Responsabilidad Médica en Chile: Fallos de la Corte Suprema de Justicia 2017 / Medical Malpractice in Chile: Rulings of the Supreme Court of Justice 2017

RESUMEN: El objetivo de este trabajo fue analizar los datos epidemiológicos y jurídicos de los casos por responsabilidad médica fallados por la Corte Suprema de Justicia chilena (CSJ) el año 2017, para relevar los escenarios de alto riesgo, aportando a su prevención. Se realizó un estudio retrospectivo, revisando los fallos de la CSJ en la base de datos electrónica del Poder Judicial chileno. Se seleccionaron y analizaron los fallos por responsabilidad médica. Se detectó un total de 61 casos por responsabilidad médica que alcanzaron la CSJ en 2017. Todos correspondieron a causas civiles. La duración promedio de los juicios fue 41,9 meses. La especialidad más demandada y condenada fue ginecología. La mayoría de las demandas y condenas afectó al Sistema Público de salud. Los casos que dan origen a las demandas son, en su mayoría, de atención de urgencias por sobre las programadas, y de tratamiento por sobre procedimientos quirúrgicos. El 54,8 % de los casos resultaron en la muerte del paciente. La mitad de los fallos condenatorios involucraba el fallecimiento del usuario afectado. Se deben investigar los factores de riesgo no sólo de la ocurrencia de mal-praxis, si no de la judicialización de los conflictos médico-paciente, especialmente en el área gineco-obstétrica, incluyendo los casos de instancias anteriores a la CSJ. Se debe investigar así mismo los factores de riesgo para la mayor propensión de los profesionales de sexo masculino de ser demandados y condenados por malpraxis médica.

ABSTRACT: The objective of the present study is to characterize the epidemiologic and juridical data for medical malpractice cases ruled by the Chilean Supreme Court (CSC) in 2017, to highlight the high risk scenarios, as a contribution to their prevention. A search of the CSC electronic database was conducted to identify and analyze CSC rulings for medical malpractice cases. In this study 61 malpractice cases ruled by CSC were identified. The CSC received only civil cases of medical malpractices during the studied period. The average duration of the trial was 41.9 months. Gynecologists faced suits and received sentences more frequently than any other type of specialist. The majority of prosecuted cases and convictions were associated with the public health system. A greater number of claims were related to emergency care than with scheduled procedures. Likewise, more claims were associated with non-surgical treatment than with surgical procedures. 54.8 % of all cases resulted in the patient's death. Half of the cases that lead to conviction, were related to the death of a patient. Risk factors should be investigated, not only of the occurrence of malpractice, but also of the judicial process of doctor-patient conflicts, especially in the obstetrics and gynecology area, including the analysis of cases of prior judicial instances. The risk factors for the higher propensity of male professionals to be prosecuted and convicted for medical malpractice should also be investigated.

A comparative analysis of the discrimination conclusions for medical litigation cases of a hospital / 中华医院管理杂志

Objective To compare the differences found between the proportion of responsibility between in-house experts of the hospital and that of judicial appraisals for 52 cases of medical disputes of a hospital in recent years.Methods A total of 52 cases of disputes were selected, which were evaluated by the in-house experts screening meeting at a tertiary hospital in Beijing from 2015 to 2018.According to the causes of these disputes, these cases were divided into seven categories, calculating respectively the mean value of the proportion of judicial appraisal responsibility and that of in-house experts for all cases of the same category.The paired t test was used to compare the consistency of the above two methods.Results The overall level of judicial appraisal responsibility(35.00% ) was significantly higher than the in-house expert screening(20.96% ).Among them, the cases of improper selection of treatment plan, improper operation of surgery or insufficient evaluation of surgical difficulty risk, and medical disputes caused by complications, the degree of responsibility of the judicial appraisal institutions was quite different from that of in-house experts of the hospital.Conclusions Because the judicial appraisal agencies have certain difficulties in the identification of complex medical technology problems, it is recommended to establish a library of judicial appraisal experts as soon as possible to encourage the experts to participate in the trial of disputes.

The reform of legal system on the construction and reflection of the logic of actions of all parties in the medical litigation:An empirical study of 404 cases about 6 three-A hospitals in D city / 中国卫生政策研究

Taking the judicial reference information of 404 cases of medical litigation from the 6 three-A hospi-tals from 2009 to 2014 in D city as the sample,it was found that in the reform of the legal system represented by the implementation of the Tort Liability Act increased the number of medical tort litigations obviously;Decline in apprais-al rate,more summary procedure and mediation apply and its high success rate in claim for compensation, serious mediating tendency and decreased hospital's attention to medical litigation have conflicted with the authoritative,effi-cient,fair and reasonable goals that institutional changes are intended to achieve. This is related to the harmonization of the legal pattern of medical damage litigations as it lessens the dispute resolution before litigation and changes liti-gation expectations of the litigants aggravate the burden of evidence from applicants,especially the cost of applying of appraisal,increases the discretion of courts,but failing to improve its professional trial capacity in a timely manner. Based on the investigation of the influence of institutional changes to the logic of operations,the role of the third-party pre-statement dispute resolution mechanism in medical disputes should be further addressed in the future to balance the burden of evidence-relieving methods with the burden of doctor-patient evidence in the form of ease of proof and to improve the procedural diversion mechanism for conciliation and the diversion should be improved to strengthen dama-ges to make the compensation procedure more scientific.

Medical Litigation and the Care of Newborns

PURPOSE: Recently, legal disputes resulting from medical accidents have been increasing annually. The purpose of this study is to determine the causes and characteristics of medical disputes brought as a result of neonatal accidents and to suggest measures to reduce the number of medical malpractice suits. METHODS: Twenty-eight medical malpractice lawsuits brought as a result of neonatal accidents between 2005 and 2009 were analyzed. RESULTS: The average time taken to resolve these lawsuits was approximately 4.4 years. The average gestational age and birth weight of the newborns in these cases were 35.3+/-4.2 weeks and 2,668+/-931 g, respectively. Twelve cases (42.9%) were concluded partially in favor of the plaintiffs, while in 10 (35.7%) cases the plaintiffs lost. In 11 of the 12 cases that were concluded partially in favor of the plaintiffs, the defendants were found guilty of violating their duty of care. Medical accidents resulted in death in 10 cases and physical disability in 18 cases, and cerebral palsy and blindness were the most common physical disabilities. The average compensation amount ordered as damages was KRW 161,389,291+/-12,636,454. CONCLUSION: In medical litigation, the standard of judgment is whether appropriate medical practices were performed based on the patient's symptoms. Thus, to comply with the medical treatment rules is paramount in securing patients' safety and protecting doctors themselves. Individual effort is necessary, but not sufficient to prevent medical accidents; multilateral, systemic reform is also required if the number of neonatal medical accidents is to be reduced.

Changing trends in informed consent

Consent is defined as the “voluntary agreement to or acquiescence in what another person proposes or desires”. In the context of medical practice it is now universally accepted that every human being of adult years and of sound mind has the right to determine what shall be done with his or her own body. Informed consent is now a central part of medical ethics and medical law. There has been a change in the public’s expectations of their role in medical decision making. The paternalistic approach by doctors is no longer acceptable. Today the patient has the right to receive and the doctor the obligation to give sufficient and appropriate information so that the patient can make an informed decision to accept or refuse a treatment option. This has led to higher standards of practice in the process of informed consent taking. Consent taking is both a legal and moral requirement. Failure to comply with standards of practice can result in criminal prosecution, civil litigation or disciplinary action by the relevant professional authority. Consent taking is a process and not merely a one-off affixation of the patient’s signature on a consent form. It involves a continuous discussion to reflect the evolving nature of treatment from before the treatment is given to the post-operative or discharge period. The regulatory authorities in many countries have established standards for consent taking which would include the capacity of the patient, the person who should seek consent, the information to be provided and the necessary documentation.