Francisco Leitão, Partner at MdME
The Medical Error Act (Law No. 5/2016) came into force in February this year. The law was long awaited as the initial discussions were held 12 years ago in the Legislative Assembly. The topic was also heavily discussed outside the perimeters of lawmaking, among doctors, lawyers and with patients throwing in their own opinions about the necessity and urgency of the law. Many even argued that the law was not necessary or urgent, as medical malpractice disputes could find resolution through normal civil liability lawsuits, while the penal code also covers medical professionals who provide inaccurate diagnoses or data, forge documents or deny medical treatment.
However, from the patient’s perspective, under the torment of a health complication, the reliance on a doctor’s expert knowledge and skill means that an immeasurable amount of trust and dependability is transferred from one party to the other. With that, most of the time, patients will not seek to review their own medical file, let alone be made aware that medical malpractice may have occurred. Thus, the Medical Error Law truly is an innovation and a safeguard of patients’ rights.
Questions regarding accountability and compensation are usually the patient’s main concerns, and that is where legal professionals can play a pivotal role in an impartial, fair and efficient settlement of disputes.
Medical malpractice claims have not been that common in Macau. A few of them have been regarded as civil liability matters of extracontractual or contractual nature depending on whether the hospital or clinic in question was private or public. The requirements regarding the burden of proof, consent of the patient, intention, and culpability greatly vary between the two branches of civil liability.
However, with the newly enacted law, it is stipulated that regardless of the private or public nature of the hospital or clinic, the liability of healthcare providers under medical malpractice is regulated by the regime of civil liability for illicit facts (i.e. extracontractual), which regulates against the breach of duties of care of third parties’ rights.
There are certainly innovative and distinctive characteristics to the newly enacted law.
Firstly, there is, at last, a clear-cut concept of medical malpractice now defined by the law as originating from acts carried out by healthcare providers in culpable breach of legal statutes, instructions, deontological principles, professional technical knowledge or general rules of healthcare that causes damage to patients’ physical or psychological health.
Further, all healthcare providers are now required to hand over a copy of a patients’ clinical file at the request of any patient within 10 days, and the law also stipulates that it is a healthcare professional’s duty to report any occurrence of medical malpractice within a period of 24 hours to the Health Bureau.
Another innovation is the institution of a Medical Error Expert Committee, comprised of seven experts, with five having a medical background and two with a legal background. The role of the committee is to proceed with an independent, expert and professional investigation into any occurrence of medical malpractice.
In addition, patients and healthcare providers are also afforded an extrajudicial avenue to assert their rights by resorting to the Mediation Center for Medical Disputes.
Another breakthrough with the newly enacted law refers to a compulsory insurance policy for all healthcare providers. A simple train of thought can explain the preference for a compulsory insurance policy: given medical professionals’ high exposure to risk, compulsory insurance serves as a shield to protect the risk-averse professional from exorbitant claims but also acts as a remedy for the potential insolvency of the healthcare provider faced with a medical malpractice lawsuit.
Errors are inevitable; they are part of any profession, and more so for healthcare providers whose everyday work is an intricate puzzle of life-saving decisions. The practical implications of the new regime still remain to be seen. However, what is certain is that to transform the law into an effective tool capable of safeguarding patients’ rights and defending those who practice the noble profession of medicine, there should be a clear understanding and dialogue between the medical and legal professionals to better understand and address the issues dealt with in a medical malpractice lawsuit.
*Partner, MdME Lawyers
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