Focus on Rights

Supporting an arbitral tribunal for cases of medical negligence
Recent assurances held out by the Health Ministry and its consistently affable Minister that discussions are underway between the Ministry and Public Service Commission officials to establish a medical tribunal to arbitrate into instances of medical negligence and medical disputes, brings a new dimension into public discussion of the duty of care.

The number of reported medical negligence cases from around the country has increased significantly in the past few years. These cases measure, moreover, only those instances where aggrieved patients are courageous enough to brave the displeasure of medical officials in coming to the public forum to ventilate their problems. For each such person, there are countless other timorous souls who prefer to silently suffer the consequences of medical misadventure, even if this means partial or permanent disability and in some cases, even death.

For a country that once justifiably boasted of its health care services in Asia, this is not a healthy development by any means. The deterioration of discipline in the medical profession and the lack of mechanisms by which complaints of patients can be fairly inquired into and decided upon, is only equalled by the similarly grave deterioration of standards in the legal profession. In both instances, professional elitism has conspired to make the functioning of legal and medical professionals beyond public review.

Insofar as the medical profession is concerned, recent allegations of the mistaken amputation of a leg of a patient who had come in to have a routine cleaning of a wound, (which had, in any event, been done without prior consent being obtained from her), the accidental cutting off of a finger of an infant by a nurse and the administration of medicine by a government doctor (while engaged in private practice) resulting in the muscle wasting of a child are only some cases that have surfaced in recent weeks. Listing out a more complete list of medical negligence complaints within this year alone would require more space than is currently available.

Only in extreme instances as where a former secretary of the bar association is indicted for fraud or an eminent professor of paediatrics is prosecuted over medical negligence concerning treatment of a senior legal professional's child, is professional behaviour even questioned in the public forum. In the vast number of other cases where complaints are made, even if inquiries commence by the respective disciplinary bodies, they do not proceed very far. Neither is the public informed of the results of such inquiries.

Equally, these need to be more vigorous activism in the context of documenting complaints of medical negligence and taking these complaints forward in a manner that successfully braves the formidable medical lobbies which dislike such challenges. In this as in many other spheres of functioning (excepting perhaps in regard to the prevalence of custodial abuse by police/prisons officials), Sri Lankan activists need to be far more aggressive in their efforts to address these issues. In this regard, emergent movements such as the Patients Rights Movement are to be welcomed.

In countries such as India, the UK and the US, the professional duties of medical and nursing staff have been clearly laid down in case law as well as relevant statutes. In similar vein, this country needs a thorough overhaul of applicable laws and regulations relating to health professionals even though a discussion of specific statutes would not be possible at this point in time. A brief discussion of the general standards imposed on health care professions in other countries may serve to illustrate the extent to which even such general standards are lacking in this system as well as public non-awareness regarding the same.

Case law in the US has, for example, laid down stringent standards of the duty of care specially in relation to the obtaining of consent by a patient before surgical procedures are embarked upon which might forseeably entail consequential procedures. Non-adherence to these standards may lay a surgeon open to a charge of battery (unauthorized offensive contact) as opposed to medical negligence), even though the impugned surgical procedure was not in fact harmful to the plaintiff's health.

One case in particular, is useful in this regard, (Mohr v. Williams (1905), where an ear surgeon had advised a patient to remove a polyp in the latter's right ear and upon him consenting for the surgery, had anesthetics in preparation for the right ear surgery. Subsequently however, he had found that the patient's left ear was more in need of surgery than the right and had consequently proceeded to operate on the left ear. In ruling on a complaint brought by the patient that this un-authorised operation had resulted in the impairment of her hearing, the court ruled against the un-authorised surgical procedure. This case is a classic example for the principle that when the circumstances surrounding a medical procedure that requires surgery do not justify proceeding without a patient's consent, performing said surgery without authorization is unlawful and the surgeon is liable for damages arising from a battery tort.

US surgeons now utilise a consent form to satisfy the duty of care imposed by this case which gives consent to the act actually performed. Consent can also be implied by the conduct of a person. In an emergency situation, where the health of a person is endangered, "unauthorized operation is justified under consent implied from the circumstances". The defense of consent to physical contact can be overridden if it is shown that the consent was induced by fraud or even by nondisclosure of some material fact.

It is important in this regard that the doctor is under a duty of care to disclose to the patient what risks associated with the surgery that are reasonable to disclose under the circumstances. True consent to what happens to one's self is the informal exercise of a choice, and that entails an opportunity to evaluate knowledgeably the options available and risks attended upon each; there's a duty to disclose. Such information needs to be voluntarily given without any request by the patient.

Case law in the UK does not impose such a high burden on medical staff insofar as the duty of 'informed consent' is concerned. The British test, as any student of tort would be aware, is that a doctor or surgeon would not be held negligent if he or she acted in accordance with the practice accepted at that time as proper by a responsible body of medical opinion, notwithstanding that other doctors adopted different practices. British judges have however emphasized that if questioned specifically about risks involved in a particular proposed treatment, a doctor is under a duty to answer both truthfully and fully. (see Sidaway vs Governors of Bethlem Royal Hospital, 1985).

These tests have been applied not only to medical staff but also to lawyers and accountants as imposing the same duty of care. Discussion of such instances may however appear highly artificial in this country where due diligence is not observed in relation to observance of a much less stringent standard of the duty of care.

Cases taken to court involve time consuming processes that emotionally and financially drain the complainant. In this context, the setting up of an arbitration tribunal to inquire into medical negligence complaints with fair and representative selection of its members who should be given the requisite security of tenure, would be a good way of coming to terms with this problem. Confining such bodies within the sphere of that same profession itself has proved so far to be singularly unsuccessful whether doctors or lawyers are concerned.

Perhaps it may well be appropriate to urge a similar formation of a disciplinary body as applicable to the equally malfunctioning legal profession.

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