Medical Negligence in Sri Lanka
A
Comparative Analysis of Medical Negligence Compensation in Sri Lanka for the
Protection of Patients
HLNS Chandrasiri
Centre for the Study
of Human Rights, Faculty of Law, University of Colombo, Sri Lanka
#nadeeshahl@yahoo.com
Abstract -
Sri Lanka provides free health services to all the persons in the country
through establishing and maintaining nearly five hundred government hospitals
in every province and district. Sri Lanka scored 76th place in World Health
Organization statistics with higher regional life expectancy and lower maternal
and infant death rate. This study analyzed the level of duty of care maintained
by the trained medical staffs in Sri Lanka, in order to secure the betterment
of the patients. The situations had reported where mistakes and errors of
medical professionals’ duties lead to physical, mental injuries or even a death
of their patient. But, in practical a handful of medical negligence litigations
are hardly to find out. In this research journey, both primary and secondary
medico-legal sources were attracted to follow the qualitative research method.
Finally, the study analysed the success stories of consumer protection,
insurances, and strict liability in other jurisdictions with comparative
jurisdictions.
I. INTRODUCTION
From the day man being civilised always look
to believe in keeping orders. Then gradually introduced the concept of law in
order to protect the innocents due to an unreasonable act or omission of
superior. Usually the remedy is in seek of pecuniary damages or punitive
damages. Same ideology is with medical matters of today’s engagement of
development. Actually no one is perfect with everything. Even a person who is
well knowledgeable with the special skill might do mistakes. This is same for
medical professions also where their mistake can lead to minor injury or
sometimes for severe injuries as death. However, there has to be a justice and
a satisfactory remedy to the victims of medical negligence. Best interest of
the patient (consumer) is the purpose even it is a patient oriented or medical
professional oriented. On the other hand, professional negligence is a one term
and medical negligence is a special branch coming under members of professionals
and services.
II. METHODOLOGY
This research is looking for analytically
evaluate the ups and downs of prevailing medical negligence compensation law to
protect consumer with the great expectation of achieving the research question
and objectives as stipulated. In
practical, for several years the health professionals, administrative of
hospital and innocent patients have been struggling with awarding compensation
in breach of owed duty of the liability with a medical negligence. However,
medical negligence lies completely with civil law and case facts. Criminal
negligence is another view that rarely practice. Four elements as duty, breach
of duty that duty made damage and causation between duty and damage need to
prove in order to win negligence litigation by the plaintiff the person bring
the action. So, the defendant does not need to prove his innocence. However the
doctor’s legal representatives within his protection society will energetically
present their side. An exception to general burden of but it will be great if
proof the onus can shift to doctors to prove that was not negligence. Today,
there are more successful methods following in all throughout the jurisdiction.
Countries like India are been following statues like consumer protection. New
Zealand, Sweden and Finland are some countries that attracted by no-fault
system that victim (consumer) is compensated irrespective of medical negligence
of medical professions and administrative. Other than that professional
liability insurance is famous among most Americans as an essential coverage to
physicians and other medical professionals like dentists, nurses, pharmacists
in order for liabilities arising out of negligence that results in patient’s
injuries and death.
III. ANALYSIS AND DISCUSSION OF FINDINGS
A
Analysis 1) Negligence in general
The modern law concept of negligence light up with concept
of ‘love your neighbour’ from the wording of Lord Atkin’s at 1932 case law of
Donoghue v Stevenson. With the merits of the negligence the interpretation from
Palsgraff v Long Island Railroad Corporation, Hay or Bourhill v Young, Caparo v
Dickman, Hill v Chief Constable of West Yorkshire and Osman v UK grow up with
new vocabulary including foreseeability, proximity, fairness, justice and reasonableness
even in the absence of a contract. So, the traditional definition brings up
with the idea of take reasonable care to avoid acts or omissions which can
reasonably foresee the damage to your neighbour as well as your ultimate
consumer.
Theoretically, law used to satisfy duty,
breach of duty, damage bring with breach and causation with four elements in
order to establish negligence according to authority of Lochgelly Iron and Coal
Co v McMullan.
2) Medical Negligence
Medical negligence is a special branch from
negligence. It leads to a complaint or litigation about inadequate standard of
medical care given to a patient. Bolam test is the indicator that looks for
four elements in the failure to perform an owed duty with a reasonable degree
of skill and care in the diagnosis and treatment of a patient causing damage in
some bodily, mental of financial disability In most of the countries there are
societies, non-profit organisations that advice, defence and insurance on their
medical professional members. Civil and Criminal medical negligence are the two
types generally followed by every jurisdiction all over the world. Medical
negligence litigations are very serious and need a deep concentration with
medical and legal technological and terminology practicality. In reality there
are few alleged medical negligence cases are reported. Some cases have gone up
to courts and most of them have been settled outside. So, it is hard to find a
simple or clear cut of medical negligence litigation that award compensation.
Often the lawyer have to collect a great deal of information and wisely analyse
all circumstances. Ankur Arora Murder Case
is a brilliant movie directed by Mr. Suhail Tatari which lime light the
well-known medical profession’s act of omission to perform an owed duty cause
to a breach in medical negligence. It is a story of innocent boy who was unable
survive after an appendectomy due to negligent pre operational care. However,
mother of this boy strong enough to expose the fatal flaws in medical profession
throughout the film.
3) Civil medical negligence
Sometimes civil medical negligence is known
as malpractice. In general terms all patients have their right to expect
satisfactory, standard medical care, treatment, management from the admission
and after care. Everyone complete their duty with some self-confidence and
guarantee success with the academic and clinical practices they gain from
training and experiences. But, sometimes biological factors play a role
producing an unpredictable outcomes. However, the patient is entitle to receive
financial compensation if the patient is able to prove the harm or loss which
resulted due to the commitment or inability to performance the reasonable
standard of medical care by the medical professional. The rational of awarding
damages by a civil court is to resuscitate the financial loss suffered as a
result of breach of medical professionals. Even in Sri Lanka at civil courts
(district courts) award compensation for physical and rarely mental damages cause
by breach of owed care by medical practitioner. The critical question that
courts ask that should be affirmative to be guilty of the medical professionals
is whether the respondent doctor would have done or omitted to do as an average
doctor of the same seniority and experience in identical circumstances in
relation to the condition of the patient and the place in which the examination
and the treatment was conducted. Sometimes there are crystal clear situations
“the factor speak for themselves” (res ipsa loquitor) and that situation shifts
responsibility of burden to prove to medical practitioner. In some situations
the civil courts has to adopt the procedure to find out from peers about
opinion regarding medical issues. The fact of the case are placed for
clarification before the experts whether that act is accordance with the
reputable and acceptable medical practice. In many countries there are medical
protection societies which will offer insurance cover against alleged breach of
owed duty of medicine by the professionals. So, in this tort system under civil
cases even a serious harmed patient does not able to get any certain
compensation if the matter failed. General sense that the legal process is very
slow and take several years including expenses. Therefore only a few people
will bear the time and money consumption at the medical negligence litigation.
To overcome the unfairness in the civil litigation most of countries like New
Zealand, Finland, Sweden and Norway introduced no-fault system to their
patients of victims who seek compensations for breach of a medical negligence. This
system is test not the medical practitioner’s negligence but the patient
centered safety. Usually, this system is funded from the employers, employees
and state to pay the patients who select the no-fault system. Actually no fault
system is like a strict liability that does not need the proof of damage
caused. The only thing the patient has to prove that medical profession was in
breach of the owed duty to care that is to receive compensation for the
damages. As there are two side in one coin the only disadvantage of the no
fault system is, this system able to pay a small quantum only. No fault system
is a method that is for ‘all or nothing’. Accordingly, the burden of proof has
to achieve at least fifty one percentage in order to win the claim . On the
other hand if the result is forty nine percentage then the patient has nothing.
Patient losses everything available in the case matter. So, this bring
frustration to the severely damaged patient, if the patient does not file a
tort suit at civil courts against the medical practitioner who breach the owed
duty of care within his authorised profession. Litigations are extremely
expensive and take more time. Usually rich people and poor’s who gain legal aid
can fight for this. Another sad situation is its extremely difficult to get
medical opinion in favour of patient who suffers the breach of medical
negligence. All most all of specialists would not like to give their opinion
against their colleagues in professions as expert opinions or secondary opinion
delivery.
4) Sri Lankan judges’ view on quality of
standard
Quality of standard of medical practice is
always look through the evidence of competent medical practitioners in the
regarding field. So, the most relevant and only reported case in Sri Lanka is
none other than the Arsecularatne vs Soya. During 1994 at the District Court of
Colombo called for a neurologist, neurosurgeon and two Professors of Pediatrics
in order to secondary medical evidence. According to the case facts defendant,
Professor Priyani Soysa consultant who took the consultation and undertake the
admission of baby Suhani Arsecularatne to the Nawaloka privte hospital.
Treatment went about a month but no signs of recovery or healing other than
deterioration of her condition. Eventually, little baby died. According to the
trial judge, the Paediactric Professor Priyani Soysa misdiagnosis which could
have been prevented if respondent, Paediactric had shown more care and
attention to her patient. The respondent was found guilty of medical negligence
for failure to diagnose a brain stem glioma (brain tumour). Medical
practitioner diagnosed as rheumatic chorea. At the Appeal Court judges found
the medical practitioner negligent on the grounds of failure to take proper
history of the patient. Also failed to record the history took and prescribed
simple investigation called CT scan to the baby patient. According to the trial
it was pointed out that diagnose of rheumatic chorea had made without recording
and considering inconsistence symptoms with such diagnosis. The surprise is
that it is possible that doctors do not record the clinical observation but in
reality it pointed out that lapses get highlighted. In the court there need
every reasonable evidence that medical practitioner had done everything to come
to the reasonable decision according to the circumstance. The court can come to
a conclusion at the time if the bed head ticket of the baby Suhani had a
reasonable notes. Generally the medical practitioner records important positive
and negative features of the patient and not all things in the bed head ticket.
However, Court of Appeal declared that “a doctor who considers too important not
to condescend to write history on a bed head ticket or make referral notes
herself cannot be expected to have treated the child or parents with care and
respect, nor given herself sufficient time to investigate and reconsider her
initial diagnosis of rheumatic chorea’’. The trial judge’s view was that
“Negligence, if admitted in law, is a feature of the present and past. A doctor
is expect to treat the child to the best of the practitioner’s ability,
irrespective of what is take place in the future. An extended peep into the
future with the knowledge of medical science as it exist in the present, cannot
be used as a weapon to sward off the evil effects of our present or past action.”
If this happened today, court might seek expert assistant under Recovery of
damages for death of a person Act, No.2 of 2019 to determine parents on the
death, loss of the love affection, care and companionship.
5) Duty of medical practitioner and rights of
patients
Generally, The Americans are used to practice
patient oriented standard. According to Canterbury v Spance the patient has the
right of inform and medical professionals are under a duty to disclose all the
information. But, the final selection is with the patient. The British are attracted by medical professional
oriented method. According to the Sideway doctor has the selection of what to
disclose and not, to the patient. As a medical practitioner should always be aware
of recent developments as a common knowledge including the knowledge of
accepted methods in history taking, clinical examinations, investigations,
diagnosis, treatments, prophylaxis, therapies and care after treatments. There
are some situations that junior working for long hours and tiredness or
untrained can leads to loose skill and making judgements. So, there can be
situations these fatigue or lack of knowledge neglect the necessary step or
doing incorrect procedure and lead to a breach of their owed duty as medical
practitioner and liable to medical negligence compensation awards. In practical
there were some incidents that untrained blood bank medical officer’s incompatible
blood group cause the death of a patient. Also, doctors, nurses, pharmacists
and other relevant medical professionals should consider the warnings,
circulars, quality failures, side effects send through health services and
regulatory committees regarding drugs. No excuses for being in a rural area or
village. Reading a recognised journal like Ceylon Medical journal, British
Medical journal and Lancet is very helpful to gain the new knowledge. As a
practice medical professionals enter all information in bed head ticket from
the arrival for diagnosis, clinical findings, and investigations until
consequences follow ups even after discharge. But most of the busy senior
doctors in Sri Lanka used to write minimum or ask their juniors to write in
detail in the bed head ticket.
The duty to inform complete information to the patients
about the risk of a proposed treatment while giving details benefits of the
treatments. The patient is entitle to know what is done even when the patient
is not in a position to assess like anaesthetized. Even though the medical
professions are not need to admit negligence but patients have a right to know
everything to the fullest disclosure of what was committed and omitted even at
things went wrong. When competent
medical professionals brave enough to follow a procedure for the first time
which is not yet approved through clinical trials or science has not yet
currently use to save lives does not considered as accepted practice of
medicine. So, in these circumstances patient has a right to well inform of the
procedure of experiment. On the other hand when new technology goes better than
the old methods, the old fashion has to tail off and act as minority practice.
So, the patient has the right to ask for new accepted technology in their
procedure of medical care. Another interesting fact is that other countries,
including Sri Lanka proving a medical negligence against a medical
professionals is a strange subject matter. As average people cannot compel
doctors or other medical professionals to ask for medical records of his or
relatives. Even the law has not yet consider this area much. But the patient
has a right to ask a copy of his or her medical record even for a nominal price
if it is a property of medical professionals and hospital. According to section
33to 35 of the Supreme Court Act 1981 of
England provide authority for High Court to order, to have possession and
disclose all documents before filing a case.
According to common law authority in
McCormank v Redpath Brown and Company and another complain made on medical negligence liability
of doctor and the hospital. But, the final declaration was that hospital was
ordered to pay damages considering as that young and careful doctor had done
his best to the circumstance even though he was having lack of sleep and tired
working for thirty hours. This a good example that suit for Sri Lankan
consideration with under staff status and lack of facilities in unprivileged
government and private hospitals. But sadly, Sri Lankans used to follow English
or other jurisdictional cases blindly been expecting to perform beyond
available resources without thinking the real condition and standard of care in
those countries.
6) Criminal medical liability
Beyond reasonable doubt is the burden of
prove that expect in criminal offences.
In criminal medical negligence litigation required the type of degree
should amount to criminal offence. In civil medical negligence the patient who
suffers can made a complaint against the medical professional with the
intention of pecuniary compensation is the most famous type in most
jurisdictions. But in criminal medical negligence charges bring punishments as
punitive compensation award to the alleged medical negligence of medical
profession. The mens rea that amount to deliberate wicked, reckless, rash and
had scant disregard for the life and the safety of their patient. Generally
criminal medical negligence is here before the magistrate court or the high
court in litigation. Sometime this kind of criminal wrong can be consider much
more serious than a negligence at judgments. As there is no malice or pre
mediation to destroy the life of the patient and direct action situation is
different from murder. But the sever carelessness or lack of fore thought can
consider as culpable homicide not amounting to murder according to Sri Lankan
Penal Code and manslaughter in the United Kingdom. According to section328 of
Sri Lankan Penal Code a medical professional can be held liable for criminal
negligent act of rashness causing patient hurt. The punishment is maximum six
month imprisonment and a fine. Section 389 is for grievous hurt cause by the
negligent act with the award of two year imprisonment and a fine. Finally, if
death caused by the negligent act can give five year sentenced of imprisonment
and a fine. Actually in practical here
have been very limited number of criminal medical negligence charge for the
breach of owed duty by the medical practitioners in all over the world
jurisdiction including Sri Lanka. Most probably the reason is state who has the
power reluctant to prosecute the noble people in medical profession. But,
someday the state will prosecute the medical professionals for their breach of
owed duty for the commitment of negligence like damage cause due to the influence
of drugs or alcohol or cause a negligence during a trade union action fails to
attend on emergency service. Even though civil responsibility have immunity for
trade unions but criminal commitment looks in different spectacle considering
best interest of the patient at the circumstance with informed consent and lack
of adequate resourses in developing countries.
B
Discussion of the results of the analysis 1)
Medical professional insurance
Typical insurance policy respond for bodily
harm, property damage or other forms of insurance cover employers, product
liability and any other general circumstances only. But medical professionals
can give rise to legal claims under the name of medical negligence. But without
any specific clause in those general policies in insurances reluctant to
perform. Under professional liability insurance the special policies like
error, omission or negligence act committed in the insured’s medical
professional duty based on circumstances are obliged to cover claims made
during the policy period. Majority of
American doctors, dentists, psychologists, pharmacists, optometrists, nurses
and physical therapists require to consider this type of medical insurance for
their professional career. Depend upon the location and nature of medical
practice insurance differs. Sometimes federal (USA) government made the
insurance against medical negligence liability to protect the medical
employees. Generally medical professional insurance coverage seek to protect
medical professional and the business surrounding too. All the expenses in
medical negligence litigation including attorneys’ fees, court costs,
arbitration costs, settlement costs, compensation, and medical damages usually
consider under indemnity covering. Medical professional insurances does not
cover criminal acts, sexual misconducts and misbehaviours. Enhance patient
safety and nonjudicial compensation by replacing tort liability is always
intended as USA, being patient oriented country.
2) No fault system
No fault system is a new successful era
introduce at the failure of civil and criminal medical negligence like practice
in Sweden, Finland, Norway and New Zealand. It is not seeking for the doctor’s
negligence at breach of owed duty but always wish to pay attention for the patients
need. Even though no-fault is a supplement with advantages there are few
regrets in this system too. The main disadvantage is difficulty in identifying
qualified subjective area for compensation. No fault system is unfair for the
patients who suffer a serious medical negligence as the compensation award is
minimal and hardly pay a large number of monetary amount. As funding comes from
government, local council and physician.
The basics steps to no fault system is so flexible. The victim patient
makes an application in order to get compensation for medical negligence
(malpractice). Then at the time notification made by the expert panel to the
physician, has to give a written report about damages and procedures. Next,
during the primary investigation has to determine the eligibility of the
application and medical report. If the patient supposed not to appear before
court the panel have to interview the physician. Panel also can call for
witness when necessary. No fault system does not intend to replace court
system. Within six months medical negligence compensation for breach of owed
duty will awarded.
3) Consumer Protection Act
Magna Carta is the first charter which took
the attention of consumer. 1986, Act of Consumer Protection in India replace by new Bill of 2019 with the
intention of protecting consumer within the wide spread of business network.
The consumer disputes Redressal forums are the statutory established courts
specially to hear the consumer litigations. Section 7 of 2019 (S.2d of old Act)
identify a person who avails a service for a consideration knows as a consumer.
Whereas the deficiency of service which lead to an injury to consumer by any
act of negligence or omission or commission defines under section 11 of new Act
(S.2g of old Act). Multiplier is a successful compensation calculating
method. During 90s Mrs. Auradha Saha
visited her hometown Kolkata, India. On their journey she died due to an
overdose of a wrong drug prescription by a negligent doctor for treating her
skin allergy. Her husband doctor Kunal Saha initiated the legal battel against
the negligent act of medical professional that led to the death caused by
breach of an owed duty. Mr. Kunal Saha have relentlessly fight for fifteen
years in order to establish the justice for innocent patients like her wife. On
August, 7th, 2009 the Honest Supreme Court of India held four Kalkata based
doctors and AMRI Hospital of Kalkata guilty for death in a historic judgement.
The highest consumer court of Indian National Consumer Disputes Redressal
Commission (NCDRC) made the award for late Anuradha. This was the highest
compensation awarded in India up until date. Awarded compensation of 1.7 crore
of Indian Rupees on October 21st, 2011. Indian society are more proactive and
lot of organisations and societies have raised like ‘People for Better
Treatment ’ in order to bring a safety towards the victims of medical
negligence. However, the provisions of Indian consumer protection Act usually
working with the government health institutions excluding where all services
are deliver free of charge. Act of consumer is also reluctant to apply with
free of charge services. There are lot of people even in Sri Lanka keep severly
suffering every day due to some kind of breach of medical negligent owed by a
medical professional. Sarla Verma and Nizam institution cases are some
successful compensation awarded cases. Susamma, Trilok Chandra and Charlies are
best examples where the development of law looked forward to consider consumer
protection with colloborating no fault compensation method.
Sri Lankan legislature introduced 2003 a new
Act, the Consumer Affairs Authority No.9 with the hope of alleviating the
weaknesses and limitations with the prevailing legislates by replacing the
Consumer protection Act 1979. As stated in the preamble aims by way to provide
for the better protection of consumers through the regulation of trade and
services against unfair practices. Same wordings are reiterated in Consumer
Protection Act of India and Sri Lankan Consumer Affairs Authority No.9 of 2003.
As example section 75 of Sri Lankan Consumer Affairs Authority Act 2003 define
consumer and services as same as Indian Consumer Protection Act section 7 and
11. Specially, the definition of consumer and services are well matched. So, it
is a green light to get use of consumer protection at medical negligence
litigations as from Indian statutes and common law.
IV. CONCLUSION AND RECOMMENDATIONS
Among the above discussed
compensation methods for medical negligence, Sri Lanka can adopt selected
comparative methods to enhance patient safety a replacement for civil (tort)
liability. Medical professional insurance method can be a good indemnity to
protect consumer (patient). Government funded (full or half) for government hospital
medical staffs or individual funded (medical professional) insurance against
medical negligence only arising for the provision. Government can make this as
a mandatory policy as in some states in USA. No fault compensation system and
consumer protection Acts are usually appreciated by nonjudicial compensation.
While no-fault system does not need any evidence of damage cause by the medical
negligence while consumer protection act has to go through with statutory
provisions to define consumer, services and deficiencies to win the case. In no
fault system medical professionals come forward with their patients to improve
the whole network in medical system. As no fault system is a flexible
compensation award for settlement claims within six months. In consumer
protection Act being a consumer has more rights than a layman. Even though
no-fault system has been well operating over twenty five years in top ranked
humanitarian develop countries, the final award is a small quantum of
compensation and it is a ‘all or nothing’ method that sometimes frustrate the
patient (consumer). The patient who consider as a consumer has more rights with
medical negligence compensation than before. However, professional medical
insurance, no fault system and Consumer Protection Act will be better helpers
to fill the gap when comparing other jurisdictional methods for medical
negligence compensation. The people of Sri Lanka have to be more vigilant and
enthusiastic on judicial activism on medical negligence compensation. There are
lot of ‘Suhani Arsecularatnes’, Auradha Sahas been dying every day asking to
enhance consumer (patient) safety with assured compensation for medical
negligence breach. However, the best story about medical professionals and
medical negligence litigation compensation revealed in Hatcher v Black as
professional reputation is as dear to professionals as his body. But an action
for negligence can wound his reputation.
Recommend to analyse merits of prevailing
medical compensation law and evaluate the protection available to patient as a
consumer through medical professional indemnity insured without any evidence of
damages.
ACKNOWLEDGEMENT
It is an opportunity to forward my heartiest
gratitude to dear Mrs. Anusha Wickramasinghe, Dr. (Mrs.) Dhammi Luwis Hewa and
my family members.
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AUTHOR BIOGRAPHY
The author Nadeesha Chandrasiri is a master student in the Centre for Human Rights and Democratization, Faculty of Law of Colombo of University, Sri Lanka. She has completed her LL.B (Hons.) from University of London, and obtained a LL.M from University of West London with a Merit and distinction for her dissertation. Her research interests include Law of Delicts, Human Rights Law and Consumer Protection Law.
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