Of professional negligence

By Kishali Pinto Jayawardena

Granted, it would be trite and perhaps a little bit foolish to maintain that the recent Court of Appeal judgement in Sri Lanka's most widely discussed medical negligence case stands as a warning to all professionals and not merely medical practitioners. The question would always be whether the nature of the duty of care laid down is realistic or of such an abstract standard as to be of negative effect in day to day situations. This is the ticklish test that confronts judges before whom questions of professional negligence are argued. Predictably, which ever way the gavel falls, controversy has been immediate.

In this instance, it has led to bitter divisions between the medical and legal professions as to what standards of professional accountability should be applicable. The debate that Arsecularatne Vs Soysa first raised in 1994, when the Colombo District Court delivered a finding of professional negligence against one of the country's most well known child specialists is continued in the 1998 affirming of that finding by a two member bench of the Court of Appeal. With the case going on appeal to the Supreme Court, the tale appears to promise a further twist in the telling.

What becomes quickly obvious however is that persisting with this "Us Vs Them" argument ( i.e.: doctors vs lawyers), can only be counterproductive. It is significant that the Court of Appeal has taken pains to specifically point out that not only doctors but also lawyers and teachers are subject to a higher duty of care, in that, as described in appropriately Dickensenian terms, " it could mean life and death for a patient or a comfortable or wretched life for a client or student". If, therefore, the June 24th judgment is argued to herald a greater awareness of professional accountability on the part of not only doctors but also lawyers, accountants and bankers, then the principles laid down by the Court of Appeal should indeed be actively used to call them to account. One cannot, in fact, imagine a more deliciously tantalizing scenario in today's laissez faire society.

But what precisely are these standards of professional care laid down by the Court? From the start, the crucial question remained whether the alleged "arrogance" of Prof. Priyani Soysa, in treating a four year old child entrusted to her custody was of such a high level as to take her behaviour into the realm of professional negligence. Suhani Arsecularatne had been taken for treatment to Prof. Soysa on the 18th of May 1992. On her advice, the child had been admitted to the Nawaloka Hospital and was treated by her for almost a month. It was subsequently on a deterioration of her condition that her father, a senior state legal officer, changed doctors, all of this being to no avail with the death of his daughter a month later. It was his argument that lapses on Prof. Soysa's part in treating the child committed to her care, directly resulted in her death. She, in turn, countered that she had not been negligent in her diagnosis, and that she had not deviated from accepted medical practice when examining the child.

In the opinion of Colombo District Judge Mahanama Tillekeratne, before whom the matter first came, the case could not have been clearer. Prof. Soysa had been demonstrably negligent. More so, her "arrogance, indifference and intolerance", described by the District Judge in somewhat pungent terms, was said to come out clearly during the evidence. She was held to have made a fatal misdiagnosis, which could have been prevented if she had shown the child more care and attention. It was against this judgment that Prof Soysa came on appeal, citing several grounds where she claimed that the District Court had erred. Among these was the contention she had not been judged fairly and according to current medical standards, as indicated by experts of the calibre of Dr J.B. Peiris, Prof. Lamabadusuriya, Prof. Harendra de Silva and Dr Shelton Cabraal who testified on her behalf during the trial. Their evidence clearly showed that she had not been negligent. She also argued that the District Judge had failed to approach the case with the necessary degree of objectivity and detachment. He had showed obvious sympathy for Arsecularatne while she had been treated cavalierly by him, his displeasure being manifest at her professional conduct and certain traits of her personality as inferred by him.

Both judges of the Court of Appeal, namely Justices Weerasekera and Wigneswaran agreed however with the finding of the District Judge, that Prof. Soysa had been negligent. Justice Wigneswaran has explained his reasons for affirming this finding in a 151-page judgement, which focuses on what is said to be certain crucial professional lapses on the part of Prof. Priyani Soysa.

In the first instance, the evidence is said to show that she had failed to take a proper history of the patient child and to record the same. It was her explanation that she did not record anything on paper, but that she kept the details in mind. This practice is castigated by the Court on the basis that it only went to show that a meticulous and continued examination had not been done of the child. Indeed, she appeared to have come to a hasty diagnosis that the child had rheumatic chorea without recording or considering many symptoms that were inconsistent with such a diagnosis. Again, she had failed to maintain the bed ticket properly, with no record of any clinical observations being made by her on the ticket. The Court goes on to comment that it is possible that these practices may be followed by other doctors as well who may well come to successful diagnoses in many cases. The fact remains however, that when a matter of this nature comes up before a court of law, these lapses get highlighted. A court of law cannot be told "Well, I have considered everything and that was my decision. The oracle has spoken." The court must have reasonable evidence that the professional considered everything and came to a plausible decision in the circumstances. The absence of such evidence will be one factor that might go to establish professional negligence. In the present case, other actions on Prof. Soysa's part were held to be further evidence of this negligence. She had failed to do necessary tests to confirm or rebut her initial diagnosis, which was in any case only a tentative diagnosis. The evidence was that the child had deteriorated steadily while under her care. She had gradually lost her ability to walk, she could not move her right side and her thigh muscles were found to be wasted. In spite of these developments, it was the finding of the court that she had still not been clinically examined and the necessary tests had not been carried out. Though some tests had been ordered, the Court ruled that they were of little significance in the proper diagnosis of the child, owing to what has been categorized as the specialist's stubbornness in clinging to her initial diagnosis which had, in the end, proved to be wrong. The ultimate cause of death had been found to be brain stem glioma (a tumor in the brain) which had been discovered after a CT scan had been done on the child after her father switched doctors towards the end of May. The court agreed with the specific finding of the District Court that the child would have had a tumor in the brain from the beginning. It could not have been that she had both a tumor in the brain and rheumatic chorea, for the possibilities of a child of four years having both diseases were extremely remote, no known cases being brought to the court's attention. The fact that she showed certain symptoms said to be common to both was said to be no reason why she should not have been tested for the more dangerous disease by a specialist of the calibre of Prof. Soysa. A further fact was the conclusion of the Court on the evidence, that she had failed to properly consult and follow the advice of Dr J.B. Peiris, who was a neurologist when the disease was clearly of a neurological nature. This was all said to add up to the inevitable conclusion that Prof. Soysa had not shown the normal skill and diligence of a medical practitioner, let alone a specialist.

Indeed, if these tests had been done and the evidence showed that the requisite care and attention had been given by her, with the obtaining of the results of all tests ordered including a skull X-Ray, it was the observation of the Court of Appeal that even a genuine error on her part may have been condoned. However, the evidence indicated that she had come to a " hurried, haphazard and defective diagnosis" which had been a major contributory factor in the child's death. Meanwhile, the Court did not accept her defence that, in any case, a proper examination and diagnosis of the tumor could not have prolonged the life of the child.

" The ultimate fate of the child is irrelevant in an examination into the actions and/or omissions of the professional who treated her. Negligence, if admitted in law, is a feature of the present or the past. A doctor is expected to treat the child to the best of his or her ability oblivious of what is to take place in the future. An extended peek into the future with the knowledge of medical science as it exists in the present, cannot be used as a weapon to ward off the evil effects of our present or past actions," the Court cautioned.

Though both judges agreed on the finding of negligence, they differed on the basis on which damages could be awarded to the father, Rienzie Arsecularatne and correspondingly, the amount of damages. Arsecularatne claimed not only for medical expenses incurred by him but also for alleged mental anguish and/or mental shock experienced by him. He stated that upon learning that his daughter was treated for a different disease than what she actually had, he had been unable to concentrate on his work and had developed a dull headache, dizziness and pain in the stomach. This was however held by Justice Wigneswaran not to be sufficient reason for nervous shock to be found. On the contrary, nervous shock meant the existence of a positive psychiatric illness, proved by proper medical evidence. In its absence, no damages could be awarded. Arsecularatne's further claim for damages for loss of actual support from the deceased child including her future earnings and contribution towards the family was also not allowed. Justice Weerasekera however differed, going on to award the full amount of damages asked for by Arsecularatne.

That the court has appreciated the impact their judgement would have on society is clear. Justice Wigneswaran concedes the fact that " when the defendant happens to be a widely acclaimed specialist medical practitioner, the sensitive outcome of an allegation of negligence must necessarily be most acute."

Agreeing with him on the finding of professional negligence, Justice Weerasekera goes on to comment that "…….I am not insensitive to the cries of anguish, pain and suffering of a vast array of patients……..if it did occur as in this case and circumstances in the private sector of patients, I could quite imagine what it could be in the sector of non paying patients. I am also not insensitive to the tribulations of medical personnel. Even so, it is my view that, that a body which has statutory control over the conduct of these professionals ( and they themselves ) should examine, question and activate themselves on the reasonings and findings of my brother………….(it is) a duty they owe the public and a duty they own themselves, if the good name and reputation of the profession which was known for its noble traditions, is to be maintained."

Irrespective of the actual merits and demerits of the case that is presently on appeal to the Supreme Court, there can be no quarrel with these trenchant words of warning.

Judgment-1

Supreme Court of India

Singh Vs State of Madhya Pradesh ( 1996 2 LRC 264 (SC) Fundamental rights/ right to life/ suicide / criminalisation/ legislation penalizing attempted suicide/ whether constitutional/ whether right to life includes the right to live with human dignity/ whether it includes the right to die.

The appellants were convicted under section 306 of the Indian Penal Code for abetting the suicide of another. They appealed on the ground that they were merely assisting the suicide in the enforcement of that person's fundamental rights, as recognized in Rathinam Vs Union of India (1994 3SCC 394).Here the Supreme Court had struck down Section 309 which penalized attempted suicide as violative of Article 21 of the Indian Constitution which protected the right to life. Citing this case, the appellants argued that the right to life included the right not to live, i.e. the right to die and that therefore their conviction could not stand. The Supreme Court of India, however, disagreed with the earlier judgment in Rathinam's case. It was stated that whatever were the philosophical implications of permitting a person to extinguish his life by committing suicide, the right to life guaranteed the protection of life and personal liberty as a natural right whereas suicide was the unnatural termination of life and therefore incompatible with the concept of 'right to life". To give meaning and content to the word "life" in Art.21, it had to be construed as life with human dignity. Any aspect of life which dignified it might be read into Art.21, this however could not extend to protect actions that extinguish life. It was moreover pointed out that abetment of a suicide consisted a different offence from an attempt to commit suicide.

"Arguments advanced to support a plea for not punishing a person who attempted to commit suicide cannot be made use of by a person who assists in the commission of suicide or in its attempt, even if that assistance was prompted by a humanitarian desire to end suffering. Even where punishment for an attempt to commit suicide is not considered desirable, the punishment of abetment is nevertheless necessary in the interests of society," the Court said (Sections 306 and 309 of the Indian Penal Code were upheld as being constitutionally valid, and the appeals were sent back to be determined on their merits)

Judgment-2

High Court of New Zealand

Duff Vs Communicado (1966 2 NZLR 89 )

Contempt of Court/ statements affecting pending trials/ comments in media/ principles applicable/ whether comments made fair and temperate/ whether comments made amounted to contempt of court.

In this case, the plaintiff, Alan Duff was the author of a book Once Were Warriors that was subsequently made into a movie. He then brought a proceeding in contract against the first defendant, Communicado Ltd for a share of the profits from the movie. In a subsequent interview over television, he stated that he had created Once Were Warriors, that the matter was one of contract and principle and that he was not going to allow others to run away with the profits without a fight, even if it meant going to appeal, regardless of whether he lost or not and the legal fees incurred. On a radio program the following day, Duff pointed out that he had earned from the movie "about 90% less than what any writer would expect to earn from it" He then went on to make a statement that Communicado had been to court but that the judge had not agreed with them on a particular point. The latter statement was factually incorrect. Communicado went before court, alleging that Duff had committed contempt in that these statements had been made by him in order to pressurize them to come to a settlement with him. The Court held that a public statement about litigation currently before court would be in contempt of court if it went beyond fair and temperate comment and either when viewed objectively, could be seen to have a real likelihood of inhibiting a litigant or was actually intended by the maker to have that inhibiting effect. The process of determining what was "fair and temperate" involved balancing a number of factors, which included whether there was any legitimate public interest in the comment being made, whether the person making the comment was one of the litigants or an independent commentator and the circumstances in which the comment was made. Litigants themselves, having chosen the Court as their forum, would be expected to exercise greater restraint in their out of court public comments, specially when as in the present case, it was a squabble about money and no more than a curiosity to the public. In every case, the question that must be asked is whether there has been a contempt at all, and whether it was sufficiently serious to justify punishment. The Court stated that Duff's statements were a form of expression protected by the Bill of Rights, subject only to such reasonable limits that are prescribed by law or as could be demonstrably justified in a free and democratic society. The freedom of expression must be fairly balanced against the benefits of protecting the due administration of justice. This is best done by the facts of each case, in which it must be examined whether the particular action complained of was so serious as to warrant overriding freedom of expression. (The plaintiff's comments in the TV program were not said to amount to contempt. However, his remarks in the radio broadcast was held to have overstepped the mark, and he was ruled as having committed contempt of court)

Stop polluting drinking water

By Dilrukshi Handunnetti

In a remarkable public in- terest litigation decision recently, Kandy Additional Magistrate Wimal Nambuwasam issued interim injunction for the immediate prevention of the release of waste waters of the Le Kandyan Hotel, Kandy to a canal nearby which meets the water requirements of the people in the locality.

According to the eight paged stay order, the Hotel has been instructed to stop with immediate effect the release of sewage waters to Niyathamburu Oya.

The interim injunction was sought by Ajith Priyantha Surendra and others and cited Manager of the Le Kandyan Hotel as the defendant.

While upholding the public's right to seek redress from law enforcement authorities for the reasons furnished, the order goes to express the view that the authorities vested with the necessary powers to prevent such situations have actually breached the duty reposed on them.

"However, the responsibility for such situations should not be only on the institution concerned, for the authorities have equally breached their duty by not taking initial steps to prevent and minimize the occurrence of such situations."

For the cited reasons, the court has also ordered issuing of summons to the Central Environmental Authority, Regional Director Health(Central Province) and public health officials.

Niyathamburu Oya, a waterway which springs from the Hantana massif has been the principle source of drinking water to many areas in the Kandy district.

The stay order has clearly stated that the residents are deeply inconvenienced due to the pollution of Niyathamburu Oya, and are constrained in finding drinking water and other activities. Since the waste waters began seeping into the private well, drinking water has become an acute problem in the area with the additional problem of the spreading of skin diseases and breeding of a variety of worms.

The court has also taken cognizance of the fact that the hotel has filled two of its temporary sewage water retaining pits, and has resorted to releasing the water to an area called Guhagoda using bowsers.

The order further states that the intention was not to bring the functioning of the institution to a halt but to minimise public inconvenience until a proper solution is found for the problem.

Attorneys- at -law Mihiri Gunawardene and Shantha Ratnayake appeared for the prosecution while Attorney -at -law Suwahir watched the interest of the hotel.

Law Faculty Alumni meeting

A press release by the Convenor of the Alumni Association of the Faculty of Law, University of Colombo states that the executive committee of the Alumni Association would like to meet the recent Law Graduates ( those who graduated in and after 1994 ) in order to ascertain their views and to plan activities for their benefit.

The meeting will be held on Friday, July 17 at 3.30 pm at the Faculty of Law.

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