Medical Malpractice in Thailand: Patient Rights in the Medical Tourism Industry
by Jason Armbrecht
25 August 2008
Medical Colonialism: The Myth of the Thai Smile
Obtaining legal redress for medical malpractice is not simply an issue for foreigners in Thailand, but also Thais. A recent court decision, however, might change the way that malpractice claims are adjudicated. Last year, a Nakhon Si Thammarat court sentenced a doctor to three years in prison without probation for the 2002 death of an elderly patient. The doctor administered a spinal anesthetic to the patient, who was admitted for appendicitis, which led to cardiac arrest and her subsequent death. The court ruled as it did in part, it said, because the doctor refused to admit that she was at fault, an admission that would be tantamount to losing face. In Thailand's hierarchically structured society, saving face is extremely important, especially for those in high profile professions such as doctors or surgeons.
In response to this decision, a bill is under consideration in the legislature that attempts to balance the desire of the medical profession to protect overworked doctors from malpractice suits and the desire of human and victims' rights groups to protect the legal rights of patients who claim to be the victims of negligent malpractice. Dubbed a "no-fault" bill, the Medical Malpractice Victim's Fund Bill would provide a non-tort avenue for potential malpractice plaintiffs to be compensated without holding the doctor in question responsible. Under this bill, a fund consisting of money donated from government run hospitals, as well as private hospitals that wish to be covered, would be created to distribute amongst those who claim to be victims of malpractice (cosmetic surgery is not covered). Appropriate compensation would be determined within two months of a complaint being filed, with delivery of funds within five months. One potential stumbling block is a clause introduced by the Public Health Ministry which would bar the victims from pursuing a criminal or civil judgment against a doctor or hospital after claiming compensation under the bill, a right that victims' rights groups feel must be upheld.
Since 1990, over 3,000 ethics complaints have been filed against Thai doctors and hospitals, and in recent years, over 75 doctors in public hospitals have had malpractice suits brought against them resulting in at least 13 convictions. In light of these numbers, the Health Ministry is worried that the tort system could decimate the understaffed health system by not only jailing competent doctors who make mistakes, but also by causing future doctors to quit medical school and current doctors to switch professions out of fear of malpractice suits.
Ironically, the public health system is understaffed in large part due to the success of Thaksin's plan to make Thailand an international medical tourism destination. Critics claim that the medical hub plan was created under the false assumption that Thailand had excess medical resources, human and otherwise, that could be diverted from the public to private health care systems without any negative effects on the former. However, as an increasing percentage of Thailand's healthcare system caters to foreigners and the rich, care for ordinary Thais has suffered. Thai doctors, specialists in particular, have been leaving public hospitals and teaching positions at medical schools and moving to private hospitals, where they can earn three times as much. At the same time, the government's introduction of the 30 baht per visit health plan has overloaded public hospitals with patients, providing added incentive for doctors to move to private hospitals with a much lighter workload. The increasing prices for treatment at these private hospitals, while still relatively cheap for Westerners, prices out many middle class Thais, who in turn have to seek treatment at public hospitals, further overcrowding the system.
These issues will have to be dealt with soon as the medical tourism sector seems likely to see continued growth in the foreseeable future. Fewer restrictions placed on experimental surgeries means that many in the West will look to Thailand for potentially lifesaving, or quality of life improving, procedures, such as stem cell therapy for heart conditions. Also, doctors and hospitals in the West have been slower to adopt less invasive cutting edge surgeries than their Thai counterparts. This is not only due to questions of safety, but also due to being more focused on the bottom line - reduced patient recovery time results in less revenue for hospitals as patients check out more quickly - and therefore is not as profitable as other medical services. And as more patients return home safely from cheap and effective surgeries overseas, insurance companies are likely to start encouraging medical travel to Thailand by covering travel costs and providing liability protection. However, with more patients come more opportunities for medical malpractice to occur. As the Thai courts begin to address more and more cases of medical malpractice involving medical tourism, it is expected that verdict amounts will increase. This too may lead to further safeguards in the system.
Margaret sat in the court's witness box, which consisted of a raised platform surrounded on three sides by intricately carved teak wood railings located in the center of the courtroom. The judge, a 50-ish man with speckles of gray dotting his military style crew cut peered at the hospital's lawyers through his black, marble-like eyes. Margaret's Thailand lawyers gave her an encouraging look in preparation for the cross examination. The lawyer for the hospital hovered over Margaret and with a dramatic flourish of his hands and a feigned look of surprise on his face, asked Margaret: Thailand lawyers "Didn't you know that the hospital doesn't specialize in these types of medical conditions before sending your husband to Thailand ?" The judge, leaning forward, interjected abruptly before Margaret had a chance to respond: "Are you saying that your hospital is not qualified to handle patients but accepts them anyway? It is not the patient's responsibility that the hospital's doctors be qualified, it is the hospital's responsibility to provide quality care to all persons it accepts as patients." The judge paused and leaned back, allowing his words to sink in and inquired further: "Would you like to withdraw the question?" The defense lawyer, looking like a rookie put in his place, stuttered meekly, "Yes, yes judge, I withdraw the question."
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