For Future Doctors: Patient’s Confidentiality and Autonomy………Part 3Five years ago I wrote an article in my blog ” Patient’s Confidentiality and Autonomy” . It was about an article in the Malay Mail discussing on the issue of doctors posting confidential informations of patients being treated in hospital and using it to make remarks against certain group of people on Facebook etc. I […]
Five years ago I wrote an article in my blog ” Patient’s Confidentiality and Autonomy” . It was about an article in the Malay Mail discussing on the issue of doctors posting confidential informations of patients being treated in hospital and using it to make remarks against certain group of people on Facebook etc. I wrote in detail my opinions on these matters and did warn the doctors that every patient has the right to choose what they want. Our job is to educate and advise, period. I wrote this same article in my books that was published in June 2016 (Chapter 9, page 185). Along the way I had written numerous articles on issues of doctors and social media. Interestingly, the exact issue that I spoke about in 2015 has taken a centre stage again, over the past 1 week.
We as doctors should learn to control our emotions. The public look at us as a highly educated person and we should not tarnish our names by making mocking or defamatory statement to any particular individuals, especially if we do not know the exact details of a case or never involved in it etc. Making general statements are fine. The issue that has been circulating around over the past 1 week started in early 2018, almost 3 years after i wrote my article. The court has decided that the said doctor has made defamatory statement against an individual and was asked to pay RM 230K in total, as damages and legal cost. I do not want to discuss in detail about this court case unless I have the detail judgement, which may only be released at a much later date.
What I want to talk about are comments made by many medical practitioners claiming that doctors have now lost the ability to advise people on quack practitioners, medical notes are neglected as evidence in courts etc. Some even gone to the extend of saying that doctors should be protected from being sued by member of the public for trying to protect the public from quack practitioners.
Firstly, let me explain that a defamation case is NOT a medico-legal case. In a medico-legal case, your case notes becomes a hardcore evidence against a negligent suit. Medico-legal cases/notes are only applicable from the time the patient seeks your treatment till the time the so-called negligence happens and so forth. The court will take the medical notes as evidence. So, if the patient has lied to you, they cannot turn the case against you as our management plan depends on what patient informs you. The legal test used to determine negligence is way different than a defamatory case.
In a defamation case, you need to proof that the accusation you have levelled against an individual is, on a balance of probabilities, true and proven. The legal test used is totally different than a medico-legal suit. So, when a doctor accuses a member of public of something serious, like causing death of a baby etc, she need to proof this statement in court. Can the medical note be used as an evidence?
My answer is NO, especially if you are not even involved personally in this case. Anything that happened outside a hospital/medical facility is hearsay. That’s the reason when a patient comes to emergency department and says that she/he met with an accident, we say ” Alleged MVA”. This is because we don’t know whether what the patient tells you is the truth and nothing but the truth, as proclaimed in court of law. No such proclamation is made when a patient comes to hospital. That’s also the reason why we always say ” claimed by patient” in our history taking. I hope the medical schools are still teaching this, as I learned it when I was a medical student.
Now, let’s go back to this particular case in general. The case revolves around a doctor who supposedly made remarks on FB against another “complimentary medicine” practitioner, accusing that the said practitioner caused the death of a child. I can vaguely remember the hot issue that was circulating at that time in regards to this case. The doctor made direct accusation and thus, it can definitely be deemed defamatory. No two way about it. If it was a general advisory statement without pointing to any particular person directly or indirectly, then it is not an issue and cannot be deemed defamatory.
Anything that happens outside of an hospital have to be reported to the relevant authorities to investigate. For example, if we suspect child abuse, we need to report to the police and social welfare department. It is up to these departments to take further actions. Just because the child said that she has been abused to you, it does not mean she is telling the truth and we should not depend on that story to throw accusation to anyone. Our job is to report. If we accuse so and so as responsible based on what the child said but subsequent investigations by police showed otherwise, you are liable for defamation and you can never win. Similarly, if any patients makes public accusation against a doctor in social media etc, you have every right to sue them. However, if the patient makes a report to MMC and MMC finds you not guilty, you can’t sue the patient, as she has made the right move. This is similar of us making a police report when we suspect something. The person cannot sue you for making the report.
In this particular case, police reports were made by both MOH and the person being accused of killing the child (directly or indirectly), who is the plaintiff in this case. Unfortunately, police investigations found no evidence that the plaintiff was responsible for the death of the child. This alone is enough to proof that the statement made by the doctor is defamatory. Some said that the mother lied in court and changed her statement, comparing to what was recorded in medical notes. Again, what the mother told the doctor is considered hearsay as it happened outside the hospital. In my 24 years of medical practise, I have seen countless number of patients not telling the truth. Many at times, they make up stories so that you don’t scold them or find them stupid. In the court of law, it is up to the defence lawyers to proof that the person is a liar and to expunge the entire witness statement. Till the judgement details are out, we would not know what happened in the court. I understand the said plaintiff in this case has also won another case in Shah Alam against a doctor as well, who supposedly did not turn up in court to defend himself.
Many young doctors out there do not understand the field of medicine. Defamation and medical negligent cases are 2 different entity. Medical notes evidence is only valid for something that happened within the medical facility, aka from the time the patient come to you. It is only applicable for treatment related issues. Secondly, what patient tells you is confidential and cannot be made public. A doctor who accuses someone publicly of wrongdoing by using this case notes has technically breached patient confidentiality. He or she can be reported to MMC. So, be very careful when you make emotional post on social media on certain issues when it involves specific patient etc. I have written an article on this in 2018.
Some doctors have said that they will stop advising the public against going to traditional practitioners to prevent being sued. Again, many don’t understand the scenario. You can always advise and educate the public in general terms. But what you can’t do is directly accusing someone of doing something. That is defamatory unless you have solid proof. Please do not forget that despite all the advise and education, it is every patient’s right to follow or not to follow. You can’t push your ideas into anyone even if it is based on solid evidence. Always remember your medical ethics: patient’s autonomy. My article in 2015 had explained this in detail.
Our country is in a mess right now and the world is in recession. I know this year’s Deepavali would be uneventful to many. However, I would still like to wish ” Happy Deepavali” for all those who are celebrating at home.
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For Future Doctors: Patient’s Confidentiality and Autonomy………Part 3
