Concept of medical expertise in Obstetrics and Gynecology

In Turkey, Gynecology and Obstetrics is the field with the highest rate of judicial-administrative problems among expertise fields. It often plays a significant role in the judicial decision in files which are engaged in lawsuit requiring medical expertise. The duty of medical expert is only to explain if the evaluation, examination or treatment/ surgery performed by physician conforms to the established medical rules or not and other events causing harmful results, together with scientific grounds. The expert should know legal arrangements about expertise. Expertise has two types which are judicial expertise and medical expertise. As of 2010, the obligation for penal courts to take decision from Supreme Council of Health was annulled. Apart from them, “scientific opinion” can be asked pursuant to the article “expert opinion” according to the Code of Civil Procedure. Also, “expert opinion” can be received from peer hospitals, private branch hospitals and expertise societies. Medical expert should state if it is acted in accordance with medical science and code of practice during the procedure or not instead of stating if those performing the procedure are faulty or not. In concrete cases, “Judge” has the right to determine the flaw. In medical errors, it especially should be explained if healthcare professional claimed to be the faulty one paid attention as required during procedure or not, if he/she was negligent according to the medical requirements and rules or not, if he/she conformed to “Medical standards” or not, and if was there any difference between those that should be done according to medical science & technique and the performance and treatment performed. The comments of medical expert should be comprehensive, fair and unbiased. Medical experts should have some characteristics with their knowledge, reporting and evaluation. Therefore, there are always negative discussions about expertise. Presence of completely opposite opinions in the reports taken from various experts is one of the reasons. The discussions on “Expertise Law Draft” prepared for such reasons in the beginning of 2016 still continue.

Keywords

Medicolegal, expert, delivery cases, malpractice, maloccurrence

Introduction

Gynecology and Obstetrics is the leading field among many expertise fields in terms of medico-legal issues in Turkey and the world, and it causes the status of the field to get harm. Medical expertise of Gynecology and Obstetrics which often plays a significant role in the judicial decision in files which are engaged in lawsuits, and related legislation and the criteria shedding light to the evaluation are discussed in this study.
The scores of Gynecology and Obstetrics decreasing from the highest to the lowest ones, which also reflect to Examination for Specialty in Medicine, due to various factors such as medicolegal problems in 2000s in particular, difficult work environment, populist policies and financial reasons etc. and the advanced loss of status presenting with the highest rates of resignation within last 10 years among the assistants working in Gynecology and Obstetrics field remind us “The Lost Honor of Katharina Blum” of Heinrich Theodor Böll, the winner of Nobel Prize in Literature in 1972. Yet, the Republic of Turkey managed to decrease maternal mortality rates to 15.8/100,000 during 2003–2014 which was 68/100,000 in 1990s, compared to member countries of Organization of Economic Co-operation and Development (OECD) which managed to achieve same rate in 23 years;[1–3] the lion’s share in this achievement belongs to devoted Obstetricians and Gynecologists undoubtedly. Obstetricians- Gynecologists are neither appreciated nor earn respect for this success. Obstetrics and Gynecology is the only branch that is at the top of the agenda with cases reflecting to the media in an uncontrolled way and devoid of any reality, with working conditions for 365 days and 24 hours in a year, having the highest rates of emergency cases and two patients at the same time as mother and fetus. It is also same in Turkey and it is the branch with the highest rate of judicial-administrative problems (16%) among expertise fields (Table 1).[4] The reviews of the cases files between 2001 and 2010 submitted to the Supreme Council of Health show that the rate of lawsuit is highest among Obstetricians-Gynecologists compared to other healthcare professionals. In 1684 penal files and total fault rate of 39.8% with 670 files between 2001 and 2006, obstetrics-gynecology has been found faulty in 114 files among 262 files, which is 43.7% (Fig. 1). In the same period, the fault rate is 88 (47.6%) out of 185 files for general surgery, 106 (34.2%) out of 310 files for general practitioners, and 63 (24.5%) out of 257 files for nurse midwife.[4,5] High fault rate of obstetricians-gynecologists was also reflected into the professional liability researches conducted in the United States of America and as a result, difficulties were experienced among Gynecologists and Obstetricians and especially in the fields of Obstetrics and Perinatology. While 23.8% of the physicians decreased the number of their high-risk pregnant patients, 17.0% of them increased the rate of cesarean section (C/S), 13.4% of them decreased to offer vaginal delivery after C/S, 9.3% of them decreased to carry out delivery, and 5.1% of them completely stopped to attend delivery operations. About 13.1% of the wages of obstetricians & gynecologists decreased more than 10%, 2.6% of obstetricians & gynecologists started to work in another workplace or moved to a location having a different jury, and 0.4% of them stopped paying for insurance. Its reflection in gynecology is the decrease in 12% of gynecological surgical procedures, decrease in 4.9% of major gynecological surgical procedures, and quitting surgery completely in 1.4% of them.[6]
Offenses against individuals according Turkish Penal Code are evaluated in the same way for either doctors or electricians since the laws are arranged in accordance with general legal rules; however, matters related with professions, especially like medical expertise which has 14 years of education after high school, requires additional knowledge other than law; therefore, it is frequently required to refer to an expert. Arrangements about expertise were defined in the law as below.

Cases to Refer Expertise

Article 266: In cases where the resolution requires special technical or knowledge other than legal ones, the court decides to take vote and opinion of an expert either itself or upon the request of one of the parties. In cases where it is possible to resolve the matter with general and legal knowledge of judge, expertise is not referred. The duty of medical expert is only to explain if the evaluation, examination or treatment/surgery performed by physician conforms to the established medical rules or not and other events causing harmful results, together with scientific grounds.[7–12] The expert should know legal arrangements about expertise.[8,9]
 

Arrangements about Expertise

Code of Civil Procedure, Article 278: Expert performs his/her duty under the management of court. If expert hesitates about assigned duty and limits, s/he may always request the court to eliminate this hesitation. If expert needs during the evaluation, providing that the court approves, s/he may refer to the information of parties. In such cases, it is reminded to expert by court that one of the parties cannot be listened unless other party is also present. In order to explain vote and opinion by expert, the expert may carry out necessary investigations if it is required. Parties may be present during such investigations.
Expertise has two types which are judicial expertise and medical expertise (Table 2). In cases related with medical science, official expertise organizations are the Institution of Forensic Medicine, Supreme Council of Health and universities. Among them, Institution of Forensic Medicine has 6 Expertise Boards and 1st Forensic Medicine Expertise Board has an obstetrician as a member for deaths with unknown reasons. 6th Forensic Medicine Expertise Board also has an obstetrician as a member for cases such as offenses against public morality and family order, felonies regarding lineage, illegal abortion, cases stated in Articles 53, 54, 55, 57 and 58 (except clause 3) of Turkish Penal Code and determination of sexual potency. Although Supreme Council of Heath was defined as the institution to decide in penal proceedings until 2010, the obligation of criminal courts to take decision from Supreme Council of Heath was annulled with the decision of Constitutional Court dated 22.10.2010 due to heavy workload of the Council which gathers once a year and the problems related with time in the process of justice.
Except these three official organizations, Article 293 of Code of Civil Procedure defined a new institution with the title “expert opinion” and established a legal ground for "scientific opinion". Also, “expert opinion” can be received from peer hospitals, private branch hospitals and expertise societies. Expert opinion or scientific opinion from the expert can be taken in order to present before expertise report and to submit for the evaluation of expertise, to reveal and remove errors and conflicts in the expertise report after the preparation of expertise report, and to support or disproof the claims in the case.
Due to the importance of expertise, there are always negative discussions about expertise. There are negative comments in the media from time to time about expertise such as “sore spot”, “expertise scandal”, “Experts are more influential than judges and more dangerous than enemies”.[8] Completely opposite opinions in reports taken from different experts are the main reasons for such negativity; “Expertise Law Draft” prepared for such reasons in the beginning of 2016 has still been discussed and waiting for approval.[12]
In the process of a lawsuit, medical expert should know two articles of the law and the expertise regulation:
Code of Civil Procedure, Article 178: When chief judge or judge declines the petition about calling witness or expert produced by defendant or participant, defendant or participant may bring such individuals. These individuals are heard out during the trial.
Code of Civil Procedure, Article 179: Within a reasonable period, defendant notifies public prosecutor about the names / addresses of experts and witnesses to be invited directly or brought during the trial. If public prosecutor will invite others either by himself or with the judicial decision in addition to witnesses and experts invited upon the request of defendant or shown in the bill of indictment, public prosecutor informs defendant about the names and addresses of such individuals within a reasonable period.
The regulation about the arrangement of expert lists and applications is given in Table 3.
Challenging of expert, exemption from expertise and the liabilities of expert: Experts can be challenged like judges. This shows how the laws care about expert as much as judges.[12,13] Experts may only withdraw from expertise duty according to the terms about exemption from testifying. Expertise liability is a serious civil service. If there are strong indications that the material facts provided in expertise reports do not reflect the truth, there are legal (indemnity) penal (Articles 37-250-252-257-258-266-277 of Turkish Penal Code) liabilities and sanctions such as removal from the list.
Expert:

• Should be reliable on matters regarding to his/her expertise area and should have solid medical knowledge,[8]
• Should have basic knowledge about legal area where medical problem occur,[8,9]
• Should know the presence of medical judicial discretion and especially medical jurisdiction, and be able to sort out and find fundamental matters, which are significant legally, from many medical cases,[12]
• Should be able to express the results found regarding to the medical case in a way that legal professionals can understand, and with concrete scientific-logical grounds,
• Should be able to self-criticize and be flexible when written opinion is required to be changed in case of a new fact,
• Should be objective and unbiased towards disputed matter and the parties.[7–15]

 

Who Will Be Expert/How to Conduct/What Are the Possible Flaws in Medical Malpractice Cases?

Following three cases show the importance of preparing expertise report accurately, completely and carefully.

Case 1

Matter in dispute: Forensic Report: “It was reported that vaginal spontaneousterm normal delivery was accomplished in ..... Private Hospital after the pregnant woman was admitted in labor. She was discharged with full recovery. The patient was re-hospitalized in Medical Faculty hospital due to severe abdominal pain that aggravated 11 days after delivery. Ultrasonography revealed adnexial mass giving the impression of pelvic hematoma. Laparatomy was performed and intraoperative dissection demonstrated right side uterine rupture originating from the high cervical region iogether with abscess formation, and therefore total hysterectomy was performed.”
It was reported that “It was medically right decision to carry out the delivery of the patient with normal spontaneous procedure, and the hematoma and uterus rupture observed in the intraoperative screening 11 days after the delivery could be seen at late period even rarely after normal spontaneous deliveries, and this was an unpredictable and preventable case, it was not caused by medical practice and since maternal death risk is high in such cases, hysterectomy was a necessary practice inevitably, and the practices performed at .... Private hospital was consistent with medical rules and that it was concluded unanimously that regarding physician and healthcare personnel had no error in this case”.
The objection reasons of Institution of Forensic Medicine were: “The Specialization Department prepared the report only based on the documents of defendant private hospital and university hospital, but the hospital documents were not investigated thoroughly and while antenatal records, the records on delivery date and following medical center records as well as the records of university hospital for the patient should be investigated together and the report should be prepared accordingly, there were not included in the evaluation”.

Case 2

While the physician stated that a healthy baby would be delivered as a result of the examinations performed, it was seen that the bone under the left arm of the baby was missing and the right hand was beginning from the wrist. The physician was found not guilty in the report issued by the Institution of Forensic Medicine and the court of first instance announced the dismissal of the case. However, the Court of Appeal reversed the judgment on the grounds that the report of Institution of Forensic Medicine was insufficient and it was not investigated if the physician carried out the duty or not.[16]

Case 3

The patient died after the cholecystectomy, and the suit brought upon this incident was accepted by the court of first instance and the court adjudicated against the physician. The Court of Appeal reversed the judgment on the grounds that the report did not give any details if the physician acted improperly against the duty of care or not, and therefore it was not appropriate to adjudicate based on this report. It was decided that the judgment would be made after the report to be prepared by a council consisting of academicians.[17]

Points to Take into Consideration when Preparing Expertise Report

• The scope of the duty should be understood accurately and completely.
• It should be prepared after necessary investigations.
• It should be prepared that a report prepared during any judicial process or statement given may lead to prejudication by any organization or affiliated trade body.

Evaluation in Expertise/Relationship between Patient and Physician - Causal Link

Between 2013 and 2015, 108 out of 625 lawsuits brought against the Ministry of Health are associated with obstetrics, especially on pregnancy and delivery complications. Cerebral palsy, shoulder dystocia, undiagnosed fetal anomalies, infant deaths and maternal deaths are the main matters in dispute. Significant details about Law of Obligations, Medical Code of Ethics and Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine that the relationship between patient and physician are shown in Table 4. One of the elements taken as a basis in the consideration given in the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine is professional standard (Article 4). Including investigation, any procedure in healthcare area should be conducted in compliance with related professional liabilities and standards. Professional standard should be determined for cases in dispute; however, it is disputable “what should be professional standard”. Classical book knowledge, continuous medical trainings, directives, applications with evidence level 1A, recommendations and expert opinion may be applicable for professional standard. Considerations for carrying out medical practice or not are stated by evidence levels (Table 5). The point grabbing attention here is that there is no conclusive result in all practices except evidence level A.[18] Treatments may end up with different results in different patients; therefore, it is mostly not possible to refer a standard practice. Yet, evaluating evidences as good, medium, weak in “evidence-based medicine”; evaluating recommendations in rating system as “1” for strong ones and “2” for weak ones, and determining as very low quality evidence (+), low quality evidence (++), medium quality evidence (+++) and high quality evidence (++++) show that different results can be obtained. The answer to the question “what is standard practice” is important for that reason.

Standard Practices

• Evaluating patient under his/her responsibility,
• If on-call, performing his/her duty, and visiting when asked,
• Taking medical history (complaint-health history),
• Examination,
• Utilizing diagnosis methods,
• Interpreting (informing),
• Filling/making fill informed consent form,
• Conducting operations,
• Knowing undesired complications,
• Knowing unexpected complications,
• Carrying out treatment,
• Following up/screening.

The expert is expected to distinguish the difference between maloccurrence and malpractice and to revel if there is a cause and effect relation between the procedure performed and the case in dispute or not, and if the case occurred whether due to the deficiency/error associated with direct practice or not together with the evidences.[19]

Medical Maloccurrence

It is the poor outcome not associated with the quality of the service provided by the healthcare team. In this regard, expectable medical and surgical complications (they cannot be prevented even though appropriate medical services are provided), unpredictable and unpreventable complications, and applications and options which are given after patient is fully informed but when it is retrospectively reviewed, it is thought that other options could be better and therefore they are considered not quite appropriate are all included in medical maloccurrence.[20]
 

Medical Malpractice

Following definitions are considered as malpractice:[20–22]

• According to the 44th General Assembly of World Medical Association (1999), malpractice is the harm occurring when physician does not perform standard practice during treatment, or lack of skills or not treating patient.
• According to the Article 13 of Professional Code of Ethics of Turkish Medical Association (1998), malpractice means the harm sustained by a patient due to showing no interest or inexperience.[22]
• According to the decision of Court of Appeal, there is a fault if physician applies medical data improperly or incompletely, and if physician does not comply with the special duties required by the profession properly and sufficiently.[13,14,22]

In malpractice, it should be shown that negligence or service below standards leads to harm (Tables 6 and 7). Therefore, in the expert report: Medical maloccurrence and malpractice should be distinguished. Expert should make all efforts to evaluate the relationship and causal link of claimed practice below standard. Deviation from practice standard may not always be care below standards or may not be related with a malpractice. Expert is responsible to reveal if only physician and healthcare professional acted in accordance with scientific and professional rules during medical practice or not. The decision of fault should not be given by the expert; the authority to determine fault in concrete case “belongs to Judge”. Medical expert should state if it is acted in accordance with medical science and code of practice during the procedure or not instead of stating if those performing the procedure are faulty or not. If anything contrary to scientific and professional rules is found, scientific opinion and reasons regarding which scientific and professional rule is violated should be presented, and if it was considered that there is nothing contrary to scientific and professional rules and that due care is exercised and there is no negligence, they are all should be stated in scientific opinion and reasons. In medical errors, it especially should be explained if healthcare professional claimed to be the faulty one paid attention as required during procedure or not, if he/she was negligent according to the medical requirements and rules or not, if he/she conformed to “Medical standards” or not, and if was there any difference between those that should be done according to medical science & technique and the performance and treatment performed.
Gynecology and especially Obstetrics due to its social aspect being the branches in which patient rights are abused the most has encouraged many unrealistic expectations related with professional responsibility. Transition from technology-oriented society to case-oriented society in health unfortunately creates unrealistic expectations. In medical expertise, it should be highlighted what is professional liability, and the facts and possible perception issues should be removed. Currently, studies related with quality assessment and development are maintained in Turkey and many developed countries in order to advance and improve healthcare services for women; however, populist statements and ignoring patient responsibilities are considered as the most significant problems against improvement and advancement.

Conclusion

•  The lawsuits related with Gynecology and Obstetrics are the files considered to have the highest rates of malpractice.[5,6,19,23,24]
• Medical expert should have experience and knowledge on the standards of the care provided during the period when the case subject to the legal action occurred; otherwise, medical expert should not make any assessment.
• Interpretation of medical expert should be comprehensive, fair and objective, and should not rule out any related information.[19]
• It should be remembered that the decisions of medical expert should be referred usually when there is no diagnostic and prognostic certainty.[19]
• Medical expert should distinguish malpractice and medical maloccurrence.[19]
• Medical expert should certainly assess the causality relationship between the harm and the practice inappropriate for medical standards. It should not be ignored deviating from standard may not always be associated causatively with a maloccurrence.[19]
• Medical expert should be prepared for testimony provided in any legal proceeding subject to equal assessment by affiliated body or a professional organization.[19]

Precautions to be Taken to Decrease Fault in Malpractice Cases

• Delivery in a facility with seven days and 24-hour in-house obstetric coverage.[21]
• It should be explained to pregnant women in particular that there may be a death risk related with any planned procedure and full approval of patient should be obtained.[21]
• High-risk patients should be distinguished.[6]
• It should be paid attention that there is no missing file/document, and standardized procedure notes are added.[6,21]
• One of the reasons for patients to press a charge is to understand what the event is and why it happened and to prevent to encounter again. Therefore, a good communication with patient and explanatory and kind tone are very important to prevent a great number of claims to be filed.[24]
• Healthcare personnel being well-trained and having necessary knowledge and skills, continuous on-the-job training, detecting deficiencies or problems and taking precautions are very important to prevent lawsuits.

References

1. Baris E, Mollahaliloglu S, Aydin S. Healthcare in Turkey: from laggard to leader. BMJ 2011;342:c7456. [PubMed] [CrossRef] 
2. Akdağ R. Health Transformation Program in Turkey. Progress report. January 2009. Ankara: Ministry of Health; 2009.
3. OECD. Health at a glance 2009: OECD indicators. Paris: OECD; 2009
4. Yüksek Sağlık Şûrası Kayıtları. 2001–2007. Ankara: T.C. Sağlık Bakanlığı; 2008.
5. Yüksek Sağlık Şûrası Kayıtları. 2008–2010. Ankara T.C. Sağlık Bakanlığı; 2011.
6. Carpentieri AM, Lumalcuri JJ, Shaw J, Gerald FJ Jr. Overview of the 2015 American Congress of Obstetricians and Gynecologists’ Survey on Professional Liability. [Internet] [cited 2016 Feb 10] Availeble from: https://www.acog.org/
7. Aşçıoğlu Ç. Bilirkişi sorunu ve çözümü. Cumhuriyet Bilim ve Teknoloji 2010;24(1214):13.
8. Aşçıoğlu Ç. Yargılamada maddi gerçeğin belirlenmesi ve kanayan yara bilirkişilik. Ankara: Aşçıoğlu; 2010
9. Aşçıoğlu Ç. Bilirkişilik sorunu. Hukuk Kurultayı 2000. 12–16 Ocak 2000, Ankara.
10. Aşçıoğlu Ç. Yargılama çalışmalarında bilirkişi sorunu ve nitelendirmede bilirkişinin görevi. Türkiye Barolar Birliği Dergisi 1992;3:349–68.
11. Savaş H. Tıbbi hata davalarında bilirkişilik uygulaması. Terazi Aylık Hukuk Dergisi 2007;2(15):119–26.
12. Tanrıver S. Hukuk yargısı bağlamında bilirkişilik kanunu tasarısının değerlendirilmesi. Türkiye Barolar Birliği Dergisi 2015:119;227–40.
13. Deryal Y. Türk hukukunda bilirkişilik. Ankara: Seçkin Yayıncılık; 2010.
14. Tümer AR. Tıp mensupları için hukuki yönleri ile adli bilirkişilik. İstanbul: Helikon Yayınları, 2013.
15. Gökcan HT. Tıbbî müdahaleden doğan hukuki ve cezai sorumluluk. 2. baskı. Ankara: Seçkin Yayınları; 2014.
16. Yargıtay 13. Hukuk Dairesi’nin 2007/3757 Esas ve 2007/7421 Kararı. 2007.
17. Yargıtay 13. Hukuk Dairesi 2007/14545 Esas ve 2008/3803 Kararı. 2007.
18. Balshem H, Helfand M, Schünemann HJ, Oxman AD, Kunz R, Brozek J, Vist GE, et al. GRADE guidelines: 3. Rating the quality of evidence. J Clin Epidemiol 2011;64:401–6. [PubMed] [CrossRef] 
19. Committee on Ethics, American College of Obstetricians and Gynecologists. ACOG Committee Opinion No. 374: Expert testimony. Obstet Gynecol 2007;110:445–6. [PubMed] [CrossRef] 
20. Barber HR. Malpractice crisis in obstetrics and gynaecology: is there a solution? Bull N Y Acad Med 1991;67:162–72. [PubMed] 
21. B-Lynch C, Coker A, Dua JA. A clinical analysis of 500 medico-legal claims evaluating the causes and assessing the potential benefit of alternative dispute resolution. Br J Obstet Gynaecol 1996;103:1236–42. [PubMed] [CrossRef] 
22. Hakeri H. Tıp hukuku. 10. baskı. Ankara: Seçkin Yayıncılık; 2015.
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24. Clark SL, Belfort MA, MD, Dildy GA, Meyers JA/ Reducing obstetric litigation through alterations in practice patterns. Obstet Gynecol 2008;112:1279–83. [PubMed] [CrossRef] 

	File/Dsecription
	Table 1. Distribution of criminal suits by branches evaluated in Supreme Council of Health between 2001 and 2010.
	Table 2. Differentiation of medical expertise and judicial medical expertise.
	Table 3. Regulation about arranging expertise lists.
	Table 4. Legal arrangements in patient-physician relationship
	Table 5. Grading the quality of evidence and strength.
	Table 6. Distinction between medical maloccurrence and malpractice.
	Table 7. Medical maloccurrence/liability relationship.
	Fig. 1. Distribution of personnel who are defendants in the files of Supreme Council of Health between 2001 and 2006.