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Threat of malpractice suits growing more serious throughout Argentina
High concentrations of lawyers and disposable income, along with inaccurate perceptions of ophthalmology, put cataract and refractive surgeons at risk.
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BUENOS AIRES — Dollarization may be the debate of the day here, but growing similarities in the legal climates of Argentina and the United States have the medical community here concerned. While medical malpractice lawsuits in Argentina are nowhere nearly as common as they are in the United States, all the elements of an increase in such litigation are in place.
Argentina’s combination of low illiteracy rates, a healthy economy, high standards of living and vast numbers of both attorneys and medical doctors mean more lawyers can expect to represent more unhappy patients or to defend growing numbers of physicians in the immediate future.
Medical malpractice lawsuits, virtually unheard of 10 years ago, now are second only to civil suits relating to automobile accidents in Argentine courts. From 1958 to 1970, there were only 50 medical malpractice suits filed in Argentina. From 1970 to 1983, there were 150, but from 1983 through 1994, Argentina’s civil courts were inundated with more than 10,000 malpractice suits.
Buenos Aires, D.C.
According to the Association of Attorneys of Buenos Aires (AABA), there are about 120,000 licensed counselors in Argentina — or 1 for every 285 people. Per capita, there are about as many attorneys in Argentina as there are in the United States. And like the United States, Argentine lawyers are most densely concentrated in the capital. In fact, there are so many attorneys in Buenos Aires these days — AABA estimates are in excess of 50,000 — a local attorney refers to his hometown as “Buenos Aires, D.C.” (According to the American Bar Association, there are only 34,000 attorneys licensed to practice in Washington, D.C.)
There are about 120,000 medical doctors in Argentina, and the one-to-one doctor-lawyer ratio is seen as a part of the problem. Stiff competition for clients within the legal community has led some lawyers to look upon medicine as a vast reserve of untapped, exploitable profit. Ophthalmology in particular, according to an Argentine medicolegal expert, is seen by lawyers, non-ophthalmologist MDs and patients alike as a particularly profitable specialty, with a lucrative “assembly-line” approach to patient care. Therefore, it is considered an easy target for malpractice suits.
Not every ophthalmologist in Argentina feels disparaged, however.
“Certainly, this is true in some cases, but most patients have a positive view of ophthalmology,” said Enrique Malbran Sr., MD, of the Malbran Ophthalmology Clinic in Buenos Aires. “Medical litigation is increasing in Argentina, but it is important to view this problem rationally, and not set fire to the issue or to panic.
“If the patient is treated as a patient and not as a faceless number, explaining all the implications of each medical action undertaken, then ophthalmology will be respected by the patient and many malpractice lawsuits will be avoided,” Dr. Malbran said. “The personal patient-ophthalmologist relationship will change the whole matter.”
Predicted to rise
In terms of the actual number of medical malpractice lawsuits filed in Argentina each year, hard data is difficult to come by. Most physicians are reluctant to report legal action to their professional associations or societies for fear of the damage it may do to their reputations.
In ophthalmology, Roberto Borrone, MD, who recently formed a medicolegal advisory committee within The Argentine Council of Ophthalmology, estimates that about 10% of the Argentine ocular surgeons had been sued.
“The outlook is alarming for the medical profession in general, and we think that ophthalmology has become a specialty of risk,” Dr. Borrone told Ocular Surgery News. “We predict these numbers to increase. People look at our profession and, regardless of the actual truth, see depersonalizing, dehumanizing mega-surgeons, with surgeries scheduled in a series as if they were working on an assembly line.”
“Ophthalmic cannibalism”
Additional pressures from Argentina’s emerging managed care sector are driving “the cost-benefit ratio to critically extreme limits in which ophthalmologists are failing to comply with minimum quality standards,” he said.
Argentina’s strong economy, falling inflation and rising levels of disposable income are attracting more ophthalmologists to refractive surgery, the byproduct of which has been increasingly nasty. Price wars also have erupted.
By paring down profit margins, doctors must compete on volume, so there is a good deal of what Dr. Borrone describes as “ophthalmic cannibalism.”
“Ophthalmologic marketing practices are convincing people that difficult procedures can be had as easily as a household appliance,” Dr. Borrone said.
Volume growth, according to Jorge Lauro-Dri, MD, an ophthalmologist and medical-legal ethics expert in Argentina, has not been met with adequate increases in patient education efforts. Doctors are now performing more procedures, so they have less time than they did before to thoroughly explain the nature of refractive surgery, and its risks, to patients.
Less follow-up
Market pressure to increase volume also means there is less clinical follow-up, a phenomenon with two consequences. First, poorly monitored postoperative patients are at increased risk for progression of complications. Second, valuable clinical insight, often gained during follow-up, is lost when monitoring is incomplete. This puts futures patients at risk, as well.
Mimics the United States?
At the time this article went to press, Dr. Borrone’s medicolegal committee was working to compile a database of ophthalmic malpractice suits in Argentina. In lieu of his own data, Dr. Borrone frequently uses U.S. statistics to illustrate just how serious the problem could become in his country. In the United States, the average award to patients who sue following an ophthalmic procedure was about $127,000 in 1996. About 18% of ophthalmic malpractice plaintiffs in the United States won awards in excess of $250,000.
When patients sue after unsuccessful refractive surgery, awards increase substantially. The average amount paid to U.S. plaintiffs following refractive surgery was $156,596 in 1996. Generally, refractive surgery cases generate larger awards, Dr. Borrone said, for two reasons. Firstly, it is an elective procedure, and secondly, patients often have extremely high expectations of surgery.
In the United States, 45% of claims are brought within 1 year of surgery, while 85% are brought within 4 years. According to Dr. Borrone’s preliminary findings, the current trend shows the period of time Argentine patients wait before suing their doctors is less than that of the United States. Most decide to sue their ophthalmologists within 2 to 3 years after surgery.
Do not settle
To stave off frivolous suits, and to discourage large numbers of patients from developing the perception that it’s open season on the pocketbooks of eye doctors, defense attorneys recommend that doctors never settle out of court.
Oscar Mon, JD, is an attorney who practices in Buenos Aires. In the course of his career, he has defended more than 400 malpractice suits, mostly directed at ophthalmologists. He regularly recommends to his clients that they not settle cases out of court. Doing so suggests weakness and may encourage other patients to sue.
The temptation for physicians to settle out of court, however, is great. An ophthalmologist defending himself or herself in a refractive surgery case is likely to spend in excess of $10,000 for expert testimony alone. Rather than spend the money and still risk losing in a jury trial, many doctors instruct their counsel to offer plaintiffs the money they would otherwise spend on expert witnesses.
“This is the type of thing that tends to propagate the growth of lawsuits,” Mr. Mon told Ocular Surgery News. “Refusing to settle out of court discourages future lawsuits.”
Report Card: Argentina
Population 34 million Annual total health care spending US$20 billion Annual per capita health care spending US$580 Number of physicians 120,000 Number of hospital beds per 1,000 4.5 Number of ophthalmologists 3,200 Number of new ophthalmologists annually 80 Number of excimer lasers 65–70
For Your Information:
- Roberto Borrone, MD, can be reached at Coronel Diaz 2333, Piso 2° D, 1425, Buenos Aires, Argentina; +(54) 11-4-801-5952; fax: +(54) 11-4-802-7430; e-mail: rborrone@intramed.net.ar. Dr. Borrone has no direct financial interest in any of the products mentioned in this article, nor is he a paid consultant for any companies mentioned.
- Jorge Lauro-Dri, MD, can be reached at F. Portela 467, -.2° Of. 4, L. De Zamora, Argentina; +(54) 42-92-8526; fax: +(54) 42-45-8009; e-mail: jidri@intramed.net.ar. Dr. Lauro-Dri did not participate in the preparation of this article.
- Oscar Mon, JD, can be reached at the Avda. Corrientes 1302-7°, 4373-1021/9 Buenos Aires, Argentina. Mr. Mon did not participate in the preparation of this article.
- Enrique Malbran Sr., MD, can be reached at Centro Oftalmologico Malbran, Parera 164, Buenos Aires, 1014, Argentina; +(54) 11-4-815-0021; fax: +(54) 11-4-815-1303; e-mail: emalbranophth@ciudad.com.ar. Dr. Malbran has no direct financial interest in any of the products mentioned in this article. He did disclose whether or not he is a paid consultant for any companies mentioned.