Victims of medical negligence - can they expect any relief?
 

by Chandani Jayatilleke

Within a short span of six months this year, Sri Lanka's health sector reported several shocking incidents of medical negligence.

A 48-year-old mother alleged that her healthy leg was accidentally amputated at the Negombo Base Hospital.

A 45-year-old mother reportedly died after receiving a transfusion of the wrong blood type at the same hospital.

A baby was allegedly strangled to death during delivery when staff tried to pull the child from the womb using a piece of cloth wrapped around the neck.

A midwife at a Colombo hospital tried to hurry the delivery of a child because she wanted to catch a bus. The baby died.

In another incident two children were found in Chilaw, with a mysterious ailment following wrong medicine alleged to have been prescribed by a doctor.

If we consider some of the previous medical negligence cases, the common allegation is that Sri Lanka does not have sufficient laws to prove the culpability of errant medical staff. Even if there is a complaint and case (which usually drags on for a few years), there is no mechanism at all to compensate the victims.

As a result of negligence by certain medical staff, patients have lost their limbs, children have lost organs and some have lost their lives. Many of these victims come from ordinary families, therefore, they do no have sufficient financial means to continue to fight a legal battle.

Although many victims and their loved ones have complained against suspects, they have a long wait for justice as most cases do not make much progress. There is no easy and swift way to obtain justice in such cases.

Victims allege that the medical fraternity prefers to cover up the culpability of their staff, rather than wanting justice for victims. In certain cases the victim had been prevented from making a complaint immediately after the incident. In the case of amputation of the wrong leg, it was reported, the victim was kept in the hospital for almost one month to keep her silent.

The Sri Lanka Medical Council (SLMC) says that it has received a complaint from the above victim which is being investigated currently. However, the SLMC cannot say when the case would be over.

Health and access to better medical care is a basic human right. According to a statement by Asian Human Rights Organisation based in Hong Kong: "The delay in starting an investigation has given the perpetrators all the time they need to falsify documents and destroy or manufacture evidence.

Nor is civil litigation a solution. In Sri Lanka, such cases can take over one or two decades to run their course. The process is cumbersome and expensive: beyond both the comprehension and means of ordinary victims. Attempts at prolonged litigation only amount to further denials of remedies for fundamental rights violations."

We spoke to the Registrar of the Sri Lanka Medical Council (SLMC). Question: What is the normal procedure for complaining in an event of a medical negligence?

Answer: Well... when there is a case of medical negligence, the victim or his/her family could make a written complaint with an affidavit to the SLMC. At the same time the victim can proceed with a court case as well.

Q: What happens when there is a complaint? Is it just a court case? Or will there be a Medical Council (or any medical authority) investigation? Is there any official inquiry? Is there a cover up system? (unofficially)

A: We conduct an official inquiry, according to the gazetted disciplinary procedure within the SLMC. The first inquiry is conducted by the Preliminary Procedure Committee chaired by SLMC's Deputy Chairman. Following this inquiry, the Committee decides if it needs to be continued with further information. Otherwise the Committee can arrive at a decision at this point.

If it needs further investigation, the parties will be asked to provide more information and a report will be prepared based on the findings of the preliminary investigation.

Thereafter the Professional Conduct Committee chaired by SLMC President with 10 members will study the report for a decision or they would hand over the case to the SLMC lawyers by whom the final decision will be taken.

Q: What is the penalty?

A: According to the Medical Council, the person in question can be suspended or his/her name can be erased from the SLMC list. After that the suspect cannot practise as a medical professional. And his privileges will also be suspended. However, the suspect has the option to appeal against this decision too.

Q: How long will it take to get a final solution?

A: It depends on the nature of the case.

However, a case can continue for one year to three years. This is mainly due to the slow process of submitting various documents by certain institutions involved in the case.

Q: This system appears to be rather unfair by the victim. Is there any mechanism to compensate the victim?

A: According to the present ordinance, there is no compensation system to benefit the victim.

Q: Isn't the SLMC more in favour of the medical professional than the victim or the patient?

A: Well... the medical professional is also entitled to protect his own human rights.

Q: How many cases are being reported on a yearly basis?

A: In 2004, we received 32 cases of medical negligence and we hope that the figure would be much higher this year. In the first six months of this year, we have received over 20 complaints.

Q: Are there any proposals to speed up the process and to duly compensate the victim or the patient? What do you suggest?

A: There is a need to amend the Medical Ordinance of the SLMC. We have made proposals in this regard in 1999. So far nothing has happened. We have also suggested to have a lawyer and an accountant appointed by the Government on our staff. On the other hand the decision making at the institutional level has to be expedited.

We admit that there should be a system to offer compensation for victims of medical negligence. Ideally, there should be a separate, independent body for this purpose. There are times that even if the victim takes the case to a court of law, it could be difficult to prove the case in favour of the victim, said the Registrar of SLMC.

Following the growing number of complaints of medical negligence over the last few months, Health Minister Nimal Siripala de Silva suggested the setting up of a special board to look into such incidents. Minister de Silva said he was in discussions with the Public Service Commission and the trade union representatives to arrive at a decision on this matter. Besides, the Ministry is also planning to introduce a new insurance system where the aggrieved party could claim compensation in the event of incidents of medical negligence.

While the Minister has made a promise to look into the issue in a serious manner, the medical fraternity in the country should also pay more attention to the issue and try to improve the quality of medical service they provide and ensure that medical negligence is minimised.

At the same time, they should implement a swift and effective system to investigate suspected medical negligence cases.