The legal liability of caring for the unborn in the Maltese islands

Abstract

In embarking on a thesis about legal liability of care of the unborn in Malta, it was clear that one had to delve deeply into both the local obstetric practice as well the local legal system. The care of the unborn is fully dependent on maternal care and this entailed a systematic assessment of the legal vulnerability of local obstetrics, which was laborious, extensive, and required the wearing of different tinted spectacles. It was however, home ground, whereas dealing with the legal aspect meant sailing in unchartered seas and understanding the legal details of how Maltese law deals with medical negligence. It was also felt essential to use the term ‘the unborn’ in the thesis’s title in view of the unique legal standing of the Maltese laws protecting the fetus, vis-à- vis the locus standi of the unborn in the rest of the European Union. The shock was rather severe as the truth sets in that in the twenty-first century, Malta had no proper medico-legal framework for dealing with alleged medical negligence while such a body of law had been in daily use for the last six decades or so, in such countries as the UK. Numerous local calls for amendment had been made, such as in a number of University of Malta legal theses. Furthermore, repeated references had been formally made by the judiciary in the deliberation of medical litigation. The fact remained that the local judiciary, in the twenty-first century, was still extrapolating the laws of tort and quasi-tort dealing with general negligence to adjudicate complex principles of medical practice. This also implied the lack of available guidance in establishing such basic instruments at law as the medical standard of care. As a result, the local judiciary often reverted to Italian juridical principles and increasingly to British jurisprudence. n spite of the seeming superficial dearth of local Court medical and obstetric judgments, both general medical and legal thinking was of the opinion that there was a definite increase in medical litigious attitudes, evidenced by increase in litigation not reaching Court. Unfortunately, no relevant local medico-legal statistics exist or are even collected or have a reference point for referral. There is evidence of a complete lack of local preparedness for weathering any significant future increase in medico-legal cases. Reference to some parts of the rest of Europe showed that this state of unpreparedness was not at all rare, in spite of irrefutable evidence from countries such as Italy, France, Germany, Spain, Portugal and many others, that the threat of medical litigation is increasing rampantly. In fact, obstetrics tends to be among the front runners in the medico-legal litigation game. Malta is particularly disadvantaged with its lack of medical law as well as its lack of honing of clinical practice along the lessons learnt from long established litigation in jurisdictions such as the UK, USA, Canada, Australia and numerous other modern countries. Furthermore, Malta may also be further exposed to an as yet unconsidered obstetric medico-legal vulnerability resulting from the rapid increase of foreign residents. The thesis constructively offers numerous propositions regarding the introduction of amendments regarding local obstetric practice, firstly to render better care to the unborn and secondly to diminish the challenge posed by legal liability. It also concludes by proposing a medico-legal body of law, entitled Lex Medica as well as the formation of a Maltese Institute of Medico-Legal Studies. The latter is aimed at establishing local medico-legal studies on a much needed modern and solid footing as well as effecting the extensive groundwork for enacting the proposed Lex Medica.