“Lawsuits Against Doctors Rise as Compensation Awards Soar” (featuring César Sá Esteves and Mónica Azevedo)

«There are no official figures on medical malpractice claims against doctors, but ‘empirical evidence points to exponential growth,’ says César Sá Esteves, Managing Partner of SRS Legal, the law firm behind the conference ‘White Coat, Black Robe’, which recently brought together doctors, lawyers, law professors and a Court of Appeal judge at the Porto School of Law of Universidade Católica Portuguesa. The aim was to raise awareness among healthcare professionals of the legal risks they face in the course of their professional practice.

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According to lawyer César Sá Esteves, the rise in litigation between doctors and patients is directly linked to the ‘privatisation of healthcare’, which has contributed to the transformation of the ‘doctor-patient’ relationship into a ‘doctor-client’ relationship. Patients attending medical consultations today expect results because they are paying for a service, are better informed and are aware of the media attention that cases involving adverse outcomes can attract. For all these reasons, ‘they are more willing to challenge doctors in court,’ the lawyer explains.

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‘There should be no such distinction between the public and private sectors. It makes absolutely no sense for a doctor to have one level of protection in the morning and another in the afternoon,’ Luís Cunha Miranda criticises. In a context where the Portuguese National Health Service (SNS) works alongside the private and social sectors, further inconsistencies arise. Within the private sector, doctors performing surgery under the waiting list recovery programme — the Integrated Surgical Waiting List Management System, which will soon be replaced by the National System for Access to Consultations and Surgery — are even more vulnerable, warns Mónica Azevedo, an Of Counsel at the same law firm with several years of experience in medical law.

Under this system, when SNS patients are referred for surgery in the private sector after the maximum guaranteed waiting time has been reached, they arrive with an existing medical record. ‘Everything begins in the public sector, from the diagnosis to the clinical decision to recommend surgery. In other words, the doctor who prescribes the procedure is not the doctor who performs it,’ she explains, stressing that ‘at the end of the chain are the private-sector doctor and the private healthcare institution’. The problem, according to Mónica Azevedo, is that ‘when something goes wrong, the court does not reconstruct this sequence of events’.

The same applies to invasive medical examinations performed every day by private healthcare providers contracted by the SNS. A family doctor may, for example, prescribe a colonoscopy, but ‘the procedure is carried out by a gastroenterologist who does not know the patient’. If something goes wrong, responsibility falls on the doctor who performs the procedure, the lawyer points out. Doctors who find themselves ‘at the end of the chain’ must therefore exercise particular care in reviewing patients’ medical records to ensure that the prescribed surgery or examination is the most appropriate procedure for the patient. They must also ensure that patients understand what is going to be done and the risks involved, obtaining what is known as ‘informed consent’.

However, under constant ‘pressure’ to increase the number of procedures performed and reduce waiting lists, ‘there is not always enough time’ to take all these precautions. If something goes wrong and a doctor is found liable by a court, they may face another unexpected problem: inadequate professional liability insurance coverage. ‘Standard insurance policies are not equipped to address the intricate complexity of the requirements now being imposed,’ notes César Sá Esteves, urging doctors to review their insurance coverage.

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For now, the perception is that ‘the pieces of the puzzle are not fitting together’, as César Sá Esteves emphasised. This is partly because, until recently, insurers were dealing with court awards of five or ten thousand euros. Now, ‘with awards of €300,000, €500,000 or €1 million, and if, suddenly, instead of a single award there are several, the impact is entirely different,’ he adds.

Lawyers advise doctors to review their insurance policies and pay particular attention to the amounts allocated to legal defence costs — as the fees charged by lawyers specialising in these areas far exceed the coverage limits — as well as to the limited retroactive coverage provided by their policies. If a court judgment is handed down several years after a policy has expired, will the claim still be covered? ‘Retroactive coverage is typically limited [to two to five years], leaving older medical acts uninsured and potentially creating a “coverage gap” when switching insurers,’ warns César Sá Esteves.

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In other words, for healthcare professionals, ‘being technically beyond reproach is no longer enough. A doctor can be held liable for failing to explain everything to the patient,’ Mónica Azevedo, a consultant at SRS Legal, tells PÚBLICO. Furthermore, failure to fulfil the duty to obtain informed consent is an exclusion from coverage under some doctors’ professional liability insurance policies.

In practice, obtaining informed consent is not a straightforward obligation to fulfil, and the process may sometimes be insufficiently robust or even invalid. ‘A signed form does not mean that informed consent has been obtained,’ warned Ana Afonso, a professor at the Porto School of Law of Universidade Católica Portuguesa, during the recently held ‘White Coat, Black Robe’ conference.

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Against a backdrop of increasing pressure on the healthcare system in general and on doctors in particular, where lack of time poses a threat to the provision of quality care, lawyers recommend that medical professionals maintain comprehensive records. ‘The medical record is the lasting record for the doctor, the court and the expert witness. What is not documented tends to be treated as though it never happened,’ warns Mónica Azevedo.»