HEALTH-BOLIVIA: Tackling Medical Negligence

Bernarda Claure

LA PAZ, Feb 7 2007 (IPS) – According to Hammurabi s Code of Laws, created in ancient Babylonia circa 1700 years B.C.E., when a noble was a victim of what today is known as medical negligence, the offending healthcare provider had his fingers or hands cut off.
In Bolivia, with a health system lacking a legal framework, most cases of medical negligence go unpunished. The Health Ministry intends to address the problem this year by implementing two instruments: a Medical Audit System and a Medical Institute for Conciliation and Arbitration (IMCA).

There has been a deluge of complaints and accusations about medical malpractice.

The Health Ministry estimates that there are about 15 serious complaints a year. The Ombudsman cites the same number, counting only cases in which the patient died or was very seriously injured. Deputy Guillermo Mendoza spoke of over 3,000 cases in the last few years, when only 10 percent of actual cases are ever reported.

Meanwhile, the National Health Insurance Institute (INASES), responsible under the Social Security Code for investigating accusations of malpractice and medical negligence in the social security institutions, has carried out as many medical audits in a three-month period of 2006 as it did over six months in 2005: an average of two investigations a week.

And that did not include complaints to other authorities, such as hospital medical directors or medical associations, or those that are settled by agreement before being reported, said Health Minister Dr. Nila Heredia. On the other hand, it did include cases that made it into the headlines.
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The most recent scandal was at a Potosí hospital belonging to the National Health Fund, which offers the broadest-based health insurance coverage. A 32-year-old woman, seven months pregnant and with symptoms of high blood pressure, showed up at the hospital on Dec. 16. Two days later the Potosí press reported that the doctor on duty had induced labour, resulting in the death of the baby and brain damage to the mother.

An investigation is under way. In future, similar cases will be dealt with by the IMCA, to be created by decree within the framework of the new law on professional medical practice by February at the latest, the minister announced.

But the cure may well be worse than the disease, said Carlos Barrientos, a senior official at the Ombudsman s office, because as the draft decree stands, it gives the IMCA more powers than the law itself envisaged.

Worse still, it could create an opportunity to condone impunity, Barrientos said.

The law on professional medical practice, No. 3131, was approved in 2005 and entered into force a year ago, after a string of accusations and dramatic stories involving alleged medical negligence which began in the late 1990s. It was intended to fill the vacuum left by the absence of a general health code, which has been awaiting attention since the 1970s.

The law is basically preventive in nature, seeking to prevent doctors from stumbling into negligence, imprudence or lack of skill and causing physical or mental harm to a patient.

The IMCA that is now being mooted is mentioned in law 3131, but only in passing, because it was never agreed on during the preparation of the law. Apparently certain medical sectors were attempting to slip an extra step into the judicial procedure that might grant them impunity, Barrientos told IPS.

As a representative of the Ombudsman, Barrientos was part of the technical team that drew up the draft law in 2005, together with delegates from the Medical Association, the Nurses Association, the parliamentary committee on Social Policy and the Health Ministry.

In fact, the article providing for the creation of the IMCA was added at the last minute through the efforts of a group of medical doctors, Barrientos said. Although the drafting committee realised this and tried to stop it going through, Congress approved the law with the article included in its text.

Now the Health Ministry wants to create the IMCA in response to the high rate of medical malpractice complaints. It intends to grant the Institute powers of conflict resolution, which the Ombudsman interprets as a chance to settle out of court and prevent the case going to trial or being reported to the police.

Who will be members of the IMCA? Minister Heredia s decree does not specify. They must be competent professionals; we have not defined the membership yet. For example, they would be members of professional (medical and nurses) associations, legislators, people from civil society. We will analyse the question and reach a consensus by working with the sectors involved, she said in an interview with IPS.

The Medical Association sees no problem, and is anxious for the decree to enter into force as soon as possible. The Association s permanent secretary in La Paz, Adalid Zamora, said that the Institute will depend on the justice system, as a prior instance, but it will also provide an opportunity for a trial with independent arbitrators from the Justice Ministry.

Meanwhile, María Teresa Montaño, a lawyer has been handling malpractice cases for 10 years in connection with the non-governmental Association of Victims of Medical Negligence, said she hoped that the IMCA will not protect doctors to the extent that they are awarded exceptional treatment within the sphere of ordinary justice.

What seems to be beyond question is the decision to implement the Medical Audit System, which will provide each of Bolivia s nine provinces with specialist technicians to carry out internal and external investigations.

The internal audits will assess the conditions in which patients are treated in each of the country s medical centres, and whether they meet minimum standards. The purpose of external audits will be to standardise medical and nursing practices, by adopting uniform protocols.

At present the health minister is concentrating her efforts on higher profile measures, such as extending free healthcare to young people up to the age of 21, as part of health insurance which was previously limited to mothers and children.

The Institute and the audit system are only fulfilling the provisions of law No. 3131, and we will act in accordance with what we understand to be our priorities, said Heredia, who has already received a letter from the Ombudsman s office with recommendations regarding the decree.

The suggestions focus on adjustments to the proposed IMCA and defining which offices, at the national, regional and provincial levels, patients should go to if they want to use the conciliation and arbitration mechanism; which cases will proceed to conciliation and which to arbitration; and above all, what limits will be set to the competence attributed to the Institute.

The point is to keep medical malpractice from going unpunished in a country where inequality tends to become more acute when justice is at stake, the Ombudsman s letter said.