Unlike abroad, medical practice cases in Malta have somewhat of an infrequent relationship with our courts. There are a few cases instituted, and fewer that actually find the support of our courts and a medical professional is found responsible for medical malpractice.
This is by no means an assessment of the local courts’ decision-making exercise, but perhaps merely a reflection of a generally good standard of medical practice in Malta, or else an indication of a non-litigious culture, particularly in these kinds of situations.
Liability in the medical profession occurs when the patient is not treated according to acceptable medical standards of care. The idea that every person who enters into the medical profession undertakes to exercise a reasonable level of care and skill is not a new concept.
It is indeed one that dates back to Roman times, and even earlier than that. The Code of Hammurabi (2030BC) reads that: “If the doctor has treated a gentleman with a lancet of bronze and has caused the gentleman to die, or has opened an abscess of the eye for a gentleman with a bronze lancet, and has caused the loss of the gentleman’s eye, one shall cut off his hands.”
In the case ‘Lawrence and Grace spouses Mercieca v General Director of the Department of Health et’ decided by the Civil Court, First Hall on February 28 (still subject to appeal), the plaintiffs claimed that the defendants were responsible for the disability suffered by Lawrence Mercieca, since – they said – they had failed to give plaintiff proper warnings of the surgery’s risk, and as well, due to medical shortcomings during and after the plaintiff’s surgery. The defendants rejected these claims and insisted that any permanent disability was not caused through their omission or negligence.
The facts of this case are as follows: The plaintiff’s doctor had informed him that he had a compression of the cervical spinal cord.
Following the necessary tests, the plaintiff was reluctant to undergo surgery, but his pain and suffering was such that he felt it would be wiser to accept surgery.
In its judgment the Court outlined that the doctors are not obliged to advise and provide all the information to patients in order for them to make an informed decision about any treatment or surgery which they need to undergo. Their duty was to deliver that information required by their professional practice standards.
It cited different judgments to this effect. The Court added that in order for one to examine whether the doctor provided sufficient information, the test would be dependent on the “generally accepted medical practice”.
Differences in doctors’ opinion on patients’ diagnosis and treatment would not automatically result in the finding of negligence
In its conclusions the Court went against the recommendation of the court expert appointed (something that the law permits the Court to do) and found that indeed, the doctor had provided sufficient information on the conditions, the surgery and all consequential risks.
The Court, however, found that the neurosurgeon exercised a number of technical deficiencies, by committing mistakes in the analyses, interpretation and diagnoses.
The Court also found that the neurosurgeon had taken the wrong decisions on the choice of the medical intervention to be undertaken, and had subsequently expressed lack of interest after it was confirmed that Mr Mercieca suffered a paralysis.
The Court found that the neurosurgeon failed to exercise the required medical standard of care, and further remarked that doctors are obliged to update themselves in medicine and exercise diligence and this to the ultimate benefit of their patients.
It was further pointed out that as with most sciences, differences in opinions are common, and differences in doctors’ opinion on patients’ diagnosis and treatment would not automatically result in the finding of negligence.
In the realm of diagnosis and treatment there is ample scope for a genuine difference in opinion. However, it was noted this was not a simple divergence in medical opinions, but one in which there were various shortcomings.
The Court therefore concluded that the neurosurgeon was responsible for the damages suffered by Mr Mercieca together with the general director of the Department of Health, as his employer.
The court awarded the plaintiff the sum of €123,383.18.
Assessing the exercise of the medical profession from a legal point of viewis tricky, to say the least. Separating what is mere professional opinion, and what is absolute negligence, is even more complicated.
The judgment of ‘Lawrence and Grace spouses Mercieca v General Director of the Department of Health et’ is a rare fine example of a Court that managed to clearly explain this difference.
Graziella Cricchiola is junior associate at Azzopardi, Borg & Abela Advocates.