THE HOUSE of Representatives is currently studying a medical malpractice bill that was originally filed in 1992 and has now been revived by some congressmen who claim to have suffered adverse medical experiences to justify its passage.
Only recently, one of them declared on television that he had undergone surgery for the removal of his gallstones, which turned out to be one solitary gallstone about the size of a mongo bean. Worse, the operation caused serious collateral damage to his health, including intense body pain that required his prolonged confinement in the hospital. He says the hospital and its doctors impliedly admitted their fault and negligence in his treatment by not charging him a single centavo for their services.
Reacting to many similar reports of alleged medical malpractice, Dr. Ma. Dominga Padilla sent me a copy of House Bill No. 4955 “punishing the malpractice of any medical practitioner in the Philippines,” including physicians, dentists, nurses, pharmacists, paramedical or other supporting personnel like medical and dental technicians, nursing assistants and therapists.
She also enclosed a copy of the official position of the Philippine Medical Association against the measure and her own article challenging the legality and practicability of the bill, which she says ought to be rejected. Dr. Padilla is the founder and president of the Eye Bank Foundation of the Philippines, an officer of the Philippine Academy of Ophthalmology, and a member of the Philippine College of Surgeons of the PMA.
Supporters of the bill cite the present relative helplessness of the public against the malpractices of the medical and allied professions, particularly their clannish tendency to protect one another from the charges made against them by outsiders, i.e., their patients. Unlike in other cultures, we do not place much value on the oath, which is blithely disregarded even by doctors when testifying in favor of their colleagues in malpractice suits.
The critics invoke a number of constitutional provisions against the bill, among them the equal protection clause that should apply (but does not) to other professionals, the due process clause in view of the vagueness in the definition of certain terms like “malpractice” itself, and the right against double jeopardy insofar as it might subject the accused to prosecution under the bill and also the Revised Penal Code.
These allegations are not easily accepted because they require the lawyer’s analysis, not the doctor’s. They are not as easily understood, with all their legal exceptions and complications, as the cure of the common cold or the removal of a wart. The equal protection clause, for example, does not call for its universal application because not all subjects of the law are similarly situated. What that clause requires is equality among equals.
But I do agree completely with the doctors that one provision of the medical malpractice bill is clearly unconstitutional. This is the penalty clause, which provides that “medical malpractice and the practice of illegal surgery shall be punished by prision mayor and the cancellation of the license to practice the medical profession and a fine ranging from P500,000 to P1,000,000 in the discretion of the court.”
I have no quarrel with prision mayor, which ranges from six years and one day to 12 years, but the fine is another matter. The language of the bill is conjunctive, not disjunctive, which means it must be imposed in every case.
Section 20 of the Bill of Rights clearly and expressly provides that “excessive fines shall not be imposed.” Even at the current peso exchange rate, the amount of P500,000 to P1,000,000 cannot be considered peanuts; it is unquestionably excessive by any standard. Moreover, the due process clause requires an equivalence between the offense and the penalty, unlike under the bill in question, where the fine can be as high as a million pesos. It is like punishing jaywalking with life imprisonment.
With all its present inadequacies, the only effect of the bill, if passes, will be to require medical and other allied professionals to take medical insurance for their own protection. They will also require the patient to undergo all kinds of tests, some of them unnecessary, to avoid errors in diagnosing and treating the ailment, if any. The cost of all these precautions will be charged, of course, to the patient.
It was so different before, when the General Practitioner was a jack-of-all-trades and could tell the patient’s illness by simply feeling his pulse and examining his tongue. But we’re in a different age today, where our lives depend on what the computers tell the doctors, who must obey to avoid malpractice suits and even criminal prosecution. Better to be safe than sorry.
“The realities of death and suffering are things that medical practitioners have to face almost daily,” says Dr. Padilla in assailing the bill. “And just as we know that it is our duty to do our best to alleviate suffering and save lives, we also humbly acknowledge that there is only so much our best can achieve. And when these failures comes, we agonize. We are but human although forced to play God. It is a great privilege, but an even greater burden.”
Justice Isagani A. Cruz 