S.Tsetsegee

Medical professionals in many countries confront various problems related to their professional activity and practice, including medical malpractice, workload and stress, and financial risks. The frequency of legal actions taken against doctors and healthcare professionals has been increasing over the years in Mongolia. It’s become essential to discuss medical professional liability issues as well as insurance for safeguarding medical professionals against claims of negligence and medical malpractice.

Behavior change communication (BCC) specialist at the Millennium Challenge Account S.Tsetsegee was interviewed about the medical liability system in Mongolia and medical malpractice insurance, sometimes known as professional indemnity insurance. S.Tsetsegee earned her master’s degree in public health with her study on the difference of Mongolia and other countries’ medical malpractice insurance system.

More and more people are becoming interested in the liability of the medical sector of Mongolia. Have any relevant provisions been included in the Criminal Code?

It is believed that the first concept of medical professional liability dates back to the reign of Hammurapi (1793 BC to 1750 BC) when a physician opened a tumor above an eye with a bronze operating knife. However, Babylonian King Hammurapi ordered to cut off his hands because the patient died. Experts evaluate that this was when the concept of governing the practice of medicine was created.

Afterwards, the concept flourished around England and Europe and became more sophisticated in the 1200s AD. From 1960 to 1970, many patients started taking legal actions against healthcare professionals in the USA. The number of litigants annually increased by 40 percent in some states. This is how medical malpractice insurance started to develop.

As for Mongolia, quite a lot of claims of negligence and medical malpractice are made. Doctors had to pay fines on their own for a few cases, bringing major risks [to themselves and the medical sector].

How are medical malpractices resolved internationally?

As litigations of medical malpractices, negligence and all types of breach of duty associated with the practice of a healthcare professional are made frequently in developed countries, practitioners are always taking measures to prevent and protect themselves.

There are three types of court judgment for medical malpractice. The first judgment considers medical malpractice and negligence a crime. If a patient suffers any damage from a healthcare service, they can file a lawsuit against the practitioner. In this case, the court can pass judgment inflicting punishment or charge compensatory damages from the defendant to the victim. This type of system applies in Mongolia, the USA and Russia.

The second system does not consider medical malpractice and negligence as a crime. The court or jury doesn’t punish, but settles the case according to the Civil Law by awarding compensation to victims of medical malpractice. Countries such as Switzerland, Finland, New Zealand, Canada, England, and Sweden have this type of system. Sweden enforces this practice the best.

The third one is a mix of both of these systems. Australia follows this system. The system to not punish for medical malpractices is mainly developed in countries with Common law systems, but the system to inflict punishment is mainly developed in countries with Continental law.

The court hospital of the National Institution of Juridical Review of Mongolia received 159 lawsuits associated with healthcare professionals from 2012 to 2014. The court passed judgment to 16 out of these cases and 27 medical professionals were punished.

Is it possible for medical professionals to not make an error, professional misconduct or offense?

There’s something called Patient Safety Curriculum Guide of the World Health Organization (WHO). It is viewed that medical malpractices started to arise following the need to provide medical assistance and healthcare in conditions that don’t meet standards, as well as due to the medical system in general. The way to prevent it is by recording any case of malpractice and negligence and focus on preventing subsequent medical malpractices.

The WHO Patient Safety Curriculum Guide advises to take comprehensive measures for raising the quality of healthcare.

How often are healthcare professionals in Mongolia reprimanded by the court?

The court hospital of the National Institution of Juridical Review of Mongolia received 159 lawsuits associated with healthcare professionals from 2012 to 2014. The court passed judgment to 16 out of these cases and 27 medical professionals were punished. During the time the lawsuits were filed, 51 percent of accused medical professionals were aged between 41 and 50. This is the prime time to do things and share one’s knowledge with others. Half of total malpractices and errors were made on Fridays during night shifts or before morning shift workers switch to night shift workers.

What kind of errors and malpractices did they make?

Five out of 16 punished cases, in other words 31.3 percent, were related to injury and surgical services; four cases (25 percent) were related to medicines; three cases (18.7 percent) were related to obstetrics and women’s healthcare; and two cases (12.5 percent) were related to child healthcare services. These fields are considered to have the highest risk in the medical sector across the globe.

Is there a tendency for the number of personnel in the health sector to decrease due to liability and accountability related concerns?

A study in the USA shows that some doctors, particularly obstetrician and gynecologist, feared potential financial risks from help services, and by stopping some help services in the USA, the quality and accessibility of these services plunged in the 1980s. Reportedly, there have been several cases of people completely giving up their profession because of errors and malpractices.

How do other countries determine and manage risks connected to malpractice?

Malpractices of medical professionals directly or indirectly increase expenses of the medical sector. This expense is named the “costs of defensive medicine”. According to a study by the American Medical Association, the medical liability system costs, including defensive medicine, increase by 84 to 151 billion USD a year. WHO studies show that medical error is one of the top 10 leading causes of death. (Medical error is the third largest cause of death in the United States, according to an analysis published on May 3, 2016 in the medical journal The BMJ.)

Even though the number of instances of medical errors in developed countries is growing every year, insurance companies issue compensation and reimbursement. This creates protective system for medical professionals as well as a more favorable conditions to work, improve their professional competence, and continuously study and introduce innovative ideas. In other words, it reduces work related stress, anxiety and fear.

Out of all claims of medical error and malpractice in Mongolia, 9.87 percent of them were tried and penalized. This is two times higher than the rate of England and nine times higher than Canada’s.

What does Mongolia do in terms of protecting healthcare professionals from claims of malpractice?

The Ministry of Health and Sports revised the Law on Health Insurance and the cabinet approved the general concept, but the draft bill wasn’t adopted. Rather than focusing on actions to take against medical professionals, measures such as having them re-educated, improve their professional competence, and renewing guides and standards reduce medical errors. Actions of the public and their attitude impact greatly on these types of issues.

For example, the number of people filing medical malpractice lawsuits has increased by 10 times within the last 25 years in Japan. This isrelatively low compared to the USA, though.

Are healthcare professionals purchasing medical malpractice insurances?

Yes. Over 100 cases of Mongolians taking legal action against medical errors and claiming compensation money have been recorded in the last few years. The claimed compensations range between one and 10 million MNT. Guilty medical professionals had to pay it from their own pockets, leading them to a huge financial risk. In 2012, 4.5 percent of total medical professionals voluntarily signed up for an insurance, 5.48 percent in 2013, and 5.4 percent in 2014.

The number of private health organizations continues to increase and introduce new high-costing technology and equipment. In relation to this, the chances of causing medical malpractice or error is likely to rise. Out of all claims of medical error and malpractice in Mongolia, 9.87 percent of them were tried and penalized. This is two times higher than the rate of England and nine times higher than Canada’s.

Despite the growing number of healthcare professionals voluntarily signing up for insurances, the number is still low. Mostly professionals aged above 40 are making medical errors, so it’s necessary to constantly organize trainings to improve their competence.

Is it possible for medical professionals to bear the risks on their own?

Of course. The Canadian Parliament approved the legal environment for operations of the Canadian Medical Protective Association and began collecting tax from members from 1984. The association was officially founded in 1991, and since then, it developed into a private, non-profit organization that provides medical malpractice insurance, legal assistance and risk management services. Around 25 to 30 percent of total complaints received compensation, 65 percent of claims were dismissed, and five to 10 percent were transferred to the court. In 2013, an insurance company had signed contracts with 16 unions for medical professionals. In total, it accumulated 10 million RUB for the insurance fund from 4,894 healthcare professionals of 69 hospitals.

the medical liability system costs, including defensive medicine, increase by 84 to 151 billion USD a year. WHO studies show that medical error is one of the top 10 leading causes of death.

What would you recommend to healthcare professionals who made errors or malpractice?

As long as a medical professional is insured, he or she should receive assistance from professional lawyers. A legal environment hasn’t become consistent for doctors and nurses working in other provinces or hospital to provide medical assistance, those examining patients while giving lectures at medical institutions, and those simultaneously working in both state and private hospitals. These people are at high risk so I advise them to purchase a medical malpractice insurance.

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