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Hospital administrations suppress info on medical negligence claims: Expert

06 Oct 2022

BY Ruwan Laknath Jayakody   Legal and academic experts on medical negligence have highlighted that there is a tendency among hospital administrations to suppress information with regard to medical negligence-related claims. The law applicable in relation to medical negligence locally is a mixture of English Law and Roman-Dutch Law. Previously, legal practitioner and author of “Medical Negligence Claims in Sri Lanka” (the latter based on findings from a sociological survey conducted from 2007 to 2010), Dr. A. Perera, speaking to the writer in July 2016 said that the vast majority of medical negligence claims are frequently ones concerning obstetrics. She added that the reasons for the dearth of medical negligence litigation included delays in the proceedings of the law and the hassle one has to undergo in terms of having to appear in court.   There is also a reluctance on the part of the patients to sue their doctors owing to the paternalistic doctor-patient relationship that functions in the country which in turn results in the patients maintaining a great deal of respect for doctors even if they feel injured by them, she pointed out.  The public’s misconception of perceived collegiality on the part of the judiciary with members of the medical profession due to the legal profession’s affinity with the medical profession, extending towards a bias where judges appear sympathetic to doctors, plays a role in the admission of medical experts to provide evidence where professional collegiality (a doctor would find a peer or peers to give evidence in their favour, whereas the lay patient would find it particularly difficult to find a doctor to provide evidence on their behalf) also play a role, she noted.  There is a tendency among hospital administrations to suppress information, where sometimes, even the name of the doctor who attended to the patient/victim is not revealed. And elsewhere, everyone involved in the administration decides amongst each other their future course of action in this regard including what to divulge and what not to divulge. The end result is that there is no record of such incidents/instances and/or an internal audit-based system of assessment being practised.  Whether the Right to Information Act, No. 12 of 2016 would provide relief to aggrieved parties in this regard is a question worth pondering. The failure on the part of medical professionals including doctors to act subsequent to a situation being pointed out (this latter matter is the biggest concern which could also be considered as a secondary failure where no action is taken after the initial error is pointed out or when something goes wrong [preventable or otherwise] and such [for example – the feeling of pain] is in turn reported by a layperson or the patient to a nurse or those in charge, and there is a subsequent delay in action being taken or action being taken on time due to the layperson’s opinion being considered to be of little or no regard by professionals in the medical and health care services), too is a factor which adversely impacts potential medical negligence claims, she explained.     Criminal negligence requires a much higher degree of proof. In this case, gross negligence is the standard of criminal liability. In Sri Lanka, medical negligence claims have rarely led to the prosecution of doctors for criminal negligence. A District Court is the first jurisdiction or court of the first instance where an aggrieved party could institute a civil action. If the claim is made against a government doctor, they are represented by the Attorney General’s Department. Furthermore, when government doctors are sued, the Crown/State (Liability in Delict) Act, No. 22 of 1969 is the particular statute which is applicable and the State has to bear liability on behalf of the relevant doctor because they are public officers. When compensation is awarded against government doctors in medical negligence cases, in cases where the said doctors are found to be negligent by a court, the State, in this case, the Ministry of Health, ends up bearing the financial liability for the payment of the redress afforded by the court to the patient/s and/or aggrieved party/parties. And though this money can be recovered from the relevant officer in terms of the provisions of the Establishments Code subsequent to an inquiry into the matter being conducted by the said Ministry, this is hardly done in practice.  Therefore, the award of compensation by courts does not act as a deterrent when government doctors are found to be negligent. If the aggrieved party directly sends a letter or petition to the said ministry, the latter commences an inquiry where an investigative unit within the ministry would go and interview persons and record statements after which the matter is placed before a technical panel appointed by the same ministry.  In the case of private hospitals, each has its own system; thus, there is no formal standardised system in place, she remarked.  If the Sri Lanka Medical Council (SLMC) is to take the matter up, they require that the complaint be made in the form of an affidavit. In this regard, the SLMC does not accept complaints which come in the form of letters.  As a result, at the onset itself, a lot of complaints get rejected on procedural grounds, she added.  The SLMC’s Preliminary Investigation Committee will initially be involved subsequent to the matter being placed before the SLMC’s Professional Conduct Committee. If the latter committee finds the relevant doctor guilty, their name could be struck off the doctors’ register. Elsewhere, although aggrieved parties complain to the Human Rights Commission of Sri Lanka (HRCSL), due to the right to health not being enshrined and guaranteed within the Fundamental Rights Chapter of the Constitution, the HRCSL cannot intervene. The Police too can inquire into such matters and then take appropriate steps if a criminal offence is borne out.          In terms of grievance redressal, countries like Sweden and New Zealand employ mechanisms such as the no-fault compensation tribunal where the hospital where the incident occurs agrees to make a payment on the condition that the doctor in question or the hospital would be liable but without proof of fault. Such reduces litigation. In countries like England, clinical negligence pre-action protocols are utilised.  Meanwhile, Dr. Perera’s research came across many instances where children have had their hands or arms amputated because nurses had been negligent in inserting the cannula (a tube that can be inserted into the body, often for the delivery or removal of fluid or for the gathering of samples) for purposes of administering saline or medication in the course of the treatment. Often the defence is that it is difficult to distinguish between a vein (which carries deoxygenated blood towards the heart, has thinner walls, and uses valves to keep the blood flowing) and an artery (carries oxygenated blood away from the heart [with the exception of pulmonary blood vessels], and has thick walls with muscle tissue) in a small limb.  Yet, even when the parents alert the nurses or the doctors that the child is in pain or that there is discolouration (turns blue or purple) of the hand, no notice is taken. The patient or layperson may complain of the disease becoming aggravated, yet they are not heeded on the grounds that they are laypersons or that the patient’s family is being hysterical. Ultimately, there is an unnecessary injury to the limb with even gangrene occurring, eventually resulting in amputation. This type of error can easily be avoided with proper training. But first, there must be acknowledgement by the authorities that these are frequent errors and need to be prevented. “Complaints must be used to assess whether the provision of healthcare services is at an acceptable level. A survey of all complaints and errors has to be recorded so that individuals and the system can learn from past mistakes and prevent future recurrence. The culture of suppression however prevents this. We should consider involving an independent expert at the trial stage instead of having the standard two experts giving evidence for either side – the prosecution and the defence.  “Notwithstanding medical evidence and the opinion given by the medical experts, courts now possess the leeway to decide whether the evidence given by the experts withstands the court’s logic. This is based on the precedent set by the decision in the English House of Lord’s case of Bolitho vs. City and Hackney Health Authority (unanimous decision penned by Lord Nicolas Christopher Henry Browne-Wilkinson and joined by Lords Gordon Slynn, Michael Patrick Nolan, Leonard Hubert Hoffmann, and James John Clyde). However, due to the lack of medical knowledge, judges find it difficult to challenge expert medical evidence,” she remarked. She further remarked: “The law on medical negligence in Sri Lanka has remained stagnant since the Supreme Court judgment in the Prof. Priyani E. Soysa vs. Rienzie Arsecularatne case (unanimous decision penned by Justice Ranjith N.M. Dheeraratne and joined by Justices Dr. U.A.B.W.M.R. Shirani Anshumala Bandaranayake [as she was then] and Ameer Ismail). In the Soysa vs. Arsecularatne case, sentimental loss was not recognised. The Fatal Accidents Act of 1976 of the UK statutorily recognises non-patrimonial loss because it allows compensation for bereavement. This on the other hand is not a medical matter but a purely legal issue to be resolved by jurisprudence or legislation.” One of the main findings in Dr. Perera’s research was that most people make medical negligence claims not because they want the money, but because they want an admission, an apology, and an explanation for what went wrong. If however, the response of the authorities is to shut down communication and suppress information, victims never get the relief that they actually seek so desperately. Medical institutions must therefore be more open to receiving complaints and making use of them for the improvement of services and the prevention of error, she emphasised.  


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