On the surface, and according to the ideas presented by the proponents of the reforms to the Penal Code and Law 68 of 2003 on the rights and duties of patients, the criminalization of medical practice is a straightforward matter. However, the lack of consistency between the objectives proposed in the explanatory statement of the initiative and its actual outcome is notable, since the proposed regulation is too light to address such a complex issue as criminal medical liability in the context of the practice of medicine.
Like many laws, at least the majority, Panama follows the trend that culpability is an element that accompanies the specific criminal offense and not the other way around. One of the virtues of this form of legislation is that it guarantees due process and legal certainty in its application. In other words, it determines which specific crimes can be committed with culpability and which cannot. Because of this, we see that the proposed law modifies Article 28 of the Penal Code, which deals with culpability, but also modifies Article 133, which regulates culpable homicide, and Article 139, which regulates culpable personal injury.
The provision of medical services is a matter of means, not results. Therefore, every physician is held accountable for the performance of their service, never for the outcome. This is because the medical profession, by its very nature, involves risk—a risk that the patient accepts in advance through informed consent. Therefore, failure to provide consent results in the loss of that exemption from liability. For this reason, if a physician were subjected to the same scrutiny applied, for example, to a traffic accident resulting in injuries, the physician’s fundamental right to be treated fairly and in accordance with due process would be seriously violated. This in no way justifies the physician’s unfair conduct, but it does demonstrate that medical professionals practice their profession with a higher degree of risk than the vast majority of other professions, making it difficult to determine when they are truly acting in favor of a patient’s health and when they are not.
This leads us to believe that malpractice should be the subject of independent legislation that regulates all aspects related to the practice of medicine, abandoning the simplistic way in which it is intended to be regulated.
To generalize and therefore conclude that medical professionals are irresponsible and that an entire profession should be sanctioned, simply for practicing medicine, is not only unfair and illegal (because from several perspectives it could be a violation of the Constitution), but the regulation is insufficient. Fairness would require sanctioning aspects such as shortages of medications and instruments or the inability to provide services promptly and efficiently. Although common in the public sector, these situations are not attributable to the individual conduct of the physician but rather determine the way in which the physician provides services. If a doctor stops prescribing a medication that can effectively relieve an ailment because it is unavailable to the patient because it is too expensive and is not being dispensed by the Social Security Fund, would this be considered negligent, negligent, or culpable? Just to cite an example, the problem of health service provision is not a simple one and definitely cannot be solved simply by adding to what already exists a separate stipulation to categorize the provision of medical services within the scope of culpability for the crimes of homicide and injury.
In another aspect, it is highlighted that the proposed law does not mention the multiple mitigating and exempting factors from liability that exist today in favor of the doctor. Today it is known that treatment in emergency situations largely exempts the doctor from the total responsibility, which refers us to Law 57 of 2016, nicknamed the “Good Samaritan Law,” which is a clear example of how our legislation promotes the duty of doctors and others to intervene in situations of need for an injured person or whose life is seriously at risk.
Physicians are inherently risk-takers; this is part of the essence of the profession, not of the individual physician. Informed consent serves the purpose of warning patients of the risks they face so they can voluntarily accept them or not. In the vast majority of cases, the provision of medical services is changing, mutating and varying, which forces the doctor to be ready to improvise and adapt to the changing reality of a process, otherwise, let us think about the doctor who must face an unforeseen situation when performing an operation where he must decide what to do on the fly, knowing that his conduct will be measured based on what is stated by good professional practice in medicine (lex artis ad hoc), which certainly regulates him since the current “soft law” so provides, however, the new bill seeks to penalize this exercise, in such a way that the doctor will gradually be inclined to not take risks, not for the safety of the patient, but for his own legal security, and will begin to act with exaggerated caution that does not go well with his type of profession, this is known as the practice of “defensive medicine” which will undoubtedly be an expected result if this bill materializes.
Added to the above is the problem of the burden of proof, since guilt as an individual element is not presumed; it must be proven. Therefore, this legislative initiative will necessarily have to consider and develop the way in which negligent offenses in the medical setting must be proven. This poses a major challenge to the conceptualization of physician liability in the provision of services, since a wide range of elements must necessarily be considered, combining acts, exculpatory circumstances, levels of recklessness, proven incompetence, and proven negligence or imprudence, since none of these externalizations of guilt are candidates for presumption.
I feel compelled to make this contribution, which I hope will be appreciated, for the benefit of medical professionals, the vast majority of whom act out of conviction, personal detachment, vocation, and empathy for their patients. This bill, which criminalizes the medical profession and places healthcare professionals in the crosshairs of legislation that, due to its simplicity, will undoubtedly violate the rights of healthcare professionals in an unfair and unlawful manner.