The Modern era gradually evolved the sufficient supply of healthcare services in resonance with upto date treatments and procedures, deemed helpful for curing different diseases which usually involves higher risks of breach of duty of care and also brings in vulnerability in respect to doctor relation relationship (DPR). When trust and vulnerability meet in the sacred realm of healthcare, medical negligence casts an ominous shadow, leaving victims in its wake. A patient approaches a doctor with a perception that the doctor will treat the disease with the best of his ability while maintaining reasonable duty of care however when a doctor fails to do so it results into the inscribe ambit of medical negligence and such act of doctor makes him liable to all the injuries and damages caused in failing to exercise the duty of care. International convents and parchments ensure the quality of the standard healthcare facilities such as Right to Health Report by Office of the United Nation High Commissioner For Human Rights, WHO Constitution, 1964, Article 25 of the Universal Declaration of Human Rights, The International Covenant on Economic, Social and Cultural Rights (1966), Declaration of Alma-Ata, United Nations Millennium Declaration and Millennium Development Goals, General Comment No. 14 (2000) issued by the United Nations’ Committee on Economic, Social and Cultural Rights. Moreover, the National legislation such as Article 9 of the Constitution of Pakistan (1973) protects right to life as a fundamental right which has been interpreted to include all facets of human existence.
So if defined in lay terms Medical Negligence is “the breach of a duty caused by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.”
This includes a legal duty to exercise due care, breach of the said duty, consequential damage. Medical negligence is an actionable negligence which insights itself as a tort as well, of which redressal, the damage occurrence is sufficient to entitle it as tort.[1]
Medical Negligence has always been taken as a serious activity which bears roots from the ancient principles of the Hammurabi Code as:
If a physician operate on a man for a severe wound with a bronze lancet and cause the man’s death; or open an abscess… of a man with a bronze lancet and destroy the man’s eye, they shall cut off his fingers. If a physician operate on a slave of a freeman for a severe wound with a bronze lancet and cause his death, he shall restore a slave of equal value.[2]
Medical malpractice is when a healthcare professional is aware of the possible consequences before making a mistake that led to an injury, and it is different from medical negligence when a healthcare professional makes an honest mistake that leads to an injury. In pursuance of Section 19 of the Punjab Healthcare Commission Act, 2010, medical negligence is the lack of human resources and equipment which ought to be possessed by a healthcare establishment, or the lack of reasonable competence and skillmanship. Furthermore, medical negligence could be of many types which may include improper diagnoses, improper treatment, lack of post-procedure observation care, non-disclosure of information by a doctor, denial of service by a healthcare provider, non-confidentiality, lack of resources at a healthcare facility, untrained staff, and lack of equipment, etc.[3]
The Courts mostly rely on the Bolam Test established in Bolam v. Friern Hospital Management Committee[4], also known as the peer review of the action of a healthcare professional. The essence of the test says that a doctor is not guilty of medical negligence if he has acted within the ambit of acceptable practices by the body of medically skilled men.
Although medical negligence is an unacceptable act of a healthcare provider, the healthcare provider is not always held accountable. The healthcare provider can seek one of the available defences as per the circumstances to avoid liability, such as no causation, foreseeability, or standard practice. However, two different schools of thought exist concerning the defence. First, that the injury was a result of a recognised risk, clinical judgment, or contributory negligence. Or, that the injury was caused by a pre-existing injury, protected under Good Samaritan law, barred by the statute of limitation, or was a known complication.
A victim of medical negligence can file a complaint either with the Pakistan Medical Commission or with the provincial healthcare commission against a healthcare establishment or a healthcare provider within 60 days of the cause of action, upon which the process of investigation starts and an opportunity of being heard is granted to the healthcare establishment or provider. The Commission may impose a penalty in the event responsibility has been determined — imposition of a fine up to PKR 500,000/-, suspension and revocation of licence, and closure of the healthcare establishment. An aggrieved party from the decision of the Commission can file an appeal before the Court of Sessions for redressal. Although the judges are not usually trained in medical negligence, which sometimes brings the adjudication of appeal to a terrific end result — miscarriage of justice.
In pursuance of Section 29 of the Punjab Healthcare Commission Act, 2010, and in the landmark case of Dr. Nafeesa[5], the Honourable High Court of Lahore has discussed the issue in detail, holding that a healthcare provider can only be prosecuted and sued if the medical negligence or the guilt has been established against the healthcare provider.
Upshot of the above, this is abundantly clear that doctor-patient relationships have to be made more secure so that doctors and patients are part of a system which shall neither exploit and expose the doctor to a constant threat of litigation even when they are performing to the best of their abilities to save the patients, nor deprive a patient of the right to seek remedy if a doctor causes any negligence or malpractice. Our collective efforts can lead to an improved healthcare system that is just and accountable, and which protects the rights and welfare of patients.