Medical negligence and likely developments in Oman

Abstract

Medical mistakes can never be eliminated but they can be minimised. From the world of aviation, it is clear that simulation training can have dramatic beneficial effects. Such training, however, is compulsory. In contrast, in the world of medicine there are few countries which have adopted a comparable approach. Unless continued medical registration is directly linked to satisfactory performance in simulated exercises and real events, it is unlikely that significant reductions will be achieved. This review will concentrate on the situation where mistakes and their mismanagement have direct and adverse consequences for patients. It will not be concerned with the recognised complications of procedures and treatments, with the exceptions of poor communication where patients have entered into treatments unaware of the associated risks.

Keywords

Medical negligence simulation training Oman

What is the standard by which medical practice should be judged?

Standards for medical practice in Oman are clearly laid out in The Law of Practising Medicine and Dentistry.¹ They include:

Article 7

A physician should practise his profession in a manner that encourages respect. He should act with special care and regard for the patient and medical procedures, both technically and morally. A physician should treat his patients with humanity regardless of their financial or social conditions, nationalities or beliefs.

Article 18

A physician shall not be responsible for the effects of a medicine, provided that he took due care, used all available means to diagnose the case and prescribed the medicine correctly.

Article 19

A physician shall be responsible for his work and damages arising therefrom in the following circumstances:-

(a) If he makes an error through ignorance of such scientific or technical matters that a physician is supposed to know;

(b) In case of negligence or default or if he fails to exert due care.

The benchmark which offers protection to both patient and practitioner is that of the doctor performing to a standard of practice considered acceptable by a responsible group of his or her peers. It enshrines the concept of ‘duty of care’ and this is clearly emphasised in Articles 7, 18 and 19. It is what any patient should expect from any doctor in a particular clinical setting. When doctors fall below that standard, they will have breached that duty and if through that breach patients suffer harm then they will have been negligent. In many cases, a contract will exist between a patient and a doctor where a consideration such as money has passed between them, but this does not alter the nature of the duty of care owed by a professional person to their patient. Negligence is, therefore, clearly distinct from a recognised complication, although in their defence many will try to blur the distinction claiming that their negligence was simply an unfortunate complication for which they were not responsible. It is when the breach of duty has caused harm to the patient that questions of restitution and punishment arise. In addition to a potential fine and imprisonment together with loss of practising privileges, Article 20 confirms that:

All parties that sustain damage as a result of the default shall have the right to claim compensation from the offender before the competent court.

Such a legal approach to poor and unacceptable practice can be an effective driving factor to improved care. When faced with threats to their licence to practise through disciplinary proceedings, personal financial hardships or even custodial sentences where people have died, most clinicians adopt a more considered approach to their dealings with patients.

Provision of information

Doctors frequently forget that they are the patients’ servants and not their masters. Although it is the doctor who usually holds all of the information about the diagnosis and treatment, it should be the patient who makes the final decision as to whether to have treatment and if so which treatment to have. In order to make such a decision, patients need information which is both comprehensive and easy to understand. The hard-pressed busy doctor is obligated to ensure such standards are achieved, even at the cost of seeing fewer patients and reducing his income. It is a basic duty of care and such outcomes are most easily achieved when doctors are faced with legal consequences of failing to adhere to such standards. The information itself needs to be appropriate to the patient and so provided in a form which he or she can understand. Educational level, reading ability, visual and hearing impairments can all directly impinge on what a patient understands. There is also the complicating issue of what the patient wishes to believe he or she was told. A wise clinician will document the details of his discussions with a patient and provide them with a signed and dated written copy, so ensuring there is no doubt about what was said. Such information should provide details of the risks of not having treatment as well as the frequency of complications that can arise.

An important area of information relates to the doctor and his or her level of experience. Most patients believe that the doctor is competent to carry out the treatment being advocated. They seldom ask clinicians at which point they are on their learning curve for various procedures. Are they unconsciously incompetent or unconsciously competent or somewhere in between? Is he or she a trainee or an experienced practitioner and if experienced has he or she done this procedure before? Are other treatments than the ones he can provide available and if so where? The most dangerous practitioner may not be the one who does not know his weaknesses, but rather the one who knows them and hides them from patients, holding himself out to be something he is not. The clinician who simply does not know his weaknesses can be accused of incompetence and negligence, whereas the clinician who knows of his weaknesses but still carries out procedures lacks probity and could be subject to criminal proceedings. In either case it will be the patient who suffers.

Treatments and procedures

It is unusual for a doctor to practise negligently on one occasion. Negligent practice is usually associated with arrogance or ignorance or both combined. Such doctors usually have a reputation amongst their colleagues, nursing staff and even hospital management. The question needs to be asked as to why they were allowed to continue to practise and not required to undergo further training. The reasons offered are many but increasingly patients will challenge such behaviour and seek legal redress.

Within a hospital unit simple statistics on:

Complication rates

Frequency of patients being taken back to theatre

Mortality rates

Duration of stay

can readily identify the clinician whose practise is outside the normal range, but such data are only meaningful when collected in a large unit and have limited value in small hospitals owned by the practitioners. Ideally, such data should be collected and verified by a central independent organisation and published so that lay people can examine the performance of the doctors whom they intend to consult or the units where they intend to undergo treatment. Such publicity can be an important driving force to encourage improved performance and the elimination of rogue practitioners.

Once accused of sub-standard treatment the question arises as to which is the best forum for assessment. Article 22 specifies the method for looking:

into the breaches of this law made by physicians.

However, it does not preclude direct action against the doctor in the courts. Clearly, although a doctor’s peers are likely to be best informed as to whether the care was sub-standard and a breach of duty had occurred, they cannot be both the experts and the judges and act independently without conflict of interest. The ability of the Minister to overrule the Committee’s decision confirms this need for a separation of these functions. Who then can and should act as judge? The benefits of settling such disputes within a legal framework provide both safeguards and restraints on all of the parties involved. The patient can see his or her case being fairly heard and the views of a range of experts assessed. The doctor can have confidence in the neutrality of the judge and that any evidence adduced will be rigorously tested. However, such procedures can be testing for both patients and doctors and less confrontational settings such as expert determination, mediation and arbitration have a place.

With an Omani patient population more aware of standards of care internationally through open access to medical information sources, such as PubMed and Google Scholar, doctors will experience increased litigation. In order to pre-empt the growth of such an industry, doctors in the country need to be involved in the development of effective procedures which will allow patients to be appropriately compensated for negligent treatment. The urgent need for such developments can be seen from a study of 212 households from North Al-Batinah more than a decade ago.² Forty-nine per cent of participants felt that an uncaring health care professional was the main cause of medical errors, and this understanding was correlated inversely with age and positively with family income. With the progress of time and the increasing affluence of Omani society, it is, therefore, likely that more than half of the population will attribute medical errors to the incompetence of an uncaring doctor.

Why doctors need legal education?

Training in duty of care, breaches of duty, contractual obligations to patients, the nature of negligence and potential consequences should form part of the basic medical curriculum so as to ensure that future generations of Omani doctors are conscious of their responsibilities and appropriately equipped to understand and deal with litigation should it arise. Most doctors believe that they are safe from litigation and that it will never happen to them. This is a false sense of security even in those few countries which operate a No Fault compensation scheme for the victims of medical malpractice. Where a family is seeking revenge for the unwarranted death of a relative, there is the potential for them to seek criminal charges. In the UK, this takes the form of gross negligence manslaughter and if found guilty leads to a custodial sentence and the doctor will lose his/her licence to practise.

For those who have already qualified, the growing number of on line Masters courses in Legal Aspects of Medical Practice provides an easy, if not painless, entry into this area of clinical understanding. Such courses can also give an insight into the role of a medical expert – someone whose responsibility is to the truth and to the court not to his client who will be paying his fee.

In the ever-changing world of modern medicine, it is important that education about breach of duty of care and its consequences forms part of basic medical training. It is also imperative that those who are practising physicians should be aware that they themselves could be subject to disciplinary action if they do not bring forward their concerns about a colleague who was performing below an acceptable standard. The system of policing medicine should encourage such whistle blowers and justice should be seen to be done through an impartial judiciary supported by impartial expert witnesses.

Conclusion

Medical mistakes are a recognised problem worldwide, and the younger and more affluent sections of Omani society see such errors as linked with an uncaring attitude on the part of doctors who commit them. The Law of Practising Medicine and Dentistry places a moral, ethical and legal obligation on Omani doctors to practise to a standard expected of a competent professional. Failure to do so can result in suspension of a practitioner’s licence, a fine and even a jail sentence. However, it also opens up the potential for direct legal action and compensation payable to the victim of such negligent practice. This paper explores in detail the standards of practice and information about those practices that can be expected of a clinician in the present century.

Footnotes

Declaration of conflicting interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

References

Legislation-No 22/96. The law of practicing medicine and dentistry, 1996, Royal Decree.

Al-Mandhari AS, Al-Shafaee MA, Al-Azri MH, et al. A survey of community members’ perceptions of medical errors in Oman. BMC Med Ethics 2008; 9: 13.