Legal and academic experts on medical negligence highlighted that there was a tendency among hospital administrations to suppress information with regard to medical negligence claims, adding that the failure of medical professionals to act subsequent to the deterioration of the patient being pointed out too was a concern.

The law applicable in relation to medical negligence locally is a mixture of the English Law and the Roman Dutch Law.

Legal Practitioner and Author of ‘Medical Negligence Claims in Sri Lanka’ (based on findings from a sociological survey conducted from 2007 to 2010), Dr. Avanti Perera said that the vast majority of the medical negligence claims were frequently ones concerning obstetrics.
She added that the reasons for the dearth of medical negligence litigation included delays in the proceedings of the law and the hassle one has to undergo in terms of having to appear in Court.

There is also a reluctance on the part of the patients to sue their doctors owing to the paternalistic doctor-patient relationship that functions in the country which results in the patients maintaining a great deal of respect for doctors even if they feel injured by them, she pointed out.

The public’s misconception of perceived collegiality on the part of the judiciary to members of the medical profession due to the legal profession’s affinity with the medical profession extending towards a bias where judges appear sympathetic to doctors plays a role along with the admission of medical experts to provide evidence where professional collegiality (a doctor would find a peer or peers to give evidence on his or her favour whereas the lay patient would find it particularly difficult to find a doctor to give evidence on his/her behalf) also plays a role, she noted.

There is a tendency of hospital administrations to suppress information (where sometimes even the name of the doctor who attended to the patient/victim is not given out). And elsewhere, everyone involved in the administration decides amongst each other their course of action including what to divulge and what not to divulge. The end result is that there is no record of such incidents and instances and/or an internal audit system of assessment being practised.

Whether the Right to Information Act would provide relief to aggrieved parties in this regard is a question worth pondering.

The failure on the part of medical professionals including doctors to act subsequent to a situation being pointed out (this latter matter is the biggest concern which could also be considered as a secondary failure where no action is taken after the initial error is pointed out or when something goes wrong {preventable or otherwise} and such {for an example – the feeling of pain} is reported by a layman or the patient to a nurse or those in charge and there is a delay in action being taken or action being taken in time due to the layman’s opinion being considered in little or no regard by professionals in the medical and healthcare services), too is a factor which adversely impacts potential medical negligence claims, she explained.

Criminal negligence requires a much higher degree of proof. In this case, gross negligence is the standard of criminal liability. In Sri Lanka, medical negligence claims have rarely led to the prosecution of doctors for criminal negligence.

A District Court is the first jurisdiction where an aggrieved party could institute a civil action. If the claim is made against a Government doctor, s/he is represented by the Attorney General’s Department. Furthermore, where Government doctors are sued, the State (Liability in Delict) Act, No. 22 of 1969 is the particular statute which is applicable and the State has to bear liability on behalf of the relevant doctor because he is a public officer. When compensation is awarded against Government doctors in medical negligence cases, in cases where the said doctors are found to be negligent by a Court, the State in this case the Ministry of Health ends up bearing the financial liability for the payment of the redress afforded by the Court to the patient/s and/or aggrieved party/parties. And though this money can be recovered from the relevant officer in terms of the provisions of the Establishments Code subsequent to an inquiry into the matter being conducted by the Ministry of Health, this is hardly done in practice. Therefore, the award of compensation by Courts does not act as a deterrent when Government doctors are found to be negligent. If the aggrieved party directly sends a letter or petition to the Ministry of Health, the Ministry commences an inquiry where an investigative unit within the Ministry would go and interview persons and record statements after which the matter is placed before a technical panel appointed by the Ministry.

In the case of private hospitals, each has their own system, thus there is no formal standardized system in place, she remarked.

If the Sri Lanka Medical Council (SLMC) is to take the matter up, they require that the complaint be made in the form of an affidavit. In this regard, the SLMC does not accept complaints which come in the form of letters.

As a result at the onset itself a lot of complaints get rejected on procedural grounds, she added.

The SLMC’s Preliminary Investigation Committee will initially be involved subsequent to the matter being placed before the SLMC’s Professional Conduct Committee. If the latter committee finds the relevant doctor guilty, his/her name could be struck off the doctors’ register. Elsewhere, although aggrieved parties complain to the Human Rights Commission of Sri Lanka (HRCSL), due to the right to health not being enshrined and guaranteed within the Fundamental Rights Chapter of the Constitution, the HRCSL cannot intervene. The Police too can inquire into such matters and then take appropriate steps if a criminal offence is borne out.

In terms of grievance redressal, countries like Sweden and New Zealand employ mechanisms such as the no-fault compensation tribunal where the hospital where the incident occurs agrees to make a payment on the condition that the doctor in question or the hospital would be liable but without proof of fault. Such reduces litigation. In countries like England, clinical negligence pre-action protocols are utilized.

Meanwhile, Dr. Perera’s research came across many instances where children have had their hands or arms amputated because they have been warded at hospitals for some other illness and nurses have been negligent in inserting the cannula for purposes of administering saline or medication in the course of the treatment. Often the defence is that it is difficult to distinguish between a vein and an artery in a small limb. Yet, even when the parents alert the nurses or the doctors that the child is in pain or there is discolouration (turns blue or purple) of the hand, no notice is taken. The patient or layman may complain of the disease becoming aggravated, yet they are not heeded on the grounds that they are laymen or that the patient’s family is being hysterical. Ultimately, there is unnecessary injury to the limb with even gangrene occurring, eventually resulting in amputation. This type of error can easily be avoided with proper training. But first there must be acknowledgement by the authorities that these are frequent errors and need to be prevented.

“Complaints must be used to assess whether the provision of healthcare services is at an acceptable level. A survey of all complaints and errors has to be recorded so that individuals and the system can learn from past mistakes and prevent future recurrence. The culture of suppression however prevents this. We should consider involving an independent expert at the trial stage instead of having the standard two experts giving evidence for either side – the prosecution and the defence. Notwithstanding medical evidence and opinion given by medical experts, Courts now possess the leeway to decide whether the evidence given by the experts withstand the Court’s logic. This is based on the precedent set by the decision in the English case of Bolitho v. City and Hackney Health Authority. However, due to the lack of medical knowledge, judges find it difficult to challenge expert medical evidence,“ she remarked.

She further remarked that  ”The law on medical negligence in Sri Lanka has remained stagnant since the Supreme Court judgment in the Prof. Priyani E. Soysa v. Rienzie Arsecularatne case.  In the Arsecularatne case sentimental loss was not recognized. The Fatal Accidents Act of 1976 of the United Kingdom statutorily recognizes non-patrimonial loss because it allows compensation for bereavement. This on the other hand is not a medical matter but a purely legal issue to be resolved by jurisprudence or legislation.”
One of the main findings in Dr. Perera’s research was that most people make medical negligence claims not because they want the money, but because they want an admission, an apology, and an explanation for what went wrong. If however the response of the authorities is to shut down communication and suppress information, victims never get the relief they actually seek so desperately.

Medical institutions must be more open to receiving complaints and making use of them for improvement of services and the prevention of error, she emphasized.