Not that breast
K. Shriyani, a mother of two from Agalawatte, already traumatised by
a breast cancer diagnosis, was in for a double shocker, when she when
she got herself admitted at the Kalutara Nagoda General Hospital.
Scheduled for a mastectomy of her left breast, where the cancer nodules
were discovered, she figured as most patients do, doctor knows best, and
completely trusted her surgeon to do the right thing - that is, remove
the diseased breast and place her on the road to recovery.
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The trauma of
a cancer patient forced into a
double mastectomy due to medical negligence, a common
enough occurrence in Sri Lanka
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She didn't realise just how wrong she was, until she woke up from
anaesthesia to a real life nightmare. Doctor in her case, not only
didn't know best, the doctor also did the worst and removed the wrong
breast. Compounding the first mistake the doctor then went on to up the
notch on Shriyani's trauma, by subjecting her to a second surgery to
remove the diseased breast, giving her a double mastectomy she didn't
need or want.
The second surgery was performed as a response to her complaint, but
the tragic incident brings to light the inconvenient and rarely admitted
reality of medical mishaps that sees patients ending up in trauma,
losing limbs and even lives, with no word of acknowledgement or apology
from the so called perpetrators of the mishap.
In the US an estimated 210, 000 people die every year because of
mistakes and preventable errors in hospitals, making medical mishaps the
third leading cause of death next to heart disease and cancer. Thousands
more have their organs removed and limbs amputated for the same reason.
The degree of medical mishaps in Sri Lanka is not known, purely
because there are no statistics available, and because not many are
willing or educated enough to lodge a complaint or fight for justice.
Yet, recent media history is littered with cases of medical calamity,
the most news worthy being that of the final year law student, Achala
Priyadharshani, who lost her left arm due to the fault of her care
givers,
No relief, no compensation
The law student was lucky enough to be compensated with a prosthetic
arm, but families of others like the five year old girl died at a
private hospital in Colombo when she was taken there for a MRI Scan, and
those who lost limbs and lives have only seen their misfortune multiply.
To err, they say, is human, but it is hard for patients and their
loved ones to accept that human failure as a fact of life. Sometimes the
only thing the victim expects is a few words of apology and perhaps
compensation, but many doctors do not accept that an act of negligence
or mistake has occurred, often hiding behind the cover of their
professional mien.
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Proving medical negligence
The standards and regulations pertaining
to medical negligence differ by the jurisdictions within
countries. Medical professionals have the right to receive
professional liability insurance to evade the possible risk
and costs of facing lawsuits pertaining to medical
negligence. 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. 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.
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. |
In Shriyani, the Government Medical Officers' Association (GMOA) is
already on record claiming that no medical mishap had occurred. GMOA
Secretary Nalinda Herath in a statement claimed that the operation
performed on the right breast of K. Shriyani at Kalutara Nagoda General
Hospital recently was not a surgical error, but that the doctors had
found a malignant tumour in the cells of the other breast following
preoperative medical tests carried out by them before the operation.
"The patient might have made a complaint based on her perspective about
what had happened," he claimed, adding, "The patient is putting her life
to risk by complaining against the doctors and the hospital staff saying
that the wrong side of her breast was operated."
Police complaint
Undaunted, Shriyani's husband, Karunaratne had lodged a complaint
with the Kalutara Police saying his wife who had developed a lump on the
left side of the breast was admitted to the Kalutara General Hospital
and that the surgeon had removed her right breast.
His conviction is backed by the Kalutara Police, with the officer
handing the case, acknowledging that investigations point to the doctors
having committed fault but that they are unable to make any arrests
until the court issues an order. He said they would continue with the
investigations and question the hospital Director and nurses to find out
what really went wrong.
"Our investigations are pending. A case has been filed in the
Kalutara Courts and we are waiting legal advice in order to take
action," he said.
Meanwhile, Media Secretary, Ministry of Health, Nipun Ekanayake,
assured action would be taken against the culprits, once the inquiry is
completed and the reported is submitted. A full report about the
patient's history has been called form from the Director of the Kalutara
Hospital, he said pointing out that the patient had been admitted to
remove a nodule in her left breast.
Director General Health Services, Dr. Palitha Mahipala said an
inquiry was being conducted on the instructions of the Minister of
Health, Nutrition and Indigenous Medicine, Dr. Rajitha Senerath. Acting
Director of the Kalutara Nagoda General Hospital refused to comment on
the incident, claiming the response would have to come from the Hospital
Director, who was out of the country last week.
Legal Action
Explaining how legal action can be exercised against all those
responsible for medical negligence, Attorney-at-Law, M.I.M. Naleem said
doctors have a code of conduct which comprises rules and regulations and
if something happens due to the carelessness of the doctor, it is
considered a medical negligence. "In the recent past a surgeon had mixed
up a diabetic patient with a patient who just had an injury to his leg.
Instead of amputating the diabetic patient's leg, the doctor amputated
the other person's leg. During an investigation it was found that the
mishap happened because the doctor was busy," he pointed out claiming,
"There is no excuse for such negligence."
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Defining negligence
Medical negligence is defined as the
breach of duty of care towards a patient resulting in damage
or injury to a patient. Examples of medical negligence are
the failure to diagnose or the misdiagnosing of an ailment,
misreading or ignoring laboratory results, unnecessary
surgery, premature discharge, improper medication or dosage,
failure to order proper testing and most significantly the
inability to recognise the symptoms of a sickness.
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He further explained that if a doctor has taken precautions and if a
mistake happens beyond that then there is an excuse. Explaining the
process of seeking out compensation, he said it was important for the
lawyer concerned to first get the history of the particular patient,
must collect all the documents with regard to the case and have an
expert opinion from the medical sector. It is only after this a letter
of demand can be sent to the particular doctor who is alleged to have
committed the act of negligence, demanding for the victims right, he
said, adding that was also important to have on record the demands made
by the victim and the relief measures they would accept. "Some people
ask a huge amount of money to go abroad for treatment or for medication
and some are happy with an apology," he claimed.
Naleem also said that if there was enough evidence to prove that
medical negligence had indeed occurred, the court would give reasonable
relief or compensation. He cited the death of a lawyer's daughter as the
first time the Supreme Courts had take up a case of medical negligence.
He said medical negligence was a civil issue under the Roman Dutch
Law and that the victim must be aware of the laws and actions that can
be taken against the perpetrators.
However, for a medical negligence case to be successful, he said
there should be enough evidence. "The victim should write and ask relief
from the particular person and if he fails, he can go to courts," he
said, adding that the amount the victim claims must be reasonable.
He also said if some does not have enough money to go to courts, he
or she can go to the Legal Aid Commission and seek sponsorship.
Reported by Husna Inayathullah
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