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Medical Malpractice Problems and their Influence in Albanian Health Care System
Bardhyl Cipi Professor, Department of Forensic Medicine, Medical Ethics Field, Faculty of
Medicine, Rr. "Kongresi Lushnjes", Pall.42, shk.7, ap.73, Tirana, e-mail: [email protected]
Abstract
In this article, the author analyses the problems of Medical Malpractice, which has an important
place in the studies in the field of Medical Ethics in Albania.
The author discuss the main types of medical breaches: medical misfortune, medical errors,
medical negligence, medical intentional crime.
The author also presents the medical malpractice experience and influence on Albanian health
care system.
In conclusion, it is stressed that it is the right time for Albania to pay more attention to these
issues raised by Ethics and Bioethics.
Key words: medical malpractice, health care system, Albania, medical corruption.
Introduction
Medical Malpractice covers all defects in the professional behavior of doctors and other medical
staff and presents a particular importance in Albania.
In the period of crisis that is passing the Health Care System of our country, I think that Medical
Breaches have a direct connection with the presumed Medical Corruption.
The analysis of different aspects of the Medical Malpractice in Albania constitutes the principal
core of this study.
General data of medical malpractice
in Albania
The main kind of Medical Malpractice occurring in Albania, are as follow (2, 3, 7, 10): Medical
Misfortunes, Medical Errors, Medical Negligence, Medical Intentional Crimes.
Medical misfortunes
The cases of medical misfortunes resulting in bad consequences, where it is impossible to
presume in an objective way the consequences of medical interventions or not, have been
relatively rare, representing less than one fourth of Medical Malpractice in general.
Such cases have been primary unexpected deaths on the surgical table, caused by surgical shock,
when the organism is overreacting to anesthetic administration and many cases of anaphylactic
shock, as a result of antibiotics administered for the first time on a patient.
In fact, all these cases have been analyzed carefully to exclude the possibility of any malpractice
inefficiency or medical error.
Medical Errors have been also rare in our practice. As we know, Medical Error is considered to
be all those wrong actions made by doctors and medical staffs during the exercise of their
profession and which have no legal repercussions on them.
The errors have been the results of the imperfect state of medical science and insufficient
knowledge and experience of examining and treating methods of medical staff.
Case 1
A physician considered the severe pains in the epigastric area and vomiting which patient
complained about, as signs of acute gastritis.
Unfortunately, the patient died after half an hour or so from coronary thrombosis.
In this case, the atypical pain localization of myocardial infarct (irradiated in the regio
epigastrica) and particularly in a young person having normal pulse rate and blood pressure at
the time of examination, helped the inexperienced doctor in the field of cardiology, not to
diagnose correctly the disease of the patient.
For all these reasons, the request made to a freshly graduated doctor, cannot be the same as those
of an experienced one.
Both can error: the former more than the latter; and their errors may be of a different nature and
hence the evolution for the same actions should be performed in a different way.
So, every physician in the exercise of his profession, except university knowledge, must be
qualified continually.
Such errors have been also influenced by objective external conditions and limited time and
tools.
Case 2
Such is the case of a surgeon who being faced with a patient with complaints of acute abdomen
pain, was obliged to operate without wasting time and found nothing but ascarides, all over. His
mistake is totally justified and permitted.
Medical negligence
(careless medical treatment)
As in other countries, medical negligence is considered as the classic frequent form of medical
malpractice.
In fact, medical negligence comprises a complex medical-juridical case.
Justice has often been inefficient to solve such cases in a balanced way, between the patient's
rights and the values of doctor's rights in exercising the profession.
In reality, a charge for careless medical treatment is a bitter experience for a doctor. He would
have to spend whole hours, days and months with the investigators and judges dealing with his
legal responsibility, trying to give endless details for his defense (2).
Careless treatment has its own parameters and legal limitations.
In principle, when someone takes the responsibility to carry out a service towards another
person, he is obliged by law to perform the service in the proper way, with the normal care, and
if he is a specialist in a certain field, he is obliged to carry it out with the efficiency dictated by
the profession.
In such cases the "standard" care is indispensable.
If a physician is a general practitioner, the "standard" looked for should be of general medicine
level.
If a surgeon, the "standard" of the surgeon should be applied etc.
In our country, the legislation applied in cases of medical negligence is provided in articles 96,
97 of Albanian Penal Code, which contains rules about careless medical treatment and refusal of
medical aid.
Careless Medical Treatment
The article 96 of Penal Code defines it in this way:
"The careless medical treatment of patient by the doctor, or other staff, as well as the cases when
the therapy or the orders of the doctors have not been applied and has caused serious damages,
has endangered patient's life, or has caused his/her death, is sentenced with penalties or
imprisonment until 5 years" .
In our medico-legal practice, most of the careless medical treatment cases belong to the surgery
and obstetric specialties, for the simple reason that in these two specialties there are quite often
emergency interventions for acute diseases and different injuries. Such cases have been met
during the diagnosis phase and during medical treatment.
Case 1
In the former, cases have been met starting from the anamnesis phase, when it has been taken
quickly and superficially.
For example, an obstetrician, who did not go deep in defining the patient's anamnesis, who was
ready to go into labor herself, which caused womb rupture and later the patient's death.
In other cases, malpractice is met when the objective examination is performed superficially,
incompletely; when the necessary consultations were not organized on time, etc. Such irregular
examination will result in the definition of a wrong diagnosis.
Case 2
Typically, in this direction was the case of a physician who performed a superficial examination
of a patient with hard belly aches, without examining inguinal regions: in one of these regions
was an incarceration of hernia.
Such a malpractice caused a belated surgical intervention and as a consequence, the patient died.
During the treatment phase, malpractice is met initially in the definition of the treatment scheme;
for example in cases when there is insufficient preparation of the patient before starting
treatment, such as the operation of someone injured and shocked without reanimation, when
someone is operated on with general narcosis, without having the stomach formerly emptied.
Later, malpractice has been related with the direct application of the patient treatment scheme.
Other cases
For example, such cases met in our experience would be the missing of foreign bodies inside the
human body during the operation; prescriptions of medicine with a strong poisoning effect and in
big doses (the cases of the wrong intravenous application of Potassium Chlorate some years ago
to four different children in three hospitals of our country, which was followed by immediate
death after some minutes); or the case of blood transfusions with incompatible blood groups.
Refusal of medical aid
About this problem the Penal Code gives this definition:
"Refusal of Medical Aid without important reasons by the personal who by law or due to duty
was obliged to give it, when as a result of it, serious damage to health is caused, endangering of
life, or death, comprises a penal contravention and is charged with penalty or imprisonment of up
to 2 years" .
The physician or other medical staff is responsible for the refusal of aid, not only when he/she is
performing his/her duty as physician, the moment that help is required in policlinics etc., but
even when this aid is asked for outside the hospital or polyclinics (house, walking, etc.).
This crime can be intentional or not.
It is worth mentioning a case when people in a village, went to the doctor to ask for help for their
relative who was having strong belly aches.
The physician without thinking deeply and not wanting to go to the patient's house, some
kilometers away, recommended the people to let him drink "raki" (spirit, alcoholic drink) in
order to soothe the aches.
Although the recommendation was applied, the state of health worsened more and about dawn
the sick person died.
Through the autopsy a stomach perforation due to a gastric ulcer was discovered and signs of
general peritonitis.
Under such conditions, the doctor was found guilty and sentenced for refusal of medical aid.
There are cases when the doctor cannot be charged for not giving aid, when the reasons are
convincing. For example, when a doctor is treating a patient with a severe condition and his help
in another case is required.
Intentional medical crime
These Medical Breaches happen, when physicians or other medical staff, use their professional
knowledge to commit criminal acts against the health and life of people and interests of society.
Considered as examples, are the abuses of medical knowledge through the use of medicaments,
hypnosis, to carry out thefts, sexual relations, sterilization without medical indications, etc.,
which are almost never met in our practice.
In this category of breaches is also included unauthorized abortion, particularly when this is
accompanied with heavy consequences, even death of the woman, as foreseen by the Penal Code
and the Code of Deontology.
In fact, in our country such abortions have not been performed since 1991, when abortion was in
general allowed. By the end of 1995, the abortion law had also been passed.
Case
Last to be mentioned are the cases when the medical actions belonging to the physician are
performed by people who do not have these rights, as the case of a midwife performing medical
manipulations belonging to the doctor, or when some completely ignorant persons in the field of
medicine deal with medical activities, passing the limits of their scientific knowledge.
Cases of this kind have been quite rare in our country.
Medical malpractice problems
in Albania and other countries
In our country, cases of Medical Malpractice, in comparison with those of western countries, are
very rare, generally-lethal cases followed only by criminal prosecution; the civil prosecution and
damage compensation are missing.
Legislation applied in these cases: articles 96, 97 of the Penal Code, about careless medical
treatment and refusal of medical aid, had been insufficient to examine them completely.
Thus, many of these cases have been legally cancelled, even when the Breach was verified.
This has happened only in virtue of those articles and it has been impossible to prove
scientifically that the Breach has been the cause that brought complications followed by death.
The legal organs couldn't create a full conviction about causal relation between the breach and
the medical consequence.
But the main distinction of Medical Malpractice in our country with those in west, it is
determined from our political regime.
As in other former communist countries, with a command economy, it has existed a centralized
Health Care System, but with lack of funds and equipment.
Such centralization, inspired by unique ideology, reached to that extent that the health of a
person was considered as something intangible.
Care must be shown that a person had to be healthy and not to get sick and this not in his best
interest, but to be able to serve better to the socialist regime.
So, the individual health was transformed in this way to a kind of state property and it was
considered holy. It would be a shame to compare that with monetary value. Such attitude
explains also the civil prosecution lack of Medical Malpractice cases.
Just for this reason, was applied attitude of paternalism, instead of informed consent. After this,
the patients were kept in ignorance of what was wrong with them and what was to be done about
it.
Normal rules such as self-sacrifice or unselfishness of doctor in that period served precisely to
the ruling ideology in our country.
On the other hand, Albanian doctor in ratio with the patient was considered as a clerk,
representative of the state authority and generally he had not any kind of autonomy in his action.
Lack of autonomy, low salaries, lack of funds and equipment of Medicine and lack of patient
rights made less urgent the problem of responsibility.
All these, including the lack of civil prosecution of Medical Malpractice questions, had done that
all the cases of Medical Breaches, were few.
Even at those cases that were denounced, very often their penal pursuing was seized.
This was done based on so-called principle of "penal policy", according to which the accused
doctor was considered a man of the government, kin of a high personality etc.
On the other hand, in respect with dissident doctors these penal prosecutions were carried out to
the end, in a rigorous way.
After 1990 the situation is the same.
On the other hand, the civil prosecution of these cases, which aim is the compensation of the
patient by the guilty doctor, it hasn't been applied yet in our country.
Meanwhile this kind of prosecution is introduced in the normal routine in other former
communist countries, as Hungary, etc.
Health Care System situation
in Albania and Medical
Malpractice problems
After 1990, with the total failure and overthrow of the totalitarian Regime, deep changes were
done also in medicine. At that time began a reform of Health System, in order to improve all the
negative aspects of the former Medicine of our country and to transform it, according to the
model of developed western countries.
But we shouldn't forgive that moral and cultural traditions in medical field are deeply grounded
in people's lives. It is very difficult to absorb new ideas. Modern medical development has
witnessed this difficulty in many cases.
In fact, the Health System reform that began after 1990 was accompanied with the emitting of
many laws from the Albanian Parliament, that have to do with the respect of the patient rights,
the independence of doctors and other medical staff, the principles of Medical Ethics and
especially about the application of the Market in Medicine.
According to the question of the Market we shouldn't forgive the conflict that exists between the
Medicine with its altruistic aim in treating diseases and the Market that has its main purpose,
fulfilling of individual interests.
Such a confrontation between Medicine and Market at a solid society with high cultural level,
factors these softening of this impact, it is generally successfully solved through the intervention
of the government.
While, in former communist countries, where in general, democratic liberal regimes are set, the
solution of such impact has been very difficult, maybe impossible.
In such hard situation is also our health system.
Comparative with eastern countries the situation seems to be even more difficult.
From the market point of view, for a number of physicians, the medicine remains a human
profession in curing diseases.
For a second group, having as a principal aim the curing of the patient, it becomes a source of
legal profit; for a third group, the market underlines their free activity, completely independent of
the government to choose and exercise in a honest way their preferred medical profession. But
there are some physicians for which the market is used for their own benefit by using antihuman,
illegal methods to earn as much as possible and get rich in a very short time under the mask of
attractive ideas of "Liberty" and "Human Right", profiting on the expenses of the human misery.
My impression, in these new conditions, the biggest part of the Albanian physicians is included
in the first three groups, while the physicians in the last group have to be in a reduced number.
For this reason, the corruption is already present in all governmental Health Institutions, in my
opinion and the physicians are not fully to blame for this negative phenomenon.
A performance of the crisis that our health system is passing, it is the corruption as well, now
widely accepted, expressed particularly in receiving gratuity form: the patient tipping the
doctors; it is present already in all governmental Health Institutions.
In fact, giving gratuity to the physician has been a phenomenon, as in other countries. In
condition of free of charge of medical service, according to the health need of patient, he
expressed his gratitude to the successful treatment, offering to the physician a sum of money.
Nevertheless, such a phenomenon, the former regime punished both morally and legally, based
on the article 109 of Penal Code (1977). Still, apart of this attitude of the government of that
time, this phenomenon was increased.
For this reason, this problem is discussed often in different Eastern European countries.
From this analysis, the following conclusion has come out:
- Offering money to the physician by the patient before the beginning of the treatment, with
explicit purpose to create some privileges in respect with other patients, has to be considered a
corruption move in Health System, condemned both morally and legally.
- If the doctor receives the money from the patient at the end of his treatment, this is considered
justified for the moral point of view, as an expression of gratitude to the doctor.
Nevertheless, according to a foreign author, in countries where Health System presents many
deficiencies and different small equipment are provided by doctors. Situation like this exists also
in my country. In such conditions, tipping the doctor must be considered morally punishable.
This gratuity can affect to this doctor, to favor this patient against another one. In fact, according
to this author, this must be the main reason of the gratuity of the doctor from the patient.
In respect of this issue, according to a study carried out by us on Medical Malpractice in Albania,
a proportional dependence between medical breaches and medical corruption is observed.
In fact, the issues of medical malpractice occupy an important place at the studies of the field of
Medical Ethics which are carried out in our country.
From our study has resulted that cases of medical malpractice are not rare but they are not
prosecuted.
Thus, if a regular deontological, penal and civil prosecution would exist, along with other
measures, would help in the reduction of health corruption phenomenon in the form of tipping
physicians and health personnel and the health corruption system phenomenon would be
reduced.
Also, from this study has resulted that one of the main causes of putting the medical staff under
the legal responsibility is when the medical staff does not apply ethics with his patients, when
sound professional knowledge is lacking and when the elementary deontological requirements
are not respected, etc.
In this way, the conditions are created for complaints and further on for prosecution of the
medical staff.
Conclusions
In this paper, we underline that an effort is needed to be made, that also in Albania, for that
problems of Medical Malpractice occupy their own place. Of course, a greater appreciation of
them will affect to relieve the crisis of our Health Institutions, also in reduction of its negative
phenomenon.
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