breasts, examine the cervix, and possibly do a biopsy and vaginal examination with the use of hands. Women are aware of these tests and regularly get them. The physicians may deal with any misconduct by using their associates, midwives, or nurses, who may also be used as witnesses in a similar trial.
Can a private clinic or a medical organization not be liable just because of a sign in their parking lots?
No, this is not possible. Even with the signs in the parking lots that are discarded, e.g., liability in case of a fire, it is doubtful whether they will be accepted by a court. If, for example, a parking attendant deliberately or negligently causes a fire, will the owner not be responsible?
The same happens regarding medical negligence. No one can renounce responsibility, neither the doctor nor the clinic, nor the hospital.
That makes sense. Every professional must be responsible because they must perform their work according to the rules of their science or art -- dentists, pharmacists, lawyers, notaries, electricians, plumbers, conservators, and so on.
Is it true that physicians do not come as witnesses against other doctors?
This is true to a great extent.
Doctors are reluctant to testify against their colleagues.
Many interpret it as a misunderstanding of solidarity between colleagues.
We interpret it in a much simpler way. There is no active physician who is not at risk of complications. In addition, human error is within humanity. Which professional has not made mistakes in his/her career, and continues to make mistakes no matter how diligent he/she is?
The worst thing of all is that no one can predict when a mistake can happen, or when a complication may occur.
Therefore, although it is often observed that physicians have disputes about other things, e.g., for illegal advertising or fraudulent means of attracting customers, we will rarely see a doctor being a witness against a colleague for a medical error.
Should doctors be the judges? How does the court judge a case, since the judges are not doctors?
It's a constant complaint made by doctors. Physicians would like to be tried by doctors rather than judges. From their perspective, they are right. Not because they believe they will be acquitted because the judges will be doctors, but because doctors, as surgeons, will understand the situation differently regarding an unfortunate incident, for example, that a ureter was ligated during a gynecological operation, in comparison to another judge who has probably never visited a surgical site during a hectic shift.
On the other hand, doctors are not judges in any part of the world, for the simple reason that they do not obtain the methodological tools necessary to perform a trial. Even in the US, where the jury system plays a more important role than in our country, jurors are guided by the judge as to which point they should focus in order to provide their results.
In the Common Law, case law has sporadically changed its direction. According to the Bolam test, the medical profession is the one that determines the physician's due diligence, which is how the average physician of the same specialty would behave in a particular case, compared to the physician who is alleged to have acted improperly, not lege artis.
The question of how the judge will judge without medical knowledge is valid. As noted above, this will happen with the help of evidence listed by law, and mainly with forensic reports, expert opinions, technical advisors, witnesses, documents, et cetera.
What kind of law do we apply in Greece?
The Continental Law.
Let us not forget that Maurer was the Regent in our newly-established country during Othonos’ Reign, and implemented the rules of German law to Greece regarding civil and criminal law, as well as Civil and Criminal Law Case.
It is right that there are rules which are strictly applied, sometimes with a literal interpretation of the law, sometimes with a broad one (restrictive interpretation applies to criminal law), while the principles of proportionality of the Constitution, et cetera, apply.
How is Common Law different?
Common Law is the law based on jurisprudence, mainly on the Supreme Court's emblematic decisions.
Bolam v. The Friern Hospital Management Committee was defining for Common Law. The famous Bolam test was established, which meant that the rules of the medical profession were applied based on what the average physician would do.
In Natanson v. Kline, the medical community was 'deified' as a model of behavior. Experts now have the knowledge to explain the diligence measure to the judges, which the medical community considers a methodological tool in what will be communicated and what will not be communicated to the patient.
In the landmark case of Canterbury v. Spence, the burden shifts from the medical community, and is replaced by the judge's judgment, depending on the needs of the prudent patient and what he/she would like to be informed about in order to provide his/her consent. The Bolam test is downgraded, just like the rules of the medical community.
Bly v. Rhoads considers the physician’s burden to be big and is, at times, subject to forensic judgment.
Sidaway v. The Board of Governors of the Bethlem Royal Hospital declares the Bolam test as a theorem. According to Lord Scarman's question, when do doctors act lege artis? The answer is whether they are in line with the practice accepted by any responsible medical body at that time, even if other doctors adopt a different practice. Once again, the medical community provides due diligence standards.
In Reibl v. Hughes, it is the quantity that determines the outcome of the trial and the extent of the damage.
On the contrary, Rogers v. Whitaker with an infinite risk, but within the limits of the subjective criterion and based on the particular interest of the patient, and because of the seriousness of the damage caused, the failure to inform the patient is considered an element of negligence and unlawful conduct from the physician.
In the case of Bolitho v. The City and Hackney Health Authority, the big question arises as to what should be announced to the patient in a different light, the one of common sense. What is reasonable is in accordance with the law.
Chester v. Afshar declares that this is the end of paternalistic medicine, which is no longer the norm. It speaks in favor of the legitimate interests of patients, even if it is considered that we should deviate from the rules of the causal effect. The purpose of the law is the law itself.
The most recent and infamous case, Montgomery v. the Lanarkshire Health Board (2015), should be noted, where it was recently ruled by the Supreme Court that everything should be said to the patient as an elimination of any residual paternalistic behavior from the physicians, regardless of whether the patient may handle it or not, which is "politically correct," but can often amount to a brutality of the consensus after being well informed, especially for people in the Mediterranean, like the Greek (from a book published by the author).
In the future, it is certain that the controversy over major issues regarding the criteria of medical negligence or what to say to the patient will not end. Whether in the Common or Continental Law, the major problems will remain unresolved, or, rather, an ad hoc solution will be given that corresponds to the particularities of each living situation, the legal assets at risk, and the needs of the imminent societies.
Who has to prove in court that there is no liability?
The presumption of innocence of the accused is always valid in criminal proceedings.
In civil trials, the trial for the compensation claim, according to the settled case-law of the courts, the burden of proof, which is the burden of providing proof to the judge, bears on the physician. The justification is that the patient does not know the rules of medical science and art, and does not know what happened in the operating room.
The physician must, therefore, show that he acted in a proper manner, that he complied with the rules, and that any injury was not caused by his own negligence but by an endogenous or accidental cause.
The patient must prove the extent of the injury.
In practice, however, we find that even in criminal trials, courts often distrust the doctors, believing that they should have done more in order to avoid any harm to the patient.
Many times, and this is a completely subjective view, we observe that the courts try to play the role of non-existent social solidarity with the patient.
We could say that judges feel and associate more with the patient's health adventure.
In the end, do judges have to try medical liability lawsuits?
Alas, if someone does not trust the judicial system of his country.
Judges are particularly well trained, especially today, due to the National School of Judicial Officers, even in the Courts of First Instance, where we often find surprisingly well-attested judgments.
The judges in these trials are particularly interested, and one has the feeling that they seek for the truth via their own research, looking for scientific articles, et cetera. They come well-prepared to court, not only legally, but they also know how to move around, often having planned key questions to witnesses, et cetera.
When a court adjudges a medical error, is the doctor punished, and what are the penalties?
Doctors' convictions usually increase over time. They start from around 12 months of suspension and reach up to 36 months for homicide, e.g., in the case of a doctor who allegedly died of negligence at the age of 73 with a huge abdomen issue, because after a few days there was a perforation of the intestine that was operated on, and eventually the man died.
The perforation of the intestine is not the physician’s mistake?
What is and what is not a mistake is something that we are not able to say in general, only if we judge a specific case. Once again, nothing is certain. Many times, even if the courts judge that it is so, the question remains whether the doctor did the right thing or not. In older people, for instance, we know that there are damaged bowels like "cigarette paper," or they have undergone other operations, or have adhesions, et cetera.
The error may have occurred because the physician did not set the stitches well, or there was no proper distance between the stitches or the clips used.
It may also be because of an accidental event, e.g., the bowel may open after a few days, perhaps only caused by the hassle of the surgery. Abroad, surgeons refer to this as the "cursed" fifth day. After a few days, there may be a leak in the large intestine, which is often delayed because of the lack of pain (which is actually there, for example, in a stomach perforation caused by the acids it contains).
It should be noted that the vast majority of courts consider bowel leak to be the result of a surgeon's mistake.
The same thing happens with hospital infections in the context of the 'objectification' of medical liability.
How long does it take for the criminal court to convict the doctor?
A criminal trial starts with prosecution, the written explanations of the alleged medical offender. After several months, the vast majority of the cases go to the audience. It can be calculated that taking into consideration the postponements that take place in the Criminal Court, the procedure lasts three to five years, around two years in the Court of Appeal, and it is faster in the Supreme Court if there is a risk of limitation, which is eight years (five plus three).
What is the compensation when the Civil Court finds that a medical error has taken place?
Compensations are high in medical liability lawsuits, so the compensations may reach up to 500,000-800,000 for damages and non-material damage, depending on the age of the person who dies, taking into consideration conditions (e.g., disability and need for exclusive nurses, physiotherapy, et cetera).
How will the patient be assured that he/she will receive compensation in case of a medical error? What happens, for instance, if the doctor sells his assets or passes it on to his children?
This may sound logical, but the law has safeguards not only the provisions for loaners’ fraud, where such contracts are canceled but also in two other ways.
Firstly, the physicians’ insurance - usually physicians are insured for amounts ranging from 100,000 to 600,000 euros, possibly more - and secondly, the liability through delegation by respondeat superior relationship between a state hospital or private clinic and the physician.
What is the liability through delegation by respondeat superior?
If the physician is employed in any way, and in any employment or other relationship, the courts have held that the private clinic or diagnostic laboratory are equally liable.
This is true even if there is a loose relationship between a doctor and a private clinic, or diagnostic laboratory, e.g., a surgeon or an obstetrician-gynecologist only uses the hospital premises.
The criterion is not, as before, for the business owner or the board of directors of an S.A. to have control over the instructions provided, but now, the criterion is to expand the number of persons responsible for any compensation.
The same applies to doctors of NHS or National Organization for Health Services.
Should doctors be insured?
In the United States, both in the mid-1970s and the previous decade, there was a huge problem. Judges raised premiums too much, as they have been confident that insurance companies are the ones that pay, and not the doctors. Who pays? The deep pocket was the answer. However, these large compensations had an effect that was not anticipated by the judges, although the market, itself, reacted. The increase of the compensations has led to the increase of the insurance premiums, to the extent that it has often been prohibitive to practice medicine in specialties such as obstetrics, gynecology, orthopedics, and general surgical specialties, which have a greater problem regarding medical liability. Many doctors in areas like Miami or California, some of the best in the world, were forced to quit their jobs.
Fortunately, in our country, the problem with insurance companies is not that great. The system is still functioning well, and the premiums are reasonable. Almost all doctors today who practice high-risk specialties are insured, which was unthinkable twenty years ago.
Does this mean that insurance coverage is always sufficient?
It would be sufficient if there was a method of immediate compensations.
Both the patient and his relatives would be paid directly and would not have to take legal action and file lawsuits, and the doctors would be happy that the compensation relieved in the best possible way - because there is never a real compensation for a person who died or has a permanent disability - the patient or relatives.
With car insurance, legislation is more advanced.
Surprisingly, doctors often observe an insurance company that has always been friendly to them while they were paying, with a polite and kind insurance adviser, suddenly become "hostile." Instead of being on the same side, being on the side of the doctors, and indirectly the patient, they find various ways to avoid paying the compensations.
They do not agree on a possible compromise between the parties in court (especially when the compensations are high). Many times, they find various ways to avoid the compensations, searching for reasons. For example, they may say that the statement of occurrence of the insurance risk did not happen quickly, that the patient was insured with another company after a while, et cetera.
Is it worthwhile for a patient who has been injured because of a medical error to file a lawsuit? Will he be compensated for his suffering?
The patient who suffered damage that was not foreseen because of the nature of the operation, e.g., - and we are mentioning an extreme example - a hernia or appendicitis operation, where the sciatic nerve is affected, then apparently something was not done correctly or was omitted by the doctor, which led to this adverse effect.
The patient should, therefore, consult a lawyer or lawyers and even consult physicians of the same specialty or an equivalent one (e.g., in the example above, the patient should consult with general surgeons and/or neurosurgeons). The doctor might not be liable, because that was an extreme example, but the patient could have an anatomical disorder that was unpredictable, and, because of the urgency of the matter, it could not be controlled. For example, in very rare cases, such as a cataclysmic hemorrhage, the physician could supply urgently untested blood.
There are also cases where the physician operates with high risk and under high pressure, such as in cases of injured people who were in traffic accidents or had serious injuries from firearms or knives during hunting, clashes with violators of criminal law provisions, et cetera. In these cases, of course, the physicians cannot be blamed for a bad outcome. It is, therefore, very likely that a patient’s lawsuit against a physician may be rejected. In these cases, however, the doctors must prepare the relatives, or emphasize, along with written consent, the high risk of an operation.
Any damage caused to the patient after surgery may be blamed on the physician, who may have misapplied the rules of medical science and art, even though it may also be caused by an expected complication.
The patient will weigh the consequences of litigation. If the court finds the doctor liable, they can get a lot of money in about 5-10 years. If these lawsuits do not prosper, then there is a risk that they will be ordered to pay the costs for the trial.
The proportion of trials that were in favor of the patients has been around 75%, and 25% for doctors, since 2010.
Many patients certainly prefer the solution of "contracting" lawsuits, where they agree with their attorney to be compensated at a rate of 20% or 30% of the amounts awarded or to be awarded when there is a second lawyer, and which is within the legal framework in force in Greece today.
There is also the judicial stamp in lawsuits, now on pleadings, as well, which is roughly 1.2% of the amount claimed.
Of course, there is always the option for a reasonable compromise, but this is usually not possible because of the high amounts demanded by the patients or their relatives, and the unwillingness of the insurance companies to pay the compensations unless irrevocable court decisions are issued.
© 2011, revised version 2020, Harris Politis. According to law, any reproduction without prior written permission is expressly prohibited.