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What is medical negligence

Medical negligence is the breach of a duty of care towards a patient which results in, by an act of commission or omission, damage to a patient. This duty is owed by all those professionals who hold themselves out as skilled in medical, nursing and paramedical fields. It arises independently of any contractual relationship. Medical Negligence is established when four main criteria are satisfied:

* The doctor owes a duty of care to the patient.

* There is a breach of this duty by an act of commission or omission

* A casual relationship exists between the breach of the duty and the damages caused to the patient

* Damage or harm is in fact caused to the patient. Source: Basic principles of Medical Negligence by Prof. Ravindra Fernando and Dr. L. C. de Silva.

Legal implications

by Asiff Hussein

Little is it known that several cases of medical negligence against the state and private practitioners are being filed in Sri Lanka at present. Although medical negligence lawsuits were hardly heard of in the country until the Rienzie Arsecularatne Vs Priyani Soysa case some years back, litigation and out-of-court settlements in cases of medical negligence are progressively catching on. Although the high cost of litigation is often a stumbling block to prospective litigants wronged by medical professionals, it is now possible for the more helpless sections of society to have recourse to the Legal Aid Commission(LAC), a state-funded statutory body providing legal relief that has fought on behalf of the bereaved in and out of court and won substantial compensation for them.

This is however no easy task. According to the Executive Director of the Legal Aid Commission, Leslie Abeysekera, proving a professional's negligence requires a higher standard of proof than that which could be applied to an ordinary individual for the simple reason that it has cost him much to attain the professional standing he occupies and also since his professional reputation is at stake. Thus whereas in ordinary civil cases, proof may be established on a balance of probability, in the case of professional negligence, proof should be established beyond a reasonable doubt. Although proof may be apparent in such cases of negligence as wrong injections and incompatible blood transfusions, there are also cases where medical evidence provided by qualified medical experts may be necessary, he explained.

The LAC has however been fortunate in that it has far more financial resources at its disposal than an ordinary private litigant and has therefore been able to effectively handle many such cases against the state and private practitioners and institutions. Abeysekera said that they had filed several lawsuits against the state in cases of medical negligence in government hospitals. In filing such cases, the individual doctors are not named. Rather, the case is filed against the Attorney General who represents the state. The AG would then delve into the matter and in cases where such negligence is established, offers a substantial compensation as settlement from state funds, he explained.

Two such cases have been settled while a third is in the process of being settled. There are a further five or six cases pending mainly due to amputations suffered as a result of wrong injections.

Medical negligence in state hospitals are very often due to carelessness on the part of doctors and nurses and could have easily been prevented, had the necessary precautions been taken. For instance, a case being settled in Panadura involved a woman who ended up having her hand amputated after having entered a state hospital for some minor ailment.

In another case involving an infant at the Lady Ridgeway Hospital, an injection given in the improper manner had resulted in several of her fingers having to be amputated. Abeysekera said that his task in filing cases against the state was twofold, namely to obtain compensation for the victims concerned as well as to expose the negligent attitude of the medical staff in government hospitals so that there would be some reform within the institution. He observed that cases involving negligence in government hospitals are an internal matter and the Director of the hospital should be able to launch an honest inquiry and prevent a repetition.

This however is not done and hence the increasing number of medical negligence cases involving government doctors, he pointed out.

The LAC has also filed a number of lawsuits against private practitioners and institutions, said Abeysekera. An interesting case filed in Kuliyapitiya involved a child who was partially paralysed after having been administered a wrong injection. The defendants included a paediatrician who practised at a General Practitioner's clinic in Kuliyapitiya and a General Practitioner who was later found to be an Ayurvedic physician posing off as an MBBS doctor.

The case was settled after the defendants fearing exposure and adverse publicity offered a compensation of Rs.4 lakhs to the aggrieved party as settlement. Yet another case involved a prominent Colombo-based Gynaecologist who had performed an illegal abortion and put the life of the woman concerned at risk so that she underwent immense trauma. If convicted, the accused risked not only having to pay compensation to the victim, but also losing his medical licence and serving a term of imprisonment.

A letter of demand sent by the LAC on behalf of the victim however resolved the matter out of court with the Gynaecologist concerned agreeing to pay a substantial compensation by way of settlement to the victim. Another case in Galle, still pending, involves a woman who had died after having been given a wrong blood transfusion following a successful caesarian operation. The post-mortem examination has revealed negligence which could be cited as evidence in favour of the plaintiffs, the husband and children of the deceased, added Abeysekera.

Incidents

by Shanika Sriyananda Liyanage

News of alleged medical errors has become a common feature in the English and Sinhala daily and weekly newspapers. The kith and kin of these victims allege that these incidents happen due to medical negligence. Here are some of the incidents of negligence reported during the February to June.

* 13 February: Lakbima - Thushara Nilmini (25) and her baby died after being given 'Sinto' for labour pains at the Negombo hospital.

* March 3: Sunday Leader - Priya Munasinghe admitted after a heart attack, died at the Asiri hospital due to the allege negligence of the attending physician.

* March 6: Dinamina - Chandrika Wickramasinghe (30) died at a private hospital in Matara just two days after the delivery of her baby. Cause of death: The administration of a wrong injection.

* March 06: Daily Mirror - A prison officer's wife died at a private hospital after a caesarean operation, due to a wrong injection.

* March 9: Divaina - Chaminda Predeep Perea (9) lost his right arm due to timely treatment not being given at the Homagama and Colombo National hospitals.

* March 25: Lankadeepa - Sarath Paladeniya (39) a Sergeant of the Special Task Force, admitted to the CNH for high blood pressure, died due to negligence in giving him timely treatment.

* April 2: Lankadeepa - Sumudhu Jayanath (14) from Hanwelle admitted for appendicitis died at the Avissawella base hospital for bowl infection caused by wrong medication.

* April 8: Lakbima - Vihanga Nethmini (3) died at the Dharga Town hospital, due to the negligence of the medical staff.

* April 19: Lakbima - W. A. Ananada, who met with an accident died at the Tricomalee hospital, due to negligence in treatment.

* April 20: Island - An infant died at the Dharga town hospital due to negligence of the staff.

* April 24: Lankadeepa - Mariam Nalika Kumuduni (26) died at the Chilaw hospital after a caesarean operation.

* April 29: Lakbima - Anulawathi Wijesinghe (39) died at the Matara hospital after a caesarean operation.

* May 2: Divaina - V. V. Chandra Malkanthi (37) died after delivering her baby at the Homagama hospital.

* May 15: Lakbima - Sachintha Pramod Ratnayake (2) died at the Kandy General hospital.

* May 17: Lakbima - baby died after delivery at the Nagoda hospital. Mother - Rukmani Dias (28) was in severe labour pains but the doctor did not transfer her immediately to the Castle Street maternity hospital

* June 2: Divaina - Dedunu Kanchana de Silva (23) died at the Ragama hospital, due to lack of proper medical care.

* June 13: Divaina - Jude Stanly (15) died at the Lady Ridgeway Children's hospital after being prescribed filaria tablets without identifying the real illness.

*June 26: Island - Five pregnant women died at the Nagoda hospital after caesarean operation.

* June 27: Dinamina - Sriyani Damayanthi (32) died at the Nagoda hospital due to improper medical care. Where to lodge a complaint

* The Ministry of Health and Nutrition: hotline - 675449, fax 691605.

* Dr. Amal Harsha de Silva, Director Private Health Sector Development: 674680.

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