Thailand1 Judge Tidarat Narintarangkul Na Ayudhaya

Out–of–Court Mediation: The Alternative to Medical Malpractice Litigation –

Thailand Perspectives

Tidarat Narintarangkul Na Ayudhaya

Judge of the Office of the President of the Supreme Court, Thailand

Abstract

Thailand is considered as one of the most popular medical tourism destinations in the world. Its healthcare professionals and facilities are known for excellent services in various disciplines such as plastic and reconstructive surgery, cardiac surgery, medical check-up and dental care. The Thai government has progressive policies in place to help the country attain the position of “Thailand, a Hub of Wellness and Medical Services”, within a ten year time frame. The strategic ten-year plan, which will be executed from 2016-2025, proposes to turn Thailand into a medical hub in four major areas: wellness, medical services, academics and products.

Consequently, many private hospitals in Thailand have signed direct contracts with foreign governments to persuade citizens to obtain treatment. As a result, their foreign client base has expanded with revenue accounting for 55 percent and 37 percent of total revenue, respectively. These hospitals charge patients a fraction of what they would pay for similar services in the West and, in some cases, offer procedures that have yet to be approved in developed countries. This latest form of outsourcing is called “medical tourism”. The demand for medical tourism is not surprising, given that millions of European remains uninsured and that citizens needing medical attention in Western European countries face long waiting periods. Even in Japan, for instance, private companies have begun to reap some of the profits of this business by offering prospective medical tourists in the form of an exclusive package for medical treatment in a private hospital located in central Bangkok including trips to the Grand Palace, golf course or beautiful beaches.

Even though standard medical treatment should be rendered to those patients needed regardless of their nationalities, there has been an increasing concern on the victims to medical malpractice, both Thais and foreigners. Thus, prospective patients should also be aware of possible legal issues. However, the litigation between the doctors and the patients benefits no one. The Supreme Court of Thailand recently ruled two million Baht in compensation to a couple whose daughter suffered brain damage during the course of medical treatment. In this case, the couple's claim that the damage stemmed from the first doctor's failure to diagnose - tuberculous meningitis in time. The impact of this case has drawn criticism over the determination of evidence and the court’s judgment.

It is widely recognized that a large number of patients are injured and even die because something goes wrong during the delivery of care. The raising concerns about patient safety and the adequacy of compensation should also be taken into consideration. Nonetheless it is extremely difficult to win such cases. The successful claimant should prove that the doctor breached his or her duty of care to the patient, and that the doctor’s act or omission materially caused physical and/or psychological damage to the patient. No one can refuse that civil litigation involves complicated and lengthy procedures.

While there are still discussions on the effect of the Supreme Court decision, many medical malpractice litigations in other cases still undergo. The courts in Thailand are trying to promote the use of alternative dispute resolution especially in the form of mediation in order to solve the problem. It is believed that an early stage of mediation – which is called “out-of-court mediation” - is a better alternative means to settle malpractice claims than litigation. Maintaining confidentiality and a collaborative attitude between doctor and patient are important values that underlie out-of-court mediation. For other reasons, doctors and their institutions care about professionals’ image and regulations. Likewise, patients do not usually want social stigma attached to their disease or suffering. Also, in the out-of-court mediation, the parties can communicate, negotiate, and decide a settlement among themselves with the assistance of the mediator. Conceivably, the doctor-patient relationship will largely be preserved after the mediations.