The role of the medical professional, across continents, has been in sharp focus over the last two years owing to the COVID pandemic. And, actions as necessitated by situations extraordinary and urgent as forced by the pandemic could be mostly generalised as ‘Acts Done In Good Faith’ and, concurrently, implied and protected to some extent by law.
To preclude acts of medical negligence, mischief, malpractice, violation of privacy, loss and that of life as well as niche torts, to identify and trace the limits of the legal defence of ‘Good Faith’ is imperative. It is over and beyond these that the medical professional’s civil responsibility and criminal culpability can be addressed. This demarcation is necessary to help identify the time to introduce deterrence necessary to ensure compliance with the law.
A newly-fangled tendency to indulge in ‘defensive medicine’ has evolved across most developing nations simply owing to the fear of litigations that are braced to rise as a matter of time. Nations like the United States and New Zealand, the only two nations that permit direct-to-consumer advertising of prescription drugs, tend to have robust legal systems with judge-made laws by way of precedents enforced by petitions fought fiercely by insurance entities. It simply isn’t that easy to slip out of the net in case of damage or negligence. The damaging party will have to pay up dearly.
And that is what gives rise to a version of ‘defensive medicine’ where physicians are reluctant to initiate any medical treatment or procedure without ascertaining its necessity by a host of diagnostic tests and examinations, the costs of which too have to be footed by the patient or his insurance company. Now, in the absence of an insurance cover to foot the bill, the patient simply cannot avail treatment of ‘a’ condition merely on whim or as a matter of choice. It will have to be justified or simply cost a fortune. The insurance company will just not cover any extraneous or trivial test.
In countries like India where medical insurance is not, yet, a mandatory requirement owing to the affordability of diagnostic tests and procedures, it has been ‘cut practice’ that has been an integral part of the rot. ‘Cut Practice,’ essentially means that a medical practitioner gets a ‘cut’, read ‘commission’, from a medical laboratory out of the cost of a diagnostic test he suggests for a patient. Also, pharmaceutical companies are known to offer cash benefits, foreign trips, expensive gifts and more to medical professionals to promote the sale of ‘a’ drug or procedure that fetches the company profits. Now, by law, these acts are controlled and processes for penalties laid down.
Acts In Good Faith And Beyond
In general, every contract contains an implied duty of good faith and fair dealing. This duty requires that neither party will do anything that will destroy or injure the right of the other party to receive the benefits of the contract. There is no specific definition, however, of this duty and courts have discretion to determine its scope. When deciding whether the duty of good faith and fair dealing was breached, courts analyze the facts and determine what is fair under the circumstances.
That all of this is unethical is a given but, in the scheme of things, a lot of acts by medical professionals purported to be done ‘in good faith’ go unchecked. In sync with the defence of ‘acts done in good faith’ are laws that clearly codify offences that include ‘unethical acts’.
Violations and Bans In Liberia
It wasn’t without reason that, in 2019, veteran Liberian medical doctor and Registrar General of the Liberia Medical and Dental Council, Dr. Moses G. Y. Pewu decided to clamp down on violations of medical ethics by health practitioners even announced a ban on the advertisement of health products both in the print and electronic media.
A spurt in advertisements of health products in the local media had led to complaints of unethical practices from both patients and relatives against health workers and health facilities. Dr. Pewu said ‘no Physician, Surgeon, Dental surgeon, or any allied health workers be it a Physician Assistance, a nurse, laboratory technician and traditional medicine practitioner shall be found advertising health products in the electronic and print media’. And, violators would severely be punished in line with the ethical guidelines of the Council.
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Dr. Pewu added no health professional shall allow his or her name or title to be used in any commercial advertisement within the republic of Liberia and a health professional shall not make any media publication about pending treatment.
Actions could include withdrawal of license, payment of fine, denial of license to practice and prosecution in court of competent jurisdiction based on recommendation by the Liberia Medical and Dental Council.
So, would news of a renowned Eye Institute from India signing a MoU with a Liberian Medical Centre “to facilitate the creation of a comprehensive self-sustaining Eye Health Initiative in Liberia,” with a Liberian politician, qualify as an ‘advertisement’? Issues like these and others are exposed to the ‘informed’ yet ‘subjective’ view of the authorities in power. That there would always be a conflicting view, most of those, not in power, is a given. And, to take that view, of the minority, read Opposition, in reasonable consideration is the task of those in power.
When a month-old baby boy born at the Redemption Hospital on 9 June 2018, risked amputation due to alleged medical malpractice at the hands of the Redemption’s nurse, and was amputated above the ankle at the John F. Kennedy Medical Center, it shook the sensibilities of the entire nation. Medical malpractice had raised its hood once again and a lot of diversionary activity would follow in media and across social fora to deflect from the real issue.
And then, more recently, the management of the John F. Memorial Medical Center was again accused by Thelma Y. Saye, a Liberian based in the United States, of causing the death of two-year-old Success Gbassay allegedly wrongfully administered a chemotherapy intravenous injection under the skin. The Hospital’s Public Relations Officer termed the allegation made on social media as false and misleading. Yet, the charge is only indicative of an anomaly that needs to be resolved.
Similar Concerns Voiced in USA
In 2015, the American Medical Association called for a ban on advertising prescription drugs and medical devices directly to consumers, saying the ads drive patients to demand expensive treatments over less costly ones that are also effective.
The group maintained the new policy reflects physicians’ concerns that marketing spending on a proliferation of advertising is helping to drive up drug prices. “Direct-to-consumer advertising also inflates demand for new and more expensive drugs, even when those drugs may not be appropriate,” said AMA Board Chair-elect Patrice Harris then.
U.S. Democratic presidential candidate Hillary Clinton had even proposed cracking down on direct-to-consumer advertising to stop “price gouging” by pharmaceutical companies. It would have prevented companies from deducting what they spend on direct-to-consumer ads from their tax bills. That was in the past.
Now, Pfizer is all set to start advertising its new product – the COVID-19 vaccine under the brand name Comirnaty. In 2019, Pfizer spent about $2.4 billion in advertising and its resources to promote the Covid-19 vaccine might be even bigger, considering the company is already expected to make $15 billion from it, prior to any marketing.
The Public Readiness and Emergency Preparedness Act of 2005, provides legal protection to companies making or distributing critical medical supplies, such as vaccines and treatments, unless there’s “willful misconduct” by the company. The protection lasts until 2024.
So, Pfizer and Moderna have total immunity from liability if something “unintentionally” goes wrong with their vaccines. Also, the Countermeasures Injury Compensation Program (CICP) provides benefits to people who can prove they suffered serious injury from a vaccine but rarely pays.
As a case in point, the CICP has covered just 29 claims of the 499 claims filed over the last decade rejecting a majority of the compensation requests made since the program began 10 years ago.
Australia Updates Policy On Ethics
The Position Statement on Advertising and Public Endorsement 2020 generated by the Australia Medical Association’s Ethics and Medico-Legal Committee (EMLC) concludes the line between appropriate and inappropriate advertising is getting increasingly blurred.
It can lead to confusion for doctors on how to meet their ethical, legal and professional obligations and potentially result in harm to patients.
They maintain that advertising by doctors should be guided by ethical values including respect, honesty, integrity, transparency and accountability. Advertising should facilitate - not undermine - informed patient choice, relevant medical referral and the community’s trust and confidence in the medical profession. Now that is a tall task.
The Rot Continues In India
Under the guise of making ‘educational’ claims of COVID Care, Treatment and Prevention, medical professionals across India have been usurping every means available on social media even making ‘strategic’ appearances on panel discussions on TV throughout the pandemic.
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Now, according to Drugs and Magic Remedies Act 1954, all advertisements by doctors are prohibited in any medium. Any form of promises or advertisements of ‘guaranteed treatment’ cannot be made by a doctor, according to Code of Ethics laid down by the Medical Council of India.
The Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, Rule 6.1 under Chapter 6 that elaborates on Unethical Acts reads:
Soliciting of patients directly or indirectly, by a physician, by a group of physicians or by institutions or organisations, is unethical.
And, Rule 7.11 and 7.12 under Chapter 7 identifies misconduct as:
A physician should not contribute to the lay press articles and give interviews regarding diseases and treatments which may have the effect of advertising himself or soliciting practices; but is open to write to the lay press under his own name on matters of public health, hygienic living or to deliver public lectures, give talks on the radio/TV/internet chat for the same purpose and send announcement of the same to the lay press.
That many medical practitioners across India broke every law as laid down on advertising during the pandemic and, oddly enough, had to be issued show-cause notices to present themselves for practice during COVID-19 pandemic by States frustrated with the low turnout of doctors at public and government hospitals, exposed the professional integrity of most practitioners. Yet the fact that nobody’s license, despite clear-cut violations of orders and rules, was suspended, said it all.
In an Indianised version of ‘defensive medicine’, a spanking new practice of getting patients to sign self-attested declarations of having been ‘explained processes and educated about COVID-Care norms’ even provide ‘unconditional consent’ to the practitioner for procedures while ‘willingly’ revoke all rights to hold the practitioner responsible for negligence legally, has made its presence felt in clinics and health-care centres in India during this period.
Now, till someone actually drags the medical professional to court and makes a precedent out of it, the practice will continue unabated. In India, the National Medical Commission and State Medical Councils responsible for licensing of professionals and ascertaining legality, look the other way as Private Associations continue to ‘make’ laws and processes that have no basis in law and offer ‘legal’ services to member professionals who feel they are ‘covered’ by the law by sheer dint of the paperwork generated by ‘procedures’ laid down by their Associations.
Of pertinence here is a recent Supreme Court judgment that has far-reaching repercussions on the medical fraternity that blindly feels protected by the ‘defence of good faith’ and that their acts are without ‘mens rea’ (Latin for guilt in the mind). The Supreme Court in India ruled that mens rea was not a prerequisite in cases of medical negligence where the practitioner would have held legally liable.
Unless ethics are reduced to the letter of the law, the subjectivity of the sensitive issue will ensure it is conveniently glossed over by Machiavellian health professionals. Medical professionals comprise a powerful industry and the equation vis-à-vis the patient continues being highly skewed in favour of the healer. Continuing Medical Education (CME) sessions made mandatory for health professionals across the world may help them update their skills and retain a qualification to treat but do not infuse social responsibility and ethics.
That will have to be ensured by the law!