There has been a lot of attention about the “no-fault” system recently. In the minds of patients, it is a straightforward path to the impunity of medics who make a mistake. And how is it supposed to really look like? – The point is not that the doctor should feel “guiltless”, but rather that it should be a “no-judgment” system. After all, a doctor would bear civil and disciplinary liability, explains the newly elected president of the Supreme Medical Council, Łukasz Jankowski, in an interview with Medonet.
- The “no-fault” system has been operating in Sweden, for example, for over 40 years
- In Poland, it is introduced by the bill on quality in healthcare and patient safety. Work on such a solution took several years
- In April, the Minister of Health, Adam Niedzielski, expressed the hope that the regulation would enter into force later this year. The project was added to the government’s work list in July 2021.
- The Ombudsman for Patients’ Rights, Bartłomiej Chmielowiec, explained that such a system “in the event of an undesirable event, will enable the patient to actually obtain the compensation due”
- The President of the NRL admits that a more accurate term for this system would be “without judgment” instead of “no-fault”
- More current information can be found on the Onet homepage
Klaudia Torchała, Medonet: The “no-fault” system is your priority in the slogan “future self-government”, which you won the position of president of NRL. Unfortunately, this term says little to patients, and when translated literally means “without fault”. After all, this is a big simplification …
Łukasz Jankowski, president of the Supreme Medical Council: In fact, it is about patient safety, about the quality of patient care, because it all includes a “no-fault” system. We even wanted to change this name and propose: “treatment safety system” or “patient safety system”. The point is that if a patient is hurt because an undesirable event occurs, he or she can count on immediate redress. And the doctor has a chance to analyze his error and subject the entire system to a corrective process. But here, indeed, the rhetoric of “no-fault” thinking has gone too far into talking about guilt, neglecting the aspect of redress when a fault does occur.
Perhaps it would be more accurate to simply call this system “non-judgmental”?
Yes, “without judging” would probably be more accurate, because this “no fault” system confuses the patient. In fact, it is not about the doctor’s guilt, but about the fact that it is possible to draw conclusions without fear, and the patient receives compensation from the beginning and does not have to run around the courts.
Why do doctors care so much about a “no-judgment” system?
Today they are simply afraid of treating patients. They are afraid of criminal liability, even for a no-fault medical error. Mistakes happen. Everyone who performs surgical specializations is exposed to the risk of complications. Each procedure with a violation of the continuity of tissues carries even the risk of death, in a percentage, but it is so. That is why the doctors say straight – today we are sitting on a ticking bomb and if an undesirable event occurs, we may end up in jail. This fear means that many young adepts of medicine do not choose surgical specializations and in a moment there will be no surgeons and gynecologists in Poland.
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On the other hand, there is the patient’s fear that the doctor who made the mistake will not suffer any consequences, as the opponents of this system argue about.
Of course. Therefore, it is necessary to talk about patient safety. To tell and guarantee patients that such a doctor who makes a mistake is not exonerated. After all, there remains civil liability and disciplinary liability. Therefore, we are talking about full compensation for the patient, but we cannot say that we will threaten the doctor with imprisonment when complications arise in the patient, because it paralyzes the doctors and binds their hands.
Do many such gross medical errors actually happen?
We can see single, gross medical errors in the country and year. Glaring, i.e. not requiring special messages. The area of these errors belongs to the professional liability bodies, so that not only is a penalty imposed, but also that the doctor corrects his error, and where he should not continue to practice, deprive him of this right. However, most of these errors are unintentional as they are simply unwanted events. It is known that patients may react differently to therapy. And here we are talking about the full lifting of criminal liability, after receiving full compensation. We are not talking about the establishment of medical malpractice registries. We are talking about a completely different culture of approach to non-culpable errors and adverse events. We want to draw conclusions from them. We do not want to register them, penalize them in the sense that they will expose them to ostracism, when a doctor, for example, after 30 years of good work, makes one and only mistake in his life. We don’t want to convict him to go to court. In a word, we want to civilize this system, as is the case in the West. We’re not inventing anything new.
Does the doctor know immediately that he has made a mistake? How does it work in practice?
Not. It is very often the case that years later the prosecutor’s office initiates an investigation into a case which at this stage is considered a medical error or an adverse event, and which the doctor did not recognize as such during treatment. Of course, this does not end with a conviction, but with a long-term court battle and the threat of imprisonment for the doctor. Therefore, the idea of a registry of adverse events is wrong, because we often do not even know that there may have been an error. Such a registry would end up reporting to it authentically every move and every change in treatment that we prescribe to the patient. Every operation. This is fiction. It is in fact not a “no-fault” system, it is its prosthesis that will concret for years the discussion of a true “no-fault” system.
You have the strength to use the statement of prof. Marek Belka to “kick with the horse”? Representatives of the Ministry of Justice are accusing that this system is inconsistent with the provisions of the constitution on the obligation to protect life and health. It is such a closing argument …
Such a discussion is needed. The idea is not ours. It is European. I do not accept these arguments that it does not comply with the legal order, because when we look at Western countries, this system is compatible with that order. Indeed, the dispute affects the political layer, the more it is necessary to convince politicians to our arguments and patients’ arguments. That is why I have an appointment with representatives of the Ministry of Justice. I will try to show with specific examples that this narrative that doctors will remain blameless, without responsibility and catastrophic errors will occur, is absolutely irrelevant, while maintaining professional and civil liability. But it cannot be that the doctor is threatened with imprisonment for a mistake.
Minister Niedzielski is with you on this matter?
The head of the ministry assured me that he supports the introduction of the “no-fault” system in full, while political limitations allow him to try to force through this law, which is now in the Sejm. For us, this solution is unacceptable at this stage. We, doctors and patients, are not bound by political constraints and such a translation does not make sense.
Will you be Rejtan lying down? No compromise solutions?
I believe that if we do not introduce this system, the hospital system will collapse. I have the support of patient organizations.
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