Important Issues In Medıcal Malpractıce A Forensıc Pathologıst’s Vıew

(TIBBİ MALPRAKTİSE İLİŞKİN ÖNEMLİ HUSUSLAR
BİR ADLİ TIP UZMANININ GÖRÜŞLERİ)

(Dokuz Eylül Üniversitesi Hukuk Fakültesi
IV. Uluslararası Tıp Hukuku Kongresi Tebliğler Kitabı 3. Ciltten Ayrı Basıdır)

ABSTRACT

There has been a growing interest in the medical malpractice issue since around the beginning of this century in Japan. Based on my experience in forensic autopsy of medical malpractice cases, I would like to present some important points that I think medical practitioners should know, and show how the standpoint of forensic pathologists can contribute to this issue. This may also help lawyers to properly resolve legal disputes. Medical disputes take place when bereaved families find something intolerable: the death of the patient itself and the hard life that follows, quality of medical treatment (including the expectation gap), and the doctor's attitude (including misunderstandings). The latter two are, sometimes, related to miscommunication. Explaining things to families requires some skills to avoid misunderstanding: when, where, who, to whom, what, how, etc. However, the most important thing is the expression of regret with empathy (e.g., “we are very sorry that we could not save his/her life in spite of our best efforts”) at all the times, even when the family is unreasonably accusing the doctor. In addition, apology, if necessary, should be tendered in consideration of the family's feelings in full sincerity. Some bereaved families, not understanding the medical processes, tend to judge the degree of negligence from the degree of apology. Thus, doctors should know that there is no “refund” for excessive apology.

Medical doctors are not used to the different dynamics or rules of medical “dispute”, which are different from those of medical “discussion” in the hospital. The process of making a judgment is something like putting a bonsai* with branches of claims of each party into a round box. The judge prunes, or occasionally, if there is some good reason for it, cuts off unwanted branches, to round off the bonsai nicely. He does and has to do this for “effective” dispute resolution. Medical practitioners need to be prepared to protect the “medically” important branches from being “socially” cut off or distorted (Bonsai Packaging Model, MQ Fujita 2021).

An important aspect in the investigation of an accident is that most members of the committee are interested in intelligently analyzing the accident from the clinical and/or autopsy findings provided, but not in verifying these findings themselves. This means that on-site preservation and initial surveys are the most important aspects of the investigation.

Finally, the more important aspect is the prevention of medical malpractice. The most important aspect of introducing a new safer procedure is a good understanding of the people engaged in the process. A new safer procedure that requires new training is not convenient for the old guard who are used to the current method. When a certain section is occupied by members who prefer the easy rather than the safe way, a new member who is willing to introduce a newer and safer procedure will be excluded unless they change their mind and try to learn the old “easy” method. It is very difficult to improve the safety mindset and culture when the majority of members have a poor sense of safety awareness. This is like a bad intestinal flora that is resistant to improvement of the intestinal condition (Bad Intestinal Flora Model, MQ Fujita, 2016). Medical safety procedure is something like "packaging." This apparently trivial but most important thing requires efforts, expenses, and skills, which should be widely known by health care professionals, students as well as by the whole society.

^* Japanese miniaturized trees grown in a small pot

Key Words: medical malpractice, medical dispute, prevention, forensic pathologist