Sibah Farooq
“The death of my father was a devastating incident for me and my entire family as my father died during a routine surgery of his ankle. The surgeon and his team showed criminal negligence in the case. The surgeon never met my father before the surgery, and knew nothing about his underlying conditions,” (Islamabad, 29-09-2023).
In July of this year a 54 year old Mohammad Sajid was admitted for an ankle surgery and what can be called nothing but sheer medical negligence led to his death in the hospital. A complaint was lodged by his son and the Islamabad Healthcare Regulatory Authority (IHRA) imposed a fine of just PKR 1 million on the private hospital facility where the patient was admitted and where the unqualified anesthesiologist was allowed to perform anesthesia on the ill fated patient. The surgeon and the anesthesiologist both had their cases referred to Pakistan Medical and Dental Council (PMDC) for medical negligence. Does this action and the fine imposed appeal to common sense as justice served for the untimely death of their loved one? To me it sounds like justice denied!
Newspapers are flooded with non-stop headlines informing us about outrageous medical negligence of medical practitioners. The speed at which such news is flowing has created a strange immunity in the society. We are accepting of the fact that our doctors will be negligent and there is not much we can do about that. Every year several haunting headlines appear before us and soon names and stories are forgotten and the perpetrators are free to move on.
A 15-month-old boy died due to alleged negligence of doctors in Karachi’s private hospital.The on-duty doctor injected the baby with several drips and gave medicines, after which the minor boy’s lips turned blue and died during the treatment. (Karachi, February 2023) Medical Malpractice is categorized in three different ways. Firstly, medical malpractice is the act of negligently performing a wrong treatment on the patient causing him/her injury or death from this treatment. Secondly, medical malpractice is also the denial of medical services to a person who is in dire need of them.
In certain situations the difference between life and death is of only a few minutes and denial of medical help can lead to death. Thirdly, medical malpractice can also be understood in terms of drug prescription or usage for ulterior monetary gains and not for the best interest for the patient or the usage/sale of contaminated drugs. In certain situations the continued usage of a drug which has shown to cause damage to patients, is also medical negligence. Such as the recent case of repeated usage of Roche drug which has caused blindness to several patients in Punjab.
Although several laws have been enacted in relation to the medical profession, however, most are dealing with regulating medical education, the licensing of practitioners and registration of medical facilities. A specific law pertaining to determination of the rights and liabilities and the modus operandi to confer liability on the doctors, paramedical staff and healthcare providing institutions on the account of their negligence and medical malpractices, has yet to be developed.
So what are the remedies available to the common man in Pakistan who loses a loved one due to medical malpractice? Clinical negligence can be remedied through three main avenues, firstly by lodging a complaint with the regular, secondly by filing a civil suit and in some serious matters initiating criminal proceedings.
The regulatory regime comprises of the Pakistan Medical and Dental Council (PMDC), or the provincial healthcare commissions established after the 18th amendment. The PMDC has been entrusted with the primary responsibility under the law to penalize doctors who have been negligent in their practice; initiate an inquiry and punish health practitioners found guilty of violating the medical code of conduct and suspend or even revoke their licence to practice.
The job of the Provincial Healthcare Commissions (Punjab, KPK, Sindh) is to independently investigate negligent healthcare providers and facilities and to regulate hygiene standards and use of equipment. The regulators however provide only administrative relief. The healthcare commissions and PMDC can revoke licences or impose fine on the negligent doctor or facility if a written complaint is made. This provides negligent doctors an escape route, depriving the aggrieved persons any opportunity of judicial adjudication and compensation for the injuries. Is the regulatory regime providing fair justice?
It is through Civil adjudication that an aggrieved person can actually seek damages, through the Consumer Court or by invoking the Law of Torts. In the latter the aggrieved person will establish in court that his doctor breached his duty to care. It will be a long drawn out civil case in most situations. In a famous case in 2007, the Consumer Court in Lahore awarded damages to the worth of 45 million in a case of medical negligence. There have been few cases like this one, however, on the whole Pakistan lags way behind the rest of the world in paying damages in medical negligence cases. In the year 2021/22 the NHS in UK made compensation payouts amounting to GDB 2.4 billion.
A final remedy is available under criminal law where any act of a medical practitioner causes harm or death. In this situation the procedure for lodging FIR and process of criminal case is the same as any other. However, Courts discourage a trial of doctors under the Pakistan Penal Code and instruct to seek liability through civil remedy or disciplinary action by the regulator.
Clearly, the legal remedies available under Civil and Criminal litigation are the only effective avenues available to an aggrieved persons for seeking effective justice unless the regulatory remedies are revised and strengthened. At present the disciplinary remedies available through the regulatory watchdogs are so weak that they are failing to serve as a sufficient deterrent to medical negligence amongst practitioners, pharmaceutical providers and medical facility operators. There is no denying the fact that the country needs an effective legislative tool that makes legal action an easy to pursue remedy.
—The Author is a Legal Expert qualified from Switzerland and an Advocate of the High Courts of Pakistan. She is the Senior Partner of S&S Law Associates. Sibah has served as Senior Advisor Legal to the Federal Ombudsman and Legal Advisor to the UKAID, UN & ICRC.
