by Larry Smith
What is being called a "landmark" test of medical accountability is slowly inching its way through our labyrinthine regulatory process, more than six years after the 42-year-old man who started it all died at Doctors Hospital.
Dr Duane Sands, chairman of the Bahamas Medical Council, says he and others are working hard to ensure that the public have a means of redress in matters of medical competence. And a new medical act to be introduced soon will go a long way towards fixing the governance deficiencies of the existing law, which was enacted in 1974.
"You have no idea of the amount of work going on behind the scenes to deal with this landmark case," Dr Sands told Tough Call recently. "There is no stonewalling. We take this very, very seriously because we want to ensure that the public will be well-served at the end of the day by this groundbreaking precedent."
Why is he so defensive? Well, the six-year track record of the case in question is instructive. To simplify matters and take personal prejudices out of the picture, we will present a generic summary of this case. But all of the dates, events, individuals and institutions in this account are real.
A Landmark Timeline
A few months after the 42-year-old man died in April 2002, his family began questioning the hospital treatment (on the advice of concerned doctors) and requested a copy of the medical file. Following a review by local and foreign doctors, the family launched several attempts to have the case investigated.
1. In June 2004 the deceased's widow filed a complaint with the Hospitals and Healthcare Facilities Board, which said it had no jurisdiction to investigate. Three months later the deceased's sister (who is a lawyer) wrote the minister of health (who was also a doctor) objecting to this, and the minister ordered an investigation. This was followed by a long series of letters pressing for the matter to be addressed. At a meeting with the board in mid-2006 the then chairman said the file should be closed because the patient was dead.
After the May 2007 general election the board's membership changed, along with the government itself. This required more correspondence to press the issue to newly appointed officials. When questioned unexpectedly at a public meeting in 2007 the new minister of health (who is also a doctor) assured the deceased's sister that the case would be heard.
After another series of letters this year, the board claimed it didn't have the resources to investigate. The new chairman also declared publicly that he didn't want to be "bothered" with oversight, and that the requirement to monitor deaths at healthcare facilities was "antiquated and unnecessary". In short, over four years the Hospitals Board has done everything it could to avoid dealing with this issue.
2. In August 2004 the deceased's sister began asking the coroner's office for an inquest into her brother's death. But this was not forthcoming until the publicity circus surrounding an inquest into the death of Anna Nicole Smith's son in September 2006 (also at Doctors Hospital) made someone see the irony. The acting chief justice agreed to list the case, and an inquest finally began in January 2007 - more than four years after the death.
In April 2007, the seven-person jury had to be discharged because one juror could not continue. The law does not provide for substitutes, so a new jury had to be impanelled. A second inquest then began, and the coroner delivered a verdict in February of this year (a transcript can be read at www.bahamaspatientadvocacy.com). He ruled that death was due to "natural causes with a substantive and significant contribution of medical neglect.”
In July 2008, the principal doctor involved sued the coroner for a judicial review of the inquest verdict of negligence. The chief justice then quashed the verdict on a technicality, but up to press time (months later) he has not signed or provided reasons for the order - which means among other things that there are no grounds on which it can be appealed. At the same time, the patient's widow has indicated she will not seek a third inquest - which means that no proceedings are pending before the coroner's court.
3. In late 2004 a civil writ was filed by the patient's widow against the hospital and six doctors. Of the six, one left the country and was never served, two entered a defence in 2005 and three ignored the writ until 2006, when a default judgement was entered against them. This prompted an immediate reaction by the doctors and the judgements were set aside. The civil suit has not been adjudicated and was adjourned indefinitely in March 2007.
4. The deceased's sister has floated a petition on the Internet calling on the prime minister and the minister of health to direct the Hospitals Board to fulfill its duty: "This petition calls on you - our elected leaders - to ensure accountability under the law for citizens accessing the healthcare sector...The board's legal and professional obligations must be carried out so that the right to life of Bahamian citizens can be protected. Alternatively, we advocate the establishment of a national Healthcare Commission with the power to investigate complaints from the private or public healthcare sectors, and to implement measures to address failings in the delivery of healthcare."
This petition (which can be seen at www.bahamaspatientadvocacy.com) has attracted more than 500 signatures and will be submitted to the government before Christmas.
5. Last May the deceased's sister made a formal complaint against the doctors involved in her brother's treatment to the Bahamas Medical Council, which said it could not deal with the matter until there was a final ruling in the inquest appeal. In September she threatened to sue the council if it did not process her complaint, and the matter was then referred to a complaints committee in accordance with the Medical Act.
Dr Sands told Tough Call recently that the complaints committee has now referred the matter to a disciplinary tribunal, which has yet to meet. A supreme court judge must be appointed before an inquiry can proceed, at which point the doctors involved will have to file a defence,he said.
"We have watched the lawyers crash and burn, and it would be stupid of us to squander the goodwill of the public by an absurd process or outcome in this matter," he said. "We want to improve public perception of the profession. All the professions are being challenged to improve their governance and policing. We have simply not paid enough attention to this type of thing and now we are paying the price for it."
The Issue of Accountability
Medical accountability is a very tough call, especially in our small society, where everyone knows everyone and there is a widespread tendency to close ranks to protect social and business ties. Two foreign doctors with indirect links to the Bahamas discussed this issue on Jeff Lloyd's radio show last week. And we spoke to both of them independently.
Dr Paul Bratty is a former chief of staff at Vancouver General Hospital, and professor of medicine at the University of British Columbia. He spent almost a decade on the council of the provincial college of physicians and surgeons, the regulatory body for some 8,000 doctors in British Columbia, and was its president in 1993. He has relatives in the Bahamas and has been visiting Nassau for over 50 years.
"We had to deal with the behaviour of doctors at every council meeting," Dr Bratty told Tough Call. "Patient complaints must be investigated. There are bad apples in every profession who need to be dealt with. The most common misdemeanours are poor prescribing practices, selling drugs, and improper associations with patients. Competence is more difficult to define and deal with because it has to be examined by other experts in the field. We handled as many as 150 complaints a year of which 40 might be significant and 10 might actually go to an inquiry."
Dr Adrienne Garner practised at the Princess Margaret Hospital for 20 years from the early 1970s and then volunteered at the Hardecker Clinic before becoming the schools medical officer and helping to set up public clinics. She went back to Britain in 1989 to do general practice but spends half the year in Nassau, where her family lives. She was a medical witness in the inquest described above.
"Complaints are common in the UK and most medical errors are not done willfully," she told me. "But patients should be able to raise concerns about treatment with the confidence that they will be investigated. In most cases what patients or their relatives want most is to know that they have been given a full and honest explanation of what happened, an apology if indicated, and an assurance that steps will be taken to ensure that similar mistakes are not made again."
Medical mishaps are common even in the most advanced nations. Ten years ago the Institute of Medicine published a report confirming that "healthcare in the United States is not as safe as it should be--and can be. At least 44,000 people, and perhaps as many as 98,000 people, die in hospitals each year as a result of medical errors that could have been prevented. Even using the lower estimate, preventable medical errors in hospitals exceed attributable deaths to such feared threats as motor-vehicle wrecks, breast cancer, and AIDS."
In Britain, the General Medical Council is the regulatory body for doctors. But there is also an independent watchdog known as the Healthcare Commission which assesses and reports on the quality and safety of both private and public medical services. The commission has carried out 14 major investigations in the past four years, according to its website. Interventions are focused on identifying the likely cause of specific failings, and working with the healthcare provider to ensure that these are addressed rapidly.
But in the Bahamas things are a little different, and to be fair there is very little institutional capacity to deal with such complex issues. The Medical Council here consists of only seven volunteers with virtually no staff. And while its website (http://bahamasmedicalcouncil.net) includes a list of registered doctors with categories to display their qualifications and any sanctions that may have been applied against them, this data is presently unavailable.
However, despite all the drawbacks, Dr Sands says that several doctors have been sanctioned by the council over the years: "Lots of names don't show up on the radar because of the way these things are dealt with in our community. There is a lot of laissez faire, under-reporting and lack of due process. Part of the problem is that people are not willing to put complaints in writing and the council can't initiate investigations without a formal complaint.
"There is a finite group of people who are discrediting the profession without any real repercussions - from charging extortionary fees to providing less than appropriate care. It's a real challenge for us, but I have been on the council for three years and served three terms as president and I can count on one hand the number of written complaints we have received."
The medical act is being replaced to deal with this, he said, although it has been stalled for at least five years. Among the new legal provisions are a requirement for continuing medical education for doctors and an expansion of the council's powers to deal with regulatory and policing issues. This will require hiring professional staff, including lawyers, and will be partly funded by an increase in doctors' license fees.
"Measures that have been taken to deal with dysfunctional doctors include not renewing the licenses of some foreigners, revoking the licenses of several doctors for fraud in the issuing of sick notes as well as for incompetence, letters of reprimand, and forcing some doctors into counselling due to impaired judgement."
Despite the dismal track record described above, Dr Sands, claims that this landmark case of medical accountability is just going through due process: "We are walking on uncharted ground, but the complaint is alive and it is good that the system is being tested in this way."
So much for the Hippocratic Oath eh?
Posted by: Nthomas | December 04, 2008 at 07:47 AM