12th July 1998
Clanishness among professionals
A middle aged woman had loose motions and walked to a nearby dispensary with her grandson to take treatment. The medical centre was a popular dispensary. Neither she nor her neighbours who frequented the dispensary for any ailment had bothered to find out whether the doctor was qualified or not. If the doctor was a quack and had no licence to practice medicine how come the dispensary had been in existence for many years, was their way of thinking. Every one in Modera knew the dispensary and the doctors. It was cleaner than the municipal dispensary. It was also unbecoming of their social status to obtain treatment from a " pin beheth dispensariya'.
The middle aged woman was examined by the Doctor and later she was given an injection by a nurse. Suddenly she started breathing fast and turned pale. The nurse and the Doctor held something to her nose. She was gasping for breath. The child who accompanied the old woman knew something was amiss and ran back home and told them what had happened. Everyone at home ran to the dispensary and saw the woman lying on a stretcher gasping for breath. They were aghast at what they saw. The woman who had a minor stomach upset, was now gasping for breath and had turned blue. She was unconscious and struggling for dear life. The son who rushed to the dispensary thought something urgent should be done. He insisted his mother should be taken to the General Hospital. They called for an ambulance and the woman was taken to hospital. On the way she held the hand of her son firmly and gave it a final squeeze. The old woman breathed her last holding the hand of her son.
The police were called. An autopsy was performed. The Magistrate held the inquest and decided the Doctor and hospital staff who attended to the woman were guilty of criminal negligence. On the instructions of the Magistrate the Doctor who happened to be holding a degree from Madras and the nursing staff were arrested and produced in court. When the report of the Judicial Medical officer was obtained the J.M.O. had certified that death was due to natural causes. The Magistrate then called for a second opinion. The Professor of Forensic Medicine opined that death was due to wrongful administration of an injection and drugs without predetermining whether the patient was sensitive to the drugs prescribed. After a lengthy trial which lasted nearly three years before two judges, the Magistrate held there were two conflicting opinions, a reasonable doubt had been established and acquitted the accused. Thus the first criminal negligence case filed against a Doctor and nursing staff of a dispensary failed to succeed. The police led by a HQI who refused to be pressurized and bribed, boldly arrested the accused and produced them in court.
The police did not have a clue on how to conduct a police investigation in a medical negligence case.
In another instance Doctors told a mother, that her five days old baby had to be operated on as she had some congestion in the bowels. After the operation the baby was not taken to the baby room but was kept in an incubator for one month. The parents did not know what was wrong with their baby. Later it was revealed through a relation, who was a doctor, that during the operation the baby was kept on a heated tray, but the nurse in charge of the theatre had failed to keep the baby on a pillow or mat. While the operation was successful, the baby was being roasted alive. Not even the surgeon noticed that the staff had failed to keep the baby on a mat. The mother became hysterical. She did not know what should be done. The burnt marks were visible and were treated. The authorities of the nursing home-a reputable one in Colombo did not take much notice , and did not want to admit their fault. Then the mother heard about the Suhani Arsekularatne case, and for the first time she knew she could file a case for medical negligence in a court of law. Then she went in search of lawyers, who wanted fees that she could not afford. By the time she heard about the legal aid center of the Bar Association, her claim was prescribed. She was left with a daughter with permanent scars on her back.
A pregnant woman suddenly developed a chest pain and was bleeding from the womb. She consulted a Doctor attached to a well known private medical centre. Later she was admitted to the nursing home and a well known gynaecologist who had a penchant for abortions attended to her. Several medical examinations were done. She was advised she should undergo an abortion. As she had previously given birth to two children and both were born as a result of a caesarian operation, she would not be in a position to give birth in the future. The gynaecologists did the needful. She underwent a womb wash. She was discharged after having paid a substantial bill. One month after the operation, she started bleeding and met the doctors at the nursing home who advised her not to seek treatment from a government hospital. Still they did not explain to her the nature of her illness. She was told by the gynaecologist that she was bleeding due to a growth in her stomach. Being suspicious of the statement she insisted she should verify the correct position by having a scan, and the scan revealed that in spite of the abortion and womb wash she was still pregnant. She wanted this child. But she was told by the gynaecologist that she had no alternative but to have her womb washed. She was told the child would be mentally retarded and physically deformed. Soon she developed labour pains and got herself admitted to Castle Street Government Maternity Home. She gave birth to a still born baby. At the Castle street hospital she was informed the child had died as a result of certain treatments she had undergone previously.
The dead foetus was of a perfectly normal child which had died due to medical negligence in treatment. The gynaecologist agreed but refused to return the fees he had charged this woman. Like any mother she could not bear the fact she was partly instrumental in killing a perfectly normal child in her womb. She went to several lawyers who were agitated by her story but later refused to act giving various excuses. Quite by accident she learnt about the legal aid commission to him she stated her case.
The biggest difficulty faced by many lawyers in filing a civil damage case against a doctor is to find expert evidence which would establish the degree of negligence. The expert evidence will have to come from other doctors. The doctors are reluctant to give evidence against their fellow comrades. It is a common phenomenon among many professionals. Even among lawyers it is difficult especially in the outstation bars, to obtain professional services of lawyers against another lawyer if that lawyer is a party to an action. There is a Mafia among the professionals to protect their own comrades though they may be guilty of the worst villainy. To find evidence of negligence in a case against a doctor, is like finding a politician who would not give false promises to come to power.
In this case there was an additional difficulty. Most senior lawyers contacted by legal aid refused to accept the brief as either the Doctor or the nursing home had some connection with them. Later Chandra Seneviratne P.C. and Ronald C.Perera agreed to appear for this lady. Only a letter of demand by these lawyers was sufficient for the gynaecologist to settle the claim of Rs. One Million at Rs. 400,000/=.
When Rienzie Arsecularatne filed action for damages against Professor Priyani Soysa, there was much heartburn in medical circles. Professor Priyani Soysa was a much respected teacher. Medical negligence never existed as a wrong, though in other countries doctors had to take insurance to cover their negligence. We have accepted doctors to be infallible. We have heard of the commotions in Government hospitals where some relations of patients assault doctors for their impudence and impatience and matter of fact behaviour. The doctors go on strike and the aggressor is remanded. No one dares to talk of negligence by doctors in this part of the world. Rienzie was fortunate that he was an Attorney-at-law, working in the Attorney-Generals Department and had befriended Romesh De Silva. Romesh appeared for Rienzie pro deo (without a fee).
The Court of Appeal affirmed the findings of the trial judge Mahanama Tillekeratne but the two judges differed on the quantum of compensation. It is interesting to note some of the observations of the judges of the Court of Appeal in relation to their findings against Professor Soysa.
" The relevancy of proper history therefore, is that it is a precursor to proper diagnosis. In this case the plaintiff has charged the defendant of misdiagnosis and/or no diagnosis. By the Defendant apparently coming to a hasty conclusion without recording and/or considering many symptoms and characteristics observable in the patient, presumably due to her confidence in her ability to come to a proper conclusion, she had allowed herself to gloss over many features which were inconsistent with her diagnosis of Rheumatic Chorea…
" Her failure to elicit and record a proper history apparently misled not only her but even other doctors, since they did not have the benefit of considering the initial symptoms on the child(before being sedated with valium etc.) but only the conclusion arrived at by the defendant for whom they would no doubt have much regard due to her experience and erudition. Thus, when the child was suffering from a neurological disease it was vital that a proper history was elicited and recorded which the defendant in this instance failed." Then at page 69 of Justice Wigneswaran's judgment: "Even though the defendant maintained that she had a cordial relationship with the plaintiff, her answers with regard to her "style' of not writing anything down in the BHT but getting only the hospital staff to do it,(Vide page 1507 of the Brief), her seeming disdain for Dr. J.B.Peiris calling him only a Neurologist and not a Paediatrician or Cardiologist (Vide page 1605 of the Brief), her pompous answer at page 1484 of the Brief when confronted that all referral notes in the BHT of other doctors were in their own handwriting while hers was not, that it was not her practice to write such referral notes nor does she even dictate such referral notes,-all together seem to confirm the plaintiff's evidence that the defendant was rude and brusque with the parents of the child, did not have a cordial communication with them nor pursue the necessary dialogue between herself and the patient. A doctor who considers herself too important not to condescend to write history on a BHT or make referral notes herself, cannot be expected to have treated the child or the parents with camaraderie and respect nor given herself sufficient time to investigate and reconsider her initial diagnosis"
Justice Weerasekera states, " I am in complete agreement with his reasoning and finding and do not propose to examine that aspect. Except to add that I am not insensitive to the cries of anguish, pain and suffering of the vast array of patients as in this instance and that could and do occur as in this case and circumstances in the private sector of patients I could quite imagine what it could be in this sector of non paying patients.
" I am also not insensitive to the tribulations of medical personnel. Even so it is my view that a body that has statutory control over the conduct of these professions (and they themselves) should examine, question and activate themselves on the reasoning and finding of my brother and take steps to lay low the cries of the people, a duty they owe the public and a duty they owe themselves, if the good name and reputation of the profession which was known for its noble traditions is to be maintained."
The two judges of the Court of Appeal wrote two separate judgments. The last paragraph of the judgment of Justice Weerasekera has it that " the only other matter that requires my attention is the argument that whatever the defendant/appellant did, and even if she was negligent the deceased had an incurable tumour and therefore death would have been inevitable. That death to have been inevitable is not borne out by the testimony of the medical witness and in particular that of the plaintiff's witness Dr. Lal Gunethillake.
"In those circumstances, it could not be justifiably argued that whatever the defendant/appellant did death would have been inevitable. If this argument was taken in its logical end a person who walks on the road but was suffering from cancer is knocked down negligently by a motor car would have no ground to claim damages for injuries of loss sustained by a negligent act. The defence in my view is spurious and without responsibility"
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