Medical negligence and operation cover-up

Jinadasa Bamunuarachchi

When a patient puts himself and his health in the hands of a medical professional rightly that patient has a legitimate expectation of one thing. That is, doctors would do their best for him or her. A patient who comes walking to the hospital for treatment does not expect in his or her wildest dream to go back home in a coffin on account of some body’s criminal negligence.

In the weeks passed by, media reported of triple cases in which one patient had lost her arm and two of them died because medical treatment wasn’t as good as it should have been. Of the reported three cases, the much publicised was that of Achala Priyadharshani’s, whose left arm was amputated. The girl is in her early 20s and a Law student. It has now come to light that this is a clear case of medical negligence.

The second instance we heard about was how a five-year-old girl died in a Colombo private hospital when she was taken there for a MRI Scan.

Consultant Judicial Medical Officer Dr. Ruhul Haq of the Colombo JMO Office, in his report gave the child’s cause of death. This is the authentic document one has to go by as to the cause of death despite the conflicting statements on the part of the hospital. Child’s death was due to “hypoxic brain damage”, Dr. Ruhul Haq explaining the cause of death has stated that it is absence of oxygen leading to the death of brain tissue. The conclusion that it was due to a cardiac arrest came with these findings. However we do not know the exact cause of the cardiac arrest. It is to be noted that the cause of a cardiac arrest could be due to lack of oxygen (hypoxia).

The hospital version seems totally different to the findings of the JMO.

The third incident as it was reported shocked the conscience of the nation, and it is a case of adding insult to injury.

In a shocking revelation, a 45-year-old man giving evidence at an inquiry in to the death of his 38-year-old wife, told a magistrate that his 13-year-old daughter was detained in the custody of a private hospital in Colombo until the bill involving his wife’s hospitalization was settled.

Private hospitals

The witness informed the Colombo Fort Magistrate that his wife was transferred from the private hospital to a government hospital in a critical condition while his 13-year-old daughter was detained inside a hospital room until the hospital bill amounting to rupees one million was settled.

Lodging a complaint with the police the complainant had alleged that his wife died due to medical negligence of the gynaecologist and obstetrician who performed a surgery into an ovarian cyst on April 2012. He complained to Court that his wife’s condition started to deteriorate even after the second operation was performed. He said doctors in the hospital accepted the fact that her intestines had been damaged due to the surgery and it would take a long time to heal.

The 45-year-old witness told Court that owing to this medical negligence circumstance he lost his wife and lost a mother to her daughter. He further said he had to inure an amount of Rs.1.6 million for medical treatments.

The second and third cases are matters under sub judice. In any event, I do not wish to pass judgement on any of these matters. My attempt is to look at them objectively in order to make awareness among the public especially among patients on the subject of medical negligence that is becoming an increasingly important area albeit largely neglected or conveniently forgotten by the patient and the health authorities alike.

In Achala’s case, a doctor at the Matara General Hospital placed a plaster of paris cast on her left arm after she fractured it following a fall at home. A few days later, she was admitted to the Matara Hospital complaining that the cast was too tight. The cast had not been removed despite a complaint that there was a severe pain in her left arm. But a Pethidine injection had been administered for three days as prescribed on the diagnosis card.

As her condition worsened, she had been transferred to the Karapitiya Teaching Hospital. However, it had refused to admit her. Subsequently she was admitted to the National Hospital, Colombo where doctors had to amputate her left forearm as the nerves were pronounced dead.

A preliminary investigation into the unfortunate incident revealed that negligence had been the cause.

Most doctors only want to do their very best for their patients but when health care mistakes do occur they usually result in little or no harm to the patient. In fact, despite an increasing openness between doctors and their patients, it's probably fair to say that in many cases the patient isn't even aware a mistake has been made.

From a doctor's point of view, the reasons things go wrong are often quite understandable. Doctors are human and everyone makes occasional errors, especially when under immense pressure. Of course, gross negligence is indefensible, but illness is never totally as it appears in medical textbooks. Important things may be hidden or happen unexpectedly.

Despite their best intentions, doctors' personal lives have a habit of occasionally slipping into their professional lives. Doctors are human and have their own personal stresses which may affect their performance from time to time. For a doctor, the implications of such a lapse in concentration can be far more disastrous than for an accountant or a baker.

Our experience with most of Colombo’s private hospitals is disgusting. Many of them do not have qualified health care professionals who have the proper training and qualifications an the service they offer is far below the expected medical standards. For this reason things can go wrong easily.

Industrial action

When things go wrong, it can be hard for a patient or their loved ones to accept that human failure as a fact of life. So how do you deal with it when things do go wrong? The first thing to ask yourself is, what do you want to achieve in this situation? The vast majority of people want just two things: an explanation and an apology.

And how do health professionals react? They tend to react defensively and close ranks. The result is that patients and their relatives are forced to take the slow and expensive legal option to get answers and, in some circumstances, compensation.

When things go wrong what do medical professionals do in Sri Lanka? The first thing they do is to put themselves on the defensive. There is no culture of accepting accountability.‘Our man notion’ comes first and a collective attempt is made to disclaim liability to the extent of resorting to industrial action. Doctors in Sri Lanka have proved time and again that they put self before patient care. We have seen how patients died on hospital beds owing to doctor’s industrial action. Even the most senior doctors have no guts and the gumption to call a spade a spade. When there is no explanation, patients and their loved ones have no option but go elsewhere seeking justice.

Sometimes there is a very real need to seek financial compensation, especially if children lose a parent or permanent damage means the patient needs expensive care. But often a little time and a few words would have been enough.

'Medical negligence' describes when medical intervention in the treatment of a patient has materially contributed to a deterioration of a patient's condition.

In civil law, 'negligence' is a tort: an act or omission that causes harm to an individual's property, reputation or interests. The law of tort imposes a duty of care where one party could reasonably foresee that his or her conduct may cause harm to another. In most cases of medical negligence, the claimant has to prove that he or she has suffered injury or other harm because of the negligence of the health care provider.

Some medically negligent conduct may also constitute a criminal offence. I believe in respect of Achala’s case, it couldn’t be a medical error and health authorities should seriously consider bringing criminal prosecution against those responsible for negligence of this magnitude.

The evolution of the legal concept of medical negligence is a surprisingly recent development. The tort of negligence itself was only founded in the UK with the case of Donoghue v Stevenson 1932, when commercial liability for defective produce was established.

The key precedent in the establishment of medical negligence was provided by the Bolam proceedings of 1950 in the UK. This case provided the so-called 'Bolam test', which has underpinned the UK's arrangements for more than half a century. The test provides a defence for medical professionals when they have "acted in accordance with practice accepted as proper by a responsible body of medical opinion".

In practice, this made winning a negligence claim very difficult. The Bolam test was amended by a judgement in the late 1990s to permit a judge to conclude that a medical decision that is not capable of withstanding logical analysis is unreasonable and the treatment therefore negligent.

Medical malpractice is professional negligence by act or omission by a health care provider in which the treatment provided falls below the accepted standard of practice in the medical community and causes injury or death to the patient, with most cases involving medical error. Standards and regulations for medical malpractice vary by country and jurisdiction within countries. Medical professionals in the UK may obtain professional liability insurances to offset the risk and costs of lawsuits based on medical malpractice. I had the occasion to assist my firm in the conduct of defence in several Medical negligent cases. In one case the Doctor was charge sheeted for being negligent in the performance of Circumcision Surgery on a 10-year-old boy.

Circumcision is a common practice in the Jewish and Islamic faiths.

Male circumcision is the surgical removal of the foreskin. The foreskin is the fold of skin covering the end of the human penis, which can be gently pulled back.

If a baby boy needs to be circumcised, he will usually be given a local anaesthetic because it is safer than a general anaesthetic. Local anaesthetic is a numbing medicine, which can be injected into the base of the penis or applied as a cream. Older children and adults who are circumcised are usually given a general anaesthetic, where they are put to sleep.

The circumcision procedure is relatively simple. The foreskin is removed with a scalpel, scissors or a surgical clamp. Any bleeding is cauterised (closed using heat), and the remaining edges of skin are stitched together using dissolvable stitches. After circumcision, there may be some pain and swelling, and the penis will be easily irritated until it heals. The healing process can take up to 7 to 10 days in babies, and up to 4 to 6 weeks in older boys and men. The case in which we defended the doctor who performed the circumcision surgery on a 10-year-old boy was charge sheeted for medical negligence. What happened in this case was that it took longer time to heal because penis was infected following the surgery although it should have been healed in 4 weeks or so. Following the complaint to the Primary Care Trust (PCT) and the General Medical Council ( GMC), an investigation was carried out in order to ascertain if the doctor had complied with the prescribed guidelines and procedure. The doctor was exonerated of all charges. I cited this case to show how exposed the UK doctors are to scrutiny and litigation when it comes to patient care. In all Muslim countries circumcision is not always performed by doctors but by persons who have no knowledge of or training in medicine.

In a second case,a doctor was accused of conducting an intimate examination on a female patient without the presence of a chaperon and in the same course of action, it was alleged that the doctor had put his hand up her jumper and touched and cupped her breast, lifting it up and down. Then he touched cupped and lifted the other breast.(This patient who is a 54-year-old white woman had seen the doctor for several years with a history of Vaginal Itching/vaginal rash, a condition that had existed form her childhood)

This case not only involved medical negligence but also involved a charge of sexual assault as well for which the doctor was prosecuted in the Crown Court. At the beginning of the trial doctor was acquitted even without calling for the defence as the crown prosecution service (CPS) moved to withdraw the case. However the doctored was found guilty by the GMC for alleged negligence a charge which the doctor strongly denied.

Medical negligence

In another landmark case my firm had the occasion to sue a UK NHS hospital for medical negligence. Going by the clinical summary of this case, a 14-year-old boy of Sri Lankan origin was presented to the A and E department of the Respondent hospital with diarrhoea and vomiting with breathing difficulty and inability to sleep for previous two days. He was assessed by the Senior House Officer who reported normal findings on examination except for reduced air entry in the lower chest. He was then transferred to paediatric team. Several examinations were done there and noted he has had mumps two weeks earlier and neurological examination found apparently nothing was wrong. X-ray was said to be OK and all examinations were found to be satisfactory and he was sent home having prescribed antibiotics. His condition was worsening and on the next the child was again taken to the hospital. Doctors examined the child and prescribed antibiotics and sent home. The third day was dawn child was reported sleeping with open eyes and was not able to raise his limbs, head and the body was stiff. Parents took the child to the same hospital. The same treatment were given and asked to go home. Parents were upset and they took the child on the same day to Robert Debre hospital in Paris. At the time of admission he was paralysed and was unable to breath. He was sleeping with eyes open because of facial paralysis. He was diagnosed with Guillain-Barre syndrome.

Patients challenging doctors

In the UK hospital doctors were not able to diagnose and thereby exposed the child to life threatening condition. In the expert testimony, it was revealed that Guillain-Barre as an acute neurological condition affecting peripheral nerves. The expert said that it occurs in all parts of the world children and adults and either sex. He further said this syndrome is readily identified. Numbness in the toes and fingers are the earliest symptoms. Doctors attached to the Respondent hospital failed to diagnose.

The point I am trying to make here is the failure to diagnose amounts to medical negligence in the UK because it is indicative of incompetency on the part of the physician. Thereby the scope of medical negligence is extended to cover incompetency.

In 1969, when I was a schoolboy, I took my granny to eye hospital Colombo. The doctor told me ‘archchigeehe suda- operation karanna oone’. My granny was diagnosed with cataracts and was asked to come as an inpatient. My granny and I were village people from far away country side in rural Sri Lanka. We were so helpless and were living below the poverty line. We were oblivious of what was going to happen and on the appointed date I took the granny and warded her at the eye hospital. She was there for about one month and when I visited her in late April 1969 a nurse told me that my granny was due to be discharged. I asked the nurse if granny was ok. She smiled and told me ‘deelatiyana beheth denna’ take her home and give the medicine.

I came out of the hospital holding her hand as the operated eye was covered. We stood on the road in the scorching sun. We were to go to the bus stop to catch a bus. I slowly moved on with her toward the bus stop and asked her about the operation while walking. She replied ‘putha mage ehae inkala’ son my eye was removed.

I have a vivid memory of how she uttered those words to me on the dusty busy road. I was devastated when she broke the news. My granny was my queen and heroin who used to bring me veralu and rabutan from far away village of Welgama. She has lost her eye following a cataract operation even without our knowledge. What a sad state of affairs? Where is the explanation? Why we were not told about this? What went wrong and who is responsible for this? My granny has long gone never to return. Nevertheless my quest for explanation is left unanswered to this day.

In Sri Lanka, instances of patients challenging doctors and health care providers for medical negligence seem to be a rarity. There are a variety of reasons for this. Lack of awareness and funds are the major reason attributable for this and secondly expensive and time consuming judicial process comes as a bottle neck and thirdly there doesn’t seem to be an organised and proper regulatory mechanism in place. Sri Lankan medical professionals probably due to these reasons take it for granted that they are immune from accountability and hence not call upon to answer for medical errors or negligence.

The time is right now for the public to organise and agitate for a regulatory mechanism, at least in line with what they have in the UK. In that country separate Tribunals are in place with judicial powers to deal with matters pertaining to medical fraternity. This may be cost effective and help bring medical negligence Lawsuits against those responsible. In the absence of an effective mechanism to hold them accountable for negligent conduct, doctors tend to take their job less seriously. Preponderance of medical negligent lawsuits will help policing the errant doctors and health care providers.

However the decision to take legal action should not be taken lightly. It can be costly, lengthy and very stressful to the individual. Patient will be required to go over what happened to him or her many times which he may find traumatic and upsetting.

Negligence is the predominant theory of liability concerning allegations of medical malpractice, making this type of litigation is part of Tort Law.

A person who alleges medical negligence must prove four elements:

(1) A duty of care was owed by the physician;
(2) The physician violated the applicable standard of care;
(3) The person suffered a compensable injury; and
(4) The injury was caused in fact and proximately caused by the substandard conduct.

The burden of proving these elements is on the plaintiff in a medical negligent lawsuit and Improper, unskilled, or negligent treatment of a patient by a physician, dentist, nurse, pharmacist, or other health care professional can be held accountable for compensation.

Medical cases are expensive, and are notoriously difficult to win especially for the poor. Not only do you have to prove that the doctor was negligent, you also have to show conclusively that harm was done as a result. The courts are keen to protect the integrity of the health profession and avoid a flurry of similar claims, so it's far from easy to convince them.

Physicians, as professionals, owe a duty of care to those who seek their treatment. This element is rarely an issue in malpractice litigation, because once a doctor agrees to treat a patient, he or she has a professional duty to provide competent care. More important is that the plaintiff must show some actual, compensable injury that is the result of the alleged negligent care. Proof of injury can include the physical effects of the treatment performed by the physician, but it can also include emotional effects. The amount of compensation at issue is usually a highly contested part of the litigation.

Causation may also be a vigorously litigated issue because a physician may allege that the injuries were caused by physical factors unrelated to the allegedly negligent medical treatment. For example, assume that a physician is sued for the negligent prescription of a drug to a patient with an infection and the patient died of acute kidney injury. The plaintiff's estate cannot recover damages for the kidney injury, unless there is sufficient proof to show that the medication was a contributing cause. Therefore the critical element is standard of care, which is concerned with. When a patient is contemplating litigation for medical negligence he must decide on a competent Counsel who could make an assessment of his case to decide if the Client has a strong enough case for him to take on. Counsel will need as much information as possible to do this, patient can provide this by keeping a record of everything that is relevant to the treatment and any correspondence he may have had with the health care provider.