Health Minister Chua Jui Meng on Thursday condemned negligence suits against the public healthcare system as a disservice to the community by channelling much needed government funds into litigation and damages ( The Star , June 2).

The minister cited two recent cases as examples of this purportedly recent trend of exorbitant lawsuits - the religious teacher given HIV-contaminated blood in Jitra who is suing the Health Ministry for RM100 million and a 28-year-old woman claiming RM250,000 for a needle left in her vagina after an episiotomy in Johor Baru - and chastised lawyers and opposition leaders for inciting the public into pursuing such claims and for using the press to demand as high a quantum of damages as possible .

True, lawsuits against the national healthcare service would not be in the interest of the people but berating the public for instigating such suits is not the solution. Lawsuits serve as a wake-up call that something is amiss with the system.

Negligence means a falling short of the requisite standard of care. The onus is on the Health Ministry and the government to ensure that there is no falling short of such a standard. The "human error" which the health minister cites as the source of such litigation must be reduced if not eliminated.

Slip-ups occur due to a variety reasons but common factors include apathy, insufficient supervision and oversight as a result of stress and overwork, all solvable problems if more attention were placed on them.

This means a reallocation of priorities at the macroeconomic level and increasing public expenditure on health to ensure better conditions of service for healthcare employees and more efficient and vigilant monitoring of these employees.

Government medics are a harried lot and improving their work conditions and paying them more is one way of improving their tenure, both by providing them with an incentive to stay and by attracting a pool of new staff to take the heat off them. In return, they must be made accountable for their actions. Due care must be exercised in respect of their duties to the public at large.

Granted that accidents do happen and that it is impossible to provide for every exigency, particularly during a medical emergency, nonetheless, every effort must be taken to minimise such risks. Carelessness and laxity should not be condoned. Mistakes should not occur in routine operations.

The minister is correct in cautioning against over-litigation which could lead to more defensive medicine but to imply that the current crop of litigants are pursuing claims for monetary gains is unfair. People institute malpractice suits primarily to seek compensation and acknowledgment of fault.

Distinguishing between negligence and defamation suits because defamation "is committed deliberately with malice" is a stretched argument at best. Does it imply that multi-million ringgit defamation suits are justified because the act in question was intentional as opposed to negligence which is not?

It is easier to establish a case in defamation as opposed to a case in negligence. Whether intentional or not, a defamatory statement is made once it is published with reference to the defendant and reasonable people would consider it as lowering the plaintiff's reputation in their opinion. An intention to defame (or malice) only comes into play to refute certain defences, such as fair comment, the defendant may plead.

A negligent act, according to the law, is only committed when the defendant has fallen below the standard of care required of him or her. In cases of medical negligence, this standard is determined by the medical professionals themselves and a professional is deemed to have discharged their duty if they acted in accordance to acceptable medical practice. An element of fault must be present.

When the scales appear to tip in favour of the defendant in a negligence action and in favour of the plaintiff in an action for defamation, it is ironical to suggest that it is fair to claim a higher quantum of damages in defamation than it is for negligence. One would imagine that human life is worth more than its reputation.

Lawsuits are only part of a bigger picture. People have to responsible for their actions, especially when the consequence of their actions carry severe repercussions on others. Doctors, nurses and the public health service are no different.

If the unnecessary expense of litigation serves to remind them and us of the elementary need to exercise care, so be it. If it is an expensive lesson to learn, then we must ensure that such mistakes are not repeated.

CELINE TAN is a member of the malaysiakini team.