Battle lines harden as doctors protest the language of a proposed malpractice law; government says it stands firm

Jan 27, 2014

As more doctors join the protest over the wording of a proposed professional malpractice law, Ecuador’s government says the law is essential for protecting patients’ rights.

chl docs1Doctors want the government to amend the controversial Article 146 of the proposted penal code, which refers to wrongful death from professional malpractice. Although doctors are protesting now, lawyers say that in the future so could engineers, builders and other professionals who might face lawsuits brought by “unscrupulous lawyers.”

“We are doctors, not criminals,” the protesters shouted Monday. “Join the fight because if you get sick, who will heal you.”

Although the total number is not known, at least 200 doctors at government-operated hospitals have tendered their resignations to protest the proposed law that will likely be passed by the National Assembly later this week. In Quito, protesting doctors tried to close a public cancer hospital on Monday but the government says that the effort failed when more than enough doctors stayed on the job to keep the facility open.

The code has raised concerns among health professionals that they will face lawsuits from patients who believe doctors didn’t abide by professional or ethical codes, or from those looking for financial gain because of the ambiguity of the legislation.

President Rafael Correa, who charges that doctors are conducting a smear campaign, has said that the government will import doctors from Cuba, Spain and Chile to fill vacancies if necessary. Members of his administration say that airplanes are standing by to fly in Cuban doctors to cover a shortage of physicians.chl med

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In the meantime, victims of medical malpractice are coming forward demanding enactment of the new law, claiming that doctors have not been held accountable for careless acts that have led to injury and sometimes death.

In Cuenca, a mother told reporters that there has been no justice for her son who suffered irreparable brain damage during an operation at a Social Security hosital four years ago. Her son, who went into the hospital for a routine nasal cleaning to correct a case of sinusitus, was put into a vegetative state when an improperly inserted breathing tube deprived him of oxygen. “Where is the justice for me and my son?” Nancy Salazar asked.

The flashpoint in the controversy is the language of Article 146 that establishes a three- to five-year prison term for health professionals who cause death. The proposed law refers to “unnecessary, dangerous and illegitimate actions.”

Correa claims that the press and some doctors have “twisted the truth” by replacing the word “and” with “or” to publicly make their case. According Correa, the substitution of “or” for “and” changes the intent of the law. “The legal criteria is that all three conditions must exist for doctors or other professionals to be punished. If ‘or’ is substitued for ‘and’ the  legal justification for criminaliztion would meet a lower standard and this is not the intent of the law,” Correa said.

The president of the Ecuadorean Medical Federation, Alberto Narvaez, acknowledges the wording error in the doctors’ protest, but says that it was inadvertant. “Even with the correct language the interpretation by judges, prosecutors and lawyers could endanger patients’ lives,” he said.

“We are not against punishment for real medical malpractice. We are against an ambiguous and discretional regulation that can give rise to different subjective interpretations,” Narvaez said.

Correa says that the article protects doctors and patients. He says that the doctors’ protests are malicious and intended to undermine his government before local elections in February.

Photo caption: Dcotors protest in Quito; Ramón Góngora and his mother Nancy Salazar in Cuenca. Ramón suffered severe brain damage because of misplaced breathing tube during a nasal cleaning surgery four years ago. Photo credit: El Tiempo.

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