On Mediation Again

I wrote an entry about Mediation May 25th this year titled On Mediation. I was very skeptical about the workability of such a process here at that point of time.

In today's Today Online, this process is outlined & will come into effect next year. I think it is a good first step to take in trying to tackle the increasing numbers of complaints lodged against medical practitioners & healthcare institutions.


Now doctors can say 'sorry'

A freer, less painful approach to medical negligence cases

Loh Chee Kong
cheekong@mediacorp.com.sg

EARLY last year, Mr Surender Singh's wife died after she donated one of her kidneys to him. He still doesn't know why. He hasn't heard an explanation or an apology from the doctors concerned. The hospital is being fronted only by its lawyers — and for good reason.

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When something goes wrong, doctors worry that anything they say might be used against them in court, said lawyer Amolat Singh, who represents Mr Surender Singh.

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Starting next year, an initiative by Chief Justice Chan Sek Keong could change the complexion of medical negligence cases. All parties can meet before a case begins; patients or their relatives can find out exactly what happened; and, if necessary, doctors can say sorry.

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More importantly, everyone can speak freely, because the information exchanged cannot be used in court.

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In fact, experts said that if the move takes off, there could be less need to go to court at all. The air of mistrust can be cleared, and if an honest mistake has been made, the matter can be settled without relying on expensive litigation.

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Under this new protocol, once someone has paid a fee of between $75 and $100 for his medical documents, he should get a response from the hospitals and doctors within six weeks.

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After that, a face-to-face meeting can be arranged within two months.

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An average of nine medical negligence suits have been filed here each year since 1998. Most get settled at the Subordinate Courts' Primary Dispute Resolution Centre without going to trial.

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The new "open disclosure" policy could ease the pain further. Eventually, said Subordinate Courts Registrar Toh Han Li, it might even be applied to cases in the High Court, which hears civil suits involving claims of more than $250,000.

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Both doctors and patients could gain. More understanding — and fewer cases going to court — could bring down premiums on insurance policies for doctors and lower medical costs.

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Patients also know how hard it is to prove outright medical negligence. One of the last notable cases where a patient sued successfully was in 2001, when a botched operation shrank an American national's testicles to the size of a child's.

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Some patients get unnerved by high legal fees, while others find it difficult to find a medical expert to testify against his peers, said lawyer Peter Low.

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Doctors, caught in a legal tangle, get equally frustrated.

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Said Dr Chong Yeh Woei, a general practitioner: "When you get involved in a legal process, the first thing you do is to consult your lawyers and do what they tell you to.

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"You might want to say sorry — and sometimes, it's all the other party wants. But by saying sorry, you are admitting liability and guilt."

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Or, as Dr Melanie Billings-Yun, a consultant in conflict resolution, put it in her February lecture to a roomful of Subordinate Courts officials: "The adversarial system is based on faults. But in 80 to 85 per cent of malpractice cases, there is no fault to be found.

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"If doctors are forced by their lawyers or insurance companies to treat every adverse outcome as a dirty secret, is a patient or his family being unreasonable to imagine that fault must indeed lie behind a stone wall of silence?

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"With an open disclosure policy, doctors and nurses will no longer be made to hide as if they were criminals ... more importantly, they will find that their words have the power to heal their own wounds."

Loh Chee Kong
cheekong@mediacorp.com.sg

However, I am still skeptical as to how long it will take for the mindset of doctors & patients to change from one of blame & shame to one of openess & mutual understanding. As doctors, we have been so afraid of being open to admitting to mistakes because of the fear of litigation that I wonder how long it will take for us to embrace this new process.

And in addition, within our own community, this punitive culture is still prevalent enough to prevent most of us from owning up to honest mistakes. How many of us have, as junior doctors, been made to feel absolutely fearful & ashamed by our seniors when they belittle us for our lack of knowledge or skill?

Yup, this is a good first step. But I still see a rather long flight of stairs ahead of us...