For the purpose of dealing with medical liability cases, a Supreme Court ruling on access to medical advice has now been awaited for some time. The Supreme Court will rule after a demand for cassation in the interest of the law following a ruling by the Central Disciplinary Tribunal for Health Care (Ruling - Government.com | Disciplinary Law).
Law question
The question that our highest court must answer is whether a patient is entitled to a medical opinion requested unilaterally by (the hospital's insurer) from a medical advisor or expert. This case involved a patient who sued her gynecologist, but was denied access to the medical opinion that the hospital's liability insurer had requested. The patient did receive - I assume - a negative opinion: her damages were not compensated, because according to (the hospital's insurer) there was no medical error.
Conclusion of Hartlief
Advocate General Hartlief provided the Supreme Court with an opinion on this question of law in his opinion of Aug. 26, 2022 (ECLI:NL:PHR:2022:762, Supreme Court Prosecutor's Office, 22/01253 (jurisprudence.com)). Hartlief mentions the area of tension between, on the one hand, the patient's interest in having access to information about the medical treatment undergone and a possible medical error. On the other hand, Hartlief also mentioned the hospital's interest in being able to arrive at a (different) viewpoint in freedom and privacy and to prepare a defense. The importance of privacy, the desire to inspect and the importance of an undisturbed exchange of views therefore clash here.
Hartlief “files” the underlying regulations of the Medical Treatment Agreement Act, the European Convention on Human Rights (ECHR) and the General Data Protection Regulation (AVG). He concludes that while the AVG provides a right to inspect the medical opinion, that right may be limited in this case. In short, the patient already has the right to inspect their medical records, no new data is being collected (the patient is not being seen), and in this case, the right of the addressee to due process prevails (even outside the context of court proceedings). Thus, in Hartlief's view, the medical advice sought by the person addressed remains internal and out of the patient's sight.
Tension
The Supreme Court will rule - as it now appears - on Aug. 25, 2023. This will not be an easy task, because there is something to be said for both positions. There are also larger interests at play, such as a patient's interest in trust in healthcare and the importance of integrity when something goes wrong. And the more general trend of openness of healthcare providers regarding incidents/errors. But on the other hand, there is also the potential danger that a party and consultants will no longer be able to entrust everything to paper and conduct a private investigation.
Position of the patient
In this blog, I would like to make a case for the patient's position to make it clear that this is not a scientific discussion, but that it should also be considered from a human and practical point of view. A patient is by definition vulnerable: he/she undergoes treatment, often from an unintentional pathology, where something often goes wrong outside his/her awareness. The patient is duped: not only medically, but often financially. A claim filing, is sometimes difficult for a patient because there was a confidential treatment relationship with the practitioner, but this is sometimes just dire necessity.
The patient usually bears the burden of proof for the alleged medical error and will therefore have to bare his or her bottom. It is true that medical data, often compiled by the practitioner in question, can be viewed and requested by the patient, but in order to meet the burden of proof, the patient will also have to provide this openness to the insurer. This is quite a shock when it comes to, for example, a gynecological procedure or a psychiatrist's report.
The insurer will usually use this information to seek medical advice in support of its position. This is understandable and also desirable: the question of the diligence of medical treatment is often complex and specialized and often impossible to answer by a lawyer alone. But a patient faced with a negative opinion will have to guess at the underlying medical rationale, if the Supreme Court follows Hartlief's conclusion.
Without access to this medical opinion, it is not possible for the patient to verify the validity of that opinion and the underlying advice. After all, on what specific data is it based? Are these data complete and equal to those known to the patient? Is the advice of sufficient quality? What is the background and expertise of the medical advisor involved? And, are the questions asked objectively, or is there any steering or coloring? Moreover, a choice arises on the part of the party addressed to selectively share information if the medical opinion is not available to the patient for inspection. Thereby, the situation is conceivable that a addressed party requests several opinions, but leaves unwelcome opinions unsaid. The addressed party may explain this as a right of defense and also an option available to the patient. But is this the case? After all, a patient usually has limited financial resources, less (medical) knowledge and experience and for that reason alone is not an equal (litigation) party. And shouldn't an (insurer of) the hospital with a major social function be expected to have openness regarding the investigation of medical conduct? Why is the starting point a defense, instead of a more pure approach of integrity, transparent investigation and subsequent compensation of the patient's damages if entitled?
Lock
Hartlief concludes in the present case that the defense interest of (the insurer of) the hospital outweighs the victim's interest in inspection.
I wrote that there is something to be said for a hospital and its insurer to honestly investigate, on the basis of integrity and transparency, whether there is a complication or shortcoming. And - unlike Hartlief concludes - also provide insight into the medical opinions they have drawn up in that context and on the basis of the patient's medical file. The partisan interest of (the insurer of) the hospital could therefore be more accommodating, creating more openness about its own actions. This would benefit the privacy interest and the vulnerable position of the patient.
The floor now belongs to the Supreme Court.