Medical negligence - the topic of the day
A series of events in the recent past warn us to rethink the meaning
of medical negligence and our vulnerability thereof. In our country,
majority of the patients have a vague idea, or some may even be unaware
of the existence of such a phenomenon. At the present frequency of the
public seeking medical treatment it is not only an occurrence that any
person at any moment is likely to experience but also the consciousness
of such event may even enable somebody to avoid himself or another
becoming a victim.
Medical negligence is a global occurrence but its frequency, cost,
preventive measures, legal aspects and compensation are extensively
studied in countries with developed health care systems where mechanisms
exist to identify and bring such errors to the notice of relevant
authorities. Thus, medical negligence is only a word with relative
meaning and circumstantial..
During a time of disturbance such as a war, natural disaster,
epidemic or an accident involving a lot of people even the serious
nature of errors may pass unnoticed and will become only the things of
USA reports an incredible 195,000 people are killed every year by
medical errors and 15,000 to 19,000 malpractice suits are brought
against doctors! In UK 314,000 to 1.4 million adverse events result in
60,000 to 255,000 potential instances of permanent disability or death
have been reported annually to the National Health Service (NHS).
The subject has been extensively discussed and studied in India but
the statistics are not accurate due to the nature of pluralistic health
care system prevalent.
In our country events that gain wide coverage by media only attract
the public's attention and there is no proper criteria to identify or
investigate errors in health care either in the public or private
sector. The public sector official records of institutes provide health
care is on the books but according to news reports only 400 private
medical institutes have been registered with the Private Health Services
Regulatory Council. The Registrar of SLMC who invariably becomes a
member of PHSRC by virtue of his post, explains the unsatisfactory
situation in the PHSRC and wonders how a body with a bundle of nursing
home agents whose voices are far superior to other members when it comes
to key decisions function for the uplifting of private sector.
There are around 15,000 health care providers of Ayurveda, Unani,
Siddha & Homoeopathy systems and several hundred acupuncture,
naturopathy healers also liable as far as the medical negligence is
concerned who are supposed to be under the purview of Ayurvedic and
homoeopathic medical councils but no process is known to exist to
investigate matters related to the events involving those practitioners
in the state or private sector.
There are also alleged 20,000 quacks (Some say 40,000) including
several thousand abortionists who attend to the patients on a regular
basis but it is interesting to note where they stand as far as liability
In this backdrop we are ages behind the modern concepts of medical
negligence or medical malpractice, but an occasional case involving a
victim is capable of creating a furore such as the very recently
reported cases that hit the headlines for the public to talk for a few
Medical negligence is an act or omission by a Health Care Provider
(HCP) which deviates from accepted standards of practice in the medical
community and which causes injury to the patient.It is obvious not only
doctors but all other non- physician professionals like nurses,
mid-wives, pharmacists, radiographers, etc. who are liable to be
negligent for their duties to be blamed in one way or the other.
There are four types of clinical errors
Error or delay in diagnosis, Failure to utilise investigation
results, Use of irrelevant investigations and Failure to act on results
Procedural errors, Error in administering a treatment, Error in the
dosage of drug, Avoidable delay in treatment
Failure to provide prophylactic treatment, Inadequate follow up
* Equipment failure
* System failure
* Failure to communicate
One can imagine how many instances a patient is liable for varying
types of errors by a variety of health care personnel, fortunately only
a small minority of cases harm the patient leading to the allegation of
medical negligence, though.
There are three forms of negligence, namely:
That in which consequences are foreseen and wrongfully intended. That
in which they are not intended but are foreseen and should have been
avoided. That in which they are neither foreseen nor intended, but ought
to have been foreseen and avoided.
The second event, medical practitioner must always be careful enough
to avoid because it is difficult for him to defend such situation.
Third instance, the law presumes that a health care provider should
be careful enough to avoid the unforeseen dangers because of his
Most doctors and HCP only want to do their best, but when healthcare
mistakes do occur they usually result in little or no harm and in most
instances the patient even isn’t aware that a mistake has been made but
when things go adversely and obviously wrong it is hard for a patient or
their loved ones to accept that human failure is a fact of life.
The situation is aggravated by poor relationship with the HCP or
clinician before the alleged injury.
In foreign countries TV and paper advertising by law firms specialise
in cases of medical negligence. In Sri Lanka, a victim seeking redress
of a medical negligence can make a complaint to the health authorities,
forward an affidavit to the Sri Lanka Medical Council, complain to the
Human Rights Commission, lodge a complaint to the police station or file
a civil court case in the District Court. In high profile cases all the
above events can take place concurrently, but in most instances a
departmental enquiry and police investigations followed by a court case
will be the outcome.
The SLMC Registrar says many victims are not aware of the role that
SLMC plays and laments that complaints are not brought to them. He
explained the protocol to be followed by the victim of the family or his
estate and the lengthy procedure involved thereafter.
The Ministry of Health inquirers initiate action against the accused
probably by appointing a committee or a medical administrator, all
disciplinary in nature and if the element of negligence is proved in the
case of a state employee, the Public Service Commission (PSC) has the
power to take disciplinary action against the accused but the victim
will not be compensated by way of pecuniary measures.
If the Police files a court case it may take a long time, perhaps 10
years. Unless a gross negligence is proved, criminals liability does not
exist. If serious nature of injury or death occurs, the case may be
heard in the lower or superior courts and in the event of appeal ,it may
end up in the court of appeal or even supreme court.
Commissioner of Human Rights, Sri Lanka emphasises the need of firm
legislation to prevent doctors walk away easy after treating haphazardly
and insists that every victim to send petitions to SLMC to take action.
Apart from that he insists the need of more stringent legislation to
stem the carelessness of doctors.
As a whole all the above avenues are time consuming, some are costly
and some lack transparency. Moreover, the victim or the aggrieved party
and the HCP both undergo a gruelling period leaving only frustration,
financial loss, mental agony, and retribution. Those procedures will add
more misery to the victim and the relatives already subject to purported
medical negligence even to the extent of losing a loved one, loss of a
limb, or damage of irreparable nature.
The only option for the victim in the present context is to file a
compensation case usually labelled as case (Wrongful act or infringement
of rights leading to legal liability), a journey down a long pathway, an
adversarial and hangs on balance of probabilities. Even if the victim is
compensated, it is usually years after the adverse event and the award
is reduced by a large percentage that covers legal fees and expenses
associated with the trial. According to a consultant JMO the present
compensation system is financially oriented and far away from the
scientific fundamentals of the medical practice as well as from our long
standing culture religious and humanitarian values. (GMJ Sept.2009)
According to him tort-based medical litigation make the health care
professional and the patient both become victims but benefits the legal
ELEMENTS OF NEGLIGENCE
Plaintiff, the victim or legally designated party must establish all
four of the following elements for a successful medical negligence
1. A duty was owed. A legal duty exists whenever a hospital or health
care provider undertakes care or treatment of a patient, formally or
2. A duty was breached: The provider failed to confirm to the
relevant standard care.
3. The breached caused the injury- The breach of duty was a proximate
cause of the injury (Causation)
4. Damage Without damage ( pecuniary or emotional ) there is no basis
for a claim.
Medical negligence cases can drag on as long as ten years to come to
court, at great expense, and are notoriously difficult to win. The
courts seem keen to protect the integrity of the health profession while
being very considerate to medical practice regarding medical negligence.
In civil suits the victim or the legally designated party on behalf,
has to prove all the elements by preponderance of evidences but if both
parties agree, the case may be settled pretrial, on negotiated term.
Failing to do so, the case will proceed to trial.
Expert witnesses invariably emerge from both parties ,usually a
qualified medical personnel with expertise and experience in the
particular issue accepted to the court.
In the civil law if someone does any harm he has to pay for it
irrespective of he did it willfully or negligently or by inevitable
accident. In such cases he has actually done harm and therefore is bound
to undo by paying compensation. The principle in the civil case is the
transfer of loss from the plaintiff to the defendant by enforcing
BOLAM TEST, BOLAM TEST SUPPLEMENTED BY BOLITHO
In UK, Singapore and some other countries the standard of care in
medical negligence case is determined by Bolam test based on Bolam v
Friern Hospital Management Committee in 1957, which recognises that
there may be several school of thoughts regarding proper medical
management, which allows medical practitioners to rebut a charge of
negligence if they can convince that they acted in accordance with
practice approved by a body of other responsible practitioners. A more
refined concept of Bolam test identified as Bolam test is supplemented
by Bolitho, a result of the case of Bolitho v City & Hackney Health
Authority requires that, to be acceptable to the courts, the standard of
practice determined by the test must be amenable to logical analysis.
This seems to be the base of judgement in many lawsuits in which courts
are entitled to disregard the expert or body of expert opinions if shown
to be illogical.
In Sri Lanka Arsakularatne v. Priyani Soyza is a landmark and
controversial case of alleged medical malpractice. Apart from being the
first such case in recent times, it is a high profile case where the
principal parties are well known professional in the country. After a
lengthy legal battle extended to seven years SC held that causation was
not established on a balance of probabilities by the plaintiff.
Another case was settled for three million pretrial involving an eye
surgeon and anaesthetist.
A foreigner died after a laparoscopic cholecystectomy surgery at a
city hospital alleged to be due to medical malpractice but the relatives
rushed back to their country with the body without being subject to
formalities such as post mortem , preliminary inquiry etc. so no case
was filed but the allegation remains that an oncological surgeon has
undertaken a job of general or gastrointestinal surgeon, a potential
case of gross medical negligence.
In India & some middle eastern countries redress mechanism based on
non judicial compensation by employing redress mechanism based on
mechanism under Consumer Protection Act. However those who receive free
treatment cannot be categorised as consumer, therefore shall not be
eligible for any monetary reward making it applicable only to fee
levying health care.
NO PERFECT SOLUTION
There seems to be lapses every where resolving the complex situation
of medical negligence, from medical point of view Health care providers
are human and everyone makes occasional mistakes, especially when under
immense pressure. Despite their best intentions, doctors personal lives
occasionally slip into their professional lives. The implication of such
lapse in concentration can be far more disastrous.
The studies in developed countries reveal that claims of medical
negligence accounted for 78 percent administrative costs, including
legal fees. In other words every dollar offered as claims 78 cents
spent!. Doctors, HCP, Insurance companies and patients criticise
litigation as expensive, adversarial, unpredictable, and inefficient.
Too many constraints have resulted in DEFENSIVE MEDICINE in some part of
the world and in our country as well . There is a tendency in USA for
some doctors to leave states with stringent laws to lesser areas like
Texas. 10 percent Obstetrician & Gynaecologists have stopped delivering
babies as a result.
Majority of doctors in developed countries are covered by medical
liability insurance but the premiums of such instruments are far from
cheap. In UK, NHS employed HCP including doctors are covered by NHS
Indemnity Arrangements for Clinical Negligence Acts and Omissions
(IACNA&O) but excluding criminal negligence. Our country the liability
schemes are emerging from time to time but I wonder how many HCP
including doctors are really in possession of such coverage. Recent
chain of incidents again come up with free medical liability covers
along with motor insurance, a novel idea but details are yet to know.
As a health care provider for more than four decades in more than a
single field I make following observations which demand attention of the
authorities to reduce negligence..
Medical negligence is a multi factorial phenomenon. In any health
care set up, reliability depends on adequacy human or logistic
resources, expertise, responsibilities and liabilities of the HCP, above
all attitudes.. To reduce the events of malpractices contributing
factors must be minimised. Shortage of professionals with expertise in
the public as well as private sector are contributing factors for
negligence and less skilled substitutes to undertake such tasks.
Developed countries HCP spend their whole working hours in the hospital,
more accessible with no other commitments, less exhausted, handsomely
remunerated as well. Still negligence do occur. Therefore it is not
unusual to hear of negligence cases in our set up where doctors
undertake complex tasks involving critical care are extremely busy
result in , exhaustion and fatigue.
A Fund seems to be an option to make fast track relief to the victims
of medical negligence /malpractice/mishaps. Immediate relief after a
preliminary inquiry by an impartial authority/body may even bring down
the provocation of the victim and public as well. The composition and
credibility of such an outfit will be the next decisive factor but to me
it must be not all medical personnel but a combination of legal,
administrative, judicial and social personalities.
The writer is a registered Medical Laboratory Technologist and
Father alleges overdose, hospital denies it :
Teenage boy administered anaesthesia for surgery dies
Yet another death has been reported in the city following
complications of anaesthesia administration. This time it is 16-year-old
R. Abhishek, who died after he suffered a cardiac arrest during the
The boy, who was admitted to Panacea Hospital in Basaveshwaranagar on
March 17 for a gynecomastia surgery (essentially a cosmetic surgery to
reduce breast size), was shifted to Columbia Asia Hospital in
Yeshwantpur on March 18 after he suffered the cardiac arrest. After
battling for life for nearly 48 hours, the teen breathed his last at
Columbia Asia Hospital on Wednesday.
In a state of coma
Columbia doctors said he was brought in a state of coma with maximum
life support on March 18.
Denying medical negligence, C. Jayanna, managing director of Panacea
Hospital, said the boy suffered a cardiopulmonary attack as soon as he
was given anaesthesia. “Our doctors immediately revived him and put him
on ventilator. He was shifted to Columbia Asia as the family wanted it.”
Kamala Janakiraman, head, medical services, Panacea Hospital, said
the boy was given general anaesthesia and also a local infiltration to
reduce bleeding in the local part during surgery. “It is not an overdose
as alleged by the parents.”
Both facilities criticised
Abhishek’s father, S. Ramesh, Superintendent in the Horticulture
Department, Gadag, told The Hindu he believed it was an anaesthesia
overdose that killed his son during the surgery to remove “lump in the
chest region”. He also blamed Columbia Asia Hospital for keeping the
family in the dark about his son’s condition and not informing them that
he was “brain dead” after he was admitted.
However, he said he would not file a police complaint as the family
was averse to handing over the body for a post-mortem that would entail
lodging of a police complaint.
The family took the body away to their residence in Kodigehalli for
Abhishek had recently completed his I PUC at Vidyamandira in
Malleswaram and was looking forward to joining II PUC.
Woman goes into surgery, dies on operating table
A 31-year-old woman from Denkenikote near Hosur, who had come to the
State-run Victoria Hospital for an ear surgery, died in the operation
Asha’s husband Devaraj, who had accompanied her, alleged that his
wife died of anaesthesia overdose. “My wife was fine except for an
earache till she went inside the operation theatre at 8.30 a.m. The
doctor came out after an hour and asked us if she had epilepsy. When I
said no, he went back and returned to inform us about her death. How can
He has now filed a complaint of negligence with the Victoria Hospital
police. But the latter have registered the case as mysterious death
under Section 174 C of IPC.
Asha’s family claimed they were not allowed to see her body even till
late evening. Her niece, Jamuna, said: “Asha dropped her 11-year-old son
at school in the morning before coming to the hospital. Soon after
administering the injection, the doctor came and asked if she had any
[pre-existing] medical condition as she had fits. After a while, we were
informed of her death.”
‘Heart attack’ However, Victoria Hospital medical superintendent G.
Gurushankar said the patient had suffered a heart attack after being
administered a pre-anaesthesia injection. “She suffered a heart attack
even before she was given local anaesthesia for the surgery.”
Mr. Devaraj said his wife had been consulting the ENT specialist,
R.K. Dutta, at Victoria Hospital for the past one month. “When we came
last month, she was prescribed some medicines and asked to come back if
the pain did not subside. When we came yesterday, the doctor said she
should undergo surgery and fixed it for Thursday.”
Though the hospital charged Rs. 5,000, he could only afford to pay
Rs. 4,000, but did not receive a receipt. Asha’s mother Sarojamma said
her daughter had no medical ailments that could trigger a heart attack.
No one had the heart to tell her grandson, who had returned from school,
about his mother’s death. This death comes close on the heels of a
three-year-old who lost his life after doctors at a clinic in HSR Layout
allegedly administered an overdose of anaesthesia for a supposed root
canal procedure on February 6.
‘Our baby died a painful death’
Bengaluru: The parents of Shirish Lokesh, the three-year-old boy who
died after three cardiac arrests, claim that they had not consented to a
root canal procedure as advised by the dentist, Dr Raviraj. Accusing the
doctor of gross negligence and greed for money, Shirish’s father, Lokesh
K.S., claimed their son underwent severe trauma during the last few
hours of his life.
A distraught Asha Lokesh, the boy’s mother, told this newspaper that
they were told about the procedure after it had been performed.
“We came to Annaya Health Care Centre two months ago for a
consultation because my son complained of toothache in the right lower
jaw. Dr Raviraj said his tooth was decaying and advised us to get it
filled. The appointment was fixed for Wednesday at 7:30 am, and he took
my son inside the moment we arrived. He put a mask over Shirish’s face
and when I asked what it was, he said it was oxygen. Within five
seconds, my son was asleep. I was sent out while the operation was being
performed. Two hours later, Dr Raviraj came and told us he had performed
a root canal treatment. We would never have agreed to it in the first
place,” she said.
Alleging that they were made to sign a consent form after the
operation had been performed, Asha said, “Why would a child, who is
barely three years old, require a root canal for his milk teeth? After
the procedure, the doctor told us our son was asleep, and showed us his
teeth. Instead of a cap only on the right side, there were caps on both
sides of his lower jaw”.When Asha saw Dr Raviraj’s tense face and heard
him speaking in hushed tones to his assistant, she realised something
was terribly wrong. She called her husband, who came to the clinic
“We told them to shift Shirish to a hospital three buildings away,
but they kept saying his pulse needed to be stabilised. Dr Raviraj’s
brother, Dr Dhanraj, also came to the centre and insisted on keeping
Shirish there. We saw them continuously beating Shirish’s chest and
administering around 20-25 injections in less than 90 minutes. It was
only after he was shifted to Garden City Hospital in Jayanagar that we
were told our son had suffered three cardiac arrests in the clinic. He
died a very painful and torturous death,” cried a tearful Lokesh.
Shirish would have turned three years old on March 12. The family had
planned a grand celebration with their relatives and school friends.
Madhu .M, a family friend, said Asha had to stay strong for her
first-born, Monish, who was only 10 years old.
“She cannot go into depression now, her son needs her. We had planned
a big party for her birthday this month, and a huge bash for Shirish in
March, but fate had different plans,” she revealed.
- Deccan Chronicle